SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA

Transcription

1 THOMAS M. BRUEN (SBN ) LAW OFFICES OF THOMAS M. BRUEN A Professional Corporation 0 N. California Boulevard, Suite Walnut Creek, CA Telephone: () -1 Facsimile: () - tbruen@tbsglaw.com Additional counsel listed on following page Attorneys for Defendants INTERNATIONAL DISPOSAL CORP. OF CALIFORNIA and BROWNING-FERRIS INDUSTRIES OF CALIFORNIA, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA PETER NG and DOLLY WU, on behalf of themselves and all others similarly situated, v. Plaintiffs, INTERNATIONAL DISPOSAL CORP. OF CALIFORNIA, a California Corporation, BROWNING-FERRIS INDUSTRIES OF CALIFORNIA, INC., a California corporation, and DOES 1-0, Defendants. Case No. CV1 Case assigned for all purposes to: Honorable Peter Kirwan, Dept. 1 SETTLEMENT AND RELEASE AGREEMENT Complaint Filed: July, Trial Date: January, Hearing Date: Hearing Time:

2 WILLIAM G. BECK (pro hac vice) BRIAN C. FRIES (pro hac vice) ROBERT G. ROONEY (pro hac vice) CYNTHIA M. TEEL (SBN 0) LATHROP & GAGE LLP Grand Blvd., Suite 00 Kansas City, MO Telephone: () -00 Facsimile: () ERIK A REINERTSON (SBN 1) LAW OFFICES OF THOMAS M. BRUEN A Professional Corporation 0 N. California Boulevard, Suite Walnut Creek, CA Telephone: () -1 Facsimile: () - ereinertson@tbsglaw.com Attorneys for Defendants INTERNATIONAL DISPOSAL CORP. OF CALIFORNIA and BROWNING-FERRIS INDUSTRIES OF CALIFORNIA, INC. DAVID R. DUBIN (pro hac vice) NICHOLAS A. COULSON (pro hac vice) LIDDLE & DUBIN. P.C. E. Jefferson Avenue Detroit. Michigan Telephone: () -00 Facsimile: () ddubin@mldclassaction.com ncoulson@mldclassaction.com EVANS LAW FIRM, INC. INGRID M. EVANS (SBN 0) ELLIOT WONG (SBN 0) 0 Filmore Street # San Francisco, CA Telephone: () 1- Toll-Free: () 0- Facsimile: () ingrid@evanslaw.com Attorneys for Plaintiffs PETER NG and DOLLY WU

3 SETTLEMENT AND RELEASE AGREEMENT IT IS AGREED by and among Peter Ng, Dolly Wu, and all others similarly situated, in their individual and class representative capacity ( Plaintiffs ), and International Disposal Corp. of California and Browning-Ferris Industries of California, Inc. (collectively Defendants ), through their respective counsel, that the above-captioned lawsuit is settled on the terms set forth below in this Settlement and Release Agreement (this Agreement ) dated October,, subject to the approval of the Court. referred to as the Parties. Plaintiffs and Defendants are sometimes collectively 1. Background 1.1 On July,, Plaintiffs, individually and on behalf of all others similarly situated, filed a Complaint, being Case No. CV1, alleging damages arising from Defendants maintaining and operating a facility located at 01 Dixon Landing Road, Milpitas, CA 0, commonly known as the Newby Island Resource Recovery Park ( the Action ). The Action alleges, among other things, that dust, debris, noxious odors, pollutants and air contaminants entered[ed] Plaintiffs property from Newby Island Resource Recovery Park ( Newby Island ) as a result of Defendants operation of and maintaining Newby Island. The Action further alleges that the invasion of Plaintiffs property has caused Plaintiffs to suffer injuries including, but not limited to, exposure to pollutants, horrific odors, and air contaminants and that such invasion has interfered with Plaintiffs use and enjoyment of their property including by causing Plaintiffs to remain inside their homes and forego use of their yards; causing Plaintiffs to keep doors and windows closed when weather conditions otherwise would not so require; and causing Plaintiffs embarrassment and reluctance to invite guests to their homes. Plaintiffs also claim such invasion resulted in loss of property value. The Action asserts claims for private nuisance, public nuisance, trespass, negligence and gross negligence seeking compensatory, exemplary, and punitive relief. The Action is brought as a putative class action on behalf of Plaintiffs and all others similarly situated. Plaintiffs proposed class included all persons within a defined geographic area. Defendants filed Answers and Affirmative Defenses denying any liability. Plaintiffs moved the court to certify a class, - 1 -

4 Defendants responded, and the Court denied the motion without prejudice. Defendants continue to deny the appropriateness of class certification for other odor nuisance litigation, and have stipulated to a class for settlement of this lawsuit, under the unique facts of this Agreement. 1. From the inception of this Action, the Parties commenced extensive discovery regarding class certification issues. Such discovery included the production and analysis of thousands of pages of documents, interrogatories, Plaintiffs depositions, Defendants depositions, depositions of putative class members, and expert witness analysis, reports, and depositions. In addition to such discovery, Plaintiffs counsel ( Class Counsel ) and Plaintiffs have made a comprehensive and thorough investigation of the claims and allegations asserted in the Action, the facts and circumstances relevant thereto, and have conducted legal research concerning the viability of Plaintiffs claims. In evaluating the terms of this Agreement, Plaintiffs and Class Counsel have considered: (a) the consideration agreed to be paid, as set forth below; (b) the substantial benefits that would inure to the Class, including those derived from the Improvement Measures; (c) the attendant risks of litigation and the uncertainty of the outcome of the Action; (d) the desirability of permitting the settlement to be consummated as provided by the terms of this Agreement; (e) whether the terms and conditions of this Agreement are fair, reasonable and adequate; and (f) whether it is in the best interests of the members of the Class to settle the Action as set forth in this Agreement. 1. The Parties agreed to engage an independent third party, Timothy Gallagher, to conduct a mediation regarding settlement possibilities. Mr. Gallagher conducted extensive negotiations on January -,, March, and several days thereafter spread over the course of several months. As a result of such negotiations, the Parties have now agreed to terms upon which the Action will be settled. 1. Plaintiffs, individually and on behalf of the Class Members, voluntarily and with full knowledge of their rights in the provisions of this Agreement and having the benefit and advice of Class Counsel, now desire to settle, compromise, and dispose of the Action and all Claims the named Plaintiffs and the Class Members have or might have against Defendants - -

5 arising from its operation of Newby Island, and to dismiss the Action with prejudice and to settle with and release Defendants upon the terms and conditions set forth below.. No Admission of Liability or Wrongdoing.1 Defendants expressly deny any wrongdoing alleged in the Action, in the Complaint, or in other papers filed in the Action, and do not admit or concede any actual or potential fault, wrongdoing, or liability in connection with any facts or claims, which have been or could have been alleged against it in the Action. Defendants further contest the appropriateness of class certification other than under the limited and unique facts outlined in this Agreement, and enter into this Agreement for the sole purpose of resolving the disputed claims limited to this Action. Nothing in this Agreement has any application to any other landfill operations of Defendants, or any other class actions in which any Defendant is a party, and Defendants believe and assert that any other case is unique, based upon the individual facts, law, and circumstances for that case. This case is being resolved only after class certification was denied, and under unique facts and circumstances, some of which are involved in the litigation, some of which are not part of the litigation.. The Parties agree that nothing contained in this Agreement shall be construed as an admission by Defendants as to the merit or lack of merit of any particular claim or defense, including the appropriateness of class certification in this or any other action, as set forth in paragraph.1.. Defendants, nevertheless, consider it desirable for the Action to be settled and dismissed because this Agreement will: (i) allow Defendants to avoid further litigation expense and disruption of the management and operation of its business due to the pendency and defense of the Action; (ii) put Plaintiffs claims and the underlying matters to rest; and (iii) avoid the substantial expense, burdens, and uncertainties associated with a possible finding of liability and damages for Plaintiffs and the Class on the claims raised in the Action.. Plaintiffs Litigation Efforts Before and after commencing the Action and during settlement negotiations, Class Counsel conducted a thorough examination and evaluation of the relevant law and facts to assess - -

6 the merits of Plaintiffs claims and potential claims and to determine how best to serve the interests of Plaintiffs and the putative class. In the course of this examination, Class Counsel retained and consulted with experts concerning the merits of Plaintiffs claims and the defenses asserted by Defendants. In particular, during the course of the Action, Class Counsel conducted extensive discovery and had their experts conduct an analysis which has allowed Plaintiffs counsel to verify that the terms of this Agreement are fair and adequate. This discovery included: depositions; analysis of thousands of pages of Defendants environmental and business documents; analysis of records and reports concerning Defendants operations; meetings with families and individuals in the neighborhood surrounding Newby Island; the collection and analysis of information from hundreds of families in the area surrounding Newby Island and responding to and analyzing the answers to interrogatories and document requests propounded by the Parties.. The Settlement.1 Based upon their discovery, investigation, and evaluation of the facts and law relating to the matters alleged in the Action, Plaintiffs, Class Counsel and the Class have agreed to settle the Action, pursuant to the terms of this Agreement, after considering such factors as: (i) the substantial benefits to Plaintiffs and the Class under the terms of this Agreement; (ii) the uncertainty of being able to prove the allegations in the Action; (iii) the uncertainty of being able to overcome Defendants defenses thereto, including, but not limited to, defenses based on: statutes of limitations; lack of damages; full use and enjoyment of the neighborhood; failure to meet class certification standards; laches; causation; waiver; the alleged conduct being in compliance with applicable state environmental laws; and Defendants acting in good faith; (iv) the attendant risks of litigation, especially in complex actions such as this, as well as the difficulties and delays inherent in such litigation; (v) the difficulty of certifying a class, and in particular the court s previous order denying without prejudice Plaintiffs motion for class certification; and (vi) the desirability of consummating this Agreement promptly, in order to provide effective relief to Plaintiffs and the Class without delay. - -

7 . The Parties believe it is appropriate for the Court to certify the Class for settlement purposes only, based upon the unique and specific terms outlined in this Agreement.. Definitions As used in this Agreement and the attached exhibits (which are an integral part of this Agreement and are incorporated in their entirety by this reference), the following terms have the following meanings, unless a part or subpart of this Agreement or its exhibits provides otherwise:.1 Action means the entire lawsuit styled between Peter Ng and Dolly Wu, on behalf of themselves and all others similarly situated v. International Disposal Corp. of California, et al., Case No. CV1, pending in the Superior Court of the State of California, County of Santa Clara, including pleadings, briefs, motions and discovery materials in the Action.. Administrator means Class Counsel or any third party agent whom the Parties may retain to help implement the terms of the Agreement.. Claim Form means the claim form which Class Members may complete which is described below in Section and is similar in form to Exhibit F attached to this Agreement.. Claim Processing and Payment Guidelines means the method to file Claims, and process and pay Claims as set forth in Exhibit G attached to this Agreement.. Class Class Member and Class Members shall mean as follows: The Settlement Class shall consist of all persons who have owned or rented, and who also have resided in, any real property located in whole or in part within one and one-half miles of any part of Newby Island, at any time since July, 0, and who do not affirmatively opt out of the Settlement. The class area is depicted on the attached map, Exhibit H, and will be available on a website described in the Class Notice.. Class Counsel means David R. Dubin and Nicholas A. Coulson, and the law firm of Liddle & Dubin, P.C., E. Jefferson Ave., Detroit, Michigan ; and Ingrid M. Evans, and the law firm of Evans Law Firm, Inc., 0 Filmore Street, Suite, San Francisco, California. - -

8 . Class Notice means the notice to be provided to Class Members pursuant to Section of this Agreement, in a form similar to Exhibit A attached to this Agreement.. Class Period means from July, 0 until the date the Court enters the Preliminary Approval Order preliminarily approving this Agreement.. Complaint means the Complaint filed in this Action.. Cooling Off Period mans that for a period of months after Final Approval of this Settlement by the Court, no Class Member can assert or allege any claims for odor, dust or other alleged emissions from Newby Island.. Costs of Administration means all expenses incurred in connection with the administration of the settlement of the Action, including all fees and expenses of the Administrator, if any.. Costs of Notice means all costs and expenses incurred in discharging the obligation to notify Class Members of the Settlement and this Agreement, through mail, and/or publication, or as required by the Court.. Court means the Superior Court of the State of California, County of Santa Clara.. Escrow Fund or Escrow Account means the escrow account established by Class Counsel, acting as Escrow Agent, at the financial institution of Class Counsel s selection which shall be, unless otherwise decided, designated the Newby Island Landfill Settlement Account, at the PNC Bank, Buhl Building Branch, Detroit, Michigan,. The foregoing account shall serve as a depository for the Settlement Funds, less such amounts as shall be withdrawn therefrom pursuant to this Agreement or Order of the Court only, together with any interest that has accrued thereon. No payments from the Settlement Fund may be made unless Class Counsel endorses the payment check(s), unless otherwise agreed. Any interest accrued on the Settlement Fund shall be part of the Settlement Fund for the benefit of the Class.. Fairness Hearing means the hearing(s) at or after which the Court will make a final decision whether to approve this Agreement as fair, reasonable, and adequate, whether to - -

9 approve Class Counsel s application for attorneys fees and expenses, and whether to enter Final Judgment giving effect to this Agreement.. Final Judgment means the stipulated final judgment, including a permanent injunction against Defendants, which has been entered by the Court in the form attached as Exhibit B to this Agreement without any modification prejudicial to the rights of any of the Parties to this Agreement, and which is final and not subject to appeal or, if appealed, has been affirmed on appeal and is not subject to further appeal or modification under California law.. Final Settlement Date means the date on which the Final Judgment becomes final for purposes of this Agreement: a. if no appeal has been taken from the Final Judgment, Final Settlement Date means the date on which the time to appeal therefrom has expired without any appeal being taken therefrom; or b. if any appeal has been taken from the Final Judgment, Final Settlement Date means the date on which all appeals therefrom, including petitions for rehearing or reargument, petitions for rehearing, rehearing en banc, and petitions for certiorari or any other form of review, have been finally disposed of in a manner that affirms the Final Judgment without any modification that would prejudice the rights of any of the Parties as any of them determine in their sole discretion.. Mail means the United States Postal Service.. Newby Island Facilities means the Newby Island Landfill, the Recyclery and the Compost Facility, all of which are located on the property known as the Newby Island Resource Recovery Park ( NIRRP ), and the boundaries of the NIRRP property are depicted on Exhibit H to this Settlement Agreement.. Notice Date means fifteen () days after the Court s entry of the Preliminary Approval Order preliminarily approving this Agreement and providing for Class Notice.. Opt-Out means a Class Member who submits a timely and valid notice of his/her/its request for exclusion from the Class in the form and within the time set forth in the Class Notice attached as Exhibit A. - -

10 . Opt-Out Period means the period approved by the Court during which Class Members may exercise their right to Opt-Out of the Class and this Agreement.. Party means either Plaintiffs or Defendants.. Parties means Plaintiffs and Defendants.. Person or Persons means natural persons and all entities and, without limiting the generality of the foregoing, includes, joint owners, associations, societies, fraternal organizations, companies, partnerships, joint ventures and/or corporations.. Plaintiffs means Peter Ng and Dolly Wu who filed this Action on behalf of themselves and the Class.. Preliminary Approval Order means the order to be entered by the Court concerning the preliminary approval of this Agreement, Class Notice and the Fairness Hearing, as contemplated in Section of this Agreement and in a form similar to Exhibit C attached to this Agreement.. Released Claims means any and all claims asserted in the Action and any and all causes of action, liabilities, damages, equitable claims, injuries, legal claims and administrative relief, interest, demands and rights whatsoever (including, but not limited to, any claims for damages, relief of any kind, interest, attorneys fees, expert fees, consulting fees, and any other costs, expenses whatsoever), whether based on tort, contract, common law, federal statute, the statutes of the State of California, the code or regulations of the State of California and/or the United States, or laws from any other source, whether fixed or contingent, whether accrued or unaccrued, known or unknown, that have been, could have been, or may be alleged in the Action, or could be alleged or asserted now or in the future in the Action or by Plaintiffs or any of them, the Class or any Class Member based on, arising out of, or otherwise connected in any fashion to Defendants in any manner whatsoever, including, but not limited to, all claims based on trespass, nuisance, negligence, gross negligence, or any other legal theory premised on alleged emissions of noxious or other odors, dust, pollution, pollutants, debris, air contaminants or fallout, including claims seeking equitable relief or compensatory damages or punitive damages due to interference with use and enjoyment of property, damage to property, annoyance, - -

11 inconvenience, exposure, and physical reactions to the alleged emissions that were or could have been asserted in this Action. Released Claims expressly includes Unknown Claims. The release shall not bar claims for diagnosed medical harm, other than contemporaneous physical reactions to alleged odors, dust, pollution, pollutants, debris, air contaminants or fallout,, but no claims based on such diagnosed medical harm shall ever be brought in the present litigation. Each settling Class Member shall be informed in the Class Notice that by remaining a Class Member they are warranting and representing to the Released Parties that, as of the date of the final Settlement Agreement, he or she has not been diagnosed with, is not aware of, and does not have any symptoms that he or she suspects could be associated with any sickness, disease or physical injury which may have been caused by the action or inaction of any of the Released Parties; and that he or she has not received benefits under Medicare or any other governmental program for any such sickness, disease or injury; and that he or she will defend and indemnify the Released Parties against any lien claims by any party including Medicare or any other governmental program seeking repayment of such benefit.. Settlement means the resolution of the Action by amicable agreement of the Parties on the terms and conditions provided in this Agreement, subject to approval of the Court..0 Settlement Funds means the amount paid by Defendants pursuant to Section below..1 Settlement Relief means the relief being provided by Defendants to the Class as described in this Agreement at Section below.. Improvement Measures means the actions undertaken or to be undertaken by Defendants as set forth in the attached Exhibit D.. The Agreement or this Agreement means this Settlement and Release Agreement.. Defendants means not only the companies, International Disposal Corp. of California, a California corporation, and Browning-Ferris Industries of California, Inc., a California corporation, but also, each and all of Defendants past or present owners, stockholders, officers, directors, employees, representatives, attorneys, advisors (and their spouses, heirs, - -

12 members of their immediate families or any trusts for which any of them are trustees, settlers or beneficiaries), insurers, subsidiaries, intermediate or ultimate parent companies, affiliated entities (including any entity which controls, is controlled by, or is under common control with any person or entity described in this Section.), related companies, divisions, assigns, predecessors and successor entities (and other directors, officers, employees, representatives and attorneys of such parent companies, divisions, subsidiaries, assigns, affiliates, predecessor and successor entities), and all persons acting by, through, on behalf of, under or in concert with any of them.. Defendants Counsel means the Law Offices of Thomas M. Bruen, a Professional Corporation, and the law office of Lathrop & Gage LLP.. Unknown Claims means any claims that could have been brought in this Action, although unknown or unsuspected to exist by any Class Member.. Household shall mean all the persons who occupy a Housing Unit.. Housing Unit shall mean a house, an apartment, a mobile home, a group of rooms, or a single room that is occupied (or if vacant, is intended for occupancy) as separate living quarters. Separate living quarters are those in which the occupants live and eat separately from any other persons in the building and which have direct access from the outside of the building or through a common hall. The occupants may be a single family, one person living alone, two or more families living together, or any other group of related or unrelated persons who share living arrangements.. All other capitalized terms used in this Agreement shall have the meaning ascribed to them herein.. The Settlement.1 Plaintiffs will propose and recommend a Class be certified for Settlement purposes only and Defendants agree solely for Settlement purposes and the purposes of this Agreement and its implementation that the Action proceed as a class action under California Rules of Court Rule.0 et al., with respect to the relief provided for in this Section. - -

13 . If the Court does not approve this Agreement and grant a Final Judgment, however, Defendants expressly retain: (i) all rights to object to the maintenance of the Action as a class action; (ii) all litigation rights available to litigants under the California Rules of Court; (iii) all defenses in the Action and to the Complaint and (iv) all rights to continue opposing class certification.. Defendants will: i) pay the sum of $1,0, in cash (the Settlement Funds ); and ii) provide the Improvement Measures as set forth in Exhibit D to settle all Released Claims in the Action. Either one of: i) the payment of the Settlement Funds; or ii) the substantial performance of the Improvement Measures is and shall be sufficient, adequate, full and final consideration under this Agreement.. Defendants will pay the Settlement Funds ($1,0,000.00) into the Escrow Account within ten () business days after the Final Settlement Date. Defendants have no obligation under any circumstances to pay any of the Settlement Funds prior to the Final Settlement Date and Defendants have no such obligation in the event Defendants exercise their option to terminate this Settlement and Release Agreement pursuant to Section below.. The Settlement Funds shall be distributed and administered only as provided in this Agreement. No person or entity participating in administration or distribution of the funds shall be liable for any acts or omissions in connection with that participation, except for gross negligence, willful misconduct, or breach of fiduciary duty (to the extent that any fiduciary duty exists).. Notwithstanding any provision of this Agreement, Defendants Counsel, Defendants and Defendants representatives, insurers and other agents shall not bear any responsibility for the administration or distribution of the Settlement Funds, except as expressly provided in this Agreement, if at all.. In the event that this Agreement is terminated pursuant to Section below, then any of the Settlement Funds which have been paid by Defendants shall be returned to Defendants within 0 days of termination, as defined in Section below. If such funds are not returned within such 0 day period, interest will accrue thereon at the rate for 0 day U.S. Government - -

14 interest bearing instruments from the date of the deposit into the Escrow Fund until the date the money is returned to Defendants.. Notice Expenses: The reasonable costs and expenses to third parties associated with the preparation and dissemination of Class Notice (collectively Notice Expenses ) shall be shared equally by Defendants and Plaintiffs, with Plaintiffs portion to come from the Settlement Funds, and reasonable sums shall be advanced from the Escrow Account to pay for Plaintiffs share of such costs. Any third party costs associated with soliciting Claim Forms and processing Claim Forms shall be paid by Plaintiffs from the Settlement Funds, and reasonable sums shall be advanced from the Escrow Account to pay for such costs.. The Notice Expenses described in Section. may be paid directly out of the Settlement Funds, or alternatively, may be advanced by Class Counsel, subject to reimbursement from the Settlement Funds, or from Defendants for Defendants portion of the Notice Expenses pursuant to Section... The Net Settlement Funds shall consist of the Settlement Funds, less the following as approved by the Court: a. All Notice Expenses specified in Section. of this Agreement; b. Class Counsel s reasonable costs and expenses, all as approved by the Court, not to exceed $0,000.00; c. Class Counsel s reasonable attorney s fees, as approved by the Court, not to exceed $0,000.00; and d. Plaintiffs compensation as the class representatives for their time and effort assumed by each of them not to exceed $,000 each, and as approved by the Court.. Defendants have begun and will provide the Improvement Measures set forth in Exhibit D over a period of five () years as set forth in Exhibit D. Plaintiffs acknowledge that Defendants may undertake some of the Improvement Measures prior to the Final Settlement Date. Plaintiffs further acknowledge the character and amount of the Improvement Measures to be implemented each year shall be at Defendants sole discretion, except as expressly provided in Exhibit D. Defendants have no obligation under any circumstances to provide any of the - -

15 Improvement Measures prior to the Final Settlement Date and Defendants have no such obligation to provide any of the Improvement Measures at any time, if either Defendants or Plaintiffs exercise either of their options to terminate this Settlement and Release Agreement pursuant to Section below. In the event this Settlement is completed, a Final Judgment is entered and this Agreement is not terminated by either Party, and at a later date Plaintiffs or a Class Member allege that Defendants have not performed their Improvement Measures obligation under this Agreement, then and only then, Plaintiffs or a Class Member may bring an action to enforce Defendants Improvement Measures obligation as stated in Exhibit D without violating this Agreement, if such action is solely and exclusively for the purpose of seeking an injunction to require Defendants to perform its Improvement Measures obligation under Exhibit D to this Agreement, otherwise all actions are permanently barred as provided for under Section below. Such an action for the purpose of seeking an injunction to require Defendants to perform its Improvement Measures obligation shall be Plaintiffs and each Class Member s sole remedy regarding the Improvement Measures.. Class Members shall release Defendants as set forth in Section below.. Notice to the Class, Fairness Hearing.1 Promptly after execution of this Agreement, Class Counsel and Defendants Counsel shall move the Court for preliminary approval of the Settlement and this Agreement and, in support thereof, will lodge with the motion this Agreement together with its Exhibits, the Class Notice substantially in the form of Exhibit A (which contains information on how to opt-out of the Class and how to file a Claim), the Final Judgment substantially in the form of Exhibit B and the Preliminary Approval Order substantially in the form of Exhibit C. The motion will seek, inter alia, the preliminary approval of the Settlement, the approval for providing notice to the Class, the proposed Class Notice, which shall include the general terms of this Agreement and the date of the Fairness Hearing, and time for sending the Notice (fifteen () days after the Court issues its Preliminary Approval Order). Written Notice shall be given to the Class as follows: i) Publication notice in the form attached hereto as Exhibit I shall be published in The San Jose Mercury News/Milpitas Post, a newspaper of general circulation in San Jose and Milpitas, California; - -

16 ii) iii) Written notice in the form attached hereto as Exhibit A shall be provided by Class Counsel to each of the persons listed on Exhibit E, and such notice shall be sent by first class mail, postage prepaid to each such person at such address(es); and Written notice in the form attached hereto as Exhibit A, along with copies of the Stipulation of Settlement and Release Agreement, and Claim Form shall be posted by Class Counsel on the website After the Class Notice is given, the Court will hold a Fairness Hearing and determine whether to approve this Agreement and the Settlement as set forth in this Agreement. At the Fairness Hearing, Class Counsel also will request that the Court approve its Fees and Costs.. If it chooses at its sole discretion, Class Counsel may retain one or more Administrators to help implement the terms of the Agreement. The Administrator(s) may assist with various administrative tasks, including, without limitation, the mailing or arranging for the mailing of the Class Notice and publication of the Class Notice.. The Parties shall issue an agreed joint press release upon preliminary settlement approval, and shall make no other public statements regarding the terms of the Settlement that are inconsistent with the press release. Plaintiffs counsel shall not attribute any particular monetary value to the injunctive relief except to the extent the Settlement Agreement itself includes a monetary minimum on mitigation measure expenditures.. The Class and Defendants shall share the costs of providing Class Notice under California Rules of Court Rule. as set forth in Sections. and. above. All other costs relating to the Settlement Fund and the Costs of Administration shall also be borne by the Class and shall be paid from the Settlement Fund. Except as expressly provided in this Agreement, Defendants shall not be liable for any fees, costs or expenses whatsoever of Plaintiffs, the Class or any Class Member, in connection with the Action or this Agreement.. Assume No Tax Liability No opinion concerning the tax consequences of the Settlement have been given or will be given by Defendants, Defendants Counsel, Plaintiffs or Class Counsel to Plaintiffs or any Class Member nor are any representations in this regard made or any warranties made by virtue of this - -

17 Agreement. The Class Notice shall direct Class Members to consult their own tax advisors regarding the federal, state, local or other tax consequences of the Settlement. Plaintiffs and each Class Member s tax obligations (including assessments, penalties, interest or payments that arise or may arise as a result of the Settlement, and the determination thereof) are the sole responsibility of each Plaintiff and each Class Member, and it is understood that the tax consequences may vary depending on the particular circumstances of each Class Member.. Lien Warranty, Indemnification, and Satisfaction.1 The Parties have agreed to the release of all claims as set forth in paragraph. of this Agreement. Presently, the Parties are unaware of any member of the Settlement Class who has received treatment necessitated by any disease or medical condition caused by Newby Island, which was covered by various medical providers who may have a lien for the healthcare provided. Each settling Class Member warrants and represents to the Defendants that, as of the date of the final Settlement Agreement, he or she has not been diagnosed with, is not aware of, and does not have any symptoms that he or she suspects could be associated with any sickness, disease or physical injury which may have been caused by the action or inaction of any of the Defendants; and that he or she has not received benefits under Medicare or any other governmental program for any such sickness, disease or injury; and that he or she will defend and indemnify the Defendants against any lien claims by any party including Medicare or any other governmental program seeking repayment of such benefit.. It is agreed that, in the unlikely event that any reimbursement is due to Medicare or any CMS entity, the same shall be paid from the proceeds of the Approved Claim Amount for the Class Member who has filed a valid Claim Form and who is the subject of any action for reimbursement by Medicare or any CMS entity or by the Class Member, and in no event will Defendants be obligated to make or reimburse such payments.. Release And Waiver.1 Upon entry of the Final Judgment, Plaintiffs and each Class Member agree that they have, and by operation of the Final Judgment shall be deemed to have fully, finally, and - -

18 forever compromised, released, resolved, waived, relinquished, discharged and settled all of the Released Claims contained in Section. against Defendants.. Plaintiffs and each Class Member agree to the Cooling Off Period in Section... The release stated above in Section. shall be effective and binding on Plaintiffs, the Class and each Class Member upon entry of the Final Judgment without any further action of the Parties required.. Permanent Injunction Plaintiffs The Final Judgment shall, among other things, provide that Plaintiffs and each Class Member are forever barred and permanently enjoined from commencing, instituting, prosecuting, intervening in, participating in or receiving any benefit or other relief from any action or other adversary proceeding of any kind in any jurisdiction, in any court of law or equity, arbitration, lawsuit, or administrative forum, directly or representatively, against the Released Parties, with respect to any, some or all of the Released Claims, or relating in any fashion to the Action, the Complaint or the facts and circumstances relating thereto, and bar and enjoin Plaintiffs and each Class Member from filing, commencing, or prosecuting in any jurisdiction, in any court of law or equity, arbitration or administrative forum any action or adversarial proceeding of any kind on behalf of Plaintiffs or any Class Member with respect to any, some or all Released Claims or relating to in any fashion the Action, the Complaint or the facts and circumstances relating thereto. This Section shall not apply to future conduct of Defendants which creates future harm or damages as opposed to future harm or damages arising out of past conduct occurring prior to the Preliminary Approval Order date which is expressly included under Released Claims.. Permanent Injunction Defendants.1 The Final Judgment shall, among other things, provide that Defendants will engage in the Improvement Measures set forth in Exhibit D.. Limitation On Use Of This Agreement.1 Under no circumstances, shall this Agreement or drafts thereof, whether or not executed or consummated, nor any of its terms and provisions or Exhibits, nor any of the negotiations or proceedings connected with it, be: - -

19 i. Construed as an admission of any sort whatsoever, either by Defendants or Plaintiffs, relating to any issue, fact, claim or defense in this Action; ii. iii. iv. Offered or received into evidence in the Action in the event that either party exercises their option to terminate this Agreement pursuant to Section or in any other action or proceeding of any nature, including administrative or regulatory proceedings, for any purpose whatsoever except to the extent necessary to respond to or defend against any claim arising from any alleged act or omission in connection with participation in this Action; Referred to for any reason in any writing or document other than to give effect to the provision of this Agreement except as otherwise provided for in this Agreement; or Afforded res judicata, issue preclusion or collateral estoppel effect as to any factual or legal issue.. Payment To Plaintiffs And Class Counsel s Attorneys Fees and Costs.1 As soon as practicable after execution of this Agreement, Plaintiffs and Defendants shall jointly move the Court for preliminary approval and entry of the Preliminary Approval Order substantially in the form attached hereto as Exhibit C and approval of the dissemination of the Class Notice in a form similar to the attached Exhibit A.. At the Fairness Hearing, the Parties will seek the Court s final approval of this Agreement. If this Agreement is approved by the Court, Plaintiffs shall move the Court for entry of the Final Judgment, in a form similar to the attached Exhibit B.. At the Fairness Hearing, Class Counsel will seek the Court s approval of an award of reasonable attorneys fees, expenses and costs to be deducted by Class Counsel from the Settlement Funds, up to $0, ($00,000 for fees, and up to $0,000 for reasonable costs and expenses). Defendants will take no position as to Class Counsel s motion or application for an award of reasonable attorneys fees, expenses and costs. - -

20 . Plaintiffs will deduct from the Settlement Funds the following expenses reasonably incurred after the execution of this Agreement: any publication, printing, postage, or mailing costs of the Class Notice as set forth in Sections. and.; fees and disbursements approved by the Court to the Administrator (if any), and any other third-party contractors engaged by Plaintiffs; and the amount of reasonable attorneys fees and costs determined by the Court.. Defendants shall not be liable or obligated to pay any attorneys fees, expenses, costs, or disbursements, or incur any expense on behalf of, any person, either directly or indirectly, in connection with this Action or this Agreement, other than the Settlement Fund and as expressly provided in this Agreement.. Plaintiffs, subject to Court approval, shall be entitled to deduct from the Settlement Funds the total amount of $, each as compensation for the time and effort assumed by each of them in prosecuting the Action. This total $, will be divided between Plaintiffs as set forth below.. Settlement Fund Distribution.1 The Settlement Fund shall be distributed as follows: A. Notice and Administration: For Plaintiffs share of notice and administration costs as set forth in Sections. and.; B. Attorneys fees and costs: Class Counsel shall receive as and to the extent approved by the Court a reimbursement for their legal fees and out of pocket expenses and, for their efforts in the protection and the advancement of the interests of Plaintiffs and the Class; C. Plaintiffs class representative award: Plaintiffs, Peter Ng and Dolly Wu, if approved by the Court, shall each receive for their diligence and participation in the advancement of the interests of the Class in this litigation the sum of $, dollars; D. All remaining monies from the Settlement Fund shall be divided among all Class Members who submit a Claim Form pursuant to Section.1 and. of this Agreement and who, prior to the Preliminary Approval Order date, qualify as a Class Member pursuant to Section. and file a Claim Form pursuant to Section.. The disbursement of the Settlement Fund and Payment of Claims shall be governed as set forth in Exhibit G, the Claims Processing and Payment Guidelines. - -

21 . Claim Administration.1 To qualify for a Claim, a Class Member must submit his, her or its claim and participate in the Settlement by executing the Claim Form in a form similar to Exhibit F attached to this Agreement.. To be eligible for money from the Settlement Fund, a Class Member must send the fully completed Claim Form to Liddle & Dubin, P.C., E. Jefferson Avenue, Detroit, Michigan -1 by first class mail, postmarked no later than December,.. Claim Form requirements, the processing of Claim Forms, the disbursement of the Settlement Fund and Payment of Claims shall be governed as set forth in Exhibit G, the Claims Processing and Payment Guidelines.. Termination of This Agreement.1 This Agreement shall terminate at the sole option and discretion of either Plaintiffs (through Class Counsel) or Defendants if: (i) the Court, or any appellate court(s), rejects, modifies or denies approval of any portion of this Agreement, the Settlement or the Final Judgment that either Party in its sole judgment and discretion reasonably determines is material, including, without limitation, the terms of relief, the findings of the Court, the provisions relating to notice, the definition of the Class and/or the terms of the Released Claims, or (ii) the Court, or any appellate court(s), does not enter or completely affirm, or alters or expands, any portion of the Final Judgment that either Party in its sole judgment and discretion believes is material. A Party must exercise the option to withdraw from and terminate this Agreement, as set forth in this Section, no later than seven () days after receiving notice of the event prompting the decision to terminate. Nothing herein shall be construed to permit Plaintiffs to terminate this Agreement solely because of the amount of the reasonable attorneys fees and costs awarded by the Court or any appellate court(s).. Defendants also may terminate this Agreement:..1 If the total number of Class Members requesting to Opt-Out of the Settlement exceeds % of the Housing Units in the geographic area of the class as defined and determined by the United States Census Bureau, then, in such event, Defendants may elect - -

22 to terminate this Agreement by so notifying Class Counsel and the Court in writing not less than seven () days prior to the date set for the Fairness Hearing... If, prior to the Final Settlement Date, any governmental authority or authorities should provide notice of, or undertake, action that would threaten materially to increase the cost of the Settlement to Defendants, or materially to decrease the economic relief afforded to the Class Members, then the Parties shall negotiate in good faith to modify this Agreement so as to restore the economic relief to the Class Members or the cost to Defendants, as the case may be, to what it would have been absent such governmental notice or action. If the Parties cannot agree to such modification, the Parties shall engage a mediator to assist in achieving such a resolution. Should no such negotiation modification or resolution be achieved within 0 days of such governmental notice or action, the adversely affected Party shall have the option, but not the obligation, to terminate this Agreement.. If an option to withdraw from and terminate this Agreement arises under this Section, neither Defendants nor Plaintiffs are required for any reason or under any circumstance to exercise that option, and any exercise of such an option shall be made in good faith. If Defendants have the right to terminate this Agreement pursuant to Section..1, but elect not to, then the Settlement Funds will be reduced proportionately consistent with the opt-out percentage.. If this Agreement is terminated pursuant to this Section by either Party, then:..1 This Agreement shall be null and void and shall have no force or effect, and no Party to this Agreement shall be bound by any of its terms, except for the terms of Sections,, and this Section ;.. This Agreement and all negotiations, statements and proceedings relating to it shall be without prejudice to the rights of Defendants, Plaintiffs or any Class Member, all of whom shall be restored to their respective positions existing immediately before the execution of this Agreement; - -

23 .. Defendants expressly reserve all defenses, arguments, and motions as to all claims that have been or might later be asserted in the Action, including (without limitation) the argument that the Action may not be litigated as a class action;.. Plaintiffs expressly reserve all motions as to, and arguments in support of, all claims that have been or might later be asserted in the Action, including (without limitation) any argument concerning class certification.. General Matters and Reservations.1 By execution of this Agreement, Defendants do not intend to release any claim they have against any insurer for any payment, fee, cost or expense whatsoever hereunder, including attorneys fees and costs.. Class Counsel represents (i) that it is authorized to enter into this Agreement on behalf of Plaintiffs, and (ii) that Class Counsel is seeking to protect the interests of the Class.. This Agreement sets forth the entire agreement among the Parties with respect to its subject matter, and it may not be altered or modified in any manner except by written instrument executed by Class Counsel and Defendants Counsel. The Parties expressly acknowledge that no other agreements, arrangements, or understandings not expressed in this Agreement exist among or between them.. Whenever this Agreement requires or contemplates that one Party shall or may give notice to the other, notice shall be provided by facsimile and next-day (excluding Sunday) express delivery service as follows: If to Defendants, then to: Thomas M. Bruen Law Office of Thomas M. Bruen 0 N. California Blvd., Suite Walnut Creek, CA Facsimile: -- William G. Beck Lathrop & Gage LLP Grand Boulevard, Suite 00 Kansas City, MO Facsimile:

24 If to Plaintiffs, then to: David R. Dubin Nicholas A. Coulson Liddle & Dubin, P.C. E. Jefferson Avenue Detroit, MI -1 Facsimile: The Parties agree that this Agreement is clear and unambiguous and was drafted jointly by both counsel for the Parties at arm s length, and that no parole or other evidence may be offered to explain, construe, contradict, or clarify its terms, the intent of the Parties or their counsel, or the circumstances under which this Agreement was made or executed.. The Parties reserve the right, subject to the Court s approval, to make any reasonable extensions of time that might be necessary to carry out any of the provisions of this Agreement.. The Parties, Defendants counsel and Class Counsel agree that they will not make public in any way the existence and the contents of this Agreement or the proposed Final Judgment and all related negotiations until the date on which the Final Judgment is entered; provided however, that this Section shall not prevent the disclosure, prior to the date on which the Final Judgment is entered, of information concerning the Settlement, this Agreement or any related negotiations, (i) to regulators, financial analysts, and/or employees of Defendants, where Defendants deem such disclosure necessary to effectuate the terms and conditions of this Agreement; (ii) to Class Members and the public generally as required by the Court to effectuate the Class Notice provisions of this Agreement and/or to effectuate any, if at all, ethical obligations to the Class; and (iii) to any other person or entity (such as experts, courts, and/or Administrators) to which the Parties both agree in writing disclosure must be made in order to effectuate the terms and conditions of this Agreement.. The Parties and their attorneys agree to cooperate fully with one another in seeking Court approval of this Agreement and to use their best efforts to consummate the terms of this Agreement. Neither Plaintiffs nor Defendants shall seek to evade their good faith obligations to seek approval and implementation of this Agreement by virtue of any rulings, orders, - -