Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 1 of 56 PageID #: 287 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

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1 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 1 of 56 PageID #: 287 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK PHILIP J. CHARVAT, an Ohio resident and SABRINA WHEELER, an Illinois resident, individually and on behalf of all others similarly situated, NO. 2:15-cv JMA-SIL Plaintiffs, v. PLYMOUTH ROCK ENERGY, LLC, ENERGY ACQUISITIONS GROUP LLC and JOHN WILLIAM VAN TUBERGEN Defendants. CLASS ACTION SETTLEMENT AGREEMENT This class action settlement agreement ( Agreement or Settlement Agreement ) is entered into as of December 22, 2016, by and among Philip Charvat and Sabrina Wheeler ( Plaintiffs ), individually and on behalf of the class of persons they seek to represent (the Settlement Class defined below), and Plymouth Rock Energy, LLC ( Plymouth Rock ) (Plaintiffs and Plymouth Rock are collectively referred to as the Parties ). This Settlement Agreement is intended by the Parties to fully, finally, and forever resolve, discharge, and settle the Released Claims (defined below), upon and subject to the terms and conditions of the Agreement, and subject to the final approval of the Court.

2 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 2 of 56 PageID #: 288 RECITALS A. On July 13, 2015, Plaintiff Charvat filed a proposed class action complaint against Plymouth Rock in the United States District Court for the Eastern District of New York, captioned Philip J. Charvat, individually and on behalf of all others similarly situated, v. Plymouth Rock Energy, LLC, No. 15-cv (the Action ), alleging, among other things, that Plymouth Rock made telemarketing calls to telephone numbers listed on the National Do Not Call Registry in violation of the Telephone Consumer Protection Act, 47 U.S.C. 227 (the TCPA ), and the regulations promulgated by the Federal Communications Commission (the FCC ) under that statute. B. On September 24, 2015, Plymouth Rock filed its Answer and Affirmative Defenses to the Complaint. In that pleading, among other things, Plymouth Rock denies that it violated the TCPA or the FCC s regulations. C. On February 22, 2016, Plaintiffs filed their Amended Class Action Complaint, adding Plaintiff Wheeler as a proposed class representative and allegations against Energy Acquisitions Group, LLC ( EAG ) and John William Van Tubergen ( Mr. Van Tubergen ). Plaintiffs allege that EAG and Mr. Van Tubergen made the calls on behalf of Plymouth Rock and also called cellular telephone numbers in violation of the TCPA. D. On April 7, 2016 Plymouth Rock filed a letter motion with the Court stating that it intended to file a motion to dismiss the Amended Class Action Complaint. This case was stayed for mediation before that motion was filed. E. On August 2 and September 28, 2016, the Parties participated in two full-day mediation sessions with the Honorable Richard Billik (Ret.) of ADR Systems in Chicago, - 2 -

3 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 3 of 56 PageID #: 289 Illinois. The Parties made substantial progress on the key terms of a class action settlement through those two sessions. F. After further negotiations, the parties agreed to the key terms of a class action settlement on October 5, G. Plymouth Rock at all times has denied and continues to deny any wrongdoing whatsoever and has denied and continues to deny that it violated the TCPA or the FCC s regulations, or committed any other wrongful act or violation of law. H. Plaintiffs believe that the claims asserted in the Action have merit. Nonetheless, Plaintiffs and their counsel recognize and acknowledge the expense, time, and risk associated with continued prosecution of the Action against Plymouth Rock through dispositive motions, class certification, trial, and any subsequent appeals. Plaintiffs and their counsel also have taken into account the uncertainty, difficulties, and delays inherent in litigation, especially in complex actions. Based on their evaluation, which they have confirmed by consulting with their own expert, Plaintiffs counsel have concluded that the terms and conditions of this Agreement are fair, reasonable, and adequate for the Settlement Class, and that it is in the best interests of the Settlement Class to settle the Released Claims pursuant to the terms and provisions of this Agreement. I. The Parties agree that the Action was resolved in good faith, following arm slength bargaining presided over by a retired judge of the Circuit Court of Cook County, Illinois acting as a neutral mediator. NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among the Parties, by and through their respective counsel, subject to final approval by the Court after a hearing or hearings as provided for in this Settlement Agreement, and in consideration of the - 3 -

4 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 4 of 56 PageID #: 290 benefits flowing from the Settlement Agreement set forth herein, that the Action and the Released Claims shall be finally and fully compromised, settled, and released, and the Action shall be dismissed with prejudice, upon and subject to the terms and conditions of this Agreement. 1. DEFINITIONS AGREEMENT As used in this Settlement Agreement, the following terms have the meanings specified below: 1.1 Plymouth Rock Counsel means: Simon Fleischmann LOCKE LORD LLP 111 South Wacker Drive Chicago, Illinois Class Counsel means: Edward Broderick Anthony Paronich BRODERICK & PARONICH, P.C. 99 High St., Suite 304 Boston, Massachusetts Matthew P. McCue THE LAW OFFICE OF MATTHEW P. MCCUE 1 South Avenue, Suite 3 Natick, Massachusetts Beth E. Terrell Jennifer Rust Murray TERELL MARSHALL LAW GROUP 936 North 34th Street, Suite 300 Seattle, Washington Kim E. Richman THE RICHMAN LAW GROUP 195 Plymouth Street Brooklyn, New York Class Representatives means Philip Charvat and Sabrina Wheeler

5 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 5 of 56 PageID #: Court means the United States District Court for the Eastern District of New York. 1.5 Effective Date means the date one (1) business day after which all of the events and conditions specified in Paragraph 9.1 have occurred and have been met. 1.6 Fee Award means the amount of attorneys fees and reimbursement of expenses awarded by the Court to Class Counsel. 1.7 Final means one (1) business day following the later of the following events: (i) the date upon which the time expires for filing or noticing any appeal of the Court s Final Approval Order and Judgment; or (ii) if there is an appeal or appeals, the date of final dismissal or completion in a manner that finally affirms and leaves in place the Final Approval Order and Judgment. 1.8 Final Approval Hearing means the hearing before the Court where the Plaintiffs will request that the Court enter the Final Approval Order and Judgment, approve the Settlement Agreement, and approve the Fee Award and the incentive awards to the Class Representatives. 1.9 Final Approval Order and Judgment means a document substantially in the form of Exhibit 1, to be entered by the Court following the Final Approval Hearing Mediator means Honorable Richard Billik (Ret.) of ADR Systems Mail Notice means the notice with attached Claim Form in substantially the form of Exhibit Class Notice means all types of notice that will be provided to the Settlement Class including the Mail Notice, Website Notice, Online Media Notice, and any different or additional notice that might be ordered by the Court

6 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 6 of 56 PageID #: Online Media Notice means the on-line media campaign designed by the Settlement Administrator as set forth in Paragraph 4.2(b) of this Agreement Person means any individual, corporation, trust, partnership, limited liability company or other legal entity and their respective predecessors, successors or assigns. The definition of Person is not intended to include any governmental agencies or governmental actors, including, without limitation, any state Attorney General office Claim Form means the claim form to be submitted by Settlement Class Members in order to receive a cash award pursuant to Paragraph 2.3 of this Agreement that is substantially in the form of Exhibit Notice Plan means the plan, as set forth in Paragraph 4.2 and as executed and administered by the Settlement Administrator, for disseminating Class Notice to members of the Settlement Class of the Settlement Agreement and of the Final Approval Hearing Objection/Exclusion/Claim Deadline means the date by which (1) a written objection to this Settlement Agreement, or (2) a request for exclusion, or (3) a claim, submitted by a Person within the Settlement Class must be postmarked, which shall be no later than eightyone (81) days after entry of the Preliminary Approval Order, or such other date as ordered by the Court, which deadline shall be posted to the Settlement Website listed in Paragraph 4.2(c). The Objection/Exclusion/Claim Deadline also includes the date by which Settlement Class Members must submit online claims via the Settlement Website Approved Claim means a Claim Form submitted by a Settlement Class Member that (a) is timely and submitted in accordance with the directions on the Claim Form and the terms of this Agreement, (b) is physically signed or electronically verified by the - 6 -

7 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 7 of 56 PageID #: 293 Settlement Class Member, and (c) is not the subject of an objection by any Party that has not been overruled in accordance with this Agreement Preliminary Approval Order means the document substantially in the form of Exhibit 4, to be entered by the Court for purposes of preliminarily approving the Settlement Agreement, certifying the Settlement Class solely for settlement purposes, and approving the forms of Class Notice and the Notice Plan Released Claims means any and all actual, potential, filed, known or unknown, fixed or contingent, claimed or unclaimed, suspected or unsuspected, claims, demands, liabilities, rights, causes of action, contracts or agreements, extra-contractual claims, damages, punitive, exemplary or multiplied damages, expenses, costs, attorneys fees and/or obligations (including Unknown Claims as defined below), whether in law or in equity, accrued or unaccrued, direct, individual or representative, of every nature and description whatsoever, whether based on federal, state, local, statutory or common law or any other law, rule or regulation, including the law of any jurisdiction outside the United States, against the Released Parties, or any of them, arising out of or related in any way to the Released Parties contact or attempt to contact Settlement Class members on their telephones, including, but not limited to, claims under or for a violation of the TCPA and any other statutory or common law claim arising under the TCPA as related to calls placed to telephone numbers on behalf of Plymouth Rock during the class period Released Parties means Plymouth Rock Energy, LLC, along with any and all of its present or former predecessors, successors, subsidiaries, and all of their respective owners, officers, directors, partners, members, principals, agents, insurers, insureds, representatives, employees, shareholders, attorneys, servants, and assigns. Notwithstanding the foregoing, - 7 -

8 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 8 of 56 PageID #: 294 nothing in this Agreement is intended to release EAG or VanTubergen from any liability to Plymouth in connection with the Action or otherwise; any such liability is expressly preserved Releasing Parties means: (a) Plaintiffs; (b) Settlement Class Members who do not timely opt out of the Settlement Class (whether or not such members submit claims); and (c) all of their respective assigns, heirs, successors, predecessors, parents, subsidiaries, officers, directors, shareholders, members, managers, partners, principals, representatives, employees, agents, and all persons acting through or in concert with any of them Settlement means the settlement contemplated by this Agreement Settlement Administration Expenses means the expenses incurred by the Settlement Administrator in providing Class Notice, and mailing checks for Settlement Class Members. Settlement Administration Expenses shall be paid from the Settlement Fund Settlement Administrator means Kurtzman Carson Consultants, LLC ( KCC ) Class List means the list of Persons who were called by EAG, or another person or entity at the direction of EAG, to promote Plymouth Rock s goods or services, as identified by the Plaintiffs expert witnesses Settlement Class means all Persons who, on or after July 13, 2011 through the date of preliminary approval of the Settlement, received a call promoting Plymouth Rock s goods or services on a cellular telephone using an automatic telephone dialing system or prerecorded voice, or who were on the National Do-Not-Call Registry and received more than one call in a twelve month period from Plymouth Rock, or any third party calling on Plymouth Rock s behalf. Excluded from the Settlement Class are: (1) the Judge and Magistrate presiding over the Action, and members of their families; and (2) the Released Parties

9 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 9 of 56 PageID #: Settlement Class Member or Class Member means a Person who falls within the definition of the Settlement Class and who has not submitted a valid request for exclusion Settlement Class Recovery means the amount of the Settlement Fund available for distribution to the Settlement Class, after payment of Settlement Administration Expenses, the Fee Award to Class Counsel, and any approved incentive award to the Class Representatives Settlement Fund means $1,675,000 that Plymouth Rock has agreed to pay pursuant to the terms of this Settlement Agreement, including Paragraph 2.1 below Website Notice means the information regarding the Settlement that will be available to Class members on the Settlement Website substantially in the form of Exhibit Settlement Website means the website to be created by the Settlement Administrator containing full details and information about the Settlement, including this Agreement and the Website Notice. 2. SETTLEMENT RELIEF 2.1 Settlement Fund. Plymouth Rock agrees to provide a Settlement Fund in the amount of $1,675,000 for the purpose of making payments with respect to all Class Members under this Agreement, all Settlement Administration Expenses, any incentive award to the Class Representatives, and any Fee Award to Class Counsel. Plymouth Rock will fund the Settlement Fund as follows: (a) within thirty (30) days following entry of the Preliminary Approval Order, Plymouth Rock will transfer $1,675,000 to the Settlement Administrator (via wire instructions provided by the Settlement Administrator to Plymouth Rock). The Settlement Administrator will hold those amounts until such time as the Settlement Administrator is authorized to use or pay - 9 -

10 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 10 of 56 PageID #: 296 those funds, including for any authorized up-front notice costs, pursuant to the Settlement Agreement, the Preliminary Approval Order, or the Final Approval Order and Judgment. 2.2 Injunctive Relief. Plymouth Rock has agreed to an injunction that requires it to create policies and procedures, or revise its existing policies and procedures, to ensure the third parties that they hire will comply with the TCPA, including comprehensive, effective scrubbing, and recording and honoring all do-not-call requests, training on these policies and procedures, and monitoring. The company will also agree to maintain control over its policies, procedures, training, compliance and monitoring with respect to telemarketing. Plymouth Rock also agrees that these new policies, along with any changes to its existing policies, are being created and implemented as a result of this lawsuit. 2.3 Monetary Payments (a) Settlement Class Members shall have until the Claims Deadline to submit a Claim Form. Any Settlement Class Member who submits a Claim Form that is determined to be an Approved Claim shall be entitled to receive a pro rata share of the Settlement Class Recovery, so that each Settlement Class Member who submits an Approved Claim shall be entitled to receive an amount equal to the Settlement Class Recovery divided by the total number of Approved Claims. (b) As soon as practicable but no later than sixty (60) days after the Effective Date, or such other date as the Court may set, the Settlement Administrator shall mail via firstclass mail to each Settlement Class Members who submit an Approved Claim a check containing the Settlement Class Member s pro rata share of the Settlement Class Recovery

11 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 11 of 56 PageID #: 297 (c) All payments issued to Settlement Class Members via check will state on the face of the check that the check will expire and become null and void unless cashed within ninety (90) days after the date of issuance. (d) To the extent that any checks to Settlement Class Members expire and become null and void, the Settlement Administrator shall distribute the leftover funds associated with those checks to Claimants who cashed their check from the previous round of distribution on a pro rata basis, if doing so is administratively feasible. Any remaining monies, including to the extent a second distribution is not administratively feasible, shall be distributed as a cy pres award to the Electronic Privacy Information Center ( EPIC ) or other organization as directed by the Court. 3. RELEASES 3.1 The Parties intend that this Settlement Agreement will fully and finally dispose of the Action and any and all Released Claims against the Released Parties. 3.2 Upon the Effective Date, the Releasing Parties, and each of them, shall be deemed to have, and by operation of the Final Approval Order and Judgment shall have, fully, finally, and forever released, relinquished, and discharged all Released Claims against the Released Parties, and each of them. 4. NOTICE TO THE CLASS 4.1 Within twenty-one (21) days after entry of the Preliminary Approval Order, the Settlement Administrator shall commence implementation of the Notice Plan, which shall comport with Rule 23 of the Federal Rules of Civil Procedure. The costs of the Notice Plan shall be Settlement Administration Expenses, which shall be paid from the Settlement Fund

12 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 12 of 56 PageID #: The Notice Plan, which was developed in consultation with the Settlement Administrator, includes: (a) Direct Notice. Subject to the approval of the Court, the Settlement Administrator shall within twenty-one (21) days after entry of the Preliminary Approval Order mail the Mail Notice via the U.S. Postal Service to the Settlement Class Members in the Class List whose name and address are obtained by the Parties from Plymouth Rock, or can be obtained through a reverse lookup process. (b) Online Media Notice. The Settlement Administrator will implement an online media campaign as designed by the Settlement Administrator, the content of which will be agreed upon by Class Counsel and Plymouth Rock Counsel. The online media campaign will commence no later than twenty-one (21) days after entry of the Preliminary Approval Order. (c) Settlement Website. The Settlement Administrator will establish and maintain a Settlement Website. Settlement Class Members will have the ability to file Claim Forms on the Settlement Website. Within twenty-one (21) days after entry of the Preliminary Approval Order, the Settlement Administrator will post the Website Notice on the Settlement Website. 4.3 Any member of the Settlement Class who intends to object to this Agreement must send to the Court a written statement that includes: his or her full name; address; telephone number or numbers that he or she maintains were called; all grounds for the objection, with factual and legal support for each stated ground; the identity of any witnesses he or she may call to testify; copies of any exhibits that he or she intends to introduce into evidence at the Final Approval Hearing; a statement of the identity (including name, address, phone number and ) of any lawyer who was consulted or assisted with respect to any objection, and a

13 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 13 of 56 PageID #: 299 statement of whether he or she intends to appear at the Final Approval Hearing with or without counsel. Any member of the Settlement Class who fails to timely file a written objection in accordance with the terms of this paragraph and as detailed in the Website Notice, and at the same time provide a copy of the filed objection to the Settlement Administrator, shall not be permitted to object to this Agreement at the Final Approval Hearing, and shall be foreclosed from seeking any review of this Agreement by appeal or other means and shall be deemed to have waived his or her objections and be forever barred from making any such objections in the Action or any other action or proceeding. To be timely, the objection must be filed and sent to the Settlement Administrator on or before the Objection/Exclusion/Claim Deadline approved by the Court and specified in the Class Notice. 4.4 Any member of the Settlement Class may request to be excluded from the Settlement Class by sending a written request for exclusion to the Settlement Administrator postmarked on or before the Objection/Exclusion/Claim Deadline approved by the Court and specified in the Class Notice. In order to exercise the right to be excluded, a member of the Settlement Class must timely send a written request for exclusion to the Settlement Administrator providing his or her full name, address, and telephone numbers. Further, the written request for exclusion must include a statement that the member of the Settlement Class submitting the request wishes to be excluded from the Settlement, and the personal signature of the member of the Settlement Class submitting the request. A request to be excluded that does not include all of the foregoing information, or that is sent to an address other than that designated in the Class Notice, or that is not postmarked within the time specified, shall be invalid, and any Person serving such a request shall be a Settlement Class Member and shall be bound as a Settlement Class Member by the Agreement, if approved. Any member of the

14 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 14 of 56 PageID #: 300 Settlement Class who elects to be excluded shall not: (i) be bound by the Final Approval Order and Judgment; (ii) be entitled to relief under this Settlement Agreement; (iii) gain any rights by virtue of this Agreement; or (iv) be entitled to object to any aspect of this Agreement. So-called mass or class opt-outs shall not be allowed. 5. SETTLEMENT ADMINISTRATION 5.1 The Settlement Administrator shall, under the supervision of the Court, administer the relief provided by this Settlement Agreement by processing Claim Forms in a rational, responsive, cost effective, and timely manner. The Settlement Administrator shall maintain reasonably detailed records of its activities under this Agreement. The Settlement Administrator shall maintain all such records as are required by applicable law in accordance with its normal business practices, and such records will be made available to Class Counsel and Plymouth Rock Counsel upon request. The Settlement Administrator shall provide reports and other information to the Court as the Court may require. Should the Court request, Class Counsel shall submit a report to the Court summarizing the work performed by the Settlement Administrator, including a report of all amounts from the Settlement Fund paid to Settlement Class Members on account of Settlement Class Members. Without limiting the foregoing, the Settlement Administrator shall receive objections and exclusion forms and promptly provide to Class Counsel and Plymouth Rock Counsel copies thereof; 5.2 In the exercise of its duties outlined in this Agreement, the Settlement Administrator shall have the right to reasonably request additional information from the Parties or any Settlement Class Member

15 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 15 of 56 PageID #: TERMINATION OF SETTLEMENT Termination Notice. To the extent that Paragraphs below are not substantially fulfilled, Plymouth Rock, or the Class Representatives on behalf of the Settlement Class, shall have the right to request termination this Agreement by filing written request to do so ( Termination Notice ) with the Court and serving that Termination Notice on all other Parties hereto within ten (10) business days of any of the following events: (i) the Court s refusal to enter a Preliminary Approval Order; (ii) the Court s refusal to enter a Final Approval Order and Judgment or any appellate Court refuses to Uphold the Final Approval Order and Judgment in any respect; or (iii) the opt-out of more than 2,500 class members to the settlement. Upon effective termination, the balance of the Common Fund not expended on notice and administration shall be returned to the Defendant. 7. PRELIMINARY APPROVAL ORDER AND FINAL APPROVAL ORDER AND JUDGMENT

16 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 16 of 56 PageID #: Promptly after the execution of this Agreement, Plaintiffs counsel shall submit this Agreement together with its Exhibits to the Court and shall move the Court for entry of the Preliminary Approval Order, which shall, among other things, certify the Settlement Class for settlement purposes only, appoint Plaintiffs counsel as Class Counsel and Plaintiffs as Class Representatives, shall set a Final Approval Hearing date, and approve the Class Notice for dissemination in accordance with the Notice Plan. Such Preliminary Approval Order shall also authorize the Parties, without further approval from the Court, to agree to and adopt such amendments, modifications and expansions of the Settlement Agreement and its implementing documents (including all exhibits to this Agreement) so long as they are consistent in all material respects with the terms of the Final Approval Order and Judgment set forth in Paragraph 7.4 below. 7.2 At the time of the submission of this Agreement to the Court as described above, Plaintiffs counsel and Plymouth Rock shall request that, after Class Notice is disseminated to members of the Settlement Class in accordance with the Notice Plan, the Court hold a Final Approval Hearing and approve the Settlement as set forth herein. The Final Approval Hearing shall be no earlier than one hundred ten (110) days after entry of the Preliminary Approval Order, or such other time as the Court shall set. 7.3 The Settlement Administrator, with approval by the Parties, shall be responsible for compliance with the applicable provisions of the Class Action Fairness Act ( CAFA ), including the notice requirements in 28 U.S.C After Class Notice is disseminated in accordance with the Notice Plan, the Parties shall request and seek to obtain from the Court a Final Approval Order and Judgment, which will (among other things):

17 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 17 of 56 PageID #: 303 (a) find that the Court has personal jurisdiction over all Settlement Class Members and that the Court has subject matter jurisdiction to approve the Agreement, including all exhibits hereto; (b) approve the Settlement Agreement and the proposed Settlement as fair, reasonable and adequate as to, and in the best interests of Settlement Class Members; direct the Parties and their counsel to implement the Agreement according to its terms and provisions; and declare the Agreement to be binding on, and have preclusive effect on, all pending and future lawsuits or other proceedings maintained by or on behalf of Plaintiffs and the Releasing Parties; (c) find that the Class Notice and the Notice Plan implemented pursuant to the Agreement (1) constitute the best practicable notice under the circumstances; (2) constitute notice that is reasonably calculated to apprise members of the Settlement Class of the pendency of the Action, their right to object to or exclude themselves from the proposed Settlement, and to appear at the Final Approval Hearing; (3) are reasonable and constitute due, adequate, and sufficient notice to all Persons entitled to receive notice; and (4) meet all applicable requirements of the Federal Rules of Civil Procedure, the Due Process Clause of the United States Constitution, and the rules of the Court; (d) find that the Class Representatives and Class Counsel adequately represented the Settlement Class for purposes of entering into and implementing the Agreement; (e) dismiss the Action on the merits and with prejudice, without fees or costs to any Party except as provided in the Settlement Agreement; (f) incorporate the releases set forth above, make those releases effective as of the date of the Final Approval Order and Judgment, and forever discharge the Released Parties as set forth herein; and

18 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 18 of 56 PageID #: 304 (g) without affecting the finality of the Final Approval Order and Judgment for purposes of appeal, retain jurisdiction as to all matters relating to administration, consummation, enforcement, and interpretation of the Settlement Agreement and the Final Approval Order and Judgment, and for any other necessary purpose; and (h) incorporate any other provisions, as the Court deems necessary and just. 8. CLASS COUNSEL S FEE AWARD; INCENTIVE AWARD. 8.1 Subject to the Court s approval, Plymouth Rock has agreed that the Settlement Fund can be used to pay the Fee Award to Class Counsel. Class Counsel shall apply, subject to the approval of the Court, for a fee award of up to one-third of the Common Fund, plus out-ofpocket costs incurred by Class Counsel in this litigation. Nothing in this Agreement requires Plymouth Rock to take any position with respect to this paragraph. 8.2 In lieu of any payments on claims to which they may be entitled as a Settlement Class Member under the Settlement Agreement, and in recognition of their efforts on behalf of the Settlement Class, the Class Representatives shall, subject to the approval of the Court, each be awarded an incentive award in the amount of fifteen thousand dollars ($15,000). Nothing in this Agreement requires Plymouth Rock to take any position with respect to this paragraph. 9. CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 9.1 The Effective Date of this Settlement Agreement shall not occur unless and until each of the following events has occurred and shall be the date upon which the last (in time) of the following events occurs: (a) This Agreement has been signed by Plaintiffs, or their representative, and Plymouth Rock; (b) The Court has entered the Preliminary Approval Order;

19 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 19 of 56 PageID #: 305 (c) The Court has entered the Final Approval Order and Judgment, following notice to the Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure, and has entered the Final Approval Order and Judgment, or a final approval order and judgment substantially consistent with this Agreement (the Alternative Final Approval Order and Judgment ); and (d) The Final Approval Order and Judgment has become Final, as defined above. 9.2 If some or all of the conditions specified in Paragraph 9.1 are not met, or in the event that this Agreement is not approved by the Court, then this Settlement Agreement shall be canceled and terminated unless Plaintiffs counsel and Plymouth Rock mutually agree in writing to proceed with this Agreement. 9.3 If this Agreement is terminated or fails to become Effective, the Parties shall be restored to their respective positions in the Action as of the date of the signing of this Agreement. In such event, any Final Approval Order and Judgment or other order entered by the Court in accordance with the terms of this Agreement shall be treated as vacated, nunc pro tunc, and the Parties shall be returned to the status quo ante with respect to the Action as if this Agreement had never been entered into. 10. MISCELLANEOUS PROVISIONS 10.1 Plymouth Rock has agreed to provide an affidavit (1) that verifies the accuracy of the financial information provided in the mediation context and (2) the cost to Plymouth Rock of providing the injunctive relief that the parties have agreed to, which is estimated to be $150, The Parties (a) acknowledge that it is their intent to consummate this Settlement Agreement; and (b) agree, subject to their fiduciary and other legal obligations, to cooperate to

20 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 20 of 56 PageID #: 306 the extent reasonably necessary to effectuate and implement all terms and conditions of this Agreement and to exercise their reasonable best efforts to accomplish the foregoing terms and conditions of this Agreement. Plaintiffs counsel and Plymouth Rock agree to cooperate with one another in seeking Court approval of the Preliminary Approval Order, the Settlement Agreement, and the Final Approval Order and Judgment, and promptly to agree upon and execute all such other documentation as may be reasonably required to obtain final approval of the Agreement The Parties intend this Settlement Agreement to be a final and complete resolution of all disputes between them with respect to the Released Claims by Plaintiffs and the Settlement Class, and each or any of them, on the one hand, against the Released Parties, and each or any of the Released Parties, on the other hand. Accordingly, the Parties agree not to assert in any forum that the Action was brought by Plaintiffs or defended by Plymouth Rock, or each or any of them, in bad faith or without a reasonable basis The Parties have relied upon the advice and representation of counsel, selected by them, concerning their respective legal liability for the claims hereby released. The Parties have read and understand fully the above and foregoing Agreement and have been fully advised as to the legal effect thereof by counsel of their own selection and intend to be legally bound by the same The Settlement and this Agreement represent a negotiated compromise, and regardless whether the Effective Date occurs or the Settlement Agreement is terminated, neither this Agreement nor the Settlement, nor any act performed or document executed pursuant to or in furtherance of this Agreement or the Settlement: (a) is, may be deemed, or shall be used, offered or received against the Released Parties, or each or any of them, as an admission, concession, or evidence of the validity

21 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 21 of 56 PageID #: 307 of any Released Claims, the truth of any fact alleged by the Class Representatives, the deficiency of any defense that has been or could have been asserted in the Action, the violation of any law or statute, the reasonableness of either the Settlement Fund or the Fee Award, or of any alleged wrongdoing, liability, negligence, or fault of the Released Parties, or any of them; (b) is, may be deemed, or shall be construed against Plaintiffs and the Settlement Class, or each or any of them, or against the Released Parties, or each or any of them, as an admission, concession, or evidence that the consideration to be given hereunder represents an amount equal to, less than or greater than that amount that could have or would have been recovered after trial; and (c) is, may be deemed, or shall be construed against Plaintiffs and the Settlement Class, or each or any of them, or against the Released Parties, or each or any of them, as an admission, concession, or evidence that any of Plaintiffs or the Settlement Class s claims are with or without merit or that damages recoverable in the Action would have exceeded or would have been less than any particular amount Unless the context of this Agreement requires otherwise, the plural includes the singular, the singular includes the plural, and including has the inclusive meaning of including without limitation. The words hereof, herein, hereby, hereunder, and other similar terms of this Agreement refer to this Agreement as a whole and not exclusively to any particular provision of this Agreement. All pronouns and any variations thereof will be deemed to refer to masculine, feminine, or neuter, singular, or plural, as the identity of the person or persons may require The waiver by one Party of any breach of this Agreement by any other Party shall not be deemed as a waiver of any other prior or subsequent breaches of this Agreement

22 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 22 of 56 PageID #: Except as otherwise provided herein, each Party shall bear its own costs and attorneys fees Each counsel or other Person executing this Settlement Agreement, any of its Exhibits, or any related settlement documents on behalf of any Party hereto hereby warrants and represents that such Person has the full authority to do so and has the authority to take appropriate action required or permitted to be taken pursuant to the Agreement to effectuate its terms This Agreement may be executed by the Parties in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Facsimile signatures or scanned and ed signatures shall be treated as original signatures and shall be binding This Settlement Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the Parties hereto and the Released Parties This Agreement has been prepared by counsel for all Parties, as a result of arms length negotiations among the Parties with the aid of a neutral mediator. Whereas all Parties have contributed substantially and materially to the preparation of this Agreement, it shall not be construed more strictly against one Party than another

23 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 23 of 56 PageID #: 309 be executed. IN WITNESS WHEREOF, the Parties hereto have caused this Settlement Agreement to For Plaintiffs and the Settlement Class: Philip Charvat Class Representative Date: Sabrina Wheeler Class Representative Date: Anthony Paronich BRODERICK & PARONICH, P.C. 99 High St., Suite 304 Boston, MA Date: For Plymouth Rock, LLC Adam Sokol President Plymouth Rock Energy, LLC Simon Fleischmann LOCKE LORD LLP 111 South Wacker Drive Chicago, Illinois Date: 12/29/16 Date:

24 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 24 of 56 PageID #: 310

25 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 25 of 56 PageID #: 311

26 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 26 of 56 PageID #: 312 EXHIBIT 1

27 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 27 of 56 PageID #: 313 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK BROOKLYN DIVISION PHILIP J. CHARVAT and SABRINA WHEELER, individually and on behalf of all others similarly situated, Plaintiffs, NO. 2:15-cv JMA-SIL DEMAND FOR JURY v. PLYMOUTH ROCK ENERGY, LLC, ENERGY ACQUISITIONS GROUP, LLC, and JOHN WILLIAM VAN TUBERGEN, Defendants. [PROPOSED] FINAL ORDER OF JUDGMENT AND DISMISSAL WITH PREJUDICE This matter came before the Court upon consideration of Plaintiffs Motion for Final Approval of Class Action Settlement and Class Counsel s Motion for an Award of Fees, Costs, and Class Representative Service Award. After considering the motions and the declarations and exhibits submitted with the motions, the Court enters this Final Order of Judgment and Dismissal with Prejudice ( Final Order of Judgment ), which constitutes a final adjudication on the merits of all claims of the Settlement Class. It is HEREBY ORDERED that the motions are GRANTED, the Settlement Class is certified, the Class Action Settlement Agreement ( Agreement ) 1 is approved, Class Counsel are awarded $ in fees and $ in costs, and service awards in the amount of $ each are approved for Plaintiffs Philip J. Charvat and Sabrina Wheeler. 1 Capitalized terms shall have the meaning ascribed to them in the Agreement.

28 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 28 of 56 PageID #: 314 WHEREAS, on or about, 2016, the Parties filed the Agreement (Docket No. ) which sets for the terms and conditions of the settlement and release of certain claims against Defendant Plymouth Rock Energy, LLC and the Released Parties ( Settlement ); WHEREAS, Plaintiffs and Class Counsel have filed motions, pursuant to Rule 23 of the Federal Rules of Civil Procedure, for orders finally approving the Agreement, which will dismiss this Action with prejudice, and granting Class Counsel s request for an award of fees, costs, and service awards to the Plaintiffs; WHEREAS, the Court preliminary approved the Settlement on, and Class Notice was given to all Settlement Class Members pursuant to that Preliminary Approval Order; WHEREAS, the Court has reviewed and considered all papers filed in support of and in opposition to the Settlement, and all exhibits thereto, and has held a hearing after Class Notice to the Settlement Class in order to confirm that the Settlement is fair, reasonable, and adequate, and to determine whether the Final Order of Judgment should be entered in this Action pursuant to the terms and conditions set forth in the Agreement ( Final Approval Hearing ) on, at which time the Parties and all interested persons were heard in support of and in opposition to the Settlement; and WHEREAS, upon consideration of all of the above, the Court finds that the Settlement is fair, adequate, and reasonable to the Settlement Class, within the authority of the Parties, and the result of extensive arm s length negotiations with the guidance of an experienced mediator. THEREFORE, the following is HEREBY ORDERED: 1. This Court has jurisdiction over the subject matter of this Action and personal jurisdiction over the Parties and the Settlement Class

29 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 29 of 56 PageID #: The definitions and provisions of the Agreement are incorporated in this Order as though fully set forth herein. 3. Pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure, and for the purposes of Settlement only, the Settlement Class is certified as follows: All persons who, on or after July 13, 2011 through the date of preliminary approval in this action, received a call promoting Plymouth Rock s goods or services on a cellular telephone using an automatic telephone dialing system or prerecorded voice, or who were on the National Do-Not-Call Registry and received more than one call in a twelve month period from Plymouth Rock, or any third party calling on Plymouth Rock s behalf. 4. For purposes of settlement, Plaintiffs Philip J. Charvat and Sabrina Wheeler are hereby appointed the Class Representatives. 5. For purposes of settlement, the attorneys at Broderick & Paronich, P.C., The Law Office of Matthew P. McCue, Terrell Marshall Law Group PLLC, and The Richman Law Group are hereby appointed as Class Counsel. 6. In the event that the Settlement terminates for any reason, the certification of the Settlement Class shall be automatically vacated, null and void, and this Action shall revert to its status immediately prior to the execution of the Agreement. 7. This Court finds that the Class Notice given to members of the Settlement Class pursuant to the terms of the Agreement fully and accurately informed such members of all material elements of this settlement and constituted valid, sufficient, and due notice to all such members. The Class Notice fully complied with due process, Rule 23 of the Federal Rules of Civil Procedure, and with all other applicable law. Accordingly, this Court makes final the conditional certification set forth in the Preliminary Approval Order

30 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 30 of 56 PageID #: Settlement Class Members who timely submitted valid requests for exclusion are excluded from the Settlement Class and are not bound by this Order and Judgment. Attached hereto as Exhibit A is a list of all Settlement Class Members who opted out of the Settlement Class. 9. The Court finally approves this Settlement, and finds that it is fair, reasonable, and adequate. 10. The Parties, their counsel, and the Settlement Administrator shall fulfill their obligations and duties under the Agreement. 11. The Court dismisses with prejudice this Action, the Released Claims, and the Released Parties, and adjudges that the Released Claims are released against the Released Parties. 12. The Court adjudges that Plaintiffs and the Settlement Class Members are deemed to have fully, finally, completely, and forever released, relinquished, and discharged the Released Claims against the Released Parties. 13. Plaintiffs and the Settlement Class Members are permanently enjoined and barred from asserting, initiating, prosecuting, or continuing any of the Released Claims against the Released Parties. 14. The Settlement Administrator completed the delivery of Class Notice according to the terms of the Agreement. The Class Notice given by the Settlement Administrator to the Settlement Class, which set forth the principal terms of the Agreement and other matters, was the best practicable notice under the circumstances. The notice program prescribed by the Agreement was reasonable and provided due and adequate notice of these proceedings and of the matters set forth therein, including the terms of the Agreement, to all parties entitled to such - 4 -

31 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 31 of 56 PageID #: 317 Class Notice. The Class Notice given to members of the Class satisfied the requirements of Federal Rule of Civil Procedure 23 and the requirements of constitutional due process. The Class Notice was reasonably calculated under the circumstances to apprise Settlement Class Members of the pendency of this Action, all material elements of the settlement, and their opportunity to exclude themselves from, object to, or comment on the settlement and appear at the final fairness hearing. The Court has afforded a full opportunity to all Settlement Class Members to be heard. Accordingly, the Court determines that all members of the Settlement Class, except those who timely excluded themselves from the Settlement Class, are bound by this Final Order of Judgment. 15. Within ten (10) days after the filing of the proposed Agreement in this Court, a notice of the proposed Settlement was served upon the appropriate state official of each State in which a Settlement Class Member resides and upon the Attorney General of the United States. The Court finds that the notice provided satisfied the requirements of 28 U.S.C. 1715(b) and that more than ninety (90) days have elapsed since the notice was provided, as required by 28 U.S.C. 1715(d). 16. The Court approves payment of attorneys fees and costs to Class Counsel in the amount of $ in fees and $ in out-of-pocket litigation costs. These amounts shall be paid from the Settlement Fund pursuant to the terms of the Agreement. The Court finds these amounts to be appropriate and reasonable in light of the work performed by Class Counsel and the benefits obtained by the Settlement Class Members. In addition, the Court finds that the Agreement was negotiated at arms length and without collusion

32 Case 2:15-cv JMA-SIL Document 50-1 Filed 12/29/16 Page 32 of 56 PageID #: The Court approves payment of service awards to Plaintiffs in the amount of $ each. This amount shall be paid from the Settlement Fund pursuant to the terms of the Agreement. 18. Neither this Final Order of Judgment nor the Agreement is an admission or concession by Plymouth Rock of the validity of any claims or of any liability or wrongdoing or of any violation of law. This Final Order of Judgment and the Agreement do not constitute a concession and shall not be used as an admission or indication of any wrongdoing, fault, or omission by Plymouth Rock or any other person in connection with any transaction, event, or occurrence, and neither this Final Order of Judgment nor the Agreement nor any related documents in this proceeding, nor any reports or accounts thereof, shall be offered or received in evidence in any civil, criminal, or administrative action or proceeding, other than such proceedings as may be necessary to consummate or enforce this Final Order of Judgment, the Agreement, and all releases given thereunder, or to establish the affirmative defenses of res judicata or collateral estoppel barring the pursuit of claims released in the Agreement. This Final Order of Judgment also does not constitute any opinion or position of this Court as to the merits of the claims and defenses related to this Action. 19. If final approval does not occur, the parties shall be returned to the status quo ex ante, for all litigation purposes, as if no settlement had been negotiated or entered into and thus this Final Order of Judgment and all other findings or stipulations regarding the Settlement shall be automatically void, vacated, and treated as if never filed. 20. This Court retains jurisdiction to consider all further matters arising out of or connected with the Settlement, including the implementation and enforcement of the Agreement