Case 2:16-cv RLR Document 181 Entered on FLSD Docket 11/29/2018 Page 1 of 19 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

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1 Case 2:16-cv RLR Document 181 Entered on FLSD Docket 11/29/2018 Page 1 of 19 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 2:16-CV RLR JAMES ALDERMAN, individually and, on behalf of others similarly situated, v. Plaintiff, GC SERVICES LIMITED PARTNERSHIP, a Delaware Limited Partnership, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) CLASS ACTION JURY TRIAL DEMANDED JOINT MOTION AND MEMORANDUM OF LAW IN SUPPORT OF PRELIMINARY APPROVAL OF PROPOSED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

2 Case 2:16-cv RLR Document 181 Entered on FLSD Docket 11/29/2018 Page 2 of 19 TABLE OF CONTENTS I. INTRODUCTION... 1 II. HISTORY OF THE LITIGATION... 3 III. SETTLEMENT NEGOTIATIONS... 5 IV. SETTLEMENT TERMS... 5 A. Monetary Relief Under the Settlement... 5 B. Class Notice and Claims Administration... 6 C. Objectors... 7 V. THE SETTLEMENT IS WITHIN THE RANGE OF REASONABLENESS... 8 A. Recovery Under the Circumstances is Significant B. The Settlement is the Product of Serious, Informed, Non-collusive Negotiations and Contentious Litigation C. Settlement Class Members Will Be Afforded Ample Due Process VI. CONCLUSION ii

3 Case 2:16-cv RLR Document 181 Entered on FLSD Docket 11/29/2018 Page 3 of 19 TABLE OF AUTHORITIES Cases Ass'n for Disabled Ams., Inc. v. Amoco Oil Co., 211 F.R.D., 457, 466 (S.D. Fla. 2002)... 8 Beherens v. Wometco Enterprises, Inc., 18 F.R.D. 534, 542 (S.D. Fla. 1988) Bennett v. Behring Corp., 737 F.2d 982, 986 (11 th Cir. 1984)... 9 Borcea v. Carnival Corp., 238 F.R.D. 664, 674 (S.D. Fla. 2006) Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977)... 8, 11 Fresco v. Auto Data Direct, Inc., No , 2007 U.S. Dis. LEXIS 37863, at *11-*12 (S.D. Fla. May 11, 2007)... 8,9 Henson v. CIBA-GEIGY Corp., 261 F.3d 1065, 1068 (11th Cir. 2001)... 8 In Re Amino Acid Lysine Antitrust Litigation; Manual for Complex Litigation (4th ed. 2004)... 9 In re Synthroid Mktg. Litig., 197 F.R.D. 607, 610 (N.D. Ill. 2000)... 8 In re Telectronics Pacing Sys., Inc., 137 F.Supp.2d 985, 1013 (S.D. Ohio 2001) Lipuma v. Am. Express Co., 406 F. Supp. 2d 1298, 1314 (S.D. Fla. 2005)... 8 Lucas v. Kmart Corp., 234 F.R.D. 688, 693 (D. Colo. 2006) Officers for Justice v. Civil Service Com'n of City and County of San Francisco, 688 F.2d 615, 633 (9 th Cir. 1982) Statutes 15 U.S.C et seq... 1,3 28 U.S.C. 1651(a)... 8 Rules Fed. R. Civ. P. 23(e)(1) iii

4 Case 2:16-cv RLR Document 181 Entered on FLSD Docket 11/29/2018 Page 4 of 19 Treatises 4 Herbert N. Newberg & Alba Conte, Newberg on Class Actions, (4 th ed. 2002) B Charles Alan Wright, Arthur R. Miller, Mary Kay Kane Federal Practice & Procedure David F. Herr, Manual for Complex Litigation at 287 (4th ed. 2004)... 9 F. Herr, Annotated Manual for Complex Litigation ( Manual ) (4 th ed. 2008)... 9 Wright, Charles Alan and Miller, Arthur R., 7AA Fed. Prac. & Proc. Civ (3d ed.) iv

5 Case 2:16-cv RLR Document 181 Entered on FLSD Docket 11/29/2018 Page 5 of 19 I. INTRODUCTION Plaintiff, James Alderman ( Plaintiff or Class Representative ), on behalf of himself and all others similarly situated Settlement Class Members, 1 and Defendant GC Services Limited Partnership ( Defendant or GC Services ) (collectively, the Parties ) submit this Joint Motion and Memorandum of Law in Support of Preliminary Approval of Proposed Class Action Settlement Agreement ( Motion for Approval ). 2 Plaintiff James Alderman brought this class action to protect his private statutory rights and those of the class under the Fair Debt Collection Practices Act ( FDCPA ) 15 U.S.C. Sec et seq. because 1692(g)(a)(3) does not require that the validity of a debt be disputed in writing. [ECF No. 13]. Plaintiff alleged that he was one of a state-wide class of consumers to which GC Services mailed a demand letter that stated in order to dispute the validity of the alleged debt, the consumer must do so in writing. The settlement negotiations began at an early stage of the litigation, then through a courtordered settlement conference on February 14, 2018 and continued through the date of the Settlement Agreement. See [ECF No. 110]. Despite their significant differences, the Parties have been able settle this action on behalf of a Florida Statewide Settlement Class comprised of (i) all persons with addresses in the State of Florida; (ii) to whom initial communication letters that contained the language: If you dispute this balance or the validity of this debt, please let us know in writing. If you do not dispute this debt in writing within 30 days after you receive this 1 Capitalized words in this Motion correspond to defined terms in the Settlement Agreement and Release. 2 The following documents have been filed with this motion: Exhibit 1 is the Settlement Agreement and Release ( Agreement ). The Agreement includes the following exhibits: Exhibit 2 is a Short Form Notice; Exhibit 3 is Full Long Form Notice. Furthermore, Exhibit 4 is the Declaration of Scott D. Owens ( Owens Decl. ) and Exhibit 5 is the Declaration of Leo W. Desmond ( Desmond Decl. ). 1

6 Case 2:16-cv RLR Document 181 Entered on FLSD Docket 11/29/2018 Page 6 of 19 letter, will assume this debt is valid; (iii) were mailed, delivered or caused to be served by Defendant; (iv) that were not returned undeliverable by the U.S. Post Office; (v) in an attempt to collect a debt incurred for personal, family, or household purposes owing to Synchrony Bank; and (vi) during the Class Period. The Parties have determined that after the Opt-Out Date there are 17,291 persons who meet this Class definition. The Settlement Agreement was reached after considering such factors as: (1) the benefits to Plaintiff and Settlement Class Members; (2) the strength of the Parties respective positions; (3) the attendant risks and uncertainty of litigation, especially likely appeals; (4) Defendant s vigorous defense of the action and continued denial of the claims damages and facts at issue; and (5) the desirability of consummating this Settlement Agreement promptly, to secure important and valuable benefits for Settlement Class Members. As set forth in the attached Settlement Agreement, GC Services will pay $10.00 per class member, for a total of $172, to establish the Class Settlement Fund. The Class Settlement Fund shall be used to provide the exclusive recovery and relief for the Settlement Class Members. The Parties agree that 50% of any Unclaimed Funds shall revert to Defendant and the other 50% shall go to a cy pres selected by Plaintiff s counsel. Plaintiff will request that twentyfive percent (25%) of Unclaimed Funds will be paid over as a cy pres award to the Legal Aid Society of Palm Beach County, Inc. to be exclusively used to assist indigent clients by paying the client s filing fees or other costs relating to the filing of a bankruptcy, and the other twenty -five percent (25%) of Unclaimed Funds will be paid over as a cy pres award to the Legal Aid Service of Broward County. The remaining fifty percent (50%) of Unclaimed Funds will be reverted and returned to GC Services. 2

7 Case 2:16-cv RLR Document 181 Entered on FLSD Docket 11/29/2018 Page 7 of 19 The settling Parties have also agreed that Defendant shall pay $195, as reasonable Attorneys Fees and costs. Furthermore, the Parties have agreed that Plaintiff/Class Representative shall receive $1, for statutory damages and $2, as an incentive award for his services as the Class Representative, for a total of $3, Finally, GC Services has agreed to pay the Settlement Administration Costs and Expenses. Plaintiff and Defendant now jointly move the Court for an order preliminarily approving the proposed Settlement, directing dissemination of class notice and scheduling a Fairness Hearing. The proposed Settlement satisfies all criteria for preliminary settlement approval under Eleventh Circuit law, as discussed below. II. HISTORY OF THE LITIGATION On November 14, 2016, Plaintiff James Alderman initiated the Action by filing a class action complaint seeking statutory damages from GC Services for alleged violations of the FDCPA, primarily claiming that Defendant s initial communication letters falsely and misleadingly state that Plaintiff, in order to dispute the validity of the debt, must do so in writing despite the clear, unambiguous language of 15 U.S.C. 1692g(a)(3), which contains no writing requirement in order for the consumer to dispute a debt. See [ECF No. 13]. Plaintiff s counsel actively pursued the case, engaged in discovery and filed his Motion for Class Certification on February 28, 2017 [ECF Nos. 35, 36]. In the following months, Defendant sought relief through several motions, including a motion to compel arbitration, a 12(b)(6) motion, and three 12(b)(1) motions to dismiss based on Spokeo, 3 including an interlocutory appeal. The Court denied all of Defendant s motions. See e.g. [ECF Nos. 83, 93, 132, 156]. 3 See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1545 (2016). 3

8 Case 2:16-cv RLR Document 181 Entered on FLSD Docket 11/29/2018 Page 8 of 19 On January 19, 2018, the Court granted Plaintiff s Motion for Class Certification and certified a class of (i) all persons with addresses in the State of Florida; (ii) to whom initial communication letters that contained the language: If you dispute this balance or the validity of this debt, please let us know in writing. If you do not dispute this debt in writing within 30 days after you receive this letter, will assume this debt is valid; (iii) that were mailed, delivered or caused to be served by Defendant; (iv) that were not returned undeliverable by the U.S. Post Office; (v) in an attempt to collect a debt incurred for personal, family, or household purposes owing to Synchrony Bank; and (vi) during the one-year period prior to the filing of the original Complaint in this action through the date of certification. The Court approved Plaintiff s notice plan and American Legal Claims Services sent notice to 17,298 class members, achieving a notice rate of 89.87%. Six (6) class members opted-out of the class. See [ECF Nos. 112, 137]. On August 21, 2018, the Court granted Plaintiff s Motion for Summary Judgment on all issues but damages, which the Court requested supplemental briefing. [ECF No. 156]. Plaintiff s Supplemental Motion for Summary Judgment on Damages in the Context of a Class Action became fully briefed on October 9, 2018 [ECF No. 173]. Defendant opposed Plaintiff s motion for summary judgment on the issue of damages. [ECF No. 172]. The only outstanding briefing at the time of mediation was Plaintiff s supplemental motion on damages. In addition, throughout the last two (2) years which has resulted in over 175 docket entries, the Parties individually and jointly submitted numerous filings related to the Court s scheduling orders and seeking relief from scheduling orders to ensure that this matter could be fully and fairly litigated and to ensure compliance with the Court s orders. 4

9 Case 2:16-cv RLR Document 181 Entered on FLSD Docket 11/29/2018 Page 9 of 19 III. SETTLEMENT NEGOTIATIONS On Saturday, October 13, 2018, the Parties attended an all-day mediation with Steven R. Jaffe, Esq. of Upchurch Watson White & Max. The Parties reached an agreement on the basic terms of settlement for the Class at mediation. These fruitful negotiations resulted in the Settlement Agreement the Parties are now proposing that the Court preliminarily approve. IV. SETTLEMENT TERMS The agreed-upon Settlement Class that the Parties propose the Court approve for purposes of the Settlement consists of: (i) All persons with addresses in the State of Florida; (ii) to whom initial communication letters that contained the language: If you dispute this balance or the validity of this debt, please let us know in writing. If you do not dispute this debt in writing within 30 days after you receive this letter, will assume this debt is valid; (iii) were mailed, delivered or caused to be served by Defendant; (iv) that were not returned undeliverable by the U.S. Post Office; (v) in an attempt to collect a debt incurred for personal, family, or household purposes owing to Synchrony Bank; and (vi) during the Class Period. The Parties agree that there are presently 17,291 persons who are Settlement Class Members. A. Monetary Relief Under the Settlement Pursuant to the Settlement, GC Services will establish a Settlement Fund of $10.00 per Settlement Class Member, for a total of $172, The Settlement Fund will be used to make payments to Settlement Class Members. GC services has agreed to the following payments: 1. Settlement Administrator Costs and Expenses; 2. $195, to Class Counsel for Attorney s Fees; 3. $3, to Class Representative; and 4. $172, for Settlement Class Members. 5

10 Case 2:16-cv RLR Document 181 Entered on FLSD Docket 11/29/2018 Page 10 of 19 The Settlement provides that Unclaimed Funds, if any, shall be distributed by the Settlement Administrator within 120 days from the issuance of the Settlement Checks, in the amounts equal to fifty percent (50%) to a Cy Pres determined by Plaintiff s respective counsel. Plaintiff will seek that twenty-five percent (25%) of Unclaimed Funds will be paid over as a cy pres award to the Legal Aid Society of Palm Beach County, Inc. to be exclusively used to assist indigent clients by paying the client s filing fees or other costs relating to the filing of a bankruptcy, and the other twenty-five percent (25%) of Unclaimed Funds will be paid over as a cy pres award to the Legal Aid Service of Broward County to be used for client s filing fees or other costs relating to the filing of a bankruptcy. The remaining fifty percent (50%) in Unclaimed Funds will be returned to GC Services. The Parties also agreed to pay their proportionate share of mediator s fees. B. Class Notice and Claims Administration The Settlement Agreement establishes a Notice Plan that will provide best practicable notice to Settlement Class Members. American Legal Claims Services, LLC has been selected as the Settlement Administrator. Defendant has already provided the Settlement Administrator with the complete mailing address and/or address for the class members, and the Settlement Administrator has already sent notice to 17,298 potential class members, achieving a notice rate of 89.87%, and six (6) class members opting-out of the class. See [ECF Nos. 112, 137, 137-1]. Within thirty (30) days after the Court enters an order preliminarily approving the Parties Settlement Agreement, the Settlement Administrator will deliver the Notice of the Settlement and which will also advise the opportunity to object to the Settlement by short form notice postcards to Settlement Class Members through the United States Postal Service for those members whom it obtains a complete mailing address from Defendant. The short form postcard 6

11 Case 2:16-cv RLR Document 181 Entered on FLSD Docket 11/29/2018 Page 11 of 19 notice directs Settlement Class Members to the Settlement Website containing the long form settlement notice which advises Settlement Class Members of the binding effect Settlement of the case would have, how to object and/or attend the Fairness Hearing. In addition, the Settlement Administrator will establish a Settlement Website and an 800 number for Settlement Class Members to contact. The Settlement website will be established when Notice is sent and will provide access to important documents, including: Plaintiff s Amended Complaint, the Settlement Agreement, the Motion for Preliminary Approval, the Preliminary Approval Order, the Motion for Final Approval, and the Final Order. In addition, the Settlement Website will include the deadlines for requests for objections and final approval, and other information pertaining to the settlement and how to submit claims. C. Objectors The Parties also propose that the Court establish the following deadlines and procedures for objectors and/or interveners set forth in the proposed Notice and Settlement Agreement to ensure that that all interested persons are afforded a reasonable opportunity to be heard, and that the Fairness Hearing may be conducted in an orderly, efficient, and just manner. The Parties propose that any Class Member who objects to the Settlement contemplated by this Agreement shall have a right to appear and be heard at the Fairness Hearing provided that such Class Member files with the Court and delivers to designated Class Counsel and Defendant s Counsel a written statement of reasons for the objection no later than fourteen (14) days before the Fairness Hearing date. Any objector who does not properly and timely object in the manner set forth above and described more fully in the proposed Notice, will not be permitted to appear at the Fairness Hearing or object to the Settlement. 7

12 Case 2:16-cv RLR Document 181 Entered on FLSD Docket 11/29/2018 Page 12 of 19 Plaintiff requests that the Court s Preliminary Approval Order contain a temporary injunction enjoining other proceedings relating to the Released Claims in order to preserve the status quo pending the Court s final decision on the reasonableness and fairness of the Settlement. 4 V. THE SETTLEMENT IS WITHIN THE RANGE OF REASONABLENESS [I]n analyzing any settlement, the clear policy in favor of encouraging settlements must... be taken into account. Ass'n for Disabled Ams., Inc. v. Amoco Oil Co., 211 F.R.D., 457, 466 (S.D. Fla. 2002)(citation omitted); see Lipuma v. Am. Express Co., 406 F. Supp. 2d 1298, 1314 (S.D. Fla. 2005)(same); Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977) (same). Moreover, "[i]n evaluating a settlement's fairness, 'it should [not] be forgotten that compromise is the essence of a settlement. The trial court should not make a proponent of a proposed settlement 'justify each term of settlement against a hypothetical or speculative measure of what concessions might [be] gained.'" Ass'n for Disabled Ams., 211 F.R.D. at 467 (quoting Cotton, 559 F.2d at 1330); Access Now, Inc. v. Claire's Stores, Inc., No CIV, 2002 WL , at *4 (S.D. Fla. May 7, 2002) (same). 4 Such injunction is authorized under the All Writs Act, 28 U.S.C. 1651(a), which provides, in pertinent part, that federal courts "may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C (a); see Henson v. CIBA-GEIGY Corp., 261 F.3d 1065, 1068 (11th Cir. 2001). Settlement injunctions are commonly employed. See, e.g., Fresco v. Auto Data Direct, Inc WL , 10 (S.D.Fla.,2007) (enjoining settlement class members from commencing, continuing or taking any action in any judicial proceeding in any state or federal court or any other judicial or arbitral forum against the released parties in the proposed Settlement with respect to any of the claims or issues covered by the proposed Settlement ); In re Synthroid Mktg. Litig., 197 F.R.D. 607, 610 (N.D. Ill. 2000) ( An injunction, where necessary to protect the court's earlier orders, including preliminary approval of the settlement of this class action, is authorized under the All Writs Act. ); 7B Charles Alan Wright, Arthur R. Miller, Mary Kay Kane Federal Practice & Procedure ( Once a settlement has been approved, then an injunction barring parallel litigation may be justified in order to protect and effectuate the court's order regarding those settlements. ). 8

13 Case 2:16-cv RLR Document 181 Entered on FLSD Docket 11/29/2018 Page 13 of 19 Approval of a class-action settlement is a two-step process. In the first step, the Court determines whether the proposed settlement should be preliminarily approved. See David F. Herr, Annotated Manual for Complex Litigation (4th ed. 2004). In the second step, after hearing from any objectors and being presented with declarations and materials to support the fairness of the settlement, the Court makes a final decision whether the settlement should be finally approved. See id At the preliminary approval stage, the court makes the original determination whether the proposed settlement is within the range of fairness, reasonableness and adequacy so as to justify approval of the settlement, and in this process the court sets a final fairness hearing to decide whether the proposal is indeed fair, reasonable and adequate in the ultimate sense. In Re Amino Acid Lysine Antitrust Litigation; Manual for Complex Litigation (4th ed. 2004). At the preliminary approval stage, the Court need only make a preliminary determination of the fairness, reasonableness and adequacy of the settlement so that notice of the settlement may be given to the class and a fairness hearing may be scheduled to make a final determination regarding the fairness of the Settlement. See 4 Herbert N. Newberg & Alba Conte, Newberg on Class Actions, (4 th ed. 2002); David F. Herr, Annotated Manual for Complex Litigation ( Manual ) (4 th ed. 2008). In so doing, the Court reviews the Settlement to determine if it is within the range of possible approval or, in other words, [if] there is probable cause to notify the class of the proposed settlement. Fresco v. Auto Data Direct, Inc., 2007 WL , at *4 (S.D. Fla. May 14, 2007) (internal citations omitted); Bennett v. Behring Corp., 737 F.2d 982, 986 (11 th Cir. 1984)(A proposed settlement must be fair, adequate and reasonable and [not] the product of collusion between the parties. ). 9

14 Case 2:16-cv RLR Document 181 Entered on FLSD Docket 11/29/2018 Page 14 of 19 As outlined below, there are several reasons why the proposed Settlement Agreement is within the realm of reasonableness and provides probable cause to provide notice of it to the Settlement Class Members. A. Recovery Under the Circumstances is Significant "[A] settlement can be satisfying even if it amounts to a hundredth or even a thousandth of a single percent of the potential recovery." Beherens v. Wometco Enterprises, Inc., 18 F.R.D. 534, 542 (S.D. Fla. 1988). This Settlement meets a critical test in gauging its fairness and reasonableness: the Settlement provides significant, concrete relief to affected Settlement Class Members. The proposed Settlement would create a Settlement Fund of $172, to compensate people whom GC Services on behalf of Synchrony Bank mailed a demand letter to which stated in order to dispute the validity of the alleged debt, the consumer must do so in writing during the Class Period. Settlement Class Members who submitted exclusion requests by July 11, 2018, are excluded from the class. Settlement Class Members who wish to object to the Settlement must do so in writing by 14 days before the Fairness Hearing. The proposed Settlement is a significant FDCPA class action settlement. The total recovery compares favorably to recent common fund FDCPA settlements. 5 The Settlement Fund comprised of $172, will be distributed for the benefit of Settlement Class Members at 5 See Hall v. Frederick J. Hanna & Assocs., P.C., 2016 WL , at *3 (N.D. Ga. May 10, 2016) (granting preliminary approval of FDCPA settlement where each class member would receive $10.00); Hicks v. Client Servs., Inc., 257 F.R.D. 699, (S.D. Fla. 2009) (denying motion to decertify class where the maximum individual recovery was approximately $1.24); Kausch v. Berman & Rabin, P.A., 2016 WL , at *2 (E.D. Mo. July 8, 2016) (granting final approval of FDCPA settlement where each participating class member will receive $38.64); Kagno v. Ross, 2017 U.S. Dist. LEXIS (M.D. Fla. Dec. 4, 2017) (granting preliminary approval of FDCPA settlement wherein each class member would receive approximately $21.80 for defendant s alleged violative letter); Little-King v. Hayt Hayt & Landau, 2013 WL , at *3 (D.N.J. Sept. 10, 2013) ($40, fund for class of 49,156 members which resulted in recovery of $7.87 per individual). 10

15 Case 2:16-cv RLR Document 181 Entered on FLSD Docket 11/29/2018 Page 15 of 19 $10.00 per Settlement Class Member. Any Unclaimed Funds will be split with 50% to revert to Defendant, and the other 50% as a cy pres award to receipt(s) approved by the Court. Settlement Class Members will receive a pro rata share of the Settlement Fund of $10.00 per Settlement Class Member. The Settlement represents a significant recovery, both in terms of the Settlement Fund of $172, and the recovery per Settlement Class Member. The circumstances of the Defendant vis-à-vis its ability to survive a judgment for damages in the context of a class action weigh in favor of the Settlement Class at issue is also a relevant consideration. Because class actions vary so widely in their circumstances, the trial judge is vested with broad discretionary control over the conduct of such actions enabling the presiding judge to respond fluidly to the varying needs of particular cases. Officers for Justice v. Civil Service Com'n of City and County of San Francisco, 688 F.2d 615, 633 (9 th Cir. 1982). Absent a settlement, the final resolution of this action through the trial process, may require several more months or years of protracted adversary litigation and appeals, which may delay relief or entirely eliminate any obtainable relief to Settlement Class Members. The Settlement imposes a significant financial burden on Defendant for the benefit of Settlement Class Members but does not annihilate Defendant. That this Settlement would eliminate the delay and expenses of litigation strongly weighs in favor of approval. See e.g., In re Telectronics Pacing Sys., Inc., 137 F.Supp.2d 985, 1013 (S.D. Ohio 2001). For class actions in particular, courts view settlement favorably because it avoids the costs, delays and multitudes of other problems associated with them. Id. at [C]lass action suits have a well deserved reputation as being most complex. Cotton, 559 F.2d at The Court should consider the vagaries of litigation and compare the significance of immediate recovery by way of the compromise of the mere possibility of relief in the future, 11

16 Case 2:16-cv RLR Document 181 Entered on FLSD Docket 11/29/2018 Page 16 of 19 after approximately two (2) years protracted and extensive litigation. In this respect, [as this Court has observed] [i]t has been held proper to take the bird in the hand instead of a prospective flock in the bush. Borcea v. Carnival Corp., 238 F.R.D. 664, 674 (S.D. Fla. 2006) (citation omitted). This is a complex case, which has involved several cutting-edge legal issues. Accordingly, it is clearly advantageous for Settlement Class Members to obtain this monetary relief without further delay and for sums certain. The proposed Settlement Agreement is the most realistic and the best current outcome as could be expected in the particular circumstances of this action, the Settlement Class Members and Defendant. This provides a compelling reason why it should be preliminarily approved and Notice provided to the Settlement Class. B. The Settlement is the Product of Serious, Informed, Non-collusive Negotiations, and Contentious Litigation Furthermore, where a settlement results from arm s length negotiations between experienced counsel after significant discovery ha[s] occurred, the Court may presume the settlement to be fair, adequate, and reasonable. Lucas v. Kmart Corp., 234 F.R.D. 688, 693 (D. Colo. 2006) (citations omitted). Here, as detailed above, this action has been highly contentious involving a motion for class certification, two motions for summary judgment, and briefing several motions to dismiss, a motion to compel arbitration, and appeals. Discovery was extensive and involved several requests for information and documents, and depositions of the Plaintiff and Defendant s 30(b)(6) witness. Despite their significant differences, the Parties fully informed as to the facts and circumstances, the size and nature of the Settlement Class, represented by experienced counsel, and with the assistance of a seasoned mediator have been able settle this case. This Settlement therefore exemplifies arm s length negotiations between 12

17 Case 2:16-cv RLR Document 181 Entered on FLSD Docket 11/29/2018 Page 17 of 19 experienced counsel after significant discovery ha[s] occurred and is thus presumptively fair and reasonable. 6 C. Settlement Class Members Will Be Afforded Ample Due Process A central aim of the preliminary approval process is to authorize Notice and provide Notice of the Settlement to the Settlement Class Members so that the merits of the Settlement can be reviewed by all those affected. Under Rule 23(e), the Court must direct notice in a reasonable manner to all class members who would be bound by the proposed settlement. Fed. R. Civ. P. 23(e)(1). The Individual members in a Rule 23(b) (3) action have a right to opt out of the class proceedings. David F. Herr, Manual for Complex Litigation at 287 (4th ed. 2004). Rule 23(c)(2)(B) requires that individual notice in 23(b)(3) actions be given to class members who can be identified through reasonable effort. Id.; See Wright, Charles Alan and Miller, Arthur R., 7AA Fed. Prac. & Proc. Civ (3d ed.). The proposed Notice plan will provide the best practicable Notice to Settlement Class Members because it includes Notice to all Settlement Class Members. In addition, the Notice plan will provide a Settlement Website will be maintained that will provide the long form Settlement Notice, claim form, other important documents, and answers to frequently asked questions about the Settlement. The Notice plan reasonably informs Settlement Class Members of: (1) the litigation, the Settlement Class, and the essential terms of the proposed Settlement and its binding effect on those members who stay in the Settlement Class; (2) information about this Court's final approval procedure; (3) how to object to the Settlement; and (4) the Attorneys Fee and Costs 6 See Exhibit 4 - Owens Decl., and Exhibit 5- Desmond Decl. 13

18 Case 2:16-cv RLR Document 181 Entered on FLSD Docket 11/29/2018 Page 18 of 19 Award and Class Representative Settlement Amount. Due Process and Rule 23(e) are therefore satisfied. Notice of this Class Action Settlement should proceed. VI. CONCLUSION Based on the foregoing, Plaintiff James Alderman and Defendant GC Services respectfully jointly request that this Court issue an order granting preliminary approval of the Settlement Agreement consistent with the attached proposed order. Dated: November 29, 2018 Respectfully submitted, /s/ Scott D. Owens Scott D. Owens, Esq. Sean M. Holas, Esq. SCOTT D. OWENS, P.A S. Ocean Dr., Ste. 235 Hollywood, FL Tel: Fax: /s/ Leo W. Desmond Leo W. Desmond, Esq. DESMOND LAW FIRM, P.C. Florida Bar No Highway A1A, Suite D Vero Beach, Florida Telephone: Facsimile: lwd@verobeachlegal.com Counsel for Plaintiff and the Class /s/ Ryan K. Hilton Ryan K. Hilton, Esq. 14

19 Case 2:16-cv RLR Document 181 Entered on FLSD Docket 11/29/2018 Page 19 of 19 Florida Bar No.: Scott E. Allbright, Jr., Esq. Florida Bar No.: BUTLER WEIHMULLER KATZ CRAIG LLP 400 N. Ashley Drive, Suite 2300 Tampa, Florida Telephone: (813) Facsimile: (813) Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that on November 29, 2018, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will automatically send notification to all attorneys of record. By: /s/ Scott D. Owens Scott D. Owens 15

20 Case 2:16-cv RLR Document Entered on FLSD Docket 11/29/2018 Page 1 of 20 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 2:16-CV-14S08-RLR JAMES ALDERMAN, individually and, ) on behalf ofothers similarly situated, ) CLASS ACTION ) Plaintiff, v. ) ) GC SERVICES LIMITED PARTNERSHIP, ) a Delaware Limited Partnership. ) ) Defendant. ) ) ) JURy TRIAL DEMANDED ) CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE The Parties hereto enter into the following Class Action Settlement Agreement and Release ("Agreement" or "Settlement Agreement"). This Settlement Agreement is entered into by and among Plaintiff, James Alderman ("Plaintiff'), in his individual capacity and on behalf ofthe Class described in this Agreement, and Defendant, GC Services Limited Partnership ("Defendant" or "GC Services"), as more fully defined below. This Settlement Agreement is intended by the Parties to fully, finally and forever resolve, discharge and settle on behalf ofthe entire Class the Released Claims, as defined herein, upon and subject to the terms and conditions herein. 1

21 Case 2:16-cv RLR Document Entered on FLSD Docket 11/29/2018 Page 2 of 20 RECITALS WHEREAS, the First Amended Class Action Complaint alleges that GC Services mailed initial communication demand letters to Plaintiff and the Class that stated that in order to dispute the validity ofthe debt pursuant to 15 U.S.C Section 1692g(a)(3), it must be done in writing, which is a violation ofthe Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. 1692, et seq.; and WHEREAS, the First Amended Class Action Complaint seeks money damages, attorneys' fees and other relief; and WHEREAS, the Settling Parties have concluded that it is desirable for the Class Action to be settled to avoid further inconvenience, delay, and expense and to dispose of potentially burdensome and protracted litigation and to put to rest all claims that have been or might be asserted by Plaintiff and the Settlement Class Members arising out of or related to the subject matter ofthe First Amended Class Action Complaint; and WHERAS, the Parties have engaged in arduous litigation over two years with multiple motions, heavy discovery, and appeals as more fully set forth in the Motion to Approve; and WHEREAS, the Settling Parties have engaged in protracted arms-length settlement negotiations and have determined that the terms ofthis Settlement Agreement constitute a fair and reasonable compromise ofthe claims and defenses ofthe Parties; and WHEREAS, Class Counsel believes that the claims asserted in the First Amended Class Action Complaint are meritorious, Class Counsel also recognizes, however, that these suits have an uncertain outcome and that pursuing this litigation through trial and potential appeals would involve substantial cost, risk, and inevitable delay. Based on their evaluation ofthe facts and law, and a weighing of the risks and benefits, which include, among other things, whether the facts support the FDCPA claims raised in the First Amended Class Action Complaint, the expense and length of continued proceedings necessary to prosecute the Action against GC Services through 2

22 Case 2:16-cv RLR Document Entered on FLSD Docket 11/29/2018 Page 3 of 20 trial and any appeals, and the substantial benefits the Settlement confers upon the Class, Class Counsel has determined that the settlement set forth in this Settlement Agreement is fair, reasonable, adequate, and in the best interests ofthe Class; and WHEREAS, the Class Representative, through Class Counsel, who has investigated the relevant facts and circumstances and engaged at arm's-length negotiations with Defendant's Counsel, has concluded that it is in the best interests of the Class to settle the Settlement Class Member's Claims on the terms set forth herein, which are deemed to be fair, reasonable, and adequate; and WHEREAS, in consideration ofthe foregoing and other good and valuable consideration, it is stipulated and agreed by and between Settling Parties, Class Counsel and Defendant's Counsel that the claims ofthe Class be and are hereby compromised and settled, subject to the approval of the Court, upon the following terms and conditions. DEFINITIONS 1. Accessible Contact Information. Accessible Contact Information means the names and addresses of 17,291 Settlement Class Members as presently contained in the records of GC Services (and also American Legal Claims Services) and using standard address forwarding that may be supplied by the United States Post Office, ifany. 2. Action. Action means the above-captioned action currently pending in the United States District Court for the Southern District offlorida. 3. Attorney's Fees. Attorney's Fees means the Class Counsel's reasonable attorney's fees, taxable costs of litigation, and expenses of $195, Attorney's Fees also include the anticipated fees and expenses to be incurred by Class Counsel to answer any questions from members of the class that contact Class Counsel and to administer the settlement subsequent to final approval. Attorney's Fees do not include the Class Representative Settlement Amount or 3

23 Case 2:16-cv RLR Document Entered on FLSD Docket 11/29/2018 Page 4 of 20 Settlement Administration Costs and Expenses. Attorneys' Fees are not taken from the Class Settlement Fund. 4. Class Period. Class Period shall mean November 14, 2015 to January IS, 201S, inclusive. 5. Class Counsel. Class Counsel means counsel for the Class Representative and the Settlement Class Members: Scott D. Owens, Esq., 3S00 S. Ocean Drive, Hollywood, FL and Leo W. Desmond, 5070 Highway AlA, Suite D, Vero Beach, FL Class Representative. Class Representative means James Alderman. 7. Class Representative Settlement Amount: The Class Representative Settlement Amount shall mean the sum of $1, to Plaintiff for statutory damages plus an additional $2, for his services as the Class Representative, for the total amount of $3, S. Complaint. Complaint means the First Amended Class Action Complaint [ECF No. 13] filed in the United States District Court for the Southern District of Florida, Case No.: 2: 16-cv-1450S-RLR. 9. Court. The Court means the United States District Court for the Southern District of Florida, and the judge assigned to this action is Hon. Robin L. Rosenberg. 10. Defendant. Defendant means GC Services Limited Partnership ("GC Services"). 11. Defendant's Counsel. Defendant's Counsel means: Ryan K. Hilton and Scott E. Allbright, Jr., Butler Weihmuller Katz Craig, LLP, 400 N. Ashley Drive, Suite 2300, Tampa, FI Effective Date. Effective Date means the date of the last signature on this Agreement. 4

24 Case 2:16-cv RLR Document Entered on FLSD Docket 11/29/2018 Page 5 of Final. Final means the entry ofthe Final Order where the following has occurred; (a) ifno appeal is filed, the expiration ofthe date for filing a notice ofany appeal; (b) upon entry by the Court ofthe Final Order and the expiration ofthe applicable period for perfecting an appeal from such Final Order without perfecting the appeal; and/or ( c) if an appeal is taken, upon entry by a final Appellate Court ofan Order affirming the Final Order and the expiration ofany right of further appeal, or upon the voluntary dismissal of such appeal. 14. Final Order. Final Order means the Final Approval Order. 15. Short Form Notice and Long Form Notice. Short Form Notice and Long Form Notice means the Notice of Proposed Class Action Settlement in the form attached to the Joint Motion as Exhibit "2." and Exhibit "3". 16. Initial Notice Date. Initial Notice Date means the May 9,2018 date that Notice was mailed to individuals in the Class. 17. Opt-Out Date. Opt-Out Date means the expired July 11,2018 deadline for the Settlement Administrator to receive opt out notices from the Class. 18. Preliminary Approval Order. Preliminary Approval Order means the order certifying the proposed Class for settlement purposes, preliminarily approving this Settlement Agreement, approving the Settlement Notice, a form of which is attached hereto as Exhibit "X," and setting a date for the Settlement Hearing. 19. Released Claims. Released Claims means the claims and liabilities released and discharged as set forth in paragraph Released Persons. Released Persons means Defendant, its current and former officers, directors, owners, employees, agents, predecessors, successors, assigns, shareholders, members, heirs and partners. 5

25 Case 2:16-cv RLR Document Entered on FLSD Docket 11/29/2018 Page 6 of Settlement. Settlement means the terms and conditions set forth in this Agreement, and the referenced exhibits, which are incorporated by reference herein. 22. Notice Plan. Notice Plan shall me the Short form postcard and long form website notice for the Settlement Class. 23. Settlement Administration Costs and Expenses. Settlement Administration Costs and Expenses means the costs and expenses connected with obtaining the services of a Settlement Administrator to facilitate the Settlement, including, but not limited to, the costs of printing and mailing the Notice via letter and mailing Settlement Checks to eligible Settlement Class Members. 24. Settlement Administrator. Settlement Administrator means the independent settlement administrator, in this case, American Legal Claims Services, LLC, 8475 Western Way, #150, Jacksonville, Florida Settlement Amount. Settlement Amount means the Settlement Class Fund, Class Representative Settlement Amount, Attorney's Fees, and Settlement Administration Costs and Expenses. Members. 26. Settlement Checks. Settlement Checks are the checks used to pay Settlement Class 27. Settlement Class. The Settlement Class shall mean (i) All persons with addresses in the State of Florida (ii) to whom initial communication letters that contained the language: "If you dispute this balance or the validity of this debt, please let us know in writing. If you do not dispute this debt in writing within 30 days after you receive this letter, will assume this debt is valid." (iii) were mailed, delivered or caused to be served by Defendant (iv) that were not returned undeliverable by the U.S. Post Office (v) in an attempt to collect a debt incurred for personal, family, or household purposes owing to Synchrony Bank (vi) during the Class Period. 6

26 Case 2:16-cv RLR Document Entered on FLSD Docket 11/29/2018 Page 7 of Settlement Class Fund. The Class Fund shall mean the fund that GC Services will establish with the Settlement Administrator of$ per Class Member for a total of$i72,91o Settlement Class Members. The 17,291 individuals that meet the definition ofa Class, and that did not opt out by the Opt-Out Date provided in the Initial Notice. 30. Settlement Hearing. Settlement Hearing means the fairness hearing to determine whether the settlement of the Class Action should be given final approval, whether the proposed Plan of Allocation should be approved, and whether the applications of Class Counsel for Attorney's Fees should be approved. 31. Settlement Website. Settlement Website means the website set up by the claims administrator that will contain the long form notice and relevant case documents. 32. Settling Parties. Settling Parties, means the Class Representative, individually and on behalf ofthe Settlement Class Members, and Defendant. 33. Unclaimed Funds. Unclaimed Funds shall mean any funds from uncashed, unclaimed, or expired Settlement Checks. Settlement Checks shall expire 90 days from the date they are issued. PLAN OF ALLOCATION 32. Settlement Class. This case is a class action under Rule 23(b)(2) and b(3) of the Federal Rules of Civil Procedure. The Settling Parties agree that after the Opt-Out Date the Class has 17,291 Settlement Class Members. (a) GC Services agrees that this case should be settled as a class action and agrees to the definition ofthe Settlement Class, for the purposes ofthis Settlement and the implementation of this Settlement, only. If this Settlement fails to be approved or otherwise fails to be consummated, GC Services reserves all rights to object to the maintenance of this case as a class 7

27 Case 2:16-cv RLR Document Entered on FLSD Docket 11/29/2018 Page 8 of 20 action and any agreement, representation, or concession made in connection with the Settlement or in this Agreement shall not be considered law ofthe case, res judicata or any form of estoppel in this or any other proceeding. (b) Notice of the Court's Order Certifying the Class has already been provided to the Class through a list of addresses provided by GC Services. See [ECF Nos 137; 137-1]. 33. Monetary Relief to the Settlement Class Members and Class Representative. Within twenty (20) days after entry of the Final Order, GC Services shall issue, or cause to be issue, payments sufficient to satisfy Settlement Class Fund and the Class Representative Settlement Amount. The Settlement Class Fund payment shall be made either as a check payable to: "GC Services Settlement QSF" American Legal Claims Services, Attention: JeffPirrung, 8021 Philips Highway, Suite I, Jacksonville, FL 32256, or Defendant may wire the money to American Legal Claims Services to an account that will be established once the Settlement Agreement is fully executed, and approved by the Court. The Class Representative Settlement Amount paid by Defendant to Desmond Law Firm Professional Corporation Trust Exclnsion and Reverter Procedure. Any person who has requested exclusion by the Opt-Out Date is not entitled to receive any portion of the Settlement Class Fund. Under no circumstances will any Settlement Class Member receive more than a single Settlement Check for statutory damages. Settlement Checks to the Settlement Class Members shall expire 90 days from the date that they are issued. Unclaimed Funds, if any, shall be distributed by the Settlement Administrator within 120 days from the issuance of the Settlement Checks, in the amounts equal to fifty percent (50%) to a Cy Pres determined by Plaintiffs respective counsel. Plaintiff will seek that twenty -five percent (25%) of such uncashed checks will be paid over as a cy pres award to the Legal Aid Society ofpalm Beach County, Inc. to be exclusively used to assist indigent clients 8

28 Case 2:16-cv RLR Document Entered on FLSD Docket 11/29/2018 Page 9 of 20 by paying the client's filing fees or other costs relating to the filing of a bankruptcy, and twenty five percent (25%) ofsuch uncashed checks will be paid over as a cy pres award to the Legal Aid Service of Broward County for client's filing fees or other costs relating to the filing of a bankruptcy. The remaining fifty percent (50%) will be returned to GC Services. 34. Class Counsel's Attorney's Fees 34.1 General: GC Services will not oppose Plaintiffs motion for attorney's fees and GC Services stipulates Attorney's Fees incurred by Class Counsel is reasonable under the circumstances of this particular case Procedure: GC Services and the Plaintiff stipulate and agree that Plaintiff and Class Counsel shall request that the Court approve an award of reasonable Attorney's Fees ("Attorney's Fee Award") in the amount of $195, at the time Final Order is entered. The Attorney's Fee Award shall be deemed final at the same time that the Final Approval Order becomes Final, or such other time as the Court directs. As long as the Final Order is entered approving the Settlement, GC Services and Class Counsel agree that GC Services will pay $195, regardless ofwhether the Court's actual fee award is higher or lower Payment: Within twenty (20) days of the Final Order, GC Services shall issue or cause to be issued a single check to Desmond Law Firm Professional Corporation Trust Account in the amount of$195, The inability to deliver a Settlement Check to a Class Member shall not defeat the entitlement of Attorney's Fee Award to Class Counsel. Class Counsel specifically agrees that once GC Services makes the payment of Attorney's Fees in accordance with this paragraph, GC Services shall be relieved, released, and forever discharged from owing any amount to the Class Counsel related to this Action. 35. Costs of Settlement Administration 9

29 Case 2:16-cv RLR Document Entered on FLSD Docket 11/29/2018 Page 10 of General: GC Services agrees to pay all Settlement Administration Costs and Expenses directly to the Settlement Administrator Limitation: Settlement Administration Costs and Expenses do not include Attorney's Fees. 36. Settlement Checks. The Settlement Administrator shall distribute the Settlement Checks to the Settlement Class Members thirty (30) days after receipt ofthe Class Fund. 37. Settlement Class Members' Right of Exclusion. Any individual who sought to be excluded by the Opt-Out Date is excluded from the Class and is not entitled to a Settlement Check or any other benefit from this Settlement. 38. Released Claims It is the agreement and intent ofthe Settling Parties that this Settlement Agreement be construed and enforced as a release subject to the limitations and exclusions provided herein and as approved by the Court. Accordingly, it is hereby agreed that upon the Effective Date ofthis Settlement Agreement, the Class Representative and Settlement Class Members shall hereby be deemed to have, and by operation of this Settlement Agreement, shall have fully, finally, and forever remised, released, relinquished, discharged, and waived any claims against Released Persons from any claims, counterclaims, causes of action, breaches, controversies, demands, damages, acts, omissions or occurrences they have or may have against GC Services from the beginning of time to the Effective Date hereof, on account of any and all loss or damages of any kind whatsoever, known or unknown, allegedly sustained or which may hereafter be sustained allegedly in consequence of, arising out of, resulting from or relating to all allegations, claims or defenses which have been raised in the First Amended Class Action Complaint. 10

30 Case 2:16-cv RLR Document Entered on FLSD Docket 11/29/2018 Page 11 of The Settling Parties understand and agreethatthe provisions ofparagraph 39.1 shall be construed to exclude, and shall not impair, any right or cause ofaction arising from a breach of this Settlement Agreement, including but not limited to, any future claims that may arise with regard to the implementation of the Settlement Agreement The Settling Parties understand and agree that this Settlement Agreement does not affect the validity of any alleged debt owed by any Class Member to the clients of GC Services, and shall not impair or limit, any right or cause of action or right to enforce or otherwise collect any underlying debt or amount owed to the creditor(s) of the Settlement Class Members or the clients of the Defendant, nor impair or limit any right or cause of action by Plaintiff or the Settlement Class Members to dispute the underlying debt or amount owed to the creditor(s) ofthe Settlement Class Members or the clients ofthe Defendant. Preliminary Approval Order and Settlement Hearing 39. Preliminary Approval Motion. In accordance with the procedures and time schedules below, Defendant's Counsel and Class Counsel shall take such actions, and prepare and file, all appropriate notices, motions, and proposed order forms reasonably necessary to obtain both preliminary and final approval of this Settlement Agreement from the Court. All Settling Parties shall cooperate and, as appropriate, shall join with Defense Counsel and Class Counsel in seeking to accomplish the following: (a) By November 28, 2018, Defense Counsel and Class Counsel shall file a Joint Motion for Preliminary Approval ofthis Agreement. All Settling Parties shall join in that motion, and shall support any order approving this Agreement through any appeal, if necessary. Without prior approval of any other Settling Party, Class Counsel may file memoranda in support of the preliminary (and final) approval ofthis Settlement Agreement; and 11

31 Case 2:16-cv RLR Document Entered on FLSD Docket 11/29/2018 Page 12 of 20 (b) The Preliminary Approval Order shall require, and the Notice shall set out, that any objections to this Settlement Agreement must be made in writing, filed with the Court, and served as more fully described below. The Notice shall provide that any objection that is not received within the time set by the Court is deemed waived; and (c) The Settling Parties shall jointly request a Fairness Hearing date, which is no more than 120 days after the date of entry ofthe Preliminary Approval Order. 40. Preliminary Approval Order. The Preliminary Approval Order entered by the Court, but as a condition subsequent ofthis Settlement Agreement shall at a minimum contain the following provisions: (a) Preliminary approval of the Settlement Agreement set forth herein and, subject to any objections that may be presented to the Court prior to the Fairness Hearing, a finding that the Settlement Agreement is fair, adequate, reasonable, and in the best interests ofthe Class; and (b) Approval ofthe long form ofa Notice of Class Action Settlement, in substantially the same form as Exhibit "3" attached hereto, that includes the general terms ofthe settlement, as set forth in the Settlement Agreement, and the procedures for objections as described below. GC Services through the Settlement Administrator American Legal Claims Services shall mail or cause to be mailed by first class mail the Notice to all Settlement Class Members at their respective Accessible Contact Information within thirty (30) days from the date of said order; and (c) A finding that the mailing ofthe Settlement Notice by regular first class mail to all Settlement Class Members whose address has been identified constitutes valid, due and sufficient notice to the Settlement Class Members, and constitutes the best notice practicable under the circumstances, complying fully with the requirements of Rule 23 of the Federal Rules of Civil 12

32 Case 2:16-cv RLR Document Entered on FLSD Docket 11/29/2018 Page 13 of 20 Procedure, the Constitution ofthe United States, and any other applicable law and that no further notice to the Class is required; and 41. Objections. Any Class Member who objects to the Settlement contemplated by this Agreement shall have a right to appear and be heard at the Fairness Hearing provided that such Class Member files with the Court and delivers to designated Class Counsel and Defendant's Counsel a written statement ofreasons for the objection no later than fourteen (14) days before the Fairness Hearing date. Settlement Class Counsel and Defendant's Counsel may, but need not, respond to the objections, if any, by means of a memorandum of law. Only Settlement Class Members who have filed and delivered valid and timely written notices ofobjection will be entitled to be heard at the Fairness Hearing, unless the Court orders otherwise. Any Class Member who does not make his or her objection in the manner provided shall be deemed to have waived such objection and shall forever be foreclosed from making any objection to the fairness, reasonableness, or adequacy ofthe Settlement or the award of Attorney's Fees to Class Counsel, unless otherwise ordered by the Court. Final Order 42. Final Order. The Final Order shall be entered upon the Fairness Hearing by the Court, but as a condition subsequent ofthis Settlement shall, at a minimum, include the following provisions: (a) A finding that the distribution of the Settlement Notice Plan fully and accurately informs all Settlement Class Members entitled to notice ofthe material elements ofthe Settlement, constitutes the best notice practicable under the circumstances, constitutes valid, due and sufficient notice, and complies fully with Rule 23 ofthe Federal Rules ofcivil Procedure, the United States Constitution and any other applicable law; and 13

33 Case 2:16-cv RLR Document Entered on FLSD Docket 11/29/2018 Page 14 of 20 (b) A finding that after proper notice to the Settlement Class Members, and after sufficient opportunity to object, no timely objections to this Settlement Agreement have been made, or a finding that all timely objections have been considered and denied; and (c) Approval of the Settlement, as set forth in the Settlement Agreement, as fair, reasonable, adequate, and in the best interests of the Settlement Class Members, in all respects under Rule 23 ofthe Federal Rules ofcivil Procedure, finding that the Settlement is in good faith, and ordering the Settling Parties to implement the Settlement in accordance with the terms ofthis Settlement Agreement; and (d) A finding that neither the Final Order nor the Settlement Agreement shall constitute an admission of liability by the Settling Parties, or any of them, of any liability or wrongdoing whatsoever by GC Services. GC Services specifically denies liability to Plaintiff and the Settlement Class Members; and (e) Subject to reservation of jurisdiction for matters discussed in subparagraph (h), below, dismissing with prejudice the First Amended Class Action Complaint; and (f) In accordance with Rule 54(b) ofthe Federal Rules ofcivil Procedure, finding that there is no just reason for delay, and ordering the entry ofa Final Order; and (g) A finding that all Settlement Class Members shall, as ofthe entry ofthe Final Order, conclusively be deemed to have released and forever discharge GC Services from all Released Claims, and forever enjoining and barring all Settlement Class Members from asserting, instituting or prosecuting in any capacity, before any court or governmental agency, any action or proceedings against GC Services that assert any Released Claims; and (h) A reservation of exclusive and continuing jurisdiction over the Class Action and the Settling Parties for the purposes of, among other things, (i) supervising the implementation, 14

34 Case 2:16-cv RLR Document Entered on FLSD Docket 11/29/2018 Page 15 of 20 enforcement, construction, and interpretation ofthe Settlement Agreement, the Preliminary Order, and the Final Order; and (ii) supervising the administration and distribution of the relief to the Class and resolving any disputes that may arise with regard to any ofthe foregoing. Conditions of Settlement, Effect of Disapproval, Rescission, or Termination 43. If any of the following events described in the subparagraphs of this paragraph ("Conditions Precedent") fail to occur prior to the date the Final Order becomes Final, then Plaintiff or GC Services may notify the other Settling Party specifying the particular Condition Precedent that has not been met ("Potential Failure Notification"). If the recipient ofthe Potential Failure Notification does not cure the potential failure of the Condition Precedent within twenty (20) days of receiving the Failure Notification, then the notifying party may send a second notification in writing rendering this Settlement Agreement, including but not limited to the releases and obligations to pay the Settlement Amount, null and void ("Failed Settlement Notification"). In the event of a Failed Settlement Notification, the provisions in paragraph 44, shall apply. The Settlement Agreement shall remain in full force and effect unless and until notification and cure procedure in this paragraph have been completed and the Failed Settlement Notification has been sent. The in writing requirement for the notifications contemplated in this paragraph are satisfied by sending an to the appropriate counsel for the appropriate Settling Party. (a) All non-settlement related activities regarding the First Amended Class Action Complaint shall be, and shall remain, stayed by the Court pending Final Order approving this Settlement Agreement; and 15

35 Case 2:16-cv RLR Document Entered on FLSD Docket 11/29/2018 Page 16 of 20 (b) All Settling Parties shall approve, execute, and perfonn all such acts or obligations that are required by this Settlement Agreement to be perfonned prior to the date that the Final Order becomes Final; and (c) A Preliminary Approval Order, in a fonn as described by paragraph 40 above, shall be entered by the Court; and (d) At or prior to the Settlement Hearing, no objections to this Settlement Agreement have been received, or if any such objections have been received, all such objections have been considered and denied by the Court; and (e) A Final Order, in a fonn as described by paragraph 42 above (which shall approve the Attorney Fee Award set forth in paragraph 34 above), shall be entered by the Court; and (f) Subject to the reservation ofjurisdiction for matters described herein, the Action must be dismissed with prejudice. In the event the Plaintiff or GC Services desire to void the settlement due to the failure of one ofthe conditions set forth in this paragraph, the party seeking to void the settlement shall give notice to the other parties within ten (10) days ofnotice ofthe occurrence ofthe event upon which the voiding ofthe settlement is based. 44. In the event that this Settlement Agreement is rejected upon the Settlement Hearing, or in the event a Final Order is not entered, or does not become Final, or in the event that the Settlement Agreement is rejected by the mandate of an appellate court, or tenninated pursuant to the provisions of paragraph 43, then the tenns ofthis Agreement shall be null and void; and (a) The tenns of this Agreement shall have no further force and effect with respect to the Settling Parties; and 16

36 Case 2:16-cv RLR Document Entered on FLSD Docket 11/29/2018 Page 17 of 20 (b) This Agreement shall not be used in this litigation for any purpose; provided, however, this Agreement may be used for bringing an action for failure of a Settling Party to take steps required by this Agreement or required by such party's position as a fiduciary to secure judicial approval of this Agreement; and (c) The Settling Parties shall be restored to their respective positions in the litigation as ofthe date the Settlement Agreement was reached; and (d) Any Judgment or orders entered by the Court in accordance with this Settlement Agreement shall be treated as vacated. Miscellaneous Provisions 45. Agreement to Cooperate. The Parties: (a) acknowledge that it is their intent to execute the Agreement; (b) agree to cooperate to the extent necessary to effectuate and implement all terms and conditions of the Agreement and to exercise their best efforts to accomplish the foregoing terms and conditions of the Agreement; and (c) agree to provide any and all discovery and disclosures reasonably necessary to satisfy the requirements ofrule 23, Federal Rules ofcivil Procedure, and any due diligence obligations ofrespective counsel. 46. Good Faith Settlement and Advice of Counsel. The Parties agree that the terms of the Settlement reflect a good-faith settlement of the Class Representative and the other Settlement Class Members' claims in the Action, reached voluntarily after consultation with experienced legal counsel. 47. Incorporation. All of the exhibits to the Agreement and Joint Motion for Preliminary Approval are material and integral parts ofthe Settlement and are fully incorporated herein by this reference. 17

37 Case 2:16-cv RLR Document Entered on FLSD Docket 11/29/2018 Page 18 of No Waiver. The waiver of one party of any breach of this Settlement Agreement by any other Party shall not be deemed a waiver of any other prior or subsequent breach of this Settlement Agreement; nor shall such a waiver be deemed a waiver by any other Party of that breach or a waiver by that Party ofany other Party's breach. 49. Modification. The Agreement may be amended or modified only by a written instrument signed by or on behalf of all Parties or their successors-in-interest. 50. Headings. The headings ofthe paragraphs herein are for convenience only and do not define, limit, or construe the contents ofthis Agreement. 51. Entire Agreement. Except as provided herein, the Agreement and the Exhibits attached to the Joint Motion for Preliminary Approval constitute the entire agreement among the Parties, and no representations, warranties, or inducements have been made to any Party concerning the Agreement or accompanying Exhibits other than the representations, warranties and inducements contained and memorialized in the Agreement and the accompanying Exhibits. 52. Authority to Settle. Class Counsel warrants that they are expressly authorized by the Class Representative to take all appropriate action to effectuate the terms and conditions ofthe Settlement and are expressly authorized to enter into any modifications of, or amendments to, the Agreement on behalf ofthe Class which they deem appropriate. 53. Authority to Execute. Each counselor other person executing the Agreement or any ofits Exhibits on behalf ofany Party hereto hereby warrants that he or she has the full authority to do so. 54. Counterparts. The Agreement may be executed in one or more counterparts, each ofwhich shall be deemed to be one and the same instrument. Counsel for the Parties shall exchange 18

38 Case 2:16-cv RLR Document Entered on FLSD Docket 11/29/2018 Page 19 of 20 among themselves signed counterparts, and a complete set ofexecuted counterparts shall be filed with the Court. 55. Binding Effect. The Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the Parties hereto. All Settling Parties waive the right to appeal or collaterally attack the Final Order entered under this Settlement Agreement. 56. Exclusive Jurisdiction and Venue for Enforcement. Any dispute relating to this Agreement or Final Judgment shall be resolved exclusively in the U.S. District Court for the Southern District offlorida, which Court shall retain exclusive jurisdictiqn and venue with respect to the consummation, implementation, enforcement, construction, interpretation, performance, and administration of the Agreement and Final Order. The Parties agree to submit to the exclusive jurisdiction and venue for the purposes described above. 57. Choice of Law. This Agreement and any document executed in furtherance of the Settlement shall be governed by, subject to, and construed in accordance with the laws ofthe State offlorida, without regard to conflicts-of-iaws principles. 58. Costs and Expenses. Except as otherwise provided herein, each Party shall bear its own costs and expenses, including respective mediator's costs. 59. Interpretation. All Settling Parties have participated in the drafting of this Settlement Agreement and, accordingly, any claimed ambiguity should not be presumptively construed for or against any of the Parties. 19

39 Case 2:16-cv RLR Document Entered on FLSD Docket 11/29/2018 Page 20 of 20 11/29/18