: : : : : : CLASS ACTION SETTLEMENT AGREEMENT. This Class Action Settlement Agreement (the Agreement or Settlement Agreement )

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1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK X LOCKMAN, INC., individually and on behalf of all others similarly situated, Plaintiff, v. THE CITY OF NEW YORK, ACTING THROUGH THE TRAFFIC CONTROL DIVISION OF THE NEW YORK CITY POLICE DEPARTMENT AND THE NEW YORK CITY DEPARTMENT OF FINANCE; STEPHEN GOLDSMITH; DAVID M. FRANKEL; JAMES TULLER; HARRY J. WEDIN; AND JOHN AND JANE DOES 1-10, all in their official capacities, Defendants X Civil Action No. 11-cv (NGG-MG) CLASS ACTION SETTLEMENT AGREEMENT This Class Action Settlement Agreement (the Agreement or Settlement Agreement ) is made and entered into as of this 8 th day of February, 2016, by and between Plaintiff Lockman, Inc. ( Plaintiff ), on behalf of itself and all class members ( Class Members or the Class ), and Defendants the City of New York ( City ), acting through the Traffic Control Division of the New York City Police Department and the New York City Department of Finance; Stephen Goldsmith; David M. Frankel; James Tuller; Harry J. Wedin; and John and Jane Does 1-10 (collectively, Defendants ), with each of the foregoing Parties acting by and through their respective counsel. By this Agreement, subject to Court approval, Plaintiff and Defendants intend to fully and finally release, resolve, discharge, and settle the Released Claims subject to the terms and conditions set forth in this Agreement. 1

2 WHEREAS, Plaintiff is litigating the above-captioned action against Defendants on its own behalf and on behalf of a class; and WHEREAS, Plaintiff has alleged in its Amended Class Action/Intervenor Complaint ( CAC ) that during the period from May 2006 to October 1, 2010 Defendants issued unlawful traffic tickets for obstructing a traffic lane to participants in the City s Stipulated Fine Program, in violation of the Fourth and Fourteenth Amendment to the United States Constitution and Article I 6 and 7 of the New York State Constitution; and WHEREAS, Plaintiff s motion for class certification under Rule 23(b)(3) of the Federal Rules of Civil Procedure has been fully briefed; and WHEREAS, Defendants deny each and every one of Plaintiff s allegations of unlawful conduct, deny all liability to Plaintiff and the other Class Members, do not concede or admit any liability, contest certain aspects of class certification, and intend to continue with a vigorous defense of this Action in the event this Agreement is not approved by the Court; and WHEREAS, Defendants, through their counsel, and Plaintiff, through its counsel and on behalf of itself and the other Class Members, have engaged in arms length negotiations that led to this Agreement, which the Parties arrived at with the aid of The Honorable Marilyn D. Go after several settlement conferences, and which embodies the terms and conditions of the Settlement among the Parties, subject to approval of this Agreement by the Court; and WHEREAS, all Parties have concluded that given the risks inherent in complex litigation they will enter into this Agreement because they believe it represents a fair and reasonable resolution of the Parties disputes and this lawsuit; and WHEREAS, Plaintiff and Defendants agree this Agreement shall not be deemed or construed to be an admission or evidence of any violation of any statute or law or of any liability 2

3 or wrongdoing by Defendants or of the truth of any of the claims or allegations in the CAC or the original complaint in this Action, nor an admission or evidence of any shortcomings in the factual or legal claims or defenses and allegations therein; and WHEREAS, this Agreement, which is subject to the approval of the Court, sets forth all of the terms and conditions of the agreement between Defendants and Plaintiff, on behalf of itself and all other Class Members; and NOW, THEREFORE, it is hereby stipulated and agreed A. Definitions The following terms, as used in this Agreement, have the following meanings 1. Action means the above-captioned matter. 2. Claims Administrator means KCC LLC. 3. The Class or Class Member means all or any commercial delivery company(ies), commercial vehicle owners/operator(s), commercial service company(ies) and other persons and entities who owned and/or operated New York State registered commercial vehicles and who, during the period June 1, 2006, through October 31, 2010 (the Class Period ), participated in the City s Stipulated Fine Program and who during the Class Period received a ticket for a traffic lane violation indicated as Code 45 on the face of the ticket, and paid the associated fine of $40 per ticket on or before the date this Agreement is executed. 4. Class Counsel means Jacobsen Law Offices LLC; Giskan Solotaroff & Anderson LLP; Boni and Zack LLC; and the Lowenfeld Law Office. 5. Class Period means June 1, 2006, through October 31, 2010, inclusive. 6. Court means the United States District Court for the Eastern District of New York. 3

4 7. Defendants mean the City of New York ( City ), acting through the Traffic Control Division of the New York City Police Department and the New York City Department of Finance; Stephen Goldsmith; David M. Frankel; James Tuller; Harry J. Wedin; and John and Jane Does Execution Date means February 8, Effective Date means the date by which either (a) the time to appeal from the Final Approval Order, as defined in paragraph 11 herein, has expired without an appeal, or (b) the Final Approval Order, as defined in paragraph 11 herein, has been affirmed in its entirety by the court of last resort to which such appeal has been taken and such affirmance has become no longer subject to further appeal or review. 10. Fairness Hearing means the hearing held by the Court at which the Court will consider evidence and argument for the purposes of determining whether the Settlement encompassed by this Agreement and its exhibits should be granted Final Approval, whether all claims against Defendants should be dismissed with prejudice, and whether a Final Judgment should be entered. 11. Final Approval Date of this Agreement means the date on which the Court issues an order (the Final Approval Order ) substantially in the form of Exhibit A attached hereto, finally approving the Settlement Agreement, in accordance with time requirements pursuant to 28 U.S.C.A 1715 (the Class Action Fairness Act ), dismissing with prejudice all claims against Defendants, and entering a Final Judgment. Notwithstanding the foregoing, the Parties agree the Court s ruling on, attorneys fees, costs, or service award shall not affect whether an order constitutes Final Approval. 4

5 12. Final Judgment means an order granting Final Approval of this Agreement under Rule 23(e) of the Federal Rules of Civil Procedure, together with a docket entry by the Court sufficient under Rule 58 of the Federal Rules of Civil Procedure, dismissing the Action and all claims therein on the merits with prejudice as to all Class Members who do not file a timely and valid exclusion that is allowed by the Court. Notwithstanding the foregoing, the Parties agree that the Court s determination of the amount of any attorneys fees, costs, or service award shall not affect whether an order constitutes Final Judgment. 13. Net Settlement Fund means the Settlement Fund, net of all Settlement Administration expenses, attorneys fees and costs, service award, and all taxes incurred by the Settlement Fund, if any. 14. Notice means the notice of Settlement to Class Members described in Section F below. 15. Opt-Out means any Class Member who has exercised the option to exclude itself from the Class pursuant to the Settlement Agreement and in accordance with the Notice. 16. Opt-Out Period means the period from the date the Notice is sent by mail or to all Class Members until 45 days thereafter. 17. Parties means the Parties to this Agreement Plaintiff and Defendants. 18. Plaintiff means Lockman, Inc. 19. Preliminary Approval means the issuance of an order (the Preliminary Approval Order ) substantially in the form of Exhibit B hereto, preliminarily approving the Settlement Agreement, authorizing the dissemination of the Notice and setting a date for the Fairness Hearing. 5

6 20. Release means the agreement to release claims described in Paragraph 21, below. 21. Released Claims means any and all claims, debts, liabilities, demands, obligations, guarantees, costs, expenses, attorneys fees other than fees and costs ordered by the Court, damages, actions or causes of action arising from all claims that were or could have been pled in the CAC or the original complaint herein. Released Claims do not include the claims of any individual whose request to be excluded from the Settlement (has requested Opt-Out status) is allowed by the Court in connection with Final Approval. 22. Released Parties means all Defendants, as well as all of each Defendant s past and present predecessors, subsidiaries, affiliates, officers, directors, employees, agents, attorneys, servants, representatives, and the predecessors, successors, heirs, executors, administrators, and assigns of each of them. 23. Releasors means Plaintiff and all Class Members who have not made a request for exclusion, i.e., Opt-Out status, approved by the Court, and their respective predecessors, successors, heirs, executors, administrators, and assigns. 24. Settlement means the agreement to settle this Action, as evidenced by the terms herein. 25. Settlement Administration Expenses means those expenses reasonably incurred to administer the Settlement, including the dissemination of the Notice. 26. Settlement Fund means the $14 million settlement payment The City of New York has agreed to make on behalf of all Defendants under Paragraph 27 below. No individual defendant named herein shall be obligated to make any payments pursuant to this Settlement Agreement. 6

7 B. The Settlement Fund 27. Within ninety (90) business days of Preliminary Approval of the Settlement Agreement, provided that Plaintiffs have supplied the bank name, address, and account number to the Defendants counsel, The City of New York shall cause a check in the amount of $14 million, i.e., the Settlement Fund, to be mailed to an interest-bearing escrow account at a New York-based national bank held by the Claims Administrator. The City of New York s obligations with respect to payment to the Plaintiff, Class Members, service award, attorneys fees and costs, and Settlement Administration Expenses shall be complete upon payment into the bank or investment account. Any taxes incurred by the Settlement Fund shall be paid out of the Settlement Fund by the Claims Administrator. Class Counsel shall not distribute any such funds until the Effective Date, except as provided in Paragraph 29, below. 28. Under no circumstances shall any Defendant(s) be responsible or obligated to make any additional payments not specified in Paragraphs 26 and 27, above, for claims, fees, or costs under this Settlement Agreement or otherwise related to this Action. 29. After Preliminary Approval of the Settlement Agreement, Class Counsel may utilize a portion of the Settlement Fund to provide Notice to potential members of the Settlement Class and for reasonable Settlement Administration Expenses, including reasonable Notice expenses, without an order from the Court. The amount spent or accrued for reasonable Notice and Settlement Administration Expenses is not refundable to Defendants in the event the Settlement Agreement is disapproved, terminated, or otherwise fails to become effective. To the extent that any expenses related to the administration of this Settlement Agreement are incurred prior to Defendants deposit of funds into the escrow account, Plaintiff s counsel will advance 7

8 such funds and will be reimbursed from the Settlement Fund upon Defendants deposit of funds into escrow. 30. If this Agreement does not reach the Effective Date, i.e., the Court does not issue a Final Approval Order, Class Counsel shall cause all funds, excluding the reasonable funds for Notice and Settlement Administration Expenses as described in Paragraph 29, with interest thereon, to be transferred back to Defendants, within ten (10) business days of the determination by the Court or any appeals court not to grant Final Approval. 31. The Net Settlement Fund shall be distributed to the Class Members who have not opted out (aka Releasors) pro rata based on the total dollar amount of fines each Class Member paid for Code 45 tickets received during the Class Period for Traffic Lane Violations, indicated as Code 45 on the face of the ticket, under the Stipulated Fine Program. Under no circumstances shall any Releasor receive more than 100% of the total amount of fines it paid for its Code 45 tickets during the Class Period. The Parties shall jointly determine a final list of Class Members, number of tickets, and fines paid. In the event the Parties cannot agree on a final list the issue will be submitted to the Court for resolution. 32. If any funds remain in the Net Settlement Fund after every participating Class Member is issued 100% of the amount to which it is entitled under this Agreement, then the remainder of the Net Settlement Fund shall revert to Defendants. 33. The Parties shall use commercially reasonable efforts to enable the Claims Administrator to commence payment within 30 days of the Effective Date, and such payment will be made to the Class Members as listed in the data agreed to by the Parties, as described in Paragraph 34 below. Any outstanding unpaid fine associated with a subject Code 45 ticket owed by any Releasor shall be voided by Defendants. The Claims Administrator shall provide to the 8

9 Parties an accounting of all payees, the amounts each received under this Agreement, and any undeposited or uncashed checks, within 120 days after the first payment issued pursuant to Paragraph 31 herein. If the value of the undeposited and uncashed checks exceeds $50,000, the Claims Administrator shall distribute any such amount pro rata in a second payment to the Class Members who timely deposited or cashed their checks. This second payment shall be made only to the extent such second distribution, together with the first distribution, brings any Class Member up to 100% of the amount to which it is entitled under this Agreement. If the value of the undeposited and uncashed checks does not equal or exceed $50,000, any such amount will revert to Defendants. Any uncashed checks or remaining funds after the second distribution shall revert to Defendants ninety (90) days after the date of the second distribution, and shall be paid to Defendants within 10 days thereafter. 34. Within thirty (30) business days, or as soon as practicable thereafter, of Preliminary Approval of the Settlement Agreement, Defendants will provide the Claims Administrator, in a readily usable format, data sufficient to show for each Class Member the total dollar amount of all fines paid during the Class Period for Traffic Lane Violations under the Stipulated Fine Program. Errors or omissions may be corrected if necessary. 35. Defendants shall not have any responsibility, financial obligation, or liability whatsoever with respect to the investment, distribution, use, or administration of the Settlement Fund, including without limitation the costs and expenses of such investment, distribution, use or administration except as expressly otherwise provided in this Settlement Agreement. Any tax filings relating to the Settlement Fund will be made by the Claims Administrator, unless the Settlement Fund is returned to Defendants. 9

10 C. Right of Termination or Rescission 36. Defendants will have the right but not the obligation to terminate or rescind the Settlement Agreement if the fines paid during the Class Period by timely and valid Opt-Outs exceed forty one (41%) of total fines paid for Traffic Lane violations indicated as Code 45 on the face of the ticket issued during the Class Period. If the 41% threshold is exceeded and defendants intend to terminate or rescind the Settlement Agreement, they will provide Class Counsel with ten (10) business days notice of their intent. At the end of the ten (10) day period Defendants will confirm in writing their final decision either to proceed with the Settlement Agreement or to terminate or rescind the Settlement Agreement. Prior to confirming their final decision, defendants will conduct a second calculation of Opt-Outs to confirm that the threshold has been met. Such termination or rescission shall be effective upon written notice to the Court and to Class counsel accompanied by documentation reflecting the percentage of tickets issued to the Opt-Outs and must be made no later than 20 days after the Opt-Out Period ends. D. Application for Approval 37. All Parties agree to use their best efforts to effectuate this Agreement, including cooperating in seeking Final Approval of the Settlement and reaching the Effective Date. 38. Within eleven (11) calendar days of the execution of this Agreement by all Parties, and in any event no later than February 19, 2016, Plaintiff shall submit to the Court a motion requesting that the Court enter a Preliminary Approval Order substantially in the form of Exhibit B hereto. That motion shall request that the Court a. preliminarily approve this Agreement; 10

11 b. approve the form and content of the Notice attached hereto as Exhibit C, approve the Notice Plan at Section F below, and direct that the Notice be provided to the Class Members in accordance with the Notice Plan; c. set the date for a Fairness Hearing; and d. stay all proceedings in the Action except those proceedings provided for or required by this Agreement. 39. Within 105 days of Preliminary Approval, Plaintiff shall timely submit a motion for final approval of this Agreement to the Court, along with a proposed Final Approval Order substantially in the form of Exhibit A hereto. The proposed Final Approval Order shall comply with Fed. R. Civ. P. 23(c)(3). The Final Approval Order shall request that the Court a. approve finally this Agreement and its terms as being a fair, reasonable, and adequate settlement as to the Settlement Class within the meaning of Rule 23 of the Federal Rules of Civil Procedure and directing its effectuation according to its terms; b. direct that the Action against Defendants be dismissed with prejudice and that all claims therein against Defendants be dismissed with prejudice, and, except as provided for in this Agreement, without costs; c. reserve exclusive jurisdiction over the Settlement and this Agreement, including the administration and effectuation of this Settlement; and d. list all Class Members who have timely elected to exclude themselves from the Settlement (i.e., Opt-Outs ). 40. If this Agreement is finally approved by the Court in its current form, or in a form not materially different therefrom, the Parties agree not to take any appeal from entry of the Final Judgment or Final Approval. 11

12 41. If the Agreement does not reach the Effective Date, it shall be null and void, and the Parties will be restored to the positions they were in prior to the filing of the Agreement. E. Attorneys Fees and Costs, Service Award and Notice and Claims Administration Expenses 42. The determination of an attorney fee award is to be made by the Court, which will determine a reasonable fee for the work done and the result obtained by Class counsel. Class counsel intends to petition the Court to approve a total of $4 million from the Settlement Fund, to be used for Class counsel s attorneys fees and reasonable litigation expenses; the cost of reasonable notice and settlement administration; and, if approved by the Court, a $10,000 service award to the Class representative, Lockman Inc., in recognition of its assistance in this litigation. If the Court awards an amount other than that requested by Class counsel in this Action, all Parties will remain bound by all obligations described in all other paragraphs. F. Class Notice 43. Upon entry of a Preliminary Approval Order, Plaintiff shall disseminate Notice to the Class substantially in the form of Exhibit C hereto. 44. All Class members shall be sent direct Notice at the address, if the address is available, and postal address, that Defendants have on file for such Class Members, or at any more current address(es) in Defendants possession (in which case, prior to entry of a Preliminary Approval Order, Defendants will provide Class Counsel with all such more current addresses). Such mailing will be executed by the Claims Administrator and paid for out of the Settlement Fund as part of the Settlement Administrative expenses. 45. Any Class Member sent an or postal notice that is returned as undeliverable shall be sent an additional Notice at its last known mailing address, if different, as determined by the National Change of Address database. 12

13 46. Plaintiff will certify to the Court that all Notice was disseminated within 30 days of preliminary approval. G. Release 47. As consideration for the relief included in this Agreement, upon the Effective Date, and except as to such rights or claims as may be created by this Agreement, Releasors release Released Parties with prejudice from all claims that have been or could have been asserted based upon the facts alleged in the CAC and the original complaint. 48. This Agreement shall be binding on all Releasors and Released Parties who do not timely and validly request exclusion (Opt-Out) from the Settlement. This Agreement shall constitute, and may be pleaded as, a complete and total defense to any Released Claims if raised in any other action. 49. All Class Members who do not timely and validly exclude themselves from this Settlement (Opt-Out) will be permanently barred and enjoined from filing, commencing, prosecuting, intervening in, participating in as class members or otherwise, or receiving any benefits or other relief from any other lawsuit in any state, territorial or federal court, or any arbitration or administrative or regulatory or other proceeding in any jurisdiction that asserts any of the Released Claims. 50. This Agreement does not settle any claims by Plaintiff or the other Class Members against any person or entity other than the Released Parties, nor does it release any claims other than the Released Claims. All rights of any Class Member against any person or entity other than the Released Parties, or pertaining to any claims other than the Released Claims, are specifically reserved by Plaintiff and the other Class Members. 13

14 H. Exclusions (Opt-Out) 51. Each member of the Class who does not file a timely written request for exclusion from the Settlement (Opt-Out) in accordance with the procedures and deadlines set forth in the Notice shall be bound upon the Effective Date by all terms of this Agreement, including the Release set out in Section G herein, and by all proceedings, orders, and judgments in this Action. 52. Any Class Member who has timely excluded itself from the Settlement, i.e., opted out, as set forth in the Notice shall not participate in any monetary or other benefits provided by this Agreement. 53. No party to this Agreement will make any effort, directly or through a third party, to influence any individual or entity to request exclusion from the Class. I. Use of this Agreement 54. Neither this Agreement, nor any of its terms, nor any conduct or statements in negotiation, discussion, or implementation of this Agreement, nor any orders by the Court implementing this Agreement, are or shall be considered a concession or admission of wrongdoing or liability by any party hereto. No party shall cite to or otherwise use or construe this Agreement, any conduct or statements in negotiation or implementation of this Agreement, or any orders by the Court implementing this Agreement, as an admission of any liability, fault, omission, or wrongdoing on the part of any party hereto. Notwithstanding the foregoing, this Agreement may be used or offered in evidence in order to enforce the terms of this Agreement, or filed in any action in support of any defense asserted by any Released Party based upon res judicata, collateral estoppel, release, waiver, judgment bar or reduction, full faith and credit, or any other theory of claim preclusion, issue preclusion or similar defense or counterclaim. 14

15 55. Neither this Agreement, nor any of its terms, nor any conduct or statements in negotiation, discussion, or implementation of this Agreement, nor any orders by the Court implementing this Agreement, nor any conduct or data resulting from this Settlement, may be referred to or admitted in evidence in the Action in the event the Effective Date is not reached. 56. Neither this Agreement, nor any of its terms, nor any conduct or statements in negotiation, discussion, or implementation of this Agreement, nor any orders by the Court implementing this Agreement, nor any conduct or data resulting from this Settlement may be referenced, utilized, or relied upon as evidence or in any other manner in any other litigation, other than as referenced above in Paragraph 54.. J. Miscellaneous Provisions 57. This Agreement may be modified or amended only by a writing executed by Class Counsel and Defendants and approved by the Court. 58. The Court shall retain jurisdiction over all matters relating to the implementation and enforcement of this Agreement. 59. All terms of this Agreement shall be governed by and interpreted according to the substantive laws of New York without regard to its choice of law or conflict of law principles. 60. The headings used in this Agreement are for the purposes of convenience and do not constitute part of the Agreement, and no heading shall be used to help construe the meaning of the Agreement. 61. This Agreement shall be deemed to have been mutually prepared by the Parties hereto and shall not be construed against any of them solely by reason of authorship. 62. The terms of this Agreement shall control in the event the terms in any other document directly conflict with the terms herein. 15

16 63. Nothing expressed or implied in this Agreement is intended to or shall be construed to confer upon or give any person or entity other than Plaintiff, the other Class Members, and Defendants any right or remedy under or by reason of this Agreement. 64. This Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of Plaintiff, the Releasors, and Defendants. 65. This Agreement may be executed in counterparts by Class Counsel and Defendants, and a facsimile or electronic image of a signature shall be deemed an original signature for purposes of executing this Agreement. 66. Each of the undersigned attorneys represents that he or she is fully authorized to enter into the terms and conditions of, and to execute, this Agreement, by and on behalf of his or her respective clients. 16

17 IN WITNESS WHEREOF, the Parties hereto, through their fully authorized representatives, have agreed to this Agreement as of this date, GTSKAN SOL OFF & ANDERSON LLP 2.r, (ë GI Date RAYM AIN 11 Broadway, Suite 2150 New York, NY Co-counselfor Plainriff Lockman and the Class ZACHARY W. CARTER CORPORATION COUNSEL OF TI{E CTTY OF NN,\ry YORK J BLATT ANG Assistant Corporation Counsels 100 Church Street New York, NY Counsel.þr Defendants Date e/y/t t7

18 EXHIBIT A

19 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK X LOCKMAN, INC., individually and on behalf of all others similarly situated, Plaintiff, v. THE CITY OF NEW YORK, ACTING THROUGH THE TRAFFIC CONTROL DIVISION OF THE NEW YORK CITY POLICE DEPARTMENT AND THE NEW YORK CITY DEPARTMENT OF FINANCE; STEPHEN GOLDSMITH; DAVID M. FRANKEL; JAMES TULLER; HARRY J. WEDIN; AND JOHN AND JANE DOES 1-10, all in their official capacities, Defendants X Civil Action No. 11-cv (NGG-MG) [PROPOSED] ORDER [PROPOSED] FINAL JUDGMENT AND ORDER IT IS HEREBY ADJUDGED, ORDERED AND DECREED THAT 1. Jurisdiction. This Court has personal jurisdiction over all members of the Class (as defined below) and has subject matter jurisdiction over (a) the claims asserted in this Action, including jurisdiction to approve the proposed settlement, to grant final certification of the Class, to settle and release all claims based on or relating to the Amended Complaint and the allegations raised in this Action, and to dismiss this Action on the merits and with prejudice; and (b) the terms of the Stipulation of Settlement in this matter, dated February 8, 2016 (the Stipulation of Settlement or Settlement Agreement ). 2. Class Definition. The following Class is granted final certification, for 1

20 purposes of settlement of this Action only, under Fed. R. Civ. P. 23(b)(3) All or any commercial delivery company(ies), commercial vehicle owners/operator(s), commercial service company(ies) and other persons and entities who owned and/or operated New York State registered commercial vehicles and who, during the period June 1, 2006, through October 31, 2010 (the Class Period ), participated in the City s Stipulated Fine Program and who during the Class Period received a ticket for a traffic lane violation indicated as Code 45 on the face of the ticket, and paid the associated fine of $40 per ticket on or before February 8, Findings Concerning Notice the Court finds that the Notice sent to each Class member by and First Class mail was the best practicable notice; was reasonably calculated, under the circumstances, to apprise the Class members (a) of the pendency of this Action, (b) of their right to exclude themselves from the proposed settlement, (c) that any judgment, whether favorable or not, will include all Class members who do not request exclusion, and (d) that any Class member who does not request exclusion may object to the settlement and, if it desires, enter an appearance either personally or through counsel. The Court finds that the Notice is written in simple English, was reasonable and constituted due, adequate and sufficient notice to all persons and entities entitled to be provided with such notice; and finds that it complied with Fed. R. Civ. P. 23(b)(3) and 23(e), the Due Process Clause of the United States Constitution and Local Rules of the Eastern District of New York. 4. Approval of the Settlement Agreement. The Settlement Agreement is hereby finally approved as fair, reasonable, and adequate, and consistent and in compliance with the applicable provisions of the United States Constitution, as to, and in the best interests of, each of the Parties and the Class members. The Parties and their counsel are accordingly instructed to implement and effectuate the Settlement Agreement according to its terms and provisions. 2

21 5. Dismissal of Claims with Prejudice and Release. The claims in this Action are dismissed on the merits and with prejudice, including those set forth in the original complaint and in the amended complaint, in accordance with the terms set forth in the Parties Settlement Agreement dated February 8, 2016, without costs to any Party except as provided therein and by separate order of the Court. Effective as of the date of this Final Judgment and Order, Defendants and the Released Parties (as that term is defined in the Settlement Agreement) are hereby forever discharged from any and all Released Claims (as that term is defined in the Settlement Agreement). 6. Injunction Barring Further Actions by Class Members. This Final Judgment and Order is binding on, and has res judicata and preclusive effect on, all pending and future lawsuits in federal or state court or in any other legal, administrative or regulatory proceeding that is commenced or maintained by or on behalf of Plaintiff or any other Class member who has not timely and properly excluded itself from the Class and its assigns, heirs, successors and personal representatives. Accordingly, all Class members who have not been timely excluded from the Class are hereby permanently barred and enjoined from filing, commencing, prosecuting, maintaining, intervening in, participating in (as class members or otherwise), or receiving any benefits or other relief from, any other lawsuit, arbitration, or administrative, regulatory or other proceeding or order in any jurisdiction based on or relating to the Released Claims. 7. Adequacy of Representation. Counsel for Plaintiff in this Action and the Class Representative have adequately represented the Class for purposes of entering into and implementing the Settlement Agreement. 3

22 8. Attorneys Fees and Class Representative Service Award. The Court awards attorneys fees in the amount of, and costs of $, and awards the Class representative, Lockman, Inc. $ in recognition of the services it provided to the Class; 10. Continuing Jurisdiction. The Court shall retain continuing jurisdiction over the administration, enforcement and interpretation of the Settlement Agreement and Final Judgment and Order and for any other necessary purpose related to the Settlement Agreement and claims herein. Dated Brooklyn, New York HON. NICHOLAS G. GARAUFIS U.S. District Court Judge 4

23 EXHIBIT B

24 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK X LOCKMAN, INC., individually and on behalf of all others similarly situated, Plaintiff, v. THE CITY OF NEW YORK, ACTING THROUGH THE TRAFFIC CONTROL DIVISION OF THE NEW YORK CITY POLICE DEPARTMENT AND THE NEW YORK CITY DEPARTMENT OF FINANCE; STEPHEN GOLDSMITH; DAVID M. FRANKEL; JAMES TULLER; HARRY J. WEDIN; AND JOHN AND JANE DOES 1-10, all in their official capacities, Defendants X Civil Action No. 11-cv (NGG-MG) [PROPOSED] ORDER [PROPOSED] FINDINGS AND ORDER PRELIMINARILY CERTIFYING A CLASS FOR SETTLEMENT PURPOSES, APPOINTING CLASS COUNSEL, DIRECTING THE ISSUANCE OF NOTICE TO THE CLASS AND SCHEDULING A FAIRNESS HEARING

25 THE HONORABLE NICHOLAS G. GARAUFIS, USDJ WHEREAS, Plaintiff Lockman, Inc. ( Plaintiff ) has alleged in its Amended Class Action Complaint that Defendants the City of New York ( City ), acting through the Traffic Control Division of the New York City Police Department and the New York City Department of Finance; Stephen Goldsmith; David M. Frankel; James Tuller; Harry J. Wedin; and John and Jane Does 1-10 (collectively, Defendants ), during the period from May 2006 to October 1, 2010 issued unlawful traffic tickets for obstructing a traffic lane to participants in the City s Stipulated Fine Program, in violation of the Fourth and Fourteenth Amendment to the United States Constitution and Article I 6 and 7 of the New York State Constitution; and WHEREAS, Defendants deny each and every one of Plaintiff s allegations of unlawful conduct, deny all liability to Plaintiff and the other Class Members, do not concede or admit any liability, contest certain aspects of class certification, and intend to continue with a defense of this Action in the event this Agreement is not approved by the Court; and WHEREAS, Defendants, through their counsel, and Plaintiff, through its counsel and on behalf of itself and the other Class Members, have engaged in arms length negotiations, which included the aid of and several settlement conferences before The Honorable Marilyn D. Go, this Settlement Agreement, dated February 8, 2016, in which the Parties have agreed upon a settlement of this matter, subject to the approval and determination of the Court as to the fairness, reasonableness, and adequacy of the settlement, which, if approved, will result in final certification of the Class for settlement purposes only, and dismissal of the action with prejudice; and WHEREAS, upon reviewing the Notice, the Settlement Agreement, including the exhibits attached thereto, and all prior proceedings held herein, and the matter having come 2

26 before the Court, based on the foregoing, the Court s proceedings, and Plaintiff s Motion for Preliminary Approval of Class Action Settlement, Certification of the Class for Settlement Purposes, Approving Class Notice and Scheduling a Fairness Hearing, It is hereby ORDERED, ADJUDGED AND DECREED as follows 1. Jurisdiction. This Court has personal jurisdiction over all members of the proposed Class (defined below) and has subject matter jurisdiction over (a) the claims asserted in this Action, including jurisdiction to approve the proposed settlement, to grant final certification of the Class, to settle and release all claims based on or relating to the Amended Complaint and the allegations raised in this Action, and to dismiss this Action on the merits and with prejudice; and (b) the terms of the Stipulation of Settlement in this matter, dated February 8, 2016 (the Stipulation of Settlement or Settlement Agreement ). 2. Findings Regarding Proposed Settlement. The Court finds that the proposed Settlement Agreement resulted from arms length negotiations and is sufficient to warrant preliminary certification of the Class for settlement purposes, the mailing of the Notice to the members of the Class, and a full hearing on the settlement. 3. Conditional Class Certification for Settlement Purposes. For purposes of the settlement of this Action, and only for such purposes, the Court hereby certifies the following Class for settlement purposes All or any commercial delivery company(ies), commercial vehicle owners/operator(s), commercial service company(ies) and other persons and entities who owned and/or operated New York State registered commercial vehicles and who, during the period June 1, 2006, through October 31, 2010 (the Class Period ), participated in the City s Stipulated Fine Program and who during the Class Period received a ticket for a traffic lane violation indicated as Code 45 on the face of the ticket, and paid the associated fine of $40 per ticket on or before February 8,

27 This certification is conditional and for the purposes of consideration and implementation of the proposed Settlement Agreement only. 4. Class Representative and Class Counsel. Plaintiff Lockman, Inc. is designated Class Representative for settlement purposes only. The law firms of Jacobsen Law Offices LLC; Giskan Solotaroff & Anderson LLP; Boni and Zack LLC; and the Lowenfeld Law Office are designated Class Counsel. 5. Final Approval Hearing. A hearing ( Final Approval Hearing ) will be held at o clock. m. on [105 days from the date of this Order], in the United States District Court for the Eastern District of New York, 225 Cadman Plaza East, Brooklyn, New York, 11201, in Courtroom to determine (a) whether this Action should be finally certified as a class action for settlement purposes; (b) whether the settlement of the class action should be approved as fair, reasonable and adequate; (c) whether the class action should be dismissed with prejudice under the terms of the Settlement Agreement; (d) whether members of the Class should be bound by the Release set forth in the Settlement Agreement; and (e) whether the application of Class Counsel for an award of attorneys fees and reimbursement of expenses, and for a service award to Plaintiff, should be approved. The Parties submissions in support of the Settlement Agreement, if any, shall be filed with the Court at least five (5) days prior to the Final Approval Hearing. Any member of the Class which does not exclude itself from the settlement may appear and be heard at the Final Approval Hearing. 6. Notice to the Class. The Notice to the Class shall be distributed by and First Class mail within days of the entry of this Order. The costs of mailing the Notice to the Class will be advanced by Class Counsel and reimbursed from the Settlement Fund as soon as the funds are deposited into escrow and without further order of the Court. No publication of the 4

28 Notice is necessary given that Defendants have maintained the and/or postal addresses of the members of the Class and the Administrator shall send an additional Notice at its last known mailing address, if different, as determined by the National Change of Address database in the event the Notice is returned as undeliverable to the address on file with Defendants. 7. Findings Concerning Notice. The Court finds that the Notice to be given in the form and manner provided in Paragraph 6 of this Order is the best practicable notice and is reasonably calculated, under the circumstances, to apprise the Class members (a) of the pendency of this Action; (b) of their right to exclude themselves from the proposed settlement; (c) that any judgment, whether favorable or not, will include all Class members who do not request exclusion; and (d) that any Class member who does not request exclusion may object to the settlement and, if it desires, enter an appearance either personally or through counsel. The Court finds that the Notice is written in simple English, is reasonable and constitutes due, adequate, and sufficient notice to all persons and entities entitled to be provided with such notice, and finds that it complies with Fed. R. Civ. P. 23(b)(3) and 23(e), the Due Process Clause of the United States Constitution and Local Rules of the Eastern District of New York. 8. Exclusion from the Class. Any member of the Class who wishes to be excluded from the Class must mail a written request, postmarked no later than [75 days from the date of this order], or dated no later than [same date as postmark] to Oren Giskan GISKAN SOLOTAROFF & ANDERSON LLP 11 Broadway, Suite 2150 New York, NY ogiskan@gslawny.com Amy J. Weinblatt Yungbi Jang NYC LAW DEPARTMENT 5

29 100 Church Street New York, NY The request for exclusion need not be in any particular form, but it must include the following information (1) the Class member s name, address, and telephone number; (2) a statement that the Class member wishes to be excluded from the Class; (3) the Class member s signature; and (4) the following case name and number Lockman, Inc. v. City of N.Y., et al., 11 Civ (NGG)(MG). Any member of the Class who does not file a timely written request for exclusion shall not be excluded from the Class and shall be bound by all subsequent proceedings, orders, and judgments in this action. 9. Objections. Any member of the Class who has not filed a timely written request for exclusion and who wishes to object to the fairness, reasonableness, or adequacy of the proposed Settlement, must file a statement of objection no later than [75 days from the date of this Order] with the Court under docket Lockman, Inc. v. City of N.Y., et al., 11 Civ (NGG)(MG) and serve copies thereof on the following Oren Giskan GISKAN SOLOTAROFF & ANDERSON LLP 11 Broadway, Suite 2150 New York, NY Amy J. Weinblatt Yungbi Jang NYC LAW DEPARTMENT 100 Church Street New York, NY The objection must include the Class member s name, address, and telephone number, a statement of the Class member s objection(s), any supporting evidence thereof, and the case name and number. Any member of the Class who files and serves a written objection may, but is 6

30 not required to, appear at the Final Approval Hearing, either in person or through counsel retained at the Class member s expense. 10. Claims Administrator. KCC LLC is hereby authorized to perform tasks relating to administration of this Settlement, and will be paid from the Settlement Fund pursuant to the terms of the Settlement Agreement. SO ORDERED HON. NICHOLAS G. GARAUFIS United States District Judge Brooklyn, New York February,

31 EXHIBIT C

32 NOTICE OF CLASS ACTION SETTLEMENT February, 2016 PLEASE READ THIS ENTIRE NOTICE CAREFULLY This Notice is to inform you of a proposed Settlement of a class action lawsuit against the City of New York ( City ), acting through the Traffic Control Division of the New York City Police Department and the New York City Department of Finance; Stephen Goldsmith; David M. Frankel; James Tuller; Harry J. Wedin; and John and Jane Does 1-10 (collectively, Defendants ). This lawsuit concerns the ticketing for Traffic Lane violations (denoted as Code 45 on tickets) by New York City Traffic Enforcement Agents ( TEAs ) from June 1, 2006 until October 31, 2010, of commercial vehicles that participated in the City s Stipulated Fine Program. This is not a lawsuit against you. You have not been sued. You are being sent this Notice because you may be eligible to receive a refund. What is this about? In July 2004, the City launched the Stipulated Fine Program to address the volume of parking tickets issued to commercial delivery and service vehicles in the City and the enormous demand on the time and resources of the City and the owners/operators of those vehicles. Participants in the Stipulated Fine Program agreed to pay fines set by the City and agreed to forego hearings and appeals for certain charges. This lawsuit alleges that, from May 2006 through October 1, 2010, the City issued unlawful Traffic Lane violation tickets (Code 45) to participants in the City s Stipulated Fine Program, which, under the Stipulated Fine Program, require the participants to pay $40, instead of Double Parking tickets (Code 46), which, under the Stipulated Fine Program, do not require the participants to pay anything. Plaintiff alleges that, in doing so, Defendants acted in violation of the Fourth and Fourteenth Amendment to the United States Constitution and Article I 6-7 of the New York State Constitution. Defendants deny these allegations, deny that their actions were in any way improper or illegal, and will defend the lawsuit if the Court does not approve the Settlement. Defendants have agreed, nevertheless, to settle this lawsuit to avoid the risk and uncertainty inherent in litigation. The lawsuit is called Lockman, Inc. v. City of N.Y., et al., 11 Civ (NGG)(MG), previously captioned NYTDA, Inc. v. City of N.Y., et al. It was filed in 2011 in the United States District Court for the Eastern District of New York. Who is in the Class? The Class includes all persons or entities who owned and/or operated New York Stateregistered commercial vehicles and, during the period June 1, 2006 through October 31,

33 2010 ( Class Period ), participated in the City s Stipulated Fine Program, and during the Class Period received a ticket for a Traffic Lane violation indicated as Code 45 on the face of the ticket, and paid the associated $40 fine at any point up until February 8, What benefits are available under the settlement? In settlement of all claims alleged in the lawsuit, including fees and costs, Defendants have agreed to pay $14,000,000 (fourteen million dollars) into a fund ( Settlement Fund ). The Settlement Fund will be paid to Class members after the deduction from the Settlement Fund of claims administration and notice costs; any Court-approved service award to Lockman, Inc.; and any Court-approved attorneys fees and expenses (the Net Settlement Fund ). The claims administrator, Kurtzman Carson Consultants ( KCC ) will administer the settlement and send the settlement checks to Class members 30 days after the effective date of the settlement. The Net Settlement Fund will be divided pro rata among members of the Class who do not opt out of the Settlement. Payment from the Net Settlement Fund will be based on the number of Traffic Lane tickets (indicated as Code 45 on the face of the tickets and issued by TEAs), during the Class Period and paid by the Class member at any time up to February 8, Each Class member s pro rata share will be determined by reference to the records of the New York City Department of Finance, and will be calculated as a percentage of all Code 45 fines paid by all Class members. Checks to Class members will be valid for 120 days from the date they are issued. If they are not deposited or cashed within 120 days from this date, such checks will be voided, and if the funds remaining exceed $50,000, they will be redistributed pro rata to the Class members who deposited or cashed their initial checks. If the remaining funds from the first distribution do not exceed $50,000, they will be returned to the Defendants. If any checks from this second distribution are not deposited or cashed within 90 days, any remaining funds (which the parties estimate will be minimal) will be returned to Defendants. No class member will receive more than 100% of the fines it paid for such tickets. Traffic Lane tickets that were issued during the Class Period but for which no $40 fine was paid will not be eligible for any payment but the obligation to pay will be voided. The amount of damages that could be awarded at trial depends in part on the length of the Class Period adopted by the Court. Plaintiff estimates that if the Class prevailed at trial, a damage award would range from $15 million to $23 million depending on the Class Period. Defendants have taken the position that the Class Period should run from April 14, 2008 until October 31, 2010 ( shorter period ). Plaintiff believes the Class Period should run from June 1, 2006 until October 31, 2010 ( longer period ). The Class Period, for purposes of this settlement, is the longer period. 2

34 What are your options moving forward? 1. Remain in the Class and Receive a Refund You do not need to do anything if you wish to remain in the Class. If you remain in the Class and the settlement is approved by the Court, you will receive your share of the settlement proceeds as described above. 2. Exclude yourself from the Settlement If you do not wish to be part of the Settlement, you must request in writing to be excluded from the Settlement Class. To request exclusion from the Class, you must mail a written request, postmarked no later than, or send an , no later than, to Oren Giskan GISKAN SOLOTAROFF & ANDERSON LLP Attorneys for Class 11 Broadway Suite 2150 New York, NY ogiskan@gslawny.com and Amy J. Weinblatt Yungbi Jang NYC LAW DEPARTMENT Attorneys for Defendants 100 Church Street New York, NY aweinbla@law.nyc.gov yjang@law.nyc.gov Your request for exclusion from the Class need not be in any particular form, but it must include the following information (1) your name, address, and telephone number; (2) a statement that you wish to be excluded from the Class; (3) your signature; and (4) the following case name and number Lockman, Inc. v. City of N.Y., et al., 11 Civ (NGG)(MG). Please write the words EXCLUSION REQUEST in the Subject Line of your if requesting exclusion by , or on the letter and on the lower left-hand corner of the front of the envelope if requesting exclusion by postal mail. If you submit an exclusion request and satisfy the requirements for opting out, you will not be bound by any terms of the Settlement, including the release of claims against the 3