Case 3:13-cv JAG Document 36 Filed 04/21/14 Page 1 of 4 PageID# 173

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1 Case 3:13-cv JAG Document 36 Filed 04/21/14 Page 1 of 4 PageID# 173 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division JAMES ELLIS, III, : DWIGHT D. BRINSON, : MARLIN L WILLIAMS, : SHERMAN M. KIER, : ERNEST SHIPMAN, : TANIA S. CHAPMAN, : ERIC S. JONES, : EUGENE MARSHALL, : on behalf of themselves and all similarly : Civil Action No. 3:13-cv-473 situated individuals : : Plaintiffs, : : v. : : SWIFT TRANSPORTATION CO. : OF ARIZONA, LLC : : Defendant. : JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT COME NOW the Parties, by counsel and pursuant to Fed. R. Civ. P. 23, and jointly move the Court for preliminary approval of the class action settlement agreement for the reasons set forth in the memorandum in support filed contemporaneously herewith. Plaintiffs and Defendant respectfully request the Court grant their Joint Motion for Preliminary Approval of Class Action Settlement Agreement and enter the Preliminary Approval Order, attached as Exhibit 2: (1) preliminarily approving a proposed class settlement, (2) scheduling a fairness hearing, (3) certifying the Settlement Classes for purposes of the proposed class settlement, (4) appointing Class Counsel, and (5) approving the form and manner of notice proposed to be sent to all members of the

2 Case 3:13-cv JAG Document 36 Filed 04/21/14 Page 2 of 4 PageID# 174 Settlement Class. Respectfully submitted, PLAINTIFFS, on behalf of themselves and all similarly situated individuals /s/ Matthew J. Erausquin, VSB No Janelle Mason Mikac, VSB No Casey S. Nash, VSB No Consumer Litigation Associates, P.C Diagonal Rd., Ste. 600 Alexandria, VA Tel: (703) Fax: (888) matt@clalegal.com janelle@clalegal.com casey@clalegal.com Leonard A. Bennett, VSB No Susan M. Rotkis, VSB No Consumer Litigation Associates, P.C. 763 J. Clyde Morris Blvd., Suite 1-A Newport News, VA (fax) lenbennett@clalegal.com srotkis@clalegal.com Matthew A. Dooley, Admitted Pro Hac Vice Anthony R. Pecora, Admitted Pro Hac Vice O Toole Mclaughlin Dooley & Pecora Co LPA 5455 Detroit Road Sheffield Village, Ohio Tel: (440) Fax: (440) mdooley@omdplaw.com apecora@omdplaw.com Counsel for the Plaintiffs Respectfully Submitted, Swift Transportation Co. of Arizona, LLC 2

3 Case 3:13-cv JAG Document 36 Filed 04/21/14 Page 3 of 4 PageID# 175 By: /s/ Charles K. Seyfarth, Va. Bar No Meagan A. Mihalko, Va. Bar No LECLAIR RYAN Riverfront Plaza, East Tower 951 East Byrd Street, Eighth Floor Richmond, Virginia Direct: Fax: charles.seyfarth@leclairryan.com meagan.mihalko@leclairryan.com Brian J. Foster, Admitted Pro Hac Vice John F. Lomax, Jr., Admitted Pro Hac Vice SNELL & WILMER L.L.P. One Arizona Center 400 East Van Buren Phoenix, Arizona Direct: Fax: bfoster@swlaw.com jlomax@swlaw.com Counsel for the Defendant 3

4 Case 3:13-cv JAG Document 36 Filed 04/21/14 Page 4 of 4 PageID# 176 CERTIFICATE OF SERVICE I certify that on this 21st day of April, 2014, I have filed the foregoing with the court using the CM/ECF system, which will send a NEF to counsel of record in this case: Charles K. Seyfarth, Va. Bar No Meagan A. Mihalko, Va. Bar No LECLAIR RYAN Riverfront Plaza, East Tower 951 East Byrd Street, Eighth Floor Richmond, Virginia Direct: Fax: charles.seyfarth@leclairryan.com meagan.mihalko@leclairryan.com Brian J. Foster, Admitted Pro Hac Vice John F. Lomax, Jr., Admitted Pro Hac Vice SNELL & WILMER L.L.P. One Arizona Center 400 East Van Buren Phoenix, Arizona Direct: Fax: bfoster@swlaw.com jlomax@swlaw.com Counsel for the Defendant /s/ Leonard A. Bennett, VSB No Consumer Litigation Associates, P.C. 763 J. Clyde Morris Blvd., Suite 1-A Newport News, VA (fax) lenbennett@clalegal.com 4

5 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 1 of 53 PageID# 177 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division JAMES ELLIS III, DWIGHT D. BRINSON, MARLIN L WILLIAMS, SHERMAN M. KIER, ERNEST SHIPMAN, TANIA S. CHAPMAN, ERIC S. JONES, EUGENE MARSHALL, on behalf of themselves and all similarly situated individuals, Plaintiffs, v. SWIFT TRANSPORTATION CO. OF ARIZONA, LLC, Civil Action No. 3:13-CV JAG STIPULATION OF SETTLEMENT AGREEMENT AND RELEASE Defendant. This matter has come before this Court for approval of the terms and conditions of a Stipulation of Settlement Agreement and Release ( Stipulation ) made and entered into, as of April 8, 2014, by and among Named Plaintiffs, James Ellis III, Dwight D. Brinson, Marlin L. Williams, Sherman M. Kier, Ernest Shipman, Tania S. Chapman, Eric S. Jones, and Eugene Marshall ( Named Plaintiffs ) on behalf of themselves and the Class Members (as defined below), and Defendant Swift Transportation Co. of Arizona, LLC ( Swift ) (as defined below) (collectively, Settling Parties ). This Stipulation is intended by the Settling Parties to fully, finally and forever resolve, discharge and settle the Released Claims (as defined below), upon and subject to the terms and conditions hereof and subject to the Court s approval ( Settlement ). The Stipulation by the parties, as represented by counsel, is as follows: 1 of 35

6 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 2 of 53 PageID# 178 I. THE FAIR CREDIT REPORTING ACT LITIGATION CLAIMS In August 2011, Plaintiffs counsel began litigation of the claims alleged herein in a preceding case in the District of Arizona. Daniel et al v. Swift Transportation Corporation, 2:11- cv (D. Az.). The putative class in the Daniel action overlapped most of the proposed settlement class. That matter was dismissed In February 2013 on contested procedural basis upon Swift s summary judgment motion. This follow on action was then filed in this Court on July 23, 2013 on behalf of Plaintiff Ellis and a comparable putative class. It was later amended on February 21, 2014 to add Plaintiffs Brinson, Williams, Kier, Shipman, Chapman, Jones, and Marshall (the Civil Action ). The case was filed on behalf of consumers residing in the United States who applied for truck driving positions with Swift via facsimile, telephone, mail, electronic mail, or through an internet website, or through a third party and were allegedly the subject of a consumer report (defined below) obtained by Swift for employment purposes. The Class Period is from July 23, 2008 to the date this Court grants preliminary approval of this Stipulation. The Civil Action alleges that Swift violated certain provisions of the Fair Credit Reporting Act, 15 U.S.C et seq. ( FCRA ) in connection with its use of certain background reports. Specifically, the Civil Action alleges that Swift violated several provisions of the FCRA. The Civil Action seeks to recover statutory damages per consumer between $ and $1,000.00, together with punitive damages, and attorneys fees and costs. Ellis, Brinson, Williams, Kier, Shipman, Chapman, Jones, Marshall and the putative class members are represented by Leonard A. Bennett, Matthew J. Erasquin, Janelle Mason Mikac, Casey S. Nash of Consumer Litigation Associates, P.C. and Matthew A. Dooley and Anthony R. Pecora of 2 of 35

7 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 3 of 53 PageID# 179 O Toole McLaughlin Dooley & Pecora Co. LPA ( Class Counsel ). Swift is represented by Charles K. Seyfarth and Meagan A. Mihalko of Leclair Ryan and Brian J. Foster and John F. Lomax, Jr. of Snell & Wilmer L.L.P. ( Defense Counsel ). Since 2011, Plaintiffs counsel and Swift s counsel have litigated the claims and defenses to be resolved herein as fervent adversaries. Taken together, they present this settlement after having accomplished and defended depositions of numerous Swift management employees, and reviewed and/or produced hundreds of thousands of documents. The Settling Parties engaged in written discovery through which Swift and its third-party consumer reporting agency, HireRight Solutions, Inc., provided Class Counsel with information concerning, inter alia, the consumers who were the subject of background reports during the Class Period. On February 26, 2014, the parties finally held an in-person mediation before mediator John G. Bickerman, and late in that evening, they reached a preliminary settlement as set forth more fully below. II. SWIFT S DENIAL OF WRONGDOING AND LIABILITY AND DISMISSAL OF COUNT II Swift denies all charges of wrongdoing or liability against it arising out of any of the conduct, statements, acts or omissions alleged, or that could have been alleged, in the Civil Action. Specifically, it is Swift s position that, to the extent that any background reports it obtained could be deemed a consumer report under the FCRA, at all times its disclosures were compliant with the FCRA and that it, in good faith, complied with the provisions of the FCRA and all other applicable laws. Swift believes the claims asserted in the Civil Action are without merit, that it could contest class certification, and, if the class was certified and did not settle, that it would prevail at trial. Notwithstanding this denial of wrongdoing, Swift has concluded that continuing to litigate the Civil Action would be protracted and expensive, and also has taken into account the uncertainty and risks inherent in any litigation, especially in complex cases such as 3 of 35

8 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 4 of 53 PageID# 180 this one. Swift has determined that it is desirable and beneficial to the company that the Civil Action be settled in the manner and on the terms and conditions set forth in this Stipulation. As part of the proposed settlement, the Settling Parties have agreed that Count II of the Civil Action, which alleges violations of 1681b(b)(3), shall be dismissed. III. CLAIMS OF CLASS MEMBERS AND BENEFITS OF SETTLEMENT Plaintiffs Ellis, Brinson, Williams, Kier, Shipman, Chapman, Jones, and Marshall believe that the claims asserted in the Civil Action have merit, that the proposed class could be certified, and that, if the case did not settle, they would prevail at trial. Named Plaintiffs and Class Counsel, however, recognize and acknowledge the expense and length of continued proceedings necessary to prosecute the Civil Action against Swift through a contested class certification, trial and through appeals. Named Plaintiffs and Class Counsel also have taken into account the uncertain outcome and the risk of any litigation, including complex proceedings like the Civil Action that involve class certification. Named Plaintiffs and Class Counsel believe that the settlement set forth in this Stipulation confers substantial benefits on the Settlement Class and is fair, reasonable and adequate, and in the best interests of Named Plaintiffs and the Settlement Class. In addition to the monetary settlement set forth in this Stipulation, and while it denies that it has ever been in violation of the FCRA, an additional benefit of the settlement is Swift has undertaken efforts to update and revise its FCRA forms and procedures to further bolster its compliance with the FCRA, and Class Counsel are satisfied that Swift s current forms, as of the date of this Stipulation, comply fully with the FCRA and that Swift is acting diligently and in good faith to ensure full compliance with the FCRA. IV. TERMS OF THE STIPULATION AND SETTLEMENT AGREEMENT 4 of 35

9 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 5 of 53 PageID# 181 NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among the Settling Parties, by and through their respective attorneys, that, subject to the approval of the Court, the Civil Action and the Released Claims shall be finally and fully compromised, settled, and released, and the Civil Action shall be dismissed with prejudice upon and subject to the terms and conditions of the Stipulation as follows: 1. Definitions 1.1 CAFA means the Class Action Fairness Act of 2005, 28 U.S.C et seq. 1.2 CAFA Notice means the notice described in Section 5.9 below. 1.3 Civil Action means the lawsuit styled, JAMES ELLIS III, on behalf of himself and all similarly situated individuals, Plaintiff v. Swift Transportation Co. of Arizona, LLC, Defendant, Civil Action No. 3:13-cv JAG, and later amended on February 21, 2014 to add Brinson, Williams, Kier, Shipman, Chapman, Jones, and Marshall as Plaintiffs. 1.4 Claim means any and all actions, courses of action, proceedings, adjustments, execution, offsets, bonds, bills, specialties, variances, covenants, trespasses, damages, demands (whether written or oral), agreements, promises, liabilities, controversies, costs, expenses, attorneys fees and losses whatsoever, whether in law, in admiralty or in equity and whether based on any federal laws, state or tribal law, foreign law or common law right of action or otherwise, foreseen or unforeseen, matured or unmatured, known or unknown, accrued or not accrued, existing now or to be created in the future. 1.5 Claims Administration means the process by which the Settlement Administrator shall send Settlement Notices contemplated by this Stipulation, develop and operate the Notice Website, identify addresses for Class Members, administer and issue 5 of 35

10 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 6 of 53 PageID# 182 settlement checks and claims forms and otherwise assist the Court and the Settling Parties in effectuating the purpose of this Settlement. 1.6 Class Counsel means Leonard A. Bennett, Matthew J. Erausquin, Janelle Mason Mikac, Casey S. Nash of Consumer Litigation Associates, P.C. and Matthew A. Dooley and Anthony R. Pecora of O Toole McLaughlin Dooley & Pecora Co LPA. 1.7 Class Member(s) means any member(s) of the Preliminary Settlement Class and the Settlement Class, as set forth in Section 2.1 below, but specifically does not include those individuals who timely opt-out of the Settlement as forth in Section 5.5. Some Class Members are either a: a. Group I Class Member, which means he or she is a member of the Preliminary Settlement Class who applied for a Department of Transportation regulated position with Swift between July 23, 2011 and September 30, 2012; or b. Group II Class Member, which means he or she is a member of the Preliminary Settlement Class who applied for a Department of Transportation regulated position with Swift between July 23, 2008 and July 22, Class Period means the period from July 23, 2008 to the date this Court grants preliminary approval of this Stipulation. 1.9 Consumer Report has the same meaning it does in the FCRA. 15 U.S.C. 1681a(d) Court means the United States District Court for the Eastern District of Virginia, Richmond Division Defendant or Swift means Swift Transportation Co. of Arizona, LLC. 6 of 35

11 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 7 of 53 PageID# Opt-Out means to timely request exclusion from the Settlement pursuant to Federal Rule Civil Procedure 23(c)(2)(B) Effective Date means the date on which the Judgment approving this Stipulation and the Settlement become Final Final means the date on which all appellate rights with respect to the Judgment have expired or have been exhausted in such a manner as to affirm the Judgment and, when no further appeals are possible, including but not limited to review by the United States Supreme Court. Appellate rights will have been exhausted or expired on the date the Judgment approving this Stipulation is entered if there are no objectors or intervenors who have noticed an appearance Final Fairness Hearing means the hearing at which the Court will consider final approval of this Stipulation of Settlement Agreement and Release FCRA means the Fair Credit Reporting Act, 15 U.S.C et seq FCRA State Equivalents means any statute, regulation, or law of any state, U.S. territory, including federally recognized Indian tribes, or the District of Columbia, that has the purpose or effect of regulating the collection or use of criminal background reports, driver s motor vehicle reports, Consumer Reports, or other consumer information for employment purposes Judgment means a judgment and order of dismissal entered by the Court in the Civil Action granting final approval of the Settlement and entering a judgment according to the terms set forth in this Stipulation. 7 of 35

12 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 8 of 53 PageID# Service Award means the one-time payment to the Named Plaintiffs for the time and resources they have put into representing the Class Members, as set forth in Sections 8.4 and 8.5 below Notice Order means the order proposed and submitted by the parties as set forth in Section 5.1 below Person means an individual, corporation, limited liability corporation, professional corporation, limited liability partnership, partnership, limited partnership, association, joint stock company, estate, legal representative, trust, unincorporated association, government or any political subdivision or agency thereof, and any business or legal entity and their spouses, heirs, predecessors, successors, representatives, or assignees Named Plaintiffs means James Ellis III, Dwight D. Brinson, Marlin L. Williams, Sherman M. Kier, Ernest Shipman, Tania S. Chapman, Eric S. Jones, and Eugene Marshall Released Claims means those Claims and Unknown Claims released as set forth in Section 3 below Released Defendants means Swift, its current and former parents, subsidiaries, affiliates, divisions, associates, agents, successors, assignors, assignees and assigns, their respective subsidiaries, affiliates, divisions, associates, agents, successors, assignors, assignees and assigns, and each of the foregoing s respective present, former or future officers, directors, shareholders, members, equity interest holders, agents, control persons, advisors, employees, representatives, executors, receivers, conservators, trustees, consultants, insurers and reinsurers, accountants, attorneys, and any representative of the foregoing. 8 of 35

13 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 9 of 53 PageID# Settlement means the terms and conditions of settlement as described in this Stipulation Settlement Administrator means McGladrey, LLP, which has been selected by Class Counsel (and approved by Swift) to administer the settlement pursuant to this Stipulation and orders of the Court Settlement Class has the meaning set forth in Section 2.3 below Settlement Funds means the amount set forth and defined in Section 2.5 below Settlement Notice means the form of notice to be provided to the Preliminary Settlement Class after preliminary approval of this Stipulation by the Court, as further described in Sections herein Settling Parties means Named Plaintiffs, Class Members, and Defendant as described in Sections 1.7, 1.11, and Stipulation means this Stipulation of Settlement Agreement and Release, including its exhibits Preliminary Settlement Class shall have the meaning set forth in Section 2.1 below Termination Notice shall have the meaning set forth in Section 9 below Unknown Claims means any Released Claims that Named Plaintiffs or any Class Member does not know or suspect to exist in his, her, or its favor at the time of the release of the Released Defendants, which, if known by him, her, or it, might have affected his, her, or its settlement with and release of the Released Defendants, or might have affected his, her, or its decision(s) with respect to the Settlement. 9 of 35

14 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 10 of 53 PageID# 186 Named Plaintiffs and the Class Members hereafter may discover facts in addition to or different from those that any of them now knows or believes to be true related to the subject matter of the Released Claims, but Named Plaintiffs and each Class Member shall expressly, upon the Effective Date, be deemed to have, and by operation of the Judgment shall have, fully, finally, and forever settled and released any and all Released Claims, known or unknown, suspected or unsuspected, contingent or non-contingent, whether or not concealed or hidden, which now exist, or heretofore have existed upon any theory of law or equity now existing or coming into existence in the future, including, but not limited to, conduct that is negligent, intentional, with or without malice, or a breach of any duty, law or rule, without regard to the subsequent discovery or existence of such different or additional facts. The Settling Parties acknowledge, and the Class Members and Released Defendant shall be deemed by operation of the Judgment to have acknowledged, that the inclusion of Unknown Claims in the definition of Released Claims was separately bargained for and is a key element of the Settlement of which these releases are a part. 2. The Settlement 2.1 For the purposes of effectuating the Settlement only, Class Members and Swift agree jointly to request that the Court certify a nationwide Preliminary Settlement Class or the 1681b(b)(2) Class that consists of: All consumers residing in the United States who applied for employment in a Department of Transportation regulated position with Swift via facsimile, telephone, an internet website, electronic mail, regular mail, or through a third party from July 23, 2008 through September 30, 2012, and as to whom Swift procured a criminal background, motor vehicle history report, or Consumer Report, which report was obtained by Swift before there had been at least one inperson interaction with the consumer. 10 of 35

15 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 11 of 53 PageID# 187 But the Preliminary Settlement Class shall not include the following persons: i) Kevin Daniels; ii) Tanna Hodges; iii) Oddie Jones; and iv) persons who entered into a release of claims with Swift as part of a settlement or severance agreement before February 26, 2014 with Swift. 2.2 On the Effective Date, the Preliminary Settlement Class set forth in Section 2.1 above shall become permanently certified ( Settlement Class ) unless the Judgment does not become Final. 2.3 In the event the Settlement is not preliminarily and finally approved and implemented, or the Judgment does not become Final, the Preliminary Settlement Class will be decertified without prejudice or inference regarding the appropriateness of class certification and thereafter the issue of class certification will be decided de novo, and Swift is not precluded from challenging class certification or the merits of the Civil Action. 2.4 Swift agrees to and will cause to be paid a total sum of $4,400,000.00, which amount includes attorneys fees and costs and Service Awards to the Named Plaintiffs ( Settlement Funds ), to settle all claims set forth by the Preliminary Settlement Class. The Settling Parties also agree that includes all payments to class members, attorneys fees and service awards approved and paid and all costs of Settlement Notice and Claims Administration of the Settlement. 2.5 Swift agrees to and will cause the Settlement Funds to be deposited into an interest-bearing escrow account with Towne Bank, (the Claims Fund ). Swift shall use its best efforts to complete deposit of the Settlement Funds within thirty (30) calendar days of the Court s preliminary approval of the Settlement. Each Group I Class Member and Group II Class Member who does not opt out of this Settlement (as set forth in Sections 1.12 and 5.5) will be eligible to receive monetary payment from the Settlement Funds. Group II Class Members, 11 of 35

16 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 12 of 53 PageID# 188 however, will be entitled to receive monetary payment from the Settlement Funds only if they timely return their verification claim form to the Settlement Administrator (as set forth and contained in Exhibit A). That claim form shall require the class member to verify that i) the consumer applied for employment with Swift in a truck-driving position or other position regulated by the Department of Transportation; ii) he or she did not have in-person contact before applying via mail, telephone, , fax, the Internet, or through a third-party and iii) he or she was not aware and did not know of his or her claim under the Fair Credit Reporting Act before July 23, The Settlement Administrator shall disburse the Settlement Funds and follow the process as outlined below: a. The Settlement Administrator will allocate part of the Settlement Funds sufficient to pay each Group I Class Member exactly $50.00 (the Group I Fund ); b. The remainder of the Settlement Funds after payment of the Group I Fund, all awarded attorneys fees and Service Awards, and costs of Settlement Notice and Administration will be allocated to the Group II Claims Fund ; c. After the Court grants Preliminary Approval of the Stipulation and not less than sixty-five (65) days, but no more than eighty (80) days, after the Settlement Notice has been mailed, the Settlement Administrator shall mail a check for $50.00 to each Group I Class Member from the Group I Fund; 12 of 35

17 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 13 of 53 PageID# 189 d. Checks to the Group I Class Members will expire sixty (60) days after issue. The total amount from these uncashed checks will remain in the Settlement Funds. The amount of these checks issued to Group I Class Members that expire uncashed will then be allocated into the Group II Claims Fund as outlined in subsection (e) below. e. Group II Class Members Group II Class Members who submit a timely and valid Verification Claims Form as described in the Settlement Notice shall be eligible to receive a pro rata sum of the Group II Claims Fund as calculated by the Settlement Administrator after i) accounting for the checks issued to and cashed by Group I Class Members; ii) reserving an amount for the Service Awards as set forth in Sections 8.4 and 8.5; and iii) paying or reserving an amount to ensure the attorneys fees and costs award approved by the Court and contemplated by Section 8.2 of this Agreement; and iv) paying the full cost of Settlement Notice and Administration. The net sum payable to these Group II Class Members shall not exceed $50.00 per individual. The exact amount paid to the Group II Class Members will depend on the amount remaining in the Group II Claims Fund after the payment to the Group I Class Members and after the reimbursement of the Claims Administration costs, as outlined in this Section, and the fees and cost award to Class Counsel. f. Checks to the Group II Class Members will expire sixty (60) days after issue. 13 of 35

18 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 14 of 53 PageID# 190 g. All Settlement Notice and Administration costs shall be paid from the Settlement Funds. Under no circumstances shall Swift or its carriers be required to pay more than $4,400, in Settlement Funds; h. Any funds remaining after this process shall be distributed to the Class by way of cy pres beneficiaries in accordance with Section Swift shall not be responsible to pay any sum of money except as expressly stated in Section 2.5, which encompasses all Class Member recoveries, costs of Claims Administration, attorneys fees and Service Awards. 2.8 Upon final approval of the Settlement at the Final Fairness Hearing, the Civil Action will be dismissed in its entirety with prejudice. 3. Release 3.1 Upon the Effective Date, each member of the Settlement Class who has not opted out of the proposed Settlement, and each of their respective spouses, executors, representatives, heirs, successors, conservators, bankruptcy trustees, guardians, wards, joint tenants, tenants in common, tenants in the entirety, co-borrowers, agents, successors, assignees and assigns, and all others who also claim through them or who assert claims on their behalf shall be deemed to have, and by operation of the Judgment shall have fully, finally, and forever settled, released, relinquished and discharged the Released Defendants of and from all duties, obligations, Claims, actions, causes of action, suits, damages, rights, or liabilities of any nature and description whatsoever, whether arising under federal, state, tribal, or local law, whether by Constitution, statute, (including, but not limited to, all claims under the FCRA and FCRA State Equivalents), tort, contract, common law, restitution or equity or otherwise whether known or Unknown Claims, concealed or hidden, suspected or unsuspected, anticipated or unanticipated, asserted or 14 of 35

19 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 15 of 53 PageID# 191 unasserted, alleged or unalleged, foreseen or unforeseen, actual or contingent, liquidated of unliquidated, fixed or contingent related to, arising from, or in connection with Released Defendants obtaining or using a criminal background, motor vehicle history, DAC report, or other Consumer Report information related to or regarding a consumer. 3.2 This release includes, but is not limited to, all claimed or unclaimed compensatory damages, actual damages, statutory damages, damages stemming from any and all allegations of willfulness, recklessness, damages for emotional distress, consequential damages, incidental damages, punitive and exemplary damages, interest, cost and fees, as well as all claims for equitable, declaratory, or injunctive relief that was alleged or could have been alleged in the Civil Action. The Parties hereby acknowledge that the Released Defendants are express intended beneficiaries of this Release, and that the Released Claims shall be dismissed with prejudice and released against the Released Parties, even if the Class Members never received actual notice of the Settlement prior to the Final Fairness Hearing or final approval of the Settlement. 3.3 Also, upon the Effective Date, Named Plaintiffs and each member of the Settlement Class who has not opted out of the proposed settlement shall be permanently enjoined and barred from filing, commencing, prosecuting, intervening (as class members or otherwise) or receiving any benefits from any lawsuit, arbitration, or administrative proceeding arising from any of the Released Claims. 3.4 The Plaintiffs, their counsel and Swift have negotiated and considered the correctness and compliance of the Swift s current FCRA Notice and Authorization forms attached hereto as Exhibit C and agree they are compliant and in accord with the FCRA. 4. Settlement Administrator s Duties and Responsibilities 15 of 35

20 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 16 of 53 PageID# The parties have agreed that McGladrey, LLP, an independent third party, will administer the Settlement as the Settlement Administrator. The parties agree that the Settlement Administrator shall be an independent contractor, and not the agent of any party or any party s counsel. All fees and expenses charged by the Settlement Administrator shall be paid for and reimbursed as provided in Section The Settlement Administrator will: (a) take reasonable measures to obtain a current address for each class member; (b) prepare and mail notices to the Preliminary Group I Settlement Class at their current addresses, in the form of the Settlement Notice attached hereto as Exhibit B, or a substantially similar form approved by the parties and the Court, within sixty (60) days of the Court s preliminary approval of this Stipulation, notifying him or her of his or her right to participate in the settlement or to object to, or opt out of, the Settlement; (c) prepare and mail notices and Verification Claim forms to the Preliminary Group II Settlement Class at their current addresses, in the form of the Settlement Notice attached hereto as Exhibit A, or a substantially similar form approved by the parties and the Court, within sixty (60) days of the Court s preliminary approval of this Stipulation, notifying him or her of his or her right to participate in the settlement or to object to, or opt out of, the Settlement ( Settlement Notice ) ; (d) establish and operate a settlement notice and administration website ( Notice Website ) to provide the Settlement Notice and other information to Class Members; (e) prepare and issue checks to Group I Class Members; (f) after the sixty-day expiration of the checks issued to Group I Class Members, prepare an interim report to the Parties and calculate the amount of uncashed checks and the total available Funds to disburse to Group II Class Members; (g) receive and administer claim forms from Group II Class Members; (h) calculate the pro rata payments of Group II Class Members; (i) seek additional information from Class Members, 16 of 35

21 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 17 of 53 PageID# 193 Class Counsel or Defense Counsel, when appropriate or necessary; (j) receive and report opt-out statements; (k) respond to questions from Class Members; (l) handle and administer the disbursement of pro rata payments to Group II Class Members; (m) handle and administer the disbursement of Service Awards to the Named Plaintiffs and attorneys fees to Class Counsel; (o) handle and administer the disbursement of payments to any cy pres entities as agreed to by the parties and approved by the Court as well as any disbursement of remaining funds in the Settlement Funds; (p) prepare final reports for the Parties related to the disbursements of funds; and (q) perform any other duties necessary to carry out its responsibilities set forth in this Stipulation. 4.3 Swift will produce to the Settlement Administrator lists for Group I Class Members and Group II Class Members with last known names and addresses.. The Parties understand that Swift is obtaining this information from HireRight s produced data and that this data may be incomplete or incorrect, but Swift will include the dates of birth and social security numbers as produced by HireRight. The Settlement Notices will be sent to the reasonably best available addresses of members of the Preliminary Settlement Class. Such verification shall be made through generally recognized databases (e.g. Accurint; Experian Address Update; etc.), the NCOA database and as necessary or through the class member s consumer report information as provided by HireRight Solutions, Inc. ( HireRight ) or other appropriate source. To obtain this information in accordance with 15 U.S.C. 1681b(a)(1), the Settling Parties may jointly move the Court to permit the Settlement Administrator to obtain information from these sources. If such an address is still unavailable, the Settlement Administrator shall be responsible to send the Notice by First Class U.S. Mail, postage prepaid, to the last known mailing address available for 17 of 35

22 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 18 of 53 PageID# 194 each member Settlement Class. These postal addresses shall be checked and updated against the NCOA database. 4.4 The Settlement Administrator shall retain and track returned or undeliverable mail. Class Counsel may at their discretion cause an additional notice process for the class members to whom the undelivered mail was addressed. Any such costs shall be included in the Claims Administration costs outlined in Section Within thirty (30) days of the final distribution of the Settlement Funds, the Settlement Administrator will furnish a final, written accounting of all distributions from the Settlement Fund to Class Counsel and Defense Counsel. 4.6 Within one hundred and eight (180) days of the final distribution of the Settlement Funds, the Settlement Administrator will take any and all action necessary to remove and dismantle the Notice Website. 5. Notice of Order and Final Fairness Hearing 5.1 Upon execution of this Stipulation, the Settling Parties shall jointly apply to the Court for preliminary approval of the Settlement set forth in this Stipulation. It is contemplated that this joint application will be filed on before April 8, The Parties shall submit to the Court the Stipulation, together with its Exhibits, and shall apply for entry of an order (the Notice Order ), substantially in the form and content of Exhibit D hereto, requesting, inter alia: (a) preliminary approval of the Settlement as fair, reasonable and adequate; (b) preliminary certification of the Preliminary Settlement Class; (c) that the Court find that the Settlement Notice procedure set forth herein satisfies the requirements of due process and applicable law and procedure, and approve distribution of the Settlement Notice (detailing separate rights for Group I and Group II Class Members) substantially in the form and content of Exhibit A and 18 of 35

23 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 19 of 53 PageID# 195 Exhibit B hereto; and (d) a time and date for the Final Fairness Hearing. Should any Court reject or materially alter the parties agreed upon Notice Order or Settlement Notice, then either party will have the option to void the Settlement if the parties are unable, after good faith negotiations, to agree on a form of Notice Order and Settlement Notice acceptable to the Court. 5.2 Class Counsel and/or the Settlement Administrator shall design the Settlement Notices to maximize its readability and the likelihood that it will be read and considered by class members. 5.3 All putative class members who do not opt out or object within sixty (60) days from the date they were sent a Settlement Notice, as described in the Settlement Notice, shall be considered Class Members and shall be bound by the terms of the Settlement. The Settling Parties shall jointly request an order from the Court permitting Class Counsel to obtain background reports regarding Preliminary Settlement Class Members for the limited purpose of identifying such Class Members current addresses. Swift agrees to use its best efforts to assist Class Counsel in obtaining from HireRight the names and most current addresses of job applicants about whom it obtained a Consumer Report from HireRight during the Class Period. Swift and Class Counsel shall provide such information to the Settlement Administrator upon receipt. The Settlement Notice also shall be posted and made available on the website ( Notice Website ). 5.4 Each eligible Group I Class Member shall be informed in the Settlement Notice that he or she is entitled to monetary funds, as set forth in Section 2.7. Settlement Checks shall be mailed to the Group I Class Members between the sixty-fifth (65th) and eightieth (80th) day after the date they were sent the Settlement Notice and have not opted out of or objected to the Settlement. Each eligible Group II Class Member shall be informed in the Settlement Notice that 19 of 35

24 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 20 of 53 PageID# 196 he or she is eligible to receive a pro rata distribution of Settlement Funds allocated for Group II Class Members, as set forth in Section 2, that will not exceed $50.00 per person. The Settlement Administrator shall, beginning on the sixty-fifth (65th) day after issuance of settlement checks to Group I Class Members, and after computing and allocating funds for the costs of Claims Administration, attorneys fees and costs, and Service Awards in accordance with this Stipulation, determine the number of valid Claim Forms from those eligible to be Group II Class Members. Settlement checks then will be mailed to the Group II Class Members who timely returned the Verification Claim Form within sixty (60) days from the date they were sent the Settlement Notice and have not opted out of the Settlement. All Settlement Checks mailed to Group I and Group II Class Members shall become void sixty (60) days after issuance if not cashed by a Group I or Group II Class Member. The proceeds to be paid to a Group I and Group II Class Member shall not become the property of the Group I and Group II Class Member unless and until he or she cashes the Settlement Check. 5.5 A Class Member may request to be excluded from the Settlement Class by sending a written request for exclusion to Class Counsel at the address provided in the Notice ( Opt-Out ). The Class Member s Opt-Out request must contain the Class Member s original signature, current postal address and a specific statement that the Class Member wants to be excluded from the Settlement Class. Opt-Outs must be postmarked no later than the deadline set by the Court in the Preliminary Approval Order. In no event shall persons who purport to opt out of the Settlement Class as a group, on an aggregate basis or as a class involving more than one Class Member, be considered valid Opt-Outs. Requests for exclusion that do not comply with any of the foregoing requirement are invalid. No later than seven (7) business days after the deadline for submission of Opt-Out requests, the Settlement Administrator shall provide Class 20 of 35

25 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 21 of 53 PageID# 197 Counsel and Defense Counsel with a complete list of all persons who have properly opted out of the Settlement together with copies of the Opt-Out requests. 5.6 Any Class Member who does not opt out, but who instead wishes to object to the Settlement or any matters as described in the Notice, may do so by filing with the Court a notice of their intention to object (which shall set forth each objection and the basis therefore and contain the objecting Class Member s original signature), with any papers in support of their position, and serve copies of all such papers on Class Counsel and the Defense Counsel. Objections must be filed and served no later than the deadline set by the Court in the Preliminary Approval Order. The objection must indicate whether the Class Member and/or his or her attorney(s) intends to appear at the Final Fairness Hearing. Any attorney who intends to appear at the Final Fairness Hearing must enter a written Notice of Appearance of Counsel with the Clerk of Court no later than the deadline set by the Court in the Preliminary Approval Order. 5.7 It is the intention of the Settling Parties to distribute completely the Settlement Funds. In the event that settlement checks mailed to Class Members are returned as undeliverable or otherwise not cashed before becoming void, and/or that the Settlement Funds are not completely distributed for any reason (other than as specified in Section 9 of this Stipulation), the remaining sum shall be distributed subject to Court approval equally between the two cy pres beneficiaries: (1) U.S. PIRG; and (2) Fresh Start Women s Foundation each of which has been mutually agreed upon by Swift, Class Counsel, and the Named Plaintiffs. 5.8 The parties agree to seek a Final Fairness Hearing date approximately one hundred and twenty (120) days from the date of preliminary approval of the settlement. 21 of 35

26 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 22 of 53 PageID# Swift shall cause notice of the proposed settlement that meets the requirements of CAFA to be served on the appropriate federal and state officials no later than twenty (20) days after the filing of this Stipulation with the Court ( CAFA Notice ). 6. Final Fairness Hearing Judgment and Notice 6.1 The Final Fairness Hearing, as established in the Notice Order, shall be for the purpose of consideration of final approval of the Settlement set forth in the Stipulation. 6.2 On or before the Final Fairness Hearing, Class Counsel will certify to the Court that they have fully complied with the notice provisions set forth in Section Administration and Supervision of the Settlement Fund 7.1 Class Counsel, by and through the Settlement Administrator, will oversee the Settlement Notice, class administration and distributions from the Settlement Funds in accordance with this Stipulation. Upon completion of the administration of the Settlement, Class Counsel shall provide or cause to be provided to the Court a final, written report on the administration of the Settlement and Settlement Funds. Defense Counsel shall have reasonable access to all documents and information relating to compliance and administration of the Settlement, with the right, but not the obligation, to review and audit the documents to determine full compliance with the terms of the Settlement. 7.2 No Person shall have any claim against Class Counsel based on monetary payments made substantially in accordance with this Stipulation and the Settlement contained herein, or further order(s) of the Court. 8. Class Counsel's Attorneys Fees, Reimbursement of Expenses and Payment of Service Awards. 22 of 35

27 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 23 of 53 PageID# The Settlement Administrator will pay the cost of the settlement notices and other fees and costs associated with any and all of its responsibilities under this Stipulation as described in Section In advance of the Court s deadline for submission of objections, Class Counsel shall make an application to the Court for an award from the Settlement Funds for attorney fees, costs, and other expenses in an amount not to exceed thirty percent (30%) of the Settlement Funds. Swift shall not oppose or object to this application. 8.3 If the award of attorney fees and expenses in the final judgment and order approving the Settlement is reversed, vacated, modified, and/or remanded for further proceedings, Class Counsel shall not be obligated to return any portion of the monies used to fund class notice and administration of the settlement, unless a portion of those funds is left unused. 8.4 Plaintiff Ellis shall seek and Swift will not object to compensation for serving as class representative in the amount of five thousand dollars ($5,000.00) (Ellis Service Award ), which shall be in addition to any other sum he may receive as a Class Member. This amount is payable from the Settlement Fund on the day that Judgment becomes final and unappealable. 8.5 Plaintiffs Brinson, Williams, Kier, Shipman, Chapman, Jones, and Marshall shall seek and Swift will not object to compensation for serving as class representatives in the amount of one thousand dollars ($1,000.00) each ( Service Awards ), which shall be in addition to any other sum they may receive as Class Members. This amount is payable from the Settlement Fund on the day that Judgment becomes final and unappealable. 9. Conditions of Settlement, Effect of Disapproval, Cancellation or Termination 23 of 35

28 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 24 of 53 PageID# Named Plaintiffs or Swift, at the sole discretion of either, each shall have the right to terminate the Settlement and this Stipulation, including dissolution of the Preliminary Settlement Class, if any of the following conditions subsequently occurs ( Terminating Events ): a. the Court refuses to preliminarily or permanently approve this Stipulation or any material part of it; b. the Court requires a notice program in addition to or substantially different from that set forth herein; c. the Court orders Swift to pay attorneys fees with respect to the Civil Action greater than as provided in Section 8.2; d. the Court orders Swift to pay, with respect to the Civil Action, any amount above the Settlement Funds; e. the Court declines to enter the Judgment contemplated by this Stipulation in any material respect; or f. the Judgment is reversed, vacated or modified in any material respect by the U.S. Court of Appeals for the Fourth Circuit, the United States Supreme Court, or adverse action being taken by any other trial court or appellate court in any jurisdiction. 9.2 Swift in its sole discretion also shall have the right to terminate the Settlement and this Stipulation, including dissolution of the Preliminary Settlement Class, if more than Five percent (5%) of the Settlement Class Members elect to opt out. 9.3 Plaintiffs in their sole discretion shall have the right to terminate the Settlement and this Stipulation, including dissolution of the Preliminary Settlement Class, (i.) if the Group I Class Members number more than 50,400; and/or (ii) if the Group II Class Members number 24 of 35

29 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 25 of 53 PageID# 201 more than , unless Swift elects to increase the Settlement Fund by $50 per Class member in proportion to such increase(s). 9.4 Swift in its sole discretion shall have the right to terminate the Settlement and this Stipulation, including dissolution of the Preliminary Settlement Class, (i.) if the Group I Class Members number less than 45,600; and/or (ii) if the Group II Class Members number less than 107,350, unless Plaintiffs and Class Counsel agree to reduce the Settlement Funds by $50 per Class member in proportion to such decrease(s). 9.5 The failure of the Court or any appellate court to approve in full the request by Class Counsel for attorneys fees, Service Awards, costs and other expenses shall not be grounds for Named Plaintiffs, the Settlement Class, or Class Counsel, to terminate this Stipulation If either party exercises their respective rights to terminate this Settlement and Stipulation pursuant to Section 9.1, 9.2, 9.3 or 9.4 herein, they shall terminate the Settlement and this Stipulation, including dissolving the Preliminary Settlement Class, by delivering written notice of the electing party s election to do so ( Termination Notice ) to all other parties hereto within thirty (30) days of a Terminating Event. In the event that a Termination Notice is so provided, then the Settlement and this Stipulation shall be canceled and terminated unless and until Class Counsel and Defense Counsel mutually agree in writing to proceed with the Stipulation. 9.7 In the event that the Settlement and this Stipulation are terminated as provided for herein, then: (a) this Stipulation shall be null and void and of no further force and effect, including voiding the Preliminary Settlement Class; (b) the Settling Parties shall be restored to their respective positions in the Civil Action immediately prior to the execution of this Stipulation; (c) any portion of the monies not already used to fund Notice and Administration 25 of 35

30 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 26 of 53 PageID# 202 shall be returned immediately to Swift or its designated carriers together with any interest earned thereon; (d) this Stipulation shall not be used in the Civil Action or in any other proceeding for any purpose; and (e) any judgment or order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc. 9.8 Upon the filing of the Stipulation with the Court and the Court s approval of this Stipulation, all proceedings shall be stayed until further order of the Court except such proceedings as may be necessary either to implement the Stipulation or to comply with or effectuate the terms of this Stipulation. 10. Final Judgment 10.1 The Parties shall jointly seek entry by the Court of a Final Judgment that includes provisions: a. granting final approval of this Stipulation, and directing its implementation pursuant to its terms and provisions; b. ruling on Class Counsel s application for attorneys fees, costs and other expenses; c. discharging and releasing the Released Defendants from the Released Claims as provided in Section 3 above; d. directing that the Civil Action be dismissed in its entirety with prejudice, and e. reserving to the Court continuing and exclusive jurisdiction over the parties with respect to the Stipulation and the Final Judgment. 11. Miscellaneous Provisions 26 of 35

31 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 27 of 53 PageID# The Settling Parties: (a) acknowledge that it is their intent to consummate this agreement; and (b) agree to cooperate to the extent reasonably necessary to effectuate and implement all terms and conditions of this Stipulation and to exercise their best efforts to accomplish the foregoing terms and conditions of this Stipulation. The Settling Parties and their counsel agree to use their best efforts to obtain Court approval of this Stipulation subject, however, to Swift s right to terminate the Stipulation Neither Swift, nor Class Counsel, nor Named Plaintiffs will encourage any person to request exclusion from membership in the Settlement Class, encourage any person to object to the Settlement, and/or encourage or discourage any person from participating in the distribution of the proceeds of the Settlement Class Counsel, on behalf of the Settlement Class, is expressly authorized by Named Plaintiffs to take all appropriate action required or permitted to be taken by the Settlement Class pursuant to the Stipulation to effectuate its terms and is further expressly authorized to enter into any modifications or amendments to the Stipulation on behalf of the Settlement Class which they deem appropriate This Stipulation shall be binding, according to its terms, upon, and inure to the benefit of, Named Plaintiffs, the Settlement Class, and the Released Defendants. This Stipulation shall be binding on, and inure to the benefit of, the successors and assigns of the Settling Parties, unless it is vacated by the Court or terminated pursuant to Section Neither the Stipulation nor the Settlement, nor any act performed or document executed pursuant to or in furtherance of the Stipulation or 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 Released Claims or of any wrongdoing or liability of Released Defendants; or (b) is or may be deemed to 27 of 35

32 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 28 of 53 PageID# 204 be or may be used as an admission of, or evidence of, any fault or omission by the Released Defendants in any civil, criminal or administrative proceeding in any court, administrative agency or other tribunal. Released Defendants may file the Stipulation and/or the Judgment in any action that may be brought against it in order to support a defense or counterclaim based on principles of res judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction, or any other theory of claim preclusion or issue preclusion or similar defense or counterclaim The Settling Parties agree that any press release or other public comment related to the Civil Action or its resolution shall be limited to a factual description of the terms of the Settlement and the remaining procedural steps necessary to secure final approval. Prior written approval by all the Settling Parties is required before any formal press release may be published regarding the Stipulation, the Settlement or the Civil Action before Final approval. In all events, the parties shall refrain from any accusations of wrongful or actionable conduct by either party and shall not otherwise suggest that the Settlement constitutes an admission of any claim or defense alleged Swift and Named Plaintiffs agree that each has complied fully with the stricture of Rule 11 of the Federal Rules of Civil Procedure and the Class Action Fairness Act of 2005, 28 U.S.C et seq., and the final judgment will contain a statement to reflect this compliance All of the Exhibits to this Stipulation are material and integral parts hereof and are fully incorporated herein by this reference This Stipulation and the Exhibits attached hereto constitute the entire agreement between the Settling Parties, and no representations, warranties or inducements have been made to any party concerning the Stipulation or its Exhibits other than the representations, warranties 28 of 35

33 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 29 of 53 PageID# 205 and covenants contained and memorialized in such documents. It supersedes and replaces all prior written and oral communications regarding settlement This Stipulation may be amended or modified only by a written instrument signed by or on behalf of all Settling Parties or their respective successors in interest This Stipulation and the Exhibits hereto shall be considered to have been negotiated, executed and delivered, and to be wholly performed, in the Commonwealth of Virginia, and the rights and obligations of the parties to this Stipulation shall be construed and enforced in accordance with, and governed by, the internal, substantive laws of the Commonwealth of Virginia without giving effect to the Commonwealth s choice-of-law provisions The Court shall retain jurisdiction with respect to implementation and enforcement of the terms of this Stipulation, and all parties hereto submit to the jurisdiction of the Court for purposes of implementing and enforcing the settlement embodied in this Stipulation Except for the Settlement Notices and the CAFA Notice, all notices or formal communications under this Stipulation shall be in writing and shall be given: (a) by hand delivery; (b) by registered or certified mail, return receipt requested, postage prepaid; or (c) by Federal Express or similar overnight courier to counsel for the Party to whom notice is directed at the following addresses. For Named Plaintiffs and the Settlement Class: Leonard A. Bennett Consumer Litigation Associates, P.C. 763 J. Clyde Morris Blvd., Suite 1-A Newport News, VA of 35

34 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 30 of 53 PageID# 206 For Released Defendants: Brian J. Foster John F. Lomax, Jr. SNELL & WILMER L.L.P. One Arizona Center 400 East Van Buren Phoenix, Arizona This Stipulation is the entire, complete agreement of each and every term agreed to by Named Plaintiffs and the Settlement Class on the one hand and Released Defendants and its counsel on the other hand. In entering into this Stipulation, Named Plaintiffs and the Settlement Class have not relied on any warranty or representation not specifically set forth herein Class Counsel and Named Plaintiffs agree to refrain from defaming the Released Defendants with respect to any issue related to this case. Defendant agrees to refrain from defaming Named Plaintiffs regarding any issue related to this case The headings in this Stipulation are for the convenience of the reader only and shall not affect the meaning or interpretation of this Stipulation In the event that any provision hereof becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Stipulation shall continue in full force and effect without such provision None of the Parties to this Stipulation shall be considered to be the primary drafter of this Stipulation or any provision hereof for the purposes of any rule of interpretation or construction that might cause any provision to be construed against the drafter The individuals signing this Stipulation on behalf of the Released Defendants represent that they are fully authorized to enter into, and to execute, this Stipulation. Class 30 of 35

35 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 31 of 53 PageID# 207 Counsel represent that they are fully authorized to conduct settlement negotiations on Named Plaintiffs behalf, and to enter into, and to execute, this Stipulation on behalf of the Settlement Class, subject to Court approval pursuant to Federal Rule of Civil Procedure 23(e). Named Plaintiffs enter into and execute this Stipulation on behalf of themselves, and as representatives of and on behalf of the Settlement Class, subject to court approval pursuant to Federal Rule of Civil Procedure 23(e) Each of the Parties has had an opportunity to receive, and has received, independent legal advice from his, her or its attorneys regarding the advisability of this proposed settlement, and to answer any questions about the settlement, and the legal consequences of this Stipulation, and fully understands and accepts the terms of this Stipulation Named Plaintiffs, Class Counsel and the Defendant may execute this Stipulation in counterparts. Each counterpart, when executed, shall be deemed to be an original and all such counterparts taken together shall constitute one agreement and shall have the same effect as if all Settling Parties had signed the same instrument. Facsimile or electronically scanned signatures shall be considered as valid signatures as of the date signed, although the original signature pages shall thereafter be appended to this Stipulation. This Stipulation shall not be deemed executed until signed by Named Plaintiffs either personally or by counsel, Class Counsel and authorized representatives of the Defendant. 31 of 35

36 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 32 of 53 PageID# 208 AGREED A, ON CO. Foster (Az B.ar No ) ohn F. Lomax, Jr. (Az Bar No ) SNELL & WILMER L.L.P. One Arizona Center 400 East Van Buren Phoenix, Arizona Direct: Fax: bfoster@swlaw.com jlomax@swlaw.com LECLAIR RYAN Charles K. Seyfarth (Va. Bar No ) Meagan A. Mihalko (Va. Bar No ) Riverfront Plaza, East Tower 951 East Byrd Street, Eighth Floor Richmond, Virginia Direct: Fax: Charles.Seyfarth@leclairryan'com Counselþr Defendant Swift Transportation Co. of Arizona, LLC on behalf of the Defendant. 32 of35

37 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 33 of 53 PageID# 209

38 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 34 of 53 PageID# 210 EXHIBIT A

39 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 35 of 53 PageID# 211 A court authorized this notice. This is not a solicitation from a lawyer. NOTICE OF CLASS ACTION SETTLEMENT IF SWIFT TRANSPORATION CO. OF ARIZONA, LLC OBTAINED YOUR CONSUMER REPORT (BACKGROUND CHECK) FROM JULY 23, 2008 TO JULY 22, 2011 FOR A JOB APPLICATION, YOU COULD RECEIVE $50.00 FROM A CLASS ACTION SETTLEMENT YOUR LEGAL RIGHTS WILL BE AFFECTED BY THE SETTLEMENT OF THIS LAWSUIT. PLEASE READ THIS NOTICE CAREFULLY. IT EXPLAINS THE LAWSUIT, THE SETTLEMENT, AND YOUR LEGAL RIGHTS. YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT IF YOU DO NOTHING IF YOU SUBMIT A CLAIM IF YOU EXCLUDE YOURSELF FROM THE SETTLEMENT If the Court approves the settlement and you do nothing, you will release your individual claim and you will not receive any payment. The Full Release and Released Parties are available on the Settlement Website, If you are a class member that submits a valid claim form, you will still release your claims, but you will also receive a check for up to $50.00 depending on how many class members submit a valid claim form. For example, if 20% of the class members submit a claim, the parties estimate that you check would be approximately $ Your claim form must verify that you were unaware of your Fair Credit Reporting Act claim before July 23, You have the right to exclude yourself from the settlement completely ( opt out ). You can opt out by following the instructions on the Exclusion Form found at the Settlement website or by asking the class administrator to mail you a form at. If you exclude yourself, you will not receive any monetary payments from the Settlement. You will not have any right to object, but you will not be bound by the terms of this Settlement and will retain your right to file your own lawsuit. The deadline to exclude yourself is, If you do not exclude yourself, you may object to the settlement. You can remain in the Settlement Class but file written objections to the Settlement. The Court will consider the objections in deciding whether to approve the Settlement. Instructions for mailing an objection are on the Settlement Website, If the Settlement is approved, you will not be able to sue Swift Transportation for claims relating to its employment background check when you applied for a job. Your objection must be filed or received by the Court by. WHAT IS THIS LAWSUIT ABOUT? This lawsuit was filed on July 23, 2013, in the United States District Court for the Eastern District of Virginia. James Ellis III, Dwight D. Brinson, Marlin L. Williams, Sherman M. Kier, Ernest Shipman, Tania S. Chapman, Eric S. Jones, and Eugene Marshall (the Plaintiffs ), sued Defendant Ellis Transportation Co. of Arizona, LLC ( Swift ) in this class action case (Swift, et al. v. Defendant Swift Transportation Co. of Arizona, LLC, Civil Action No: 3:13cv473) alleging that it willfully violated the Fair Credit Reporting Act (the FCRA ), 1681b(b)(2), because it did not make a clear and conspicuous disclosure in writing that a consumer report would be obtained for employment purposes, in a document that consisted solely of the disclosure. They alleged that the disclosure did not advise consumers that they could receive a free copy of the consumer report with 60 days or that they could dispute the accuracy or completeness of any information contained within the consumer report with the consumer reporting agency. Swift contends that its procedures did not violate the FCRA, and it did not willfully violate the FCRA. This 1681b(b)(2) Class is defined to include: All consumers residing in the United States who applied for employment in a Department of Transportation regulated position with Swift via facsimile, telephone, an internet website, electronic mail, regular mail, or through a third party from July 23, 2008 through September 30, 2012, and as to whom Swift procured a criminal background, motor vehicle history report, or other Consumer Report, which report was obtained by Swift before there had been at least one in-person interaction with the consumer. You are receiving this notice because you were in that Class that includes approximately 161,000 consumers. However, Swift

40 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 36 of 53 PageID# 212 Transportation s records show that your application was received before July 23, 2011, over two years before this lawsuit was filed. You and approximately 113,000 consumers are in this Group Two category. The remaining 48,000 consumers belong to Group One, which means the members of the 1681b(b)(2) Class who applied for a Department of Transportation regulated position with Swift between July 23, 2011 and September 30, WHAT CAN I GET OUT OF THE SETTLEMENT? A $4,400, Settlement Fund will be used to make cash payments the class members, which is inclusive of attorneys fees and costs and service awards to the named Plaintiffs, and costs of notice and administration. Group One class members will automatically receive a payment distribution of $50.00, while Group Two class members will be required to submit a valid claim form to receive payment. Group Two class members will be entitled to a pro rata payment of funds, which will be capped at $ Subject to Court approval, Plaintiffs Counsel will seek attorneys fees in an amount not to exceed thirty percent (30%) of the Settlement Fund. Further details and the full settlement agreement can be found at You are a member of the Group Two 1681b(b)(2) Class and therefore YOU MUST SUBMIT A CLAIM FORM TO RECEIVE PAYMENT. You may do so either online or using the enclosed form. If you do not submit a claim, you will not receive a payment and will not be able to bring an individual case for this alleged violation. Your claim form must verify that you were unaware of your Fair Credit Reporting Act claim before July 23, WHO ARE THE ATTORNEYS REPRESENTING THE CLASS AND HOW WILL THEY BE PAID? The Court has appointed lawyers to represent the Class, but you may enter an appearance in the case through an attorney if you want. If you do so, you will have to pay for your own lawyer. The attorneys who have been appointed by the Court to represent the Class are: Leonard A. Bennett, Matthew J. Erausquin, Susan M. Rotkis, Janelle M. Mikac, and Casey S. Nash of Consumer Litigation Associates, P.C., and Matthew A. Dooley and Anthony R. Pecora of O Toole McLaughlin Dooley & Pecora Co LPA. Subject to Court approval, Plaintiffs Counsel will seek attorneys fees in an amount not to exceed thirty percent (30%) of the Settlement Fund. The Plaintiffs may also ask the Court for a Service award of between $1,000 and $5, for each named Plaintiff. These attorneys fees, costs and service award payments will be paid from the Settlement Fund. To the extent there are funds remaining in the Class Settlement Fund after the Settlement Checks are distributed, and the time to cash the checks has expired, any uncashed funds will be donated to a cy pres recipient chosen by the parties and subject to approval by the Court. WHAT RIGHTS AM I GIVING UP IN THIS SETTLEMENT? Unless you exclude yourself from this settlement, you will be considered a member of the Class, which means you give up your right to sue or file a lawsuit against Swift regarding the legal issues that were raised or could have been raised in this case. Giving up your legal claims is called a release. The released parties collectively include Swift, and its parent, subsidiaries, principals and agents. You will be releasing these parties from all claims relating to Swift s employment background check when you applied for a job at Swift. IF I CHOSE TO DO SO, HOW DO I EXCLUDE MYSELF FROM THE SETTLEMENT? If you wish to be excluded, you must mail a written request for exclusion to the Settlement Administrator at: McGladrey, LLP Your request for exclusion must be in writing and postmarked on or before, 2014 [60 days from the date they were sent a settlement notice]. You can obtain an Exclusion form at or by calling the Class Administrator at. Or you may also write your own request that must state: I do not want to be part of the Class in Ellis, et al. v. Swift Transportation Co. of Arizona, LLC, Civil Action No: 3:13cv473. The request should be signed, with your name, address, and telephone number printed below your signature. The address you use should be the address to which this notice was mailed, so that you can be properly identified. However, if you have a new address, please inform us of the new address so we can make the change in the Class List. WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO APPROVE THE SETTLEMENT? The Court will hold a Fairness Hearing on 2014, at a.m./p.m.. The hearing will be held in the Spottswood W. Robinson III and Robert R. Merhige, Jr., Federal U.S. Courthouse, 701 East Broad Street Richmond, VA At the Fairness Hearing, the Court

41 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 37 of 53 PageID# 213 will consider whether the proposed settlement is fair, reasonable, and adequate. The Court will hear objections to the settlement, if any. We do not know how long the Court will take to make its decision. In addition, the hearing may be continued at any time by the Court without further notice to you. WHERE CAN I GET ADDITIONAL INFORMATION? This notice is only a summary of the proposed settlement of this lawsuit. Certain pleadings and documents filed in Court, including the Settlement Agreement, may be reviewed or copied in the Clerk s Office or by visiting the website

42 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 38 of 53 PageID# 214 First Name M.I. Last Name Street Address 1 Street Address 2 City, ST Zip Code Your Unique Claim Number: ##### VERIFICATION CLAIM FORM: COMPLETE THIS FORM TO OBTAIN A CASH PAYMENT AS DESCRIBED IN THE CLASS NOTICE. INSTRUCTIONS: 1. VERIFY THAT YOUR NAME AND ADDRESS INFORMATION IS CORRECT. 2. ADD YOUR TELEPHONE NUMBER AND ADDRESS. 3. SIGN BELOW CONFIRMING THAT YOU WERE UNAWARE OF YOUR FAIR CREDIT REPORTING ACT CLAIM MORE THAN TWO YEARS BEFORE.. The deadline to submit a claim is. You may also submit this claim online at Section I: Updated Personal Information If the preprinted information at the top of this form is not correct, make any changes here. (STOP! Do not complete this section if the preprinted information above is correct) First Name, MI, Last Name: Mailing Address: City, State, Zip Code: Section II: Additional Information: Telephone Number (required): ( ) -- Address (if you have one): Section III: Signature: Name: CLASS ADMINISTRATOR MAILING INFO.

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44 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 40 of 53 PageID# 216 A court authorized this notice. This is not a solicitation from a lawyer. NOTICE OF CLASS ACTION SETTLEMENT IF SWIFT TRANSPORATION CO. OF ARIZONA, LLC OBTAINED YOUR CONSUMER REPORT (BACKGROUND CHECK) FROM JULY 23, 2011 TO SEPTEMBER 30, 2012 FOR A JOB APPLICATION, YOU COULD RECEIVE $50.00 FROM A CLASS ACTION SETTLEMENT Your legal rights will be affected by the settlement of this lawsuit. Please read this notice carefully. It explains the lawsuit, the settlement, and your legal rights. YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT IF YOU DO NOTHING IF YOU EXCLUDE YOURSELF FROM THE SETTLEMENT If the Court approves the settlement and you do nothing, you will be releasing your claims and you will be mailed a check in the amount of $ The Full Release and Released Parties are available on the Settlement Website, You have the right to exclude yourself from the settlement completely ( opt out ). You can opt out by following the instructions on the Exclusion Form found at the Settlement website or by asking the class administrator to mail you a form at. If you exclude yourself, you will not receive any monetary payments from the Settlement. You will not have any right to object, but you will not be bound by the terms of this Settlement and will retain your right to file your own lawsuit. The deadline to exclude yourself is, If you do not exclude yourself, you may object to the settlement. You can remain in the Settlement Class but file written objections to the Settlement. The Court will consider the objections in deciding whether to approve the Settlement. Instructions for mailing an objection are on the Settlement Website, If the Settlement is approved, you will not be able to sue Swift Transportation for claims relating to its employment background check when you applied for a job. Your objection must be filed or received by the Court by. WHAT IS THIS LAWSUIT ABOUT? This lawsuit was filed on July 23, 2013, in the United States District Court for the Eastern District of Virginia. James Ellis III, Dwight D. Brinson, Marlin L. Williams, Sherman M. Kier, Ernest Shipman, Tania S. Chapman, Eric S. Jones, and Eugene Marshall (the Plaintiffs ), sued Defendant Ellis Transportation Co. of Arizona, LLC ( Swift ) in this class action case (Swift, et al. v. Defendant Swift Transportation Co. of Arizona, LLC, Civil Action No: 3:13cv473) alleging that it willfully violated the Fair Credit Reporting Act (the FCRA ), 1681b(b)(2), because it did not make a clear and conspicuous disclosure in writing that a consumer report would be obtained for employment purposes, in a document that consisted solely of the disclosure. They alleged that the disclosure did not advise consumers that they could receive a free copy of the consumer report with 60 days or that they could dispute the accuracy or completeness of any information contained within the consumer report with the consumer reporting agency. Swift contends that its procedures did not violate the FCRA, and it did not willfully violate the FCRA. This 1681b(b)(2) Class is defined to include: All consumers residing in the United States who applied for employment in a Department of Transportation regulated position with Swift via facsimile, telephone, an internet website, electronic mail, regular mail, or through a third party from July 23, 2008 through September 30, 2012, and as to whom Swift procured a criminal background, motor vehicle history report, or other Consumer Report, which report was obtained by Swift before there had been at least one in-person interaction with the consumer. You are receiving this notice because you were in that Class that includes approximately 161,000 consumers. However, Swift Transportation s records show that your application was received between July 23, 2011 and September 30, 2012, within two years of when this lawsuit was filed. There are approximately 48,000 consumers in that Group One category. The remaining 113,000 consumers belong to Group Two, which means the members of the 1681b(b)(2) Class who applied for a Department of Transportation regulated position with Swift between July 23, 2008 and July 22, WHAT CAN I GET OUT OF THE SETTLEMENT?

45 Case 3:13-cv JAG Document 36-1 Filed 04/21/14 Page 41 of 53 PageID# 217 A $4,400, Settlement Fund will be used to make cash payments the class members, which is inclusive of attorneys fees and costs and service awards to the named Plaintiffs, and costs of notice and administration. Group One class members will automatically receive a payment distribution of $50.00, while Group Two class members will be required to submit a valid claim form to receive payment. Group Two class members will be entitled to a pro rata payment of funds, which will be capped at $ Subject to Court approval, Plaintiffs Counsel will seek attorneys fees in an amount not to exceed thirty percent (30%) of the Settlement Fund. Further details and the full settlement agreement can be found at WHO ARE THE ATTORNEYS REPRESENTING THE CLASS AND HOW WILL THEY BE PAID? The Court has appointed lawyers to represent the Class, but you may enter an appearance in the case through an attorney if you want. If you do so, you will have to pay for your own lawyer. The attorneys who have been appointed by the Court to represent the Class are: Leonard A. Bennett, Matthew J. Erausquin, Susan M. Rotkis, Janelle M. Mikac, and Casey S. Nash of Consumer Litigation Associates, P.C., and Matthew A. Dooley and Anthony R. Pecora of O Toole McLaughlin Dooley & Pecora Co LPA. Subject to Court approval, Plaintiffs Counsel will seek attorneys fees in an amount not to exceed thirty percent (30%) of the Settlement Fund. The Plaintiffs may also ask the Court for a Service award of between $1,000 and $5, for each named Plaintiff. These attorneys fees, costs and service award payments will be paid from the Settlement Fund. To the extent there are funds remaining in the Class Settlement Fund after the Settlement Checks are distributed and the costs of notice and administration have been paid, and the time to cash the checks has expired, any uncashed funds will be donated to a cy pres recipient chosen by the parties and subject to approval by the Court. WHAT RIGHTS AM I GIVING UP IN THIS SETTLEMENT? Unless you exclude yourself from this settlement, you will be considered a member of the Class, which means you give up your right to sue or file a lawsuit against Swift regarding the legal issues that were raised or could have been raised in this case. Giving up your legal claims is called a release. The released parties collectively include Swift, and its parent, subsidiaries, principals and agents. You will be releasing these parties from all claims relating to Swift s employment background check when you applied for a job at Swift. IF I CHOSE TO DO SO, HOW DO I EXCLUDE MYSELF FROM THE SETTLEMENT? If you wish to be excluded, you must mail a written request for exclusion to the Settlement Administrator at: McGladrey, LLP Your request for exclusion must be in writing and postmarked on or before, 2014 [60 days from the date they were sent a settlement notice]. You can obtain an Exclusion form at or by calling the Class Administrator at. Or you may also write your own request that must state: I do not want to be part of the Class in Ellis, et al. v. Swift Transportation Co. of Arizona, LLC, Civil Action No: 3:13cv473. The request should be signed, with your name, address, and telephone number printed below your signature. The address you use should be the address to which this notice was mailed, so that you can be properly identified. However, if you have a new address, please inform us of the new address so we can make the change in the Class List. WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO APPROVE THE SETTLEMENT? The Court will hold a Fairness Hearing on 2014, at a.m./p.m.. The hearing will be held in the Spottswood W. Robinson III and Robert R. Merhige, Jr., Federal U.S. Courthouse, 701 East Broad Street Richmond, VA At the Fairness Hearing, the Court will consider whether the proposed settlement is fair, reasonable, and adequate. The Court will hear objections to the settlement, if any. We do not know how long the Court will take to make its decision. In addition, the hearing may be continued at any time by the Court without further notice to you. WHERE CAN I GET ADDITIONAL INFORMATION? This notice is only a summary of the proposed settlement of this lawsuit. Certain pleadings and documents filed in Court, including the Settlement Agreement, may be reviewed or copied in the Clerk s Office or by visiting the website

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