Case 1:13-cv-01106-PAE Document 20-1 Filed 12/20/13 Page 2 of 12 SETTLEMENT AGREEMENT ANO RELEASE OF CLAIMS THIS AGREEMENT AND RELEASE OF CLAIMS (the "Agreement") is entered into as of December 12, 20 t 3, between THE T ALBOTS, INC. ("Tai bots"), on the one hand, and ABIGAIL STRUBEL ("Strubel"), on the other hand, individually and as representative of the Plaintiff Settlement Class, defined below. RECITALS A. On February 19, 2013, Strubel filed a putative class action lawsuit against Talbots and Talbots Classics National Bank ("Talbots Bank" and, together with Talbots, "Defendants") in the United States District Cou1t for the Southern District of New York (the "Court") under the caption Strubel v. Talbots Classics National Bank and The Ta/bots, Inc., No. 13-CV-01106 (the "Action"). In the Action, Strubel alleged that Defendants violated the Truth in Lending Act, 15 U.S.C. 1601 et seq. ("TILA"), in their offerand extension of credit to Strubel, by failing to make certain account-opening disclosures required by TfLA and its implementing Regulation Z to holders oftalbots Credit Card Accounts (defined below). Jn pa1ticular, Strubel asse1ted that account-opening disclosures issued to her on or about June 18, 2012: (i) failed to provide impo1tant information regarding biljing-error correspondence; (ii) omitted information relating to consumers' right not to pay for unsatisfactory goods or services; and (iii) misrepresented the creditor's right to add or change any terms without limitation within 12 months after the opening of the account. B. Based on Talbots's representation, on or about September 28, 2012, Talbots and/or Talbots Bank consummated a series of agreements with Comenity (defined below), by which Comenity acquired all of Talbots's retail credit card business, including preexisting Talbots Credit Card Accounts opened between June 18, 2012 and September 27, 2012, and undertook to issue Talbots Credit Card Accounts going forward, and, accordingly, all Talbots Credit Card Accounts issued on or after September 28, 2012 were issued by Comenity. C. Based on Talbot's representation, on or about October 2, 2012, a series of transactions was consummated pursuant to which Talbots Bank was ultimately merged with and into Talbots, with Talbots continuing as the surviving company and Talbots Bank ceasing to exist as a separate corporate entity, and Talbots Bank thereafter surrendered its banking charter.' D. Talbots denies the material allegations asserted against Defendants in the Action and denies all liability on the part of Defendants or Comenity with respect to the facts and claims alleged in the Action. In addition, Talbots denies that the Action is suitable for class treatment. Nevertheless, without admitting or conceding liability, and while denying that the claims asserted in the Action would be appropriate for class treatment if they were being prosecuted to trial, Talbots now desires to settle the Action on the tenns and conditions set forth in this Agreement in order to avoid the burden, expense, and uncertainty of continuing litigation and to put to rest all claims that were, or could have been, brought in the Action or in similar litigation based upon the facts alleged in the Action. Accordingly, unless otherwise indicated, reference herein to Tai bots or Defendants shall likewise refer to Talbots Bank, on whose behalftalbots is authorized to, and does, act.
Case 1:13-cv-01106-PAE Document 20-1 Filed 12/20/13 Page 3 of 12 E. Plaintiff's Counsel (defined below) have analyzed and evaluated the merits of all parties' contentions and the impact of this Agreement upon the members of the Plaintiff Settlement Class. Based upon that analysis and evaluation, and recognizing among other things, the substantial risks of continued litigation, the limit on statutory damages recoverable under TILA and the likelihood that the Action, if not settled now, will be protracted and expensive, Representative Plaintiff (defined below) and Plaintiff's Counsel are satisfied that the terms and conditions of this Agreement are fair, reasonable, adequate and equitable, and that a set~ement of the Action now and on the terms described herein is in the best interests of the Plaintiff Settlement Class. NOW, THEREFORE, in consideration of the covenants and agreements set forth in this Agreement, Representative Plaintiff, the Plaintiff Settlement Class and Defendants, for themselves and through their undersigned counsel, agree to the following settlement, subject to Court approval, under the following terms and conditions. I. DEFINITIONS 1.01 "Class Period" means the period from June 18, 2012 through and including February 25, 2013. 1.02 "Comenity" means Comenity Bank, World Financial Network Bank, World Financial Network National Bank, Alliance Data Systems Corporation, ADS Alliance Data Systems, Inc., Comenity LLC, and/or Comenity Servicing LLC and any of its or their parents, predecessors, successors or subsidiaries. i11fra. 1.03 "Distribution Amount" means the amount calculated pursuant to Paragraph 4.03, 1.04 "Distribution Date" means 14 days from the date of (and assuming) Final Approval. 1.05 "Eligible Plaintiff' means each Plaintiff Class Member, excluding (a) those, if any, who timely exclude themselves from the class under Paragraph 3.04 and (b) those., if any, to whom a postcard notice is sent under Paragraph 3.03 but as to whom the postcard notice is returned without a corrected address as described in Paragraph 3.04. 1.06 "Final Approval" means that all of the following have occurred: (a) (b) (c) The Court has entered the Settlement Order and Final Judgment; The Court has made its final award of attorneys' fees and costs; and Thirty-one days have passed after entry of the Settlement Order and Final Judgment without any appeals being taken, or, if appeals or requests for review have been taken, the time has passed for seeking further review after orders affirming the Settlement Order and Final Judgment or review has been denied after exhaustion of all appellate remedies. 2
Case 1:13-cv-01106-PAE Document 20-1 Filed 12/20/13 Page 4 of 12 1.07 "Parties" means the Representative Plaintiff, the Plaintiff Settlement Class and Tai bots. 1.08 "Plaintiff Settlement Class" means all persons who both opened a Tai bots Credit Card Account and first used said Talbots Credit Card Account during the Class Period, excluding Strubel, any judge presiding over the Action, and any person who served as an officer or director oftalbots or Comenity during the Class Period. Class. 1.09 "Plaintiff Class Members" shall refer to any members of the Plaintiff Settlement 1.10 "Plaintiff' means Representative Plaintiff and Plaintiff Class Members. 1.11 "Plaintiff's Counsel" means Bromberg Law Office, P.C., and the Law Office of Harley J. Schnall. 1.12 "Preliminary Approval" means the entrance of an order by the Court substantially in the form of Exhibit A to this Agreement, provisionally approving the terms and conditions of this Agreement, including the Parties' proposed form and manner of notice to the Plaintiff Settlement Class. 1.13 "Representative Plaintiff' means Strubel. 1.14 "Settlement Amount" means the amount of $595,000.00. 1.15 "Settlement Order and Final Judgment" means the entrance by the Couit of an order and judgment substantially in the form of Exhibit D to this Agreement, approving this Agreement (and, as applicable, the exhibits hereto) as final and binding on the Parties. 1.16 "Tai bots Credit Card Account" means any account of a cardholder of a credit card designated with Tai bots branding, regardless of what bank or entity (i.e., Talbots Bank, Comenity or any other entity) issued or managed the account. 1.17 The plural of any defined term includes the singular and the singular of any defined term includes the plural, as the case may be. II. GENERAL TERMS OF SETTLEMENT 2.01 Settlement Amount. Tai bots agrees to pay or cause to be paid to each of the Plaintiff Class Members (except any who exclude themselves in a timely manner, as described in Paragraph 3.04 infra) the Distribution Amount on or before the Distribution Date. 2.02 Costs of Settlement Administration. Talbots shall take administrative responsibility for, and bear the costs of, providing notice to the Plaintiff Settlement Class of the pendency of the Action and the proposed settlement in the manner described more fully below. In addition, Tai bots shall bear the costs of administering this Agreement and making the calculations, payments and distributions required under this Agreement. In addition, Talbots, at its own expense, shall utilize the services ofkcc Class Action Services, LLC ("KCC") or such 3
Case 1:13-cv-01106-PAE Document 20-1 Filed 12/20/13 Page 5 of 12 other administrator selected by Tai bots to administer the terms of this Agreement and to prepare and deliver the class notice and distribute the settlement proceeds as described herein; provided, however, that iftalbots uses a settlement administrator other than KCC, it will provide Plaintiffs Counsel with at least three business days written notice of its selection, during which period Plaintiffs Counsel shall have the right to object in writing to Talbots' use of such settlement administrator other than KCC and, in such event, counsel for Defendants and Plaintiffs Counsel shall have a good faith obligation to negotiate to resolve such objection. Should counsel not be able to resolve such objection, they may apply to the court for relief (and all other obligations herein shall temporarily be placed on hold until such relief is granted). 2.03 Payment to Plaintiffs Counsel. Plaintiffs Counsel will apply to the Co mt for an award of attorneys' fees, costs and expenses in a total amount not to exceed $200,000.00 (the "Fee Amount"). Talbots agrees not to oppose Plaintiff's Counsel's application and that the Fee Amount is fair and reasonable. If Final Approval occurs, as set fotth in Paragraphs 1.06 supra and 3.05 infra, Talbots shall pay or cause to be paid to Plaintiff's Counsel the total amount approved by the Court, not to exceed $200,000.00, in full and complete compensation for attorneys' fees, costs and expenses. Any amount awarded by the Court shall be payable in the manner and at the time described more fully below. 2.04 Payment to Representative Plaintiff. Subject to approval by the Court, Talbots shall pay or cause to be paid to Representative Plaintiff the sum of $5,000.00 in compensation for her time and effort as class representative in the manner and at the time described more fully below. Plaintiff will provide a W-9 tax form bearing her Social Security number to be utilized for tax reporting in an amount not to exceed $5,000 or such other amount awarded by the Court. Plaintiffs Counsel will provide a W-9 tax form bearing its taxpayer identification number to be utilized for all other tax reporting purposes related to the Agreement. III. SETTLEMENT APPROVAL AND CLASS NOTICE 3.01 Preliminary Approval. Within 21 days of the execution of this Agreement, Representative Plaintiff will move for an order in the form of Exhibit A, which, inter alia: (i) conditionally certifies the Plaintiff Settlement Class for settlement purposes only; (ii) appoints Strubel as the representative of the Plaintiff Settlement Class; {iii) appoints Plaintiff's Counsel as counsel for the Plaintiff Settlement Class; (iv) grants the Court's Preliminary Approval of this Agreement; (v) approves the Parties' proposed methods (see Paragraph 3.03, infra) and forms of notice, substantially in the form of Exhibits Band C, to the Plaintiff Settlement Class of the class action designation and proposed settlement of the Action; and (vi) sets a hearing date to consider objections, if any, to the proposed settlement and to enter the Settlement Order and Final Judgment. 3.02 Limited Effect of Settlement Class. The ce1tification of the Plaintiff Settlement Class for purposes of settlement shall have no bearing on whether the claims asserted in the Action are or were appropriate for class treatment in the absence of settlement. Accordingly, if the Agreement terminates or is nullified, the provisional class certification provided for in Exhibit A shall be vacated by its terms and the Action shall revert to the status that existed before execution of this Agreement. Thereafter, Representative Plaintiff shall be free to pursue any claims available to her, and Talbots shall be free to assert any defenses available to it, including 4
Case 1:13-cv-01106-PAE Document 20-1 Filed 12/20/13 Page 6 of 12 (but not limited to) denying the suitability of the Action for class treatment. Nothing in this Agreement shall be argued or deemed to estop any party from the assertion of such claims and defenses. 3.03 Class Notice. Within 14 days of entry of an order in the form of Exhibit A, Tai bots sh al I arrange for the mailing of notice to the Plaintiff Settlement Class substantially in the form of Exhibit B, which will be sent by a postcard via United States mail to all known Plaintiff Class Members as they appear in the computerized records of the Tai bots Credit Card Accounts available to Talbots. Within seven business days after the completion of mailing, Talbots will arrange for Plaintiff's Counsel to receive a list of the names and addresses of all Plaintiff Class Membe1 s to whom notice has been mailed. In addition to the mailed notice, a downloadable copy of the long form notice attached as Exhibit C shall be posted in. pdf format on the settlement administrator's website or such other website that Talbots arranges to have implemented (the form of which Talbots shall provide to Plaintiffs Counsel at least three business days before posting, during which period Plaintiff's Counsel shall have a right to object in writing to the form of the display of the long form notice on the website and, in such event, counsel for Defendants and Plaintiffs Counsel shall have a good faith obligation to negotiate to resolve such objection; provided, however, that should counsel be unable to resolve such objection, they may apply to the court for relief and all other obligations herein shall temporarily be placed on hold until such relief is granted). The Internet address of the website shall be included prominently on the postcard notice, and such website shall be active and accessible beginning on the date on which the mailing of postcard notice commences through the Distribution Date. In addition, Talbots will arrange for a toll-free telephone number to be established with interactive voice response that will provide Plaintiff Class Members with answers to standard questions and the ability to request a copy of Exhibit C, and will mail a copy of Exhibit C to any Plaintiff Class Member who so requests. The toll-free telephone number shall be displayed prominently on the postcard notice, the form of which is attached as Exhibit B. 3.04 Exclusion Requests. Plaintiff Class Members will be allowed 60 days from completion of the original mailing of class notice to request exclusion from the class, as more particularly described below, or to submit objections. Copies of all exclusion requests shall be provided to Plaintiffs Counsel upon request. If an address correction appears on a returned postcal'd, Talbots shall arrange for the re-mailing of the notice to the corrected address. The!'emailing of notice shall not extend the time for a Plaintiff Class Member to request exclusion from or submit objections to the proposed settlement, which in all cases will be measured from completion of mailing of the initial class notice. 3.05 Entry of Settlement Order and Final Judgment. Within 30 days of the expiration of the 60 day period set forth in Paragraph 3.04 supra, the Parties will request that the Court enter a Settlement Order and Final Judgment in the form of Exhibit D: (i) approving the Agreement as final, fair, reasonable, adequate, and binding on all Plaintiff Class Members who have not excluded themselves; (ii) awarding a payment to Representative Plaintiff(as set forth above); (iii) ordering that the Distribution Amount be paid as set forth belo~; (iv) dismissing the Action with prejudice; and (v) barring Plaintiff Class Members from bringing claims within the scope of the release. Jn addition, Plaintiff's Counsel will request an order approving payment of attorneys' fees and costs as set forth in Paragraph 2.03 above. 5
Case 1:13-cv-01106-PAE Document 20-1 Filed 12/20/13 Page 7 of 12 IV. DISTIUBUTION OF PAYMENTS 4.01 Responsibility for Distribution of Settlement Amount. Subject to Final Approval, Talbots will be responsible for making or causing to be made the required distributions, as described below. 4.02 Distribution of Fees, Costs and Payment to Representative Plaintiff. Subject to Final Approval, on or before the Distribution Date, Talbots shall mail or cause to be mailed to Plaintiff's Counsel at Bromberg Law Office, P.C.: (a) a check for attorneys' fees and costs, made payable to Bromberg Law Office, P.C., in an amount approved by the Court pursuant to Paragraph 2.03 above (not to exceed $200,000.00); and (b) a check made payable to Representative Plaintiff in an amount approved by the Court pursuant to Paragraph 2.04 above (not to exceed $5,000). Talbots shall have no responsibility or liability for any failure of Brombei g Law Office, P.C., to deliver any amount of fees or costs to any of Plaintiffs Counsel, or any payment to Representative Plaintiff, and Talbots's obligations with respect to any fees, costs or payments to any of Plaintiffs Counsel or Representative Plaintiff shall be fully and forever discharged upon Talbots's satisfaction of this Paragraph. 4.03 Computation of Distribution Amount. Subject to Final Approval, each Eligible Plaintiff shall be entitled to a pro rata share of the Settlement Amount(rouilded down to the nearest cent), so that the Distribution Amount shall be computed by dividing the Settlement Amount by the number of Eligible Plaintiffs. No later than 21 days prior to the date of Final Approval, Tai bots shall compute or have computed the Distribution Amount payable to each Eligible Plaintiff by dividing the Settlement Amount by the number of Eligible Plaintiffs. 4.04 Distribution of Settlement Amount. Subject to Final Approval, on or before the Distribution Date, Talbots shall arrange to have mailed to the last known address of each Eligible Plaintiff a check issued in the name of that Eligible Plaintiff in the Distribution Amount calculated under Paragraph 4.03. Talbots will provide or cause to be provided to Plaintiff's Counsel a declaration of mailing within 14 days of the Distribution Date and will simultaneously arrange for certification to the Court that the checks have been timely mailed. Returned checks shall be re-mailed if an address con ection appears on the returned envelope. Talbots shall not have any further obligation to re-mail any check returned to it after a mailing in accordance with this Paragraph. Checks issued pursuant to this Paragraph shall remain valid for 90 days after the Distribution Date, shall contain such information on their face and shall not be valid after 90 days following the Distribution Date. Any amounts attributable to checks not cashed within that period or to the rounding down of pro rata shares described in Paragraph 4.03 shall be distributed to the National Consumer Law Center (the "NCLC"), a non-profit organization committed to enhancing Americans' economic security. Talbots shall mail or cause to be mailed a check in the amount of such funds within 150 days of the Distribution Date by mailing such check to Plaintiff's Counsel at Bromberg Law Office, P.C., in which case Plaintiffs Counsel shall be obligated to deliver that check to the NCLC and to provide Talbots with written certification that is has done so. V. RELEASES 5.01 Upon entry of the Settlement Order and Final Judgment, Representative Plaintiff shall fully release and forever discharge Defendants and Comenity, and each of their respective 6
Case 1:13-cv-01106-PAE Document 20-1 Filed 12/20/13 Page 8 of 12 present, former and future direct and indirect parent companies, affiliates, subsidiaries, successors, predecessors-in-interest, assigns, servicers and/or any financial institutions, corporations, trusts or other entities that may hold or have held any interest in any account or any receivables relating to any account, or any receivables or group of receivables, or any interest in the operation or ownership of Tai bots or Comenity or the servicing of any account or any receivable, and all of the aforementioneds' respective officers, directors, employees, agents, attorneys, vendors and assigns (the ''Released Parties") from any and all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, duties, variances, trespasses, damages, judgments, extents, executions, claims, matters, issues, liens, attorneys' fees, obligations, liabilities, costs, expenses, rights (including rights to restitution or reimbursement), losses and demands whatsoever, in law, admiralty or equity, which Representative Plaintiff or her heirs, executors, administrators, successors and assigns ever had, now have or hereafter can, shall or may have against Released Parties for or by reason of any matter, cause or thing whatsoever from the beginning of the world to the date of the Settlement Order and FinalJudgment. 5.02 Upon entry of Settlement Order and Final Judgment, Representative Plaintiff and each member of the Plaintiff Settlement Class (except those who obtain proper and timely exclusion from the Class, if any) (collectively, the "Releasors"), their respective heirs, executors, administrators, representatives, agents, attorneys, partners, successors, predecessors-in-interest and assigns, shall be deemed to have fully released and forever discharged the Released Parties from any and all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, duties, variances, trespasses, damages, judgments, extents, executions, claims, matters, issues, liens, attorneys' fees, obligations, liabilities, costs, expenses, rights (including rights to restitution or reimbursement), losses and demands whatsoever, whether arising under local, federal or state law (including without limitation under the Truth in Lending Act, 15 U.S.C. 1601 et seq. and Regulation Z, 12 C.F.R. pt. 226), whether by constitution, statute, contract, regulation, ordinance, common law, any other law of any and all states or subdivisions, parishes or municipalities, or equity, whether known or unknown, suspected or unsuspected, asserted or unasserted, foreseen or unforeseen, actual or contingent, liquidated or unliquidated, matured or unmatured, direct or indirect, that in any way relate to any accountmopening disclosures or any other disclosures made in connection with the offer and extension of credit (including without limitation the content, completeness, accuracy, clarity, conspicuousness, location, timing or lack of disclosures)made or required with respect to any Talbots Credit Card Account issued prior to the date of the Settlement Order and Final Judgment (regardless of whether Talbots Bank, Comenity, or a thirdparty issued that account), including the disclosure deficiencies alleged in the Action (together with claims described in Paragraph 5.01 above, the "Released Claims"). 5.03 Without limiting the foregoing, the above releases specifically extend to claims that the Releasors do not know or suspect to exist in their favor at the time that this Agreement, and the releases contained herein, become effective. With respect to any and all Released Claims, Representative Plaintiff expressly waives, and each member of the Plaintiff Settlement Class shall be deemed to have waived, their rights to the extent permitted under any state law, federal law, foreign law or any principle of common law that may have the effect of limiting the releases set fo1th above. This shall include a waivet of any rights pursuant to California Civil Code 1542 (or any similar, comparable m equivalent provision), which provides: 7
Case 1:13-cv-01106-PAE Document 20-1 Filed 12/20/13 Page 9 of 12 A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN ms OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HA VE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Representative Plaintiff understands and acknowledges, and each member of the Plaintiff Settlement Class shall be deemed to understand and acknowledge, the significance of the foregoing waivers and/or of any other applicable law relating to limitations on releases. In connection with such waiver and relinquishment, Representative Plaintiff acknowledges, and each member of the Plaintiff Settlement Class shall be deemed to acknowledge, that they are aware that they may hereafter discover facts in addition to, or different from, those facts which they now know or believe to be true with respect to the subject matter of this settlement, but that it is their intention to release fully, finally, and forever all Released Claims, and in furtheiance of such intention, the release of the Released Claims shall be and remain in effect notwithstanding the discovery or existence of any such additional or different facts. Accordingly, the Releasors shall be permanently barred and enjoined from instituting and prosecuting any action against any of the Released Parties in any court asserting any Released Claim. 5.04 Notwithstanding any language in Paragraphs 5.01, 5.02, or 5.03 of this Agreement, neither Representative Plaintiff nor any member of the Plaintiff Settlement Class shall be deemed to have released Comenity or any other entity from any claim or cause of action asse1ted in the case of Strubel v. Comenity Bank, S.D.N.Y. 13-civ-4462, or any other cause of action against Comenity Bank with respect to credit card accounts that are not Talbots Credit Card Accounts. Nor shall anything contained in paragraphs 5.02 or 5.03 of this Agreement impair any right of any member of the Plaintiff Settlement Class to dispute the underlying debt or amounts owed to any Released Party for any reason unrelated to the Action or the Agreement. VI. PLAINTIFF CLASS MEMBER INFORMATION 6.01 Confirmatory Information. Concurrently with the execution of this Agreement, Talbots has provided Plaintiff's Counsel with a list of Plaintiff Class Members to whom, subject to Preliminary Approval by the Court, notice will be sent in accordance with Paragraph 3.03 above. Talbots represents that, to the best of its knowledge, this list contains all Plaintiff Class Members reasonably identifiable through computerized records available to Tai bots of Tai bots Credit Card Accounts. Plaintiff hereby agrees that such representation constitutes adequate documentation for purposes of verifying the membership of the Plaintiff Settlement Class. VII. MISCELLANEOUS PROVISIONS 7.01 Purpose of Agreement. This Agreement is governed by the terms of Federal Rule of Evidence 408 or provisions of similar state laws or rules and is for settlement purposes only, and neither the fact ot: nor any provision contained in this Agreement or its attachments, nor any action taken hereunder shall constitute, be construed as, or be admissible in evidence as, any admission of the validity of any claim or any fact alleged by Plaintiff in the Action or in any other pending or subsequently filed action or of any wrongdoing, fault, violation of law, or liability of any kind on the part of Tai bots or admission by Tai bots of any claim or allegation 8
Case 1:13-cv-01106-PAE Document 20-1 Filed 12/20/13 Page 10 of 12 made in the Action or any action, nor as an admission by any of the Representative Plaintiff, Plaintiff Class Members, or Plaintiffs Counsel of the validity of any fact or defense asserted against them in the Action or any action. If the Court should for any reason fail to approve this Agreement in the form agreed to by the Parties, decline to enter the Settlement Order and Final Judgment in the form of Exhibit D, or impose any condition to approval of the settlement to which the Parties do not consent, or ifthe Settlement Order and Final Judgment is reversed or rendered void, then (a) this Agreement shall be considered null and void, (b) neither this Agreement nor any of the related negotiations or proceedings shall be of any force or effect, and (c) all Parties to this Agreement shall stand in the same position, without prejudice, as if the Agreement had been neither entered into nor filed with the Court. Invalidation of any portion of this Agreement shall invalidate this Agreement in its entirety unless the Parties agree in writing that the remaining provisions shall remain in full force and effect. Upon nullification of this Agreement, Representative Plaintiff shall be free to pursue any claims available toher, and Talbots shall be free to asse11 any defenses available to it, including (but not limited to) denying the suitability of this case for class treatment. 7.02 Cooperation. The Parties' counsel shall use their best eff011s to take all steps contemplated by this Agreement to effectuate the settlement on the stated terms and conditions, to obtain Final Approval of this Agreement, to defend the Settlement Order and Final Judgment through all stages of any appeals that may be taken, and to give Tai bots full and final peace from further prosecution of the Released Claims. 7.03 Governing Law. This Agreement is intended to and shall be governed by the laws of the State of New York, without regard to its rules regarding conflict of laws. 7.04 Entire Agreement. The terms and conditions set forth in this Agreement constitute the complete and exclusive statement of the agreement between the Parties hereto relating to the subject matter of this Agreement, superseding all previous negotiations and understandings, whether oral or in writing, express or implied, and may not be contradicted by evidence of any prior or contemporaneous agreement. Any modification of the Agreement must be in writing signed by Representative Plaintiff and Talbots. 7.05 Construction of Agreement. The determination of the terms of, and the drafting of, this Agreement has been by mutual agreement after extensive negotiation, with consideration by and patticipation of counsel for all Parties. The Agreement shall be construed according to the fair intent of the language taken as a whole, and not for or against either party. 7.06 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and Comenity, and their respective heirs, successors and assigns. 7.07 Waiver. The waiver by one party of any provision or breach of this Agreement shall not be deemed a waiver of any other provision or breach of this Agreement. 7.08 Effectiveness of Agreement; Counterparts. This Agreement shall become effective upon its execution by all of the persons for whom signature spaces have been provided below. The Parties and their counsel may execute this Agreement in counterpa11s (any one or all of which may be facsimile copies), and execution in counterpaits shall have the same force and effect as if all signatories had signed the same instrument. 9
Case 1:13-cv-01106-PAE Document 20-1 Filed 12/20/13 Page 11 of 12 7.09 Use and Retention of Information. The list of Eligible Plaintiffs' names, addresses and corresponding Distribution Payments referred to in Paragraph 4.05 supra of this Agreement, any exclusion requests provided under Paragraph 3.04 supra, any information regarding the Tai bots Credit Card Accounts provided in connection with Paragraph 6.01 supra, and any other documentation containing the names and/or addresses oftalbots Credit Card Account holders, are to be used by Plaintiffs Counsel only for purposes of effectuating this Agreement. All such information shall be returned to Talbots's counsel or destroyed by Plaintiffs Counsel within 30 days of the Distribution Date, provided that Talbots's counsel shall retain any information pursuant to this Paragraph, and make it available to Plaintiffs' Counsel for purposes of insuring compliance with this Agreement, for a period of not less than one year following the Distribution Date. Within 30 days of the Distribution Date, Plaintiff's Counsel shall also provide Talbots's counsel with written confirmation of its compliance with the provisions of this paragraph. 7.10 Continuing Jurisdiction. The Court shall retain jurisdiction regarding the implementation and enforcement of al I aspects of the Settlement, including attorneys' fees and expenses to Plaintiffs Counsel. In the event that Court Approval is not obtained, the existence of this Settlement Agreement or the Stipulation, the contents of either document, and any negotiations, statements or proceedings in connection therewith shall not be deemed a presumption, concession or admission by any Plaintiff or Defendant of any fault, liability or wrongdoing or lack of any fault, liability or wrongdoing as to any facts or claims alleged or asserted in the Action or in any other action or proceeding (whether civil, criminal or administrative). The existence of the Settlement Agreement or the Stipulation, the contents of either document, and any negotiations, statements or proceedings in connection therewith shall not be admissible as evidence or referred to for any purpose in this matter or in any other action or proceeding (whether civil, criminal, or administrative)) except as may be necessary (a) to enforce or obtain Court Approval of the Settlement, (b) to seek a stay of this Action pending submission of the Settlement for Court Approval, or (c) to explain to the Comt or any member of the Plaintiff Settlement Class why the Settlement was not consummated in the event that it is terminated. This provision shall remain in force in the event the Settlement is terminated. 7.11 Authority. Each individual signing this Agreement warrants that he or she has the authol'ity to enter into this Agreement on behalf of the party for which that individual signs. 7.12 Assignment; Third Party Beneficiaries. None of the rights, commitments, or obligations recognized under this Agreement may be assigned by any member of the Plaintiff Settlement Class without the express written consent of the other Parties. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the Parties and Comenity and shall not be construed to confer any right or to afford any remedy to any other person. 10
Case 1:13-cv-01106-PAE Document 20-1 Filed 12/20/13 Page 12 of 12 IN WITNESS HEREOF the undersigned, being duly authorized, have caused this Agreement to be executed on the dates shown below. AGREED TO AND ACCEPTED: DA TED: December / 0 2013 By: t. } /) / _.. -..,,. 1 I (I-. JO (A~:U u/.cili't fy/ rvv._ Abigail S _u el Individually and as Representative of the Plaintiff Settlement Class DATED: December~. 2013 By: BROMBERd LAW OFFICE, P.C. AZ~P' 1-ff' ~ Brian L. Bromberg P DATED: December lk_.. 2013 By: DA TED: December jj_, 2013 By: 1 l