Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 1 of 88 APPENDIX I
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 2 of 88 UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND CHARMAINE FRECKLETON, on behalf of herself and others similarly situated, Plaintiff, C.A. No. 14-cv-00807-GLR CLASS ACTION v. TARGET CORPORATION, Defendant. UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA THOMAS J. JUST, on behalf of himself and all others similarly situated, Court File No. 0:15-cv-04117-DWF-TNL v. Plaintiffs, TARGET CORPORATION, Defendant. CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE RELATING TO 15 U.S.C. 1681b(b)(2) AND 1681b(b)(3) CLAIMS This Class Action Settlement Agreement and Release of 15 U.S.C. 1681b(b)(2) and 1681b(b)(3) Claims (hereinafter Settlement Agreement ) is made and entered into by and between Named Plaintiffs Thomas J. Just ( Just ) and Charmaine Freckleton ( Freckleton ) (together, Named Plaintiffs ), individually and on behalf of the Settlement Classes, and Defendant Target Corporation ( Defendant ), in settlement of the above-captioned matters (the
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 3 of 88 Litigation ). Subject to the approval of the Court, Named Plaintiffs and Defendant agree as follows: I. DEFINITIONS In addition to the other terms defined elsewhere in this Settlement Agreement, the terms below have the following meanings: 1. Attorneys Fee Award means any award for attorneys fees and expenses applied for by Class Counsel relating to this Settlement Agreement and approved by the Court. 2. CAFA Notice means notice of this proposed settlement to the appropriate federal and state officials, as provided by the Class Action Fairness Act of 2005, 28 U.S.C. 1715. 3. Claim and Claims mean claims, counterclaims, demands (including, without limitation, demands for arbitration), actions, suits, causes of action, allegations of wrongdoing, and liabilities. 4. Class Counsel means Francis & Mailman, P.C.; Langer Grogan & Diver, P.C.; Baillon Thome Jozwiak & Wanta LLP; and Gordon, Wolf & Carney, Chtd, although Baillon Thome Jozwiak & Wanta are Class Counsel for the Rule 23(b)(2) Settlement Class Members only. 5. Court means the United States District Court for the District of Maryland. 6. Defendant s Counsel means Nilan Johnson Lewis PA. 7. Defendant s Payment means the Eight Million, Five Hundred Thousand Dollars and Zero Cents ($8,500,000.00) paid by Defendant to the Settlement Fund to fully and finally resolve any and all obligations pursuant to this Settlement Agreement, including but not limited to Notice and Administration Expenses, service awards to the Named Plaintiffs, payments to members of the Settlement Classes, and the Attorneys Fee Award. Defendant s Payment does -2-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 4 of 88 not include the costs associated with sending the CAFA Notice, which shall be paid by Defendant and/or its representatives separate and apart from Defendant s Payment to the Settlement Fund. 8. Effective Date means the date on which all of the following have occurred: a. Named Plaintiffs, Class Counsel, and Defendant s Counsel have executed this Settlement Agreement; b. The Court has issued a Final Approval Order approving the Settlement Agreement, including the Attorneys Fee Award and Named Plaintiffs service awards; and c. The Court s Final Approval Order has become final because either (i) no appeal of the Final Approval Order has been filed and the time provided in the applicable rules of procedure within which an appeal may be filed has lapsed, or (ii) if one or more timely appeals have been filed, all such appeals are finally resolved, with no possibility of further appellate review, resulting in final judicial approval of this settlement. For purposes of this definition, the term appeal includes writ proceedings. 9. Excluded Individuals means counsel of record (and their respective law firms) for any of the parties; the presiding judge in the action and his staff; and all members of their immediate families. 10. FCRA means the federal Fair Credit Reporting Act, 15 U.S.C. 1681 1681x, and any subsequent amendments thereto. 11. FCRA State or Local Equivalents means any statute or regulation of any State, the District of Columbia, or any county, municipality, or locality that has the purpose or effect of regulating the collection, procurement, report, use, or disclosure of information that is the same as or similar to information that meets the definition of consumer report under the FCRA. -3-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 5 of 88 12. Final Approval means the approval of the Settlement Agreement by the Court at or after the Final Approval Hearing, and entry on the Court s docket of the Final Approval Order. 13. Final Approval Hearing means the hearing at which the Court will consider and finally decide whether to approve this Settlement Agreement, enter the Final Approval Order, and make such other rulings as are contemplated by this Settlement Agreement. The Final Approval Hearing shall not be scheduled for a date less than 90 calendar days following the mailing of CAFA Notice as set forth herein. 14. Final Approval Order means a final order and judgment entered by the Court giving Final Approval to the Settlement Agreement and dismissing with prejudice Named Plaintiffs and Settlement Class Members claims and entering a judgment according to the terms set forth in this Settlement Agreement, in the form of Exhibit A hereto. 15. Freckleton Litigation means the matter captioned Charmaine Freckleton v. Target Corporation, Case No. 14-cv-00807-GLR, pending in the U. S. District Court for the District of Maryland before Judge George L. Russell, III. 16. Injunctive Relief and Consent Order means the consent order entered by the Court in substantially the form attached hereto as Exhibit B. 17. Just Litigation means the matter captioned Thomas Just v. Target Corporation, Case No. 0:15-cv-04117-DWF-TNL, which was filed in the U. S. District Court for the District of Minnesota and dismissed by Judge Donovan Frank, and whose dismissal has been appealed to the U.S. Court of Appeals for the Eighth Circuit, which has stayed the matter. 18. Litigation means collectively, the Freckleton Litigation and the Just Litigation. -4-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 6 of 88 19. Notice and Administration Expenses means any and all fees, costs, and expenses, including postage, incurred by the Settlement Administrator in order to carry out its obligations under this Settlement Agreement. 20. Notice Plan means the plan for disseminating notice to the proposed Rule 23(b)(2) Settlement Class Members and Rule 23(b)(3) Settlement Class Members as described in Section IV(A). 21. Objection Deadline Date means no later than 40 calendar days before the Final Approval Hearing. 22. Opt-Out Deadline Date means no later than 40 calendar days before the Final Approval Hearing. 23. Party and Parties mean the Named Plaintiffs, the Settlement Class Members, and Defendant. 24. Preliminary Approval means preliminary approval of the Settlement Agreement by the Court pursuant to Fed. R. Civ. P. 23(e), conditional certification of the Settlement Class, and approval of the method and content of notice to the Settlement Class Members. 25. Preliminary Approval Order means the order entered by the Court granting Preliminary Approval, in the form attached hereto as Exhibit C. 26. Released Parties means and refers to Defendant and each of its respective present, former and future affiliates, parents, subsidiaries, corporate family members, insurers, indemnitors, officers, directors, partners, employees, agents, attorneys, servants, heirs, administrators, executors, members, member entities, shareholders, predecessors, successors, representatives, trustees, principals, vendors, and assigns, individually, jointly and severally, with the exception of First Advantage. -5-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 7 of 88 27. Rule 23(b)(2) Notice Class Members means all Rule 23(b)(2) Settlement Class Members who are not also members of the Rule 23(b)(3) Settlement Class. 28. Rule 23(b)(2) Settlement Class means, for purposes of this Settlement Agreement, without any adjudication on the merits: all internal and external applicants for employment, promotion, or transfer on whom Target Corporation obtained a consumer report for employment purposes beginning November 13, 2010, through November 13, 2016, who executed the Consent & Disclosure Form attached as Exhibit D to this Settlement Agreement or a form substantially similar, 1 and who are not Excluded Individuals. 29. Rule 23(b)(2) Settlement Class Members means the members of the Rule 23(b)(2) Settlement Class. 30. Rule 23(b)(2) Settlement Class Notice means the notice (in a form substantially similar to that attached hereto as Exhibit E and approved by the Court) that shall be issued, pursuant to the Notice Plan, to all Rule 23(b)(2) Notice Class Members. 31. Rule 23(b)(2) Settlement Class Postcard Notice means the notice (in a form substantially similar to that attached hereto as Exhibit F and approved by the Court) that shall be issued, pursuant to the Notice Plan, to all Rule 23(b)(2) Notice Class Members for whom Target lacks a valid personal (non-business) electronic mail address. 1 Target has identified the following non-exclusive list of documents which the Parties agree are substantially similar to Exhibit D, including but not limited to the following Targetidentified documents: HR4710 (Rev. 12/12); HR4710 (Rev. 7/13); HR4710 (Rev. 9/13); HR4710-NY (Rev. 12/12); HR4710-NY (Rev. 7/13); HR4710-NY (Rev. 9/13); HR4710-UT (Rev. 12/12); HR4710-UT (Rev. 7/13); HR4710-UT (Rev. 9/13); HR4710-CA (Rev. 1/12); HR4710-CA (Rev. 12/12); HR4710-CA (Rev. 7/13); HR4710-CA (Rev. 9/13); HR4710-CA (Rev. 9/14); HR8324-WA (Rev. 7/13); HR8324-PA (Rev. 7/13); HR8324-MA (Rev. 7/13); HR8324-CT (Rev. 7/13); HR8324-CA (Rev. 1/12); HR8324-CA (Rev. 7/13); HR8324-CA (Rev. 7/14); HR8324-HI (Rev. 7/13); HR8324-HI (Rev. 7/14); HR8324 (Rev. 8/14); HR8324 (Rev. 7/15); HR5098 (Rev. 10/11); CL8583 (Rev. 11/11). -6-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 8 of 88 32. Rule 23(b)(2) Settlement Class Waiver means the waiver of the procedural mechanisms for class certification or collective or mass action under Fed. R. Civ. P. 23 and any and all state or local equivalents for prosecution of any claim under 15 U.S.C. 1681b(b)(2) or any FCRA State or Local equivalents arising through the date of Final Approval. 33. Rule 23(b)(3) Automatic Payment Pool means the portion of the Settlement Fund not allocated to the estimated Notice and Administration Expenses, the service awards to the Named Plaintiffs, the Attorneys Fee Award, or the Rule 23(b)(3) Claims Made Reserve. 34. Rule 23(b)(3) Claims Made Reserve means One Million, Seven Hundred Eighty-Five Thousand Dollars and Zero Cents ($1,785,000.00) of the Settlement Fund, which shall be reserved to pay Valid Claims. 35. Rule 23(b)(3) Claims Made Settlement Class Members means the members of the Rule 23(b)(3) Settlement Class who timely submit a claim for actual damages as a result of alleged violations of 15 U.S.C. 1681b(b)(3). 36. Rule 23(b)(3) Payment Notice means the notice sent to Rule 23(b)(3) Settlement Class Members at the time of payment pursuant to 110 of this Settlement Agreement. 37. Rule 23(b)(3) Settlement Class means, for purposes of this Settlement Agreement, without any adjudication on the merits: all internal and external applicants for employment, promotion, or transfer on whom Target Corporation obtained a consumer report for employment purposes beginning March 17, 2012, through June 13, 2016, who were not employed, promoted, or transferred by Target because of the consumer report, and who are not Excluded Individuals. 38. Rule 23(b)(3) Settlement Class Members means the members of the Rule 23(b)(3) Settlement Class. -7-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 9 of 88 39. Rule 23(b)(3) Settlement Class Notice means the notice (in a form substantially similar to that attached hereto as Exhibit G and approved by the Court) that shall be issued pursuant to the Notice Plan to all Rule 23(b)(3) Settlement Class Members. 40. Rule 23(b)(3) Settlement Released Claims means any and all claims under the federal Fair Credit Reporting Act and any FCRA State or Local Equivalents arising through the date of Final Approval, including but not limited to any claims for statutory, actual, punitive, and other forms of damages, attorneys fees, and costs. 41. Rule 23(b)(3) Validated Claims Made Settlement Class Members means Rule 23(b)(3) Claims Made Settlement Class Members who have submitted a Valid Claim as determined by the Settlement Administrator. 42. Rule 23(b)(3) Validated Claims Payment Notice means the notice sent to Rule 23(b)(3) Validated Claims Made Settlement Class Members at the time of payment pursuant to 117 of this Settlement Agreement. 43. Settlement Administrator means RSM US LLP. 44. Settlement Agreement means this Settlement Agreement and Release. 45. Settlement Class, Settlement Classes or Settlement Class Members means the members of the Rule 23(b)(2) Settlement Class and the Rule 23(b)(3) Settlement Class collectively. 46. Settlement Fund means the escrow account established pursuant to 88 into which Defendant s Payment shall be deposited. 47. Valid Claim means a claim for actual damages filed by a Rule 23(b)(3) Claims Made Settlement Class Member pursuant to 114 that the Settlement Administrator determines -8-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 10 of 88 to be valid, or if the Settlement Administrator is unable to so determine, then by Class Counsel and Defendant s Counsel jointly, pursuant to 115. II. FRECKLETON AND JUST LITIGATION 48. On March 17, 2014, Freckleton commenced the Freckleton Litigation, a putative class action against Defendant and a third party, First Advantage LNS Screening Solutions, Inc., f/k/a LexisNexis Screening Solutions, Inc., asserting violations of FCRA. Freckleton s initial Complaint alleged that, in violation of 15 U.S.C. 1681b(b)(3) ( Section 1681b(b)(3) ) and 15 U.S.C. 1681n ( Section 1681n ), Defendant willfully failed to provide adequate notice before taking an adverse action based upon the contents of a consumer report procured for employment purposes. Defendant moved to dismiss Freckleton s Complaint and renewed the motion after Freckleton filed an Amended Complaint. The Court denied the motion. Freckleton then filed a Second Amended Complaint adding allegations that, in violation of 15 U.S.C. 1681b(b)(2) ( Section 1681b(b)(2) ) and Section 1681n, Defendant willfully failed to disclose its intent to obtain a consumer report for employment purposes in a document consisting solely of the disclosure. After Defendant moved to dismiss the Second Amended Complaint, Freckleton and Defendant agreed to mediate the case, and in light of that agreement, the Court thereafter denied Defendant s motion without prejudice. 49. On November 13, 2015, Just commenced a putative class action against Defendant alleging that, in violation of Section 1681b(b)(2) and Section 1681n, Defendant willfully failed to disclose its intent to obtain a consumer report for employment purposes in a document consisting solely of the disclosure. The allegations supporting Just s Section 1681b(b)(2) claim are similar in nature to those supporting the Section 1681b(b)(2) claim asserted in the Freckleton Litigation, and Defendant moved to dismiss. Just and Defendant then agreed to a consolidated mediation with Freckleton and Class counsel. In the meantime, -9-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 11 of 88 Defendant s motion to dismiss the Complaint was granted with prejudice on May 12, 2016. Just filed a notice of appeal of that decision, but the appeal was stayed on July 19, 2016, pursuant to the agreement by Named Plaintiffs, Defendant, and Class Counsel to continue settlement discussions. 50. Defendant denies any liability or wrongdoing of any kind associated with the Claims alleged in the Litigation, and further contends that, for any purpose other than settlement, this action is not appropriate for class or other collective action treatment. Defendant contends, among other things, that it has complied at all times with FCRA, FCRA State and Local Equivalents, and other applicable laws. 51. On June 21 and 22, 2016, Class Counsel, Defendant, and Defendant s Counsel participated in a mediation. Eric Green, a neutral mediator with experience in class actions, conducted the mediation. Though settlement was not reached at the initial mediation session, Class Counsel, Defendant, and Defendant s Counsel continued thereafter to negotiate a settlement of the Section 1681b(b)(2) claims in the Litigation. Class Counsel, Defendant, and Defendant s Counsel participated in a second mediation session on October 5, 2016, where they reached agreement in principle to settle all Claims. These negotiations led to the instant Settlement Agreement of the Litigation on a class-wide and individual basis. 52. This Settlement Agreement represents a compromise and settlement of all Claims. Class Counsel has investigated the facts of these cases. Based on their own independent investigation and evaluation, which includes reviewing documents produced and depositions conducted in the Freckleton Litigation, Class Counsel is of the opinion that the Settlement Agreement with Defendant for the consideration and on the terms set forth herein is fair, reasonable, and adequate, and is in the best interests of the classes in light of all known facts and -10-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 12 of 88 circumstances, including the dismissal of the Just Litigation for failure to state a claim and the risk of losing on appeal from that dismissal, risk of non-certification of the classes proposed, defenses asserted by Defendant, numerous potential legal and appellate issues on the merits, and risk of significant costs and delay. Defendant contends that it has no liability in this case, but Defendant s Counsel shares Class Counsel s belief that the Settlement Agreement represents a fair and adequate settlement given the costs associated with the Litigation. III. MOTION FOR PRELIMINARY APPROVAL 53. On or before the date on which any motion for Preliminary Approval is filed, the Parties agree to cooperate to add Just as a Named Plaintiff in the Freckleton Litigation. 54. The Named Plaintiffs and Class Counsel acknowledge that securing the transfer of Just s claims under Section 1681b(b)(2) from the Just Litigation to this Litigation is a material term of this Settlement Agreement and that if such transfer cannot be obtained, Defendant may, in its sole discretion, declare the Settlement Agreement null and void or substitute a procedure whereby the terms of the Settlement Agreement may be approved and effectuated. 55. On or before May 31, 2017, Class Counsel shall file this Settlement Agreement with the Court together with a motion for Preliminary Approval that seeks entry of an order that would, for settlement purposes only: (i) certify one or more conditional settlement classes under Fed. R. Civ. P. 23 composed of the Settlement Class Members; (ii) preliminarily approve this proposed Settlement Agreement as to form and content as fair, reasonable, and adequate as to the members of the Settlement Classes; (iii) approve the proposed Notices to the Settlement Class Members in a form substantially similar to that attached hereto as Exhibits E through G; (iv) certify the Named Plaintiffs as representatives of the Settlement Classes; (v) appoint Class Counsel; (vi) approve the proposed cy pres recipients; (vii) appoint the Settlement Administrator; and (viii) upon Final Approval, dismiss the Litigation with prejudice and with a permanent bar -11-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 13 of 88 on any member of their respective Settlement Classes, as well as the Named Plaintiffs, utilizing the procedures waived or asserting the claims released by this Settlement Agreement. IV. SETTLEMENT TERMS 56. Now, therefore, in consideration of the mutual covenants, promises and warranties set forth herein, Named Plaintiffs and Defendant agree that the Claims set forth in the Litigation be settled and compromised between the Settlement Classes and Defendant, subject to the Court s approval as set forth below. A. NOTICE PLAN 57. Defendant or its agent shall compile and deliver to the Settlement Administrator a class list for each Settlement Class within 30 calendar days of the Preliminary Approval Order. 58. As part of the class list, Defendant agrees to provide to the Settlement Administrator the following information regarding Settlement Class Members to the extent such information is available in, and can be reasonably retrieved from, the database(s) of Defendant: a. For Rule 23(b)(2) Settlement Class Members: names, personal (nonbusiness) electronic mail address (if available), mailing address (if available) and date of birth. b. For Rule 23(b)(3) Settlement Class Members: names, personal (nonbusiness) electronic mail address (if available), mailing address, and date of birth. 59. Any information from the class list, including, but not limited to, personal identifying information of individual Settlement Class Members, shall only be viewed by Defendant, its attorneys, other individuals who Defendant deems necessary to effectuate the Settlement, and the Settlement Administrator. The Named Plaintiffs and Class Counsel are prohibited from viewing or receiving any such class member information, and the Settlement Administrator is prohibited from providing the same, except that, notwithstanding this provision, in the event that the Settlement Administrator is contacted by a Rule 23(b)(3) Settlement Class -12-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 14 of 88 Member regarding an inquiry related to the settlement which cannot be answered or resolved by the Settlement Administrator, the Settlement Administrator shall provide all information relating to the inquiring class member s identification and the inquiry to Class Counsel, with a courtesy copy to Defendant s Counsel. In the event that Class Counsel is contacted directly by a Settlement Class Member, upon request by Class Counsel, the Settlement Administrator shall provide the class member information in response to Class Counsel s request, along with a courtesy copy to Defendant s Counsel. 1. Notice Process: Content of Notice 60. The Parties have agreed that they will jointly recommend the Rule 23(b)(2) and 23(b)(3) Settlement Class Notices and the Rule 23(b)(2) Postcard Notice, to the Court for approval. The Notices are designed to provide the Settlement Class Members information about the class action settlement, and the Parties agree that all Notices will be made available in Spanish at the websites discussed in 61 below. 2. Notice Process: Websites 61. Defendant through the Settlement Administrator will establish two websites, one for the Rule 23(b)(2) Notice Class Members and one for the Rule 23(b)(3) Settlement Class Members, each containing detailed information about the Settlement Agreement, frequently asked questions and answers, pleadings, and relevant litigation documents. Any content appearing on either website shall appear only with the prior consent of Defendant, Defendant s Counsel, and Class Counsel. The Settlement Administrator will terminate the websites sixty (60) calendar days after the later of either (a) one year after the Effective Date or (b) the date on which the Settlement Agreement is terminated. -13-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 15 of 88 3. Notice Process: Rule 23(b)(2) Settlement Class 62. While individual notice is generally not required for a class certified under Fed. R. Civ. P. 23(b)(2), the Parties have agreed that the Settlement Administrator shall send, via electronic mail, the Rule 23(b)(2) Settlement Class Notice to all Rule 23(b)(2) Notice Class Members for whom personal (non-business) electronic mail addresses are provided in the class list delivered by Defendant. The Settlement Administrator shall send the Rule 23(b)(2) Settlement Class Notice twice: the first set of electronic mail notices shall be transmitted no later than forty-five (45) calendar days after the entry of the Preliminary Approval Order, and the second set shall be transmitted no earlier than ten (10) calendar days and no later than twenty (20) calendar days following the first set. 63. The Settlement Administrator shall further send, via U.S. Mail, the Rule 23(b)(2) Settlement Class Postcard Notice to all Rule 23(b)(2) Notice Class Members for whom either personal (non-business) electronic mail addresses are not available or for whom the first electronic mail notice sent pursuant to the preceding paragraph is returned as undeliverable. Where no personal electronic mail address is available, the Settlement Administrator shall mail the Rule 23(b)(2) Settlement Class Postcard Notice within forty-five (45) calendar days after the entry of the Preliminary Approval Order. Where the Rule 23(b)(2) Settlement Class Notice is sent by electronic mail but is returned as undeliverable, the Rule 23(b)(2) Settlement Class Postcard Notice shall be sent within twenty (20) calendar days of the Settlement Administrator being notified of the non-delivery. Prior to mailing the Rule 23(b)(2) Settlement Class Postcard Notice to any of the Rule 23(b)(2) Settlement Class Members, the Settlement Administrator shall update mailing addresses through the USPS National Change of Address database and utilize an address verification resource to identify missing addresses. If the Settlement Administrator receives address change notifications from the U.S. Postal Service within thirty (30) calendar -14-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 16 of 88 days of mailing of any Rule 23(b)(2) Settlement Class Postcard Notice, the Settlement Administrator will re-mail the Notice. 64. Not later than twenty (20) calendar days before the Final Approval Hearing, the Settlement Administrator shall cause proof of the transmittal of the Rule 23(b)(2) Settlement Class Notice and Rule 23(b)(2) Settlement Class Postcard Notice to be filed with the Court. Neither the Parties nor the Settlement Administrator shall have any further obligation to send notice of the Settlement Agreement to the Rule 23(b)(2) Settlement Class Members. 4. Notice Process: Rule 23(b)(3) Settlement Class 65. The Settlement Administrator shall send the Rule 23(b)(3) Settlement Class Notice to all Rule 23(b)(3) Settlement Class Members via electronic mail twice to those class members for whom personal (non-business) electronic mail addresses are provided in the class list delivered by Defendant. The first set of electronic mail notices shall be transmitted no later than forty-five (45) calendar days after entry of the Preliminary Approval Order, and the second set shall be transmitted no earlier than ten (10) calendar days and no later than twenty (20) calendar days following the first set. 66. The Settlement Administrator shall send the Rule 23(b)(3) Settlement Class Notice via U.S. Mail to those members of the Rule 23(b)(3) Settlement Class for whom either no personal (non-business) electronic mail addresses are available or for whom the first electronic mail notice sent pursuant to the preceding paragraph is returned as undeliverable. Where no personal electronic mail address is available, the Settlement Administrator shall mail this Notice no later than forty-five (45) calendar days after entry of the Preliminary Approval Order. Where the Rule 23(b)(3) Settlement Class Notice could not be delivered via electronic mail, the Notice shall be sent within twenty (20) calendar days of the Settlement Administrator being notified of the non-delivery. -15-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 17 of 88 67. Prior to mailing the Rule 23(b)(3) Settlement Class Notice to any of the Rule 23(b)(3) Settlement Class Members, the Settlement Administrator shall update mailing addresses through the USPS National Change of Address database and utilize an address verification resource to identify missing addresses. If the Settlement Administrator receives address change notifications from the U.S. Postal Service within thirty (30) calendar days of mailing of any Rule 23(b)(3) Settlement Class Notice, the Settlement Administrator will re-mail the Notice. 68. Not later than twenty (20) calendar days before the Final Approval Hearing, the Settlement Administrator shall file with the Court proof of the transmittal of the Rule 23(b)(3) Settlement Class Notice. Neither the Parties nor the Settlement Administrator shall have any further obligation to send notice of the Settlement to the Rule 23(b)(3) Settlement Class Members. 5. Notice Process: Telephone Assistance 69. The Settlement Administrator shall establish a Telephone Assistance Program, including two toll-free telephone numbers, one for the Rule 23(b)(2) Notice Class Members and one for the Rule 23(b)(3) Settlement Class Members, which will have recordings that answer questions from the Settlement Class Members. Defendant, Defendant s Counsel, and Class Counsel shall approve the Settlement Administrator scripts for the recording for each toll-free telephone number. The toll-free number for the Rule 23(b)(3) Settlement Class Members shall also provide an option to be connected to a live operator, who shall answer questions based on the approved scripts. The Settlement Administrator shall make reasonable efforts to provide all information available through the toll-free numbers in Spanish as well as English. The Settlement Administrator shall provide periodic updates to all counsel regarding the total number of calls Settlement Class Members make to the toll-free numbers. Not later than twenty (20) calendar days before the Final Approval Hearing, the Settlement Administrator shall file with the -16-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 18 of 88 Court proof of the establishment and maintenance of the Telephone Assistance Program. The Telephone Assistance Program shall be maintained by the Settlement Administrator until sixty (60) calendar days following the later of the mailing of the last Rule 23(b)(3) Payment Notice or Rule 23(b)(3) Validated Claims Payment Notice. 6. CAFA Notice 70. The Settlement Administrator shall send CAFA Notices in accordance with 28 U.S.C. 1715(a) not later than ten (10) days after this Settlement Agreement is filed with the Court. Defendant shall file with the Court a certification of the date upon which the CAFA Notice was served. Defendant and/or its representatives will bear the cost associated with sending the CAFA Notice, separate and apart from Defendant s Payment to the Settlement Fund. B. CERTIFICATION, OPT-OUTS, REPRESENTATION, AND OBJECTIONS 1. Certification 71. Named Plaintiffs and Defendant agree to seek certification of the Rule 23(b)(2) Settlement Class as a mandatory, nationwide settlement class pursuant to Fed. R. Civ. P. 23(b)(2). 72. Named Plaintiffs and Defendant agree to the conditional and final certification of the Rule 23(b)(2) Settlement Class for purposes of settlement only and without any adjudication on the merits. If this Settlement Agreement is not approved by the Court for any reason, such agreed conditional and final certifications are null and void. 73. Because the Rule 23(b)(2) Settlement Class is being certified as a mandatory class under Fed. R. Civ. P. 23(b)(2), Rule 23(b)(2) Settlement Class Members, including those who are also Rule 23(b)(3) Settlement Class members, shall not be permitted to opt out of the Rule 23(b)(2) Settlement Class. -17-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 19 of 88 74. Named Plaintiff Freckleton and Defendant agree to seek certification of the Rule 23(b)(3) Settlement Class as a nationwide settlement class pursuant to Fed. R. Civ. P. 23(b)(3). 75. Named Plaintiff Freckleton and Defendant agree to the conditional and final certification of the Rule 23(b)(3) Settlement Class for purposes of settlement only and without any adjudication on the merits. If this Settlement Agreement is not approved by the Court for any reason, such agreed conditional and final certifications are null and void. 76. Rule 23(b)(3) Settlement Class Members shall have the right to request opt out from the Rule 23(b)(3) Settlement Class only, pursuant to Fed. R. Civ. P. 23(c)(2)(B)(v). 77. Plaintiffs and Defendant disagree as to whether the Litigation could be certified as a class action under Fed. R. Civ. P. 23 for trial purposes. Nothing in this Settlement Agreement shall be construed as an admission by Defendant that the Litigation or any similar case is amenable to class certification for trial purposes. Furthermore, nothing in this Settlement Agreement shall prevent Defendant from opposing class certification or seeking de-certification of the conditionally certified tentative Rule 23(b)(2) and (3) Settlement Classes if approval of the Settlement Agreement is not obtained, or not upheld on appeal, including review by the United States Supreme Court, for any reason. 2. Opt-Out Procedures 78. Rule 23(b)(2) Settlement Class Members shall not be permitted to opt out of the Rule 23(b)(2) Settlement Class. 79. The Rule 23(b)(3) Settlement Class Notice shall contain information about how a proposed Rule 23(b)(3) Settlement Class Member may opt out of the Rule 23(b)(3) Settlement Class, as well as the potential implications of doing so, including that opting out may preclude later participation in any class action against the Released Parties. -18-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 20 of 88 80. A Rule 23(b)(3) Settlement Class Member may request to opt out from the Rule 23(b)(3) Settlement Class by sending a written, non-electronic, request for opt out to Opt out Requests Freckleton v. Target Settlement Administrator to the Settlement Administrator at the address provided in the Rule 23(b)(3) Settlement Class Notice. The Rule 23(b)(3) Settlement Class Member s opt out request must contain the Rule 23(b)(3) Settlement Class Member s original signature, current mailing address and telephone number, date of birth, and a specific statement that the Rule 23(b)(3) Settlement Class Member wants to be excluded from the Rule 23(b)(3) Settlement Class. Opt out requests must be postmarked no later than forty (40) calendar days before the Final Approval Hearing. In no event shall persons who purport to opt out of the Rule 23(b)(3) Settlement Class as a group, aggregate, or class involving more than one Rule 23(b)(3) Settlement Class Member, be considered valid opt-outs. Opt out requests that do not comply with the provisions of this paragraph shall be invalid. 81. No later than ten (10) business days after the Opt-Out Deadline Date, the Settlement Administrator shall provide to Class Counsel and Defendant s Counsel a complete list of all Rule 23(b)(3) Settlement Class Members who have properly opted out of the Settlement Class together with copies of the opt out requests. Not later than twenty (20) calendar days before the Final Approval Hearing, Class Counsel will file with the Court under seal the list of all Rule 23(b)(3) Settlement Class Members who have properly opted out of the Settlement Class together with copies of the opt out requests. 82. Class Counsel agree that this Settlement Agreement is fair, reasonable, and in the best interest of the Rule 23(b)(3) Settlement Class Members. Class Counsel agree that Rule 23(b)(3) Settlement Class Members who seek to opt out should be represented by counsel who are of the belief that the Settlement Agreement is not fair, reasonable, or in the best interest of -19-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 21 of 88 the Rule 23(b)(3) Settlement Class Members. Accordingly, Class Counsel shall not solicit optouts and, if contacted, shall refer any such opt-outs to the applicable state bar association or other referral organization for appropriate counsel in any subsequent litigation against the Released Parties. 83. If, after the Opt-Out Deadline Date and before the Final Approval Hearing, the number of Rule 23(b)(3) Settlement Class Members who have timely filed opt out requests totals in number to more than one-half of one percent (0.5%) of the proposed Rule 23(b)(3) Settlement Class Members, Defendant shall have the option to terminate the Settlement Agreement pursuant to 132. 3. Objections from Settlement Class Members 84. Any Rule 23(b)(2) Settlement Class Member or any Rule 23(b)(3) Settlement Class Member who does not opt out of the Rule 23(b)(3) Settlement Class may object to the Settlement Agreement or any other matters as described in the Notices. To exercise this objection right, the Class Member must provide written notice of the objection via first class mail to the Clerk of Court, Class Counsel, and Defendant s Counsel. For an objection to be considered by the Court, the objection must be postmarked on or before the date specified in the applicable Notice, which date shall be no later than forty (40) calendar days before the Final Approval Hearing. For an objection to be considered by the Court, the objection must also set forth: (a) (b) (c) the name of the litigation; the objector s full name, address, and telephone number; all grounds for the objection, accompanied by any legal support for the objection known to the objector or his counsel; -20-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 22 of 88 (d) the number of times in which the objector has objected to a class action settlement within the five years preceding the date that the objector files the objection, the caption of each case in which the objector has made such objection, and a copy of any orders related to or ruling upon such prior objections that were issued by the trial and appellate courts in each listed case; (e) the identity of all counsel who represent the objector, including any former or current counsel who may be entitled to compensation for any reason related to the objection to the Settlement or fee application; (f) any and all agreements that relate to the objection or the process of objecting whether written or oral between objector or objector s counsel and any other person or entity; (g) the identity of all counsel representing the objector who will appear at the Final Approval Hearing; (h) a list of all persons who will be called to testify at the Final Approval Hearing in support of the objection; (i) a statement confirming whether the objector intends to personally appear and/or testify at the Final Approval Hearing; and (j) the objector s signature (an attorney s signature is not sufficient). Objections to the Class Counsel s attorneys fees may be supplemented up to five (5) business days after the filing of a motion for such fees to address additional information or materials in the motion. Finally, the written objection must indicate whether the Settlement Class Member and/or his or her lawyer(s) intend to appear at the Final Approval Hearing. Any lawyer who intends to appear at the Final Approval Hearing must enter a written Notice of Appearance -21-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 23 of 88 of Counsel with the Clerk of Court no later than the date set by the Court in its Preliminary Approval Order and shall include the full caption and case number of each previous class action case in which that counsel has represented an objector. C. FINAL APPROVAL HEARING AND FINAL APPROVAL 85. The Parties will jointly request that the Court hold the Final Approval Hearing to consider approval of the Settlement Agreement as provided for herein approximately onehundred fifty (150) calendar days after entry of the Preliminary Approval Order but in no event earlier than ninety (90) calendar days after the CAFA Notice is served. On or before a date at least ten (10) business days prior to the Final Approval Hearing, Class Counsel shall file a motion for entry of the Final Approval Order. The Parties agree that the Final Approval Order constitutes a final judgment dismissing the Litigation with prejudice. 86. All relief contemplated by this Settlement Agreement is expressly contingent upon the Settlement Agreement receiving the Court s Final Approval. D. SETTLEMENT FUND AND DISTRIBUTION 87. Defendant s Payment shall establish the Settlement Fund. All disbursements contemplated by this Settlement Agreement (with the exception of costs and expenses associated with the CAFA Notice), including all payments and costs to implement and administer this Settlement Agreement, must and shall be paid from the Settlement Fund, including: (a) payments to the Settlement Class Members; (b) payments of any Attorneys Fee Award; (c) payments of any service awards to the Named Plaintiffs; (d) Notice and Administration Expenses; and (e) any Taxes and Tax Expenses. The Parties and their respective counsel agree that, with the exception of costs and expenses associated with the CAFA Notice, under no circumstances will Defendant and/or its insurer pay or cause to be paid more than Defendant s Payment pursuant to this Settlement Agreement. -22-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 24 of 88 88. The Defendant s Payment to establish the Settlement Fund shall be made in the following manner to an escrow account established by the Settlement Administrator: The sum of One Hundred Five Thousand Dollars and Zero Cents ($105,000.00) shall be paid to the Settlement Administrator within ten (10) business days after entry of the Preliminary Approval Order, to be used to pay costs of notice to the Classes and other related expenses incurred by the Settlement Administrator prior to the date of the Final Approval Hearing. The balance of Defendant s Payment, in the amount of Eight Million, Three Hundred Ninety-Five Thousand Dollars and Zero Cents ($8,395,000.00), shall be paid by Defendant to the escrow account established by the Settlement Administrator within ten (10) business days after the Effective Date. The Settlement Administrator shall distribute the Settlement Fund only in accordance with the provisions of this Agreement and any applicable Orders of the Court. Should there be any question whatsoever regarding whether a distribution is authorized under this Agreement and any applicable Orders of the Court, the Settlement Administrator shall contact Class Counsel and Defendant s Counsel before making any distribution. 89. The Settlement Fund may not be commingled with any other funds and may be held in cash, cash equivalents, certificates of deposit or instruments insured by an arm of or backed by the full faith and credit of the United States Government. Interest earned, if any, on the Settlement Fund shall be for the benefit of the Settlement Class in the event this Settlement Agreement is not terminated by the Defendant and the Effective Date otherwise occurs. 1. Attorneys Fees 90. At least ten (10) business days prior to the Final Approval Hearing, Class Counsel shall make an application to the Court for an award of attorneys fees, costs, and other expenses, not to exceed thirty-three percent (33%) of the Settlement Fund, for their representation of the -23-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 25 of 88 Settlement Class, to be paid from the Settlement Fund. Defendant agrees not to object to the application by Class Counsel for attorneys fees, costs, and other expenses in an amount up to 33% of the Settlement Fund, in the aggregate. To the extent the Court enters an Attorneys Fee Award in an amount less than 33% of the Settlement Fund, in the aggregate, the difference will remain in the Settlement Fund and thereafter waterfall into the Rule 23(b)(3) Automatic Payment Pool. 91. The application or applications for the Attorneys Fees Award, and any and all matters related thereto, shall not be considered part of the Settlement Agreement, and shall be considered by the Court separately from the Court s consideration of the fairness, reasonableness, and adequacy of the Settlement. Plaintiff and Settlement Class Counsel agree that this Settlement Agreement is not conditioned on the Court s approval of an Attorneys Fees Award in the requested amount or in any amount whatsoever. The Court s ruling on the application or applications for such fees shall not operate to terminate or cancel the Settlement Agreement. 92. Within the later of (a) thirty (30) calendar days after the Effective Date or (b) fourteen (14) business days after the Settlement Administrator s receipt of an IRS Form W-9 from Class Counsel and the Settlement Administrator s receipt of wiring instructions, the Settlement Administrator will make payment of the Attorneys Fee Award so long as it is not more than 33% of the Settlement Fund, in the aggregate, from the Settlement Fund by wire transfer to the agent identified by Class Counsel. Except for the Attorneys Fee Award, the Parties shall bear responsibility for their own fees, costs, and expenses incurred by them or arising out of the Litigation and will not seek reimbursement from any Party to this Settlement Agreement or from the Released Parties. -24-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 26 of 88 93. The Settlement Administrator will issue an IRS Form 1099 to Class Counsel with respect to the Attorneys Fee Award paid to them. Class Counsel is and shall be responsible for any federal, state, and local taxes that may be owed by virtue of the receipt of the Attorneys Fee Award. Defendant shall have no responsibility or liability for payment or withholding of income taxes or other tax-related obligations. 94. Attorneys fees, costs, and other expenses were negotiated at arms length. 2. Named Plaintiffs Service Awards 95. At least ten (10) business days prior to the Final Approval Hearing, Class Counsel shall make an application to the Court for service awards to each of the Named Plaintiffs in an amount up to Three Thousand Nine Hundred Dollars and Zero Cents ($3,900.00) each that will be paid by the Defendant. Defendant agrees not to object to the application for the service awards, and agrees that they shall be paid out of the Settlement Fund upon Final Approval, provided that they do not, in the aggregate, exceed Seven Thousand Eight Hundred Dollars and Zero Cents ($7,800.00). To the extent the Court approves service awards in an amount less than the amount above, the difference will remain in the Settlement Fund and thereafter waterfall into the Rule 23(b)(3) Automatic Payment Pool. 96. Within the later of (a) thirty (30) calendar days after the Effective Date and (b) fourteen (14) business days after receipt of IRS Forms W-9 from Named Plaintiffs, the Settlement Administrator will make payment of the service awards up to and not more than Seven Thousand Eight Hundred Dollars and Zero Cents ($7,800.00) in the aggregate from the Settlement Fund to the Named Plaintiffs. Defendant shall have no responsibility for, or any liability with respect to, the payment of service awards to the Named Plaintiffs. The sole source of any service award payment shall be the Settlement Fund. -25-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 27 of 88 97. The Settlement Administrator will issue an IRS Form 1099 to each of the Named Plaintiffs with respect to the Service Award paid to them. Named Plaintiffs are and shall be responsible for any federal, state, and local taxes that may be owed by virtue of the receipt of the Service Award. Defendant shall have no responsibility or liability for payment or withholding of income taxes or other tax-related obligations. 98. Service Awards were negotiated at arms length. 3. Notice and Administration Expenses 99. The Parties have estimated that the total Notice and Administration Expenses will be Three Hundred Seventy-Three Thousand, Six Hundred Sixty-Six Dollars and Zero Cents ($373,666.00), or less. This amount has been verified by the Settlement Administrator. 100. In order to pay the Notice and Administration Expenses from the Settlement Fund, the Settlement Administrator shall withhold from distribution to Settlement Class Members the total amount of Three Hundred Seventy-Three Thousand, Six Hundred Sixty-Six Dollars and Zero Cents ($373,666.00). 101. If reasonable Notice and Administration Expenses incurred in good faith exceed Three Hundred Seventy-Three Thousand, Six Hundred Sixty-Six Dollars and Zero Cents ($373,666.00), and upon approval of the Court at the Final Approval Hearing, the excess may be paid pursuant to 107 from any funds remaining in the Settlement Fund after the distributions from the Rule 23(b)(3) Claims Made Pool and before any distributions to the approved Cy Pres recipients. The Defendant shall have no responsibility for Notice and Administration Expenses, even if those expenses exceed the Parties and the Settlement Administrator s estimate for Notice and Administration Expenses. 102. The calculation of net settlement payments to Settlement Class Members shall exclude the Three Hundred Seventy-Three Thousand, Six Hundred Sixty-Six Dollars and Zero -26-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 28 of 88 Cents ($373,666.00) withheld pursuant to this section to pay the Notice and Administration Expenses. 103. All reasonable fees and costs incurred in identifying and notifying Settlement Class Members, as well as administering the Settlement and distributing payments under the Settlement, shall be paid from the Settlement Fund within thirty (30) days of receipt of the Settlement Administrator s invoices. These invoices shall be issued within thirty (30) days after completion of each principal stage of the Notice and Administration process, namely (1) issuing Notices pursuant to Paragraphs 62, 63, 65, and 67; (2) distributing Attorneys Fees, Named Plaintiffs Service Awards, and the Rule 23(b)(3) Automatic Payments; (3) distributing the Rule 23(b)(4) Claims Made Payments; and (4) distributing any Cy Pres awards. These invoices shall be subject to approval of Class Counsel and Defendant s Counsel. 104. The Settlement Administrator shall advise Class Counsel and Defendant s Counsel of the submission of the final report of distribution for all Notice and Administration Expenses within thirty (30) days of the distribution of the Rule 23(b)(3) Claims Made Payments, or if cy pres awards are distributed, within thirty (30) days of the distribution of any Cy Pres award distribution. 4. Rule 23(b)(3) Class Pools 105. There shall be two Rule 23(b)(3) Class Pools: the Rule 23(b)(3) Automatic Payment Pool and the Rule 23(b)(3) Claims Made Pool. 106. The funds in the Rule 23(b)(3) Automatic Payment Pool will be distributed in accordance with the payment procedures outlined in 110-111 of this Settlement Agreement. To the extent that checks disbursed from the Rule 23(b)(3) Automatic Payment Pool are not presented for payment by a Rule 23(b)(3) Class Member within sixty (60) calendar days of -27-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 29 of 88 mailing, the proceeds from those checks will remain in the Settlement Fund and will thereafter waterfall into the Rule 23(b)(3) Claims Made Pool. 107. The Rule 23(b)(3) Claims Made Pool shall be comprised of the Rule 23(b)(3) Claims Made Reserve plus any amounts remaining after the distribution of the Rule 23(b)(3) Automatic Payment Pool. The funds in the Rule 23(b)(3) Claims Made Pool shall be distributed in accordance with the payment procedures outlined in 117-118 of this Settlement Agreement. To the extent that funds remain in the Rule 23(b)(3) Claims Made Pool after distribution, the difference will remain in the Settlement Fund and may be used by the Settlement Administrator to pay any reasonable excess costs of administration beyond the estimated Notice and Administration Expenses prior to cy pres distribution pursuant to 109 to the extent permitted by the Final Approval Order. The proceeds of any checks disbursed from the Rule 23(b)(3) Claims Made Pool that are not presented for payment by a Rule 23(b)(3) Class Member within sixty (60) calendar days of mailing will remain in the Settlement Fund and may also be used by the Settlement Administrator to pay any reasonable excess beyond the estimated Notice and Administration Expenses prior to cy pres distribution pursuant to 109 to the extent permitted by the Final Approval Order. 5. Taxes 108. Any and all Taxes and Tax Expenses shall be paid from the Settlement Fund. 6. Cy Pres Distribution 109. Within two hundred fifty (250) calendar days after the Effective Date, any excess funds remaining in the Settlement Fund that have not been distributed in accordance with other provisions of this Settlement Agreement shall be distributed as follows subject to approval by the Court: (1) up to the first $500,000 to Equal Justice Works and (2) any amounts over $500,000 in -28-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 30 of 88 equal amounts to the Maryland Volunteer Lawyers Network and the Minnesota Volunteer Lawyers Network. E. PAYMENT PROCEDURES 1. Rule 23(b)(3) Automatic Payment Pool Procedures 110. Each Rule 23(b)(3) Settlement Class Member who has not opted out of the Rule 23(b)(3) Settlement Class shall be eligible to receive a pro rata payment of approximately $70.00 from the Rule 23(b)(3) Automatic Payment Pool. Within thirty (30) business days after the Effective Date, the Settlement Administrator shall issue and mail Rule 23(b)(3) Payment Notices accompanied by the settlement checks via U.S. Mail from the Rule 23(b)(3) Automatic Payment Pool to each of the Rule 23(b)(3) Settlement Class Members who have not opted out of the Rule 23(b)(3) Settlement Class. 111. The settlement checks shall be accompanied by the appropriate release text as set forth in 123 of this Settlement Agreement. Settlement checks shall also state: This payment is made to you as a class member in Freckleton v. Target Corp., in consideration for your release of the Released Parties as set forth in the Settlement Agreement and Release. The Rule 23(b)(3) Payment Notices accompanying the settlement checks shall notify the recipients that the checks will become invalid if not presented for payment within sixty (60) calendar days from the date of the mailing of the Rule 23(b)(3) Payment Notice. The Settlement Administrator shall ensure that payments are not made on checks that have become invalid. 112. The Rule 23(b)(3) Payment Notices and settlement checks will be accompanied by the Claim Form, in the form of Exhibit H attached hereto or a form substantially similar, including instructions for submission of the Claim Form to the Settlement Administrator, and an explanation of the consequences for failing to submit the Claim Form, all of which shall be translated into Spanish. The Rule 23(b)(3) Class Members are and shall be responsible for any -29-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 31 of 88 federal, state, and local taxes that may be owed by virtue of the receipt of a payment from the Rule 23(b)(3) Automatic Payment Pool. Defendant shall have no responsibility or liability for payment or withholding of income taxes or other tax-related obligations. 2. Validation of Claims Made 113. The Settlement Administrator shall have the authority to determine whether a Claim Form submitted by any Rule 23(b)(3) Claims Made Settlement Class Member is a Valid Claim. 114. A claim shall be considered a Valid Claim so long as: (a) The Claim Form includes the Rule 23(b)(3) Claims Made Settlement Class Member s name, complete address, and signature; (b) The Settlement Administrator is able to verify that the Rule 23(b)(3) Claims Made Settlement Class Member is on the class list; (c) The Rule 23(b)(3) Claims Made Settlement Class Member states that s/he (i) did not receive and/or does not recall receiving a copy of the background check report obtained by Target for employment purposes; (ii) received a copy of the background check report obtained by Target for employment purposes, and there were errors on the background check report; and/or (iii) did not have an adequate opportunity to try to address the content of the background check report before an offer of employment was withdrawn; (d) The Rule 23(b)(3) Claims Made Settlement Class Member states that s/he suffered actual damages resulting from the background check and indicates the nature of the damages suffered; and (e) The Claim Form is postmarked or submitted electronically via the website for the settlement no later than forty-five (45) calendar days after the date of the Rule 23(b)(3) Payment Notice. -30-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 32 of 88 115. If the Settlement Administrator rejects a claim, the Settlement Class Counsel and Defendant s Counsel will jointly review the Claim Form within ten (10) days of notice of the rejection, and may override the Settlement Administrator s rejection of a claim. If Settlement Class Counsel and Defendant s Counsel cannot agree on whether a Claim Form should be accepted or rejected, the party contesting payment of the Claim Form may submit the determination of the Claim Form s validity to the Court. 116. No person shall have any claim against Defendant, the Named Plaintiffs, the Settlement Class Members, Class Counsel, Defendant s Counsel, or the Settlement Administrator based on any claims determinations made in accordance with this Settlement Agreement. 3. Rule 23(b)(3) Claims Made Pool Payments 117. Each Rule 23(b)(3) Validated Claims Made Settlement Class Member shall be eligible to receive a payment of the lesser of (a) One Thousand Five Hundred Dollars and Zero Cents ($1,500.00) or (b) a pro rata share of the Rule 23(b)(3) Claims Made Pool, based upon the total number of Validated Claims. The Settlement Administrator shall issue and mail Rule 23(b)(3) Validated Claims Payment Notices accompanied by settlement checks via U.S. Mail to each of the Rule 23(b)(3) Validated Claims Made Settlement Class Members within ninety (90) calendar days after the mailing of the last Rule 23(b)(3) Payment Notice. 118. The settlement checks to Rule 23(b)(3) Validated Claims Made Settlement Class Members shall be accompanied by the appropriate release text as set forth in 123 of this Settlement Agreement. Settlement checks shall also state: This payment is made to you as a class member in Freckleton v. Target Corp., in consideration for your release of the Released Parties as set forth in the Settlement Agreement and Release. The Rule 23(b)(3) Validated Claims Payment Notices accompanying the settlement checks shall notify the recipients that the -31-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 33 of 88 checks will become invalid if not presented for payment within sixty (60) calendar days from the date of the mailing of the Rule 23(b)(3) Validated Claims Payment Notice. The Settlement Administrator shall ensure that payments are not made on checks that have become invalid. If the Rule 23(b)(3) Claims Made Payments are equal to or exceed Six Hundred Dollars and Zero Cents ($600.00), Defendant shall supply to the Settlement Administrator the social security numbers that Defendant has in its possession for Rule 23(b)(3) Validated Claims Made Class Members. Named Plaintiffs are and shall be responsible for any federal, state, and local taxes that may be owed by virtue of the receipt of the Service Award. Defendant shall have no responsibility or liability for payment or withholding of income taxes or other tax-related obligations. F. INJUNCTIVE RELIEF 119. Subject to the terms and conditions of this Settlement Agreement, the Named Plaintiffs and Defendant shall move jointly for the Court to enter a consent injunction applicable to Defendant by its consent, which will contain the terms outlined in Exhibit B and be in force for one (1) year. Specifically, Named Plaintiffs pursued the Litigation to challenge, under Sections 1681b(b)(2), 1681b(b)(3), and 1681n: (a) the disclosure provided by Defendant prior to procuring a consumer report for employment purposes; and (b) the steps taken by Defendant prior to taking an adverse action. 120. Named Plaintiffs asserted that the document containing the disclosure was not comprised solely of the disclosure and included extraneous information in violation of Section 1681b(b)(2) and was a willful violation of FCRA pursuant to Section n. Defendant disagrees that its disclosure violated Section 1681b(b)(2) or Section n; but to resolve this dispute, Defendant has removed from its various disclosures the language Named Plaintiffs characterize as extraneous, specifically the language highlighted in Exhibit D. -32-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 34 of 88 121. Named Plaintiff Freckleton further asserted that Defendant took an adverse action when any applicant was preliminarily scored as not cleared to proceed. Defendant disagrees that a preliminary score is an adverse action; but to resolve this dispute, Defendant has changed its procedures to severely restrict access to the preliminary score, revised its notices pursuant to Section 1681b(b)(3), and has taken steps to ensure that an adverse action is taken no earlier than eight (8) days after sending the notice required under Section 1681b(b)(3). 122. Any action by Defendant determined in good faith to be reasonably necessary to comply with any federal, state, or local law, enactment, regulation, or judicial ruling shall not constitute a breach of this Settlement Agreement. In the event that any obligation that Defendant has agreed to undertake pursuant to this Agreement becomes inconsistent with any future federal, state, or local law, enactment, regulation, or judicial ruling, then Defendant shall be released from performing such obligation after notice to the Court and Class Counsel. Any objection to such change in procedure shall be made to the Court by Class Counsel within ten (10) business days of such notice. The obligations under this paragraph shall last for the one year term of the Consent Injunction only. G. RELEASES 1. Rule 23(b)(3) Settlement Class Release 123. Upon the Effective Date, and in exchange for the relief described in this Settlement Agreement, each Rule 23(b)(3) Settlement Class Member who has not properly opted out of the Rule 23(b)(3) Settlement Class, and each of their respective heirs, executors, trustees, guardians, wards, administrators, representatives, agents, attorneys, partners, successors, predecessors and assigns and all those acting or purporting to act on their behalf completely, finally and forever release and discharge the Released Parties of and from the Rule 23(b)(3) Settlement Released Claims whether brought individually or through a class, collective, or mass -33-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 35 of 88 action. This Settlement Agreement shall bind all Rule 23(b)(3) Settlement Class Members who have not properly opted out of the Rule 23(b)(3) Settlement Class, and any and all of the Rule 23(b)(3) Settlement Released Claims shall be dismissed with prejudice and released as against the Released Parties. The Rule 23(b)(3) Settlement Released Claims are released regardless of whether the Rule 23(b)(3) Settlement Released Claims are known or unknown, concealed or hidden, suspected or unsuspected, anticipated or unanticipated, asserted or unasserted, foreseen or unforeseen, actual or contingent, liquidated or unliquidated, fixed or contingent. 2. Rule 23(b)(2) Settlement Class Waiver 124. Upon the Effective Date, and in exchange for the relief described in this Settlement Agreement, Named Plaintiffs and all Rule 23(b)(2) Settlement Class Members, including all Rule 23(b)(3) Settlement Class Members even if they opted out of the Rule 23(b)(3) Settlement Class, and each of their respective heirs, executors, trustees, guardians, wards, administrators, representatives, attorneys, partners, successors, predecessors and assigns and all those acting or purporting to act on their behalf agree to the Rule 23(b)(2) Settlement Class Waiver with regard to the Released Parties. This Settlement Agreement shall bind all Rule 23(b)(2) Settlement Class Members, including all Rule 23(b)(3) Settlement Class Members even if they opted out of the Rule 23(b)(3) Settlement Class, and any and all class action claims asserted in the Litigation shall be dismissed with prejudice. The Rule 23(b)(2) Settlement Class Waiver is applicable and enforceable with regard to claims enumerated therein regardless of whether they are known or unknown, concealed or hidden, suspected or unsuspected, anticipated or unanticipated, asserted or unasserted, foreseen or unforeseen, actual or contingent, liquidated or unliquidated, fixed or contingent. 125. The Rule 23(b)(2) Settlement Class Members will not release any individual damage or merits claims unless (a) they are Rule 23(b)(3) Settlement Class Members and (b) -34-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 36 of 88 they have not properly opted out of the Rule 23(b)(3) Settlement Class. The Rule 23(b)(2) Settlement Class Notice will explain to the Rule 23(b)(2) Settlement Class that they have waived their right to pursue the claims enumerated in the Rule 23(b)(3) Settlement Class Waiver as part of a class, collective, or mass action. Defendant in no way waives any defenses it currently has, or may develop in the future, to any individual claims that may be brought by one or more of the Rule 23(b)(2) Settlement Class Members. Nor shall this Settlement Agreement constitute an agreement to toll the statute of limitations pertaining to any such claim to the extent it is not already tolled by the Litigation. 126. The Rule 23(b)(3) Settlement Class Members who have not properly opted out of the Rule 23(b)(3) Class will release the Rule 23(b)(3) Settlement Released Claims pursuant to pursuant to 123 above. 3. Additional Release by the Named Plaintiffs 127. In addition to the releases described in 123-124 above, the Named Plaintiffs hereby release the Released Parties from all manner of actions, causes of action, suits, claims, liabilities, and demands of any nature whatsoever that the Named Plaintiffs ever had or now have against the Released Parties, whether at law or in equity, whether known or unknown, whether fixed or contingent, up until the date of this Settlement Agreement, including but not limited to any claim for defamation. This is intended to be a general release in which the Named Plaintiffs release any and all claims, regardless of subject matter, against the Released Parties. 128. This release will not preclude any Named Plaintiff from bringing a charge of discrimination before the Equal Employment Opportunity Commission or any state or local civil rights agency; but in the event such a charge is brought, Named Plaintiffs agree that they have released any right to receive compensation as a result of the charge, and in the event that they are awarded any such compensation, they agree to return it to Defendant. -35-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 37 of 88 4. Later Discovery of Additional Facts 129. The Parties acknowledge that Settlement Class Members may hereafter discover facts in addition to or different from those that they, Class Counsel, or Named Plaintiffs now know or believe to be true with respect to the subject matter of the Litigation. Regardless, the Parties intend that, upon the Effective Date, the Rule 23(b)(2) Settlement Class, including all Rule 23(b)(3) Settlement Class Members regardless of whether they opted out of the Rule 23(b)(3) Settlement Class, will be bound by the Rule 23(b)(2) Settlement Class Waiver and that the Rule 23(b)(3) Settlement Class who do not validly opt out of the Rule 23(b)(3) Settlement Class, will also be bound by the Rule 23(b)(3) Settlement Release and will fully, finally, and forever settle and release any and all Rule 23(b)(3) Settlement Released Claims, without regard to the subsequent discovery or existence of such different additional facts. Settlement Class Members will further waive any and all rights and benefits afforded by California Civil Code 1542, which provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Settlement Class Members and Class Counsel understand and acknowledge the significance of this waiver of California Civil Code Section 1542 and/or of any other applicable federal or state law relating to limitations on releases. 130. Upon the Effective Date, no default by any person in the performance of any covenant or obligation under this Settlement Agreement or any order entered in connection therewith shall affect the dismissal of the Litigation, the res judicata effect of the Final Approval Order, the foregoing releases, or any other provision of the Final Approval Order; provided, -36-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 38 of 88 however, that all other legal and equitable remedies for violation of a court order or breach of this Settlement Agreement shall remain available to all Parties. H. CONFIDENTIALITY 131. The Parties agree that the Settlement Agreement will be kept strictly confidential prior to the filing of the motion for Preliminary Approval, and after the filing of such motion, to the extent permitted by the Court. Class Counsel shall not proactively make any public announcement or media release, utilize social media regarding this Settlement Agreement or the Litigation, or initiate any contact of any kind with the media or the public regarding the Settlement Agreement or the Litigation. Class Counsel further shall not post anything to their own websites prior to final approval of the Settlement Agreement. Class Counsel shall not make any statements inconsistent with the representations set forth in this Settlement Agreement at any time. In issuing public statements, including responding to any inquiries from the media concerning the Litigation, Class Counsel, Named Plaintiffs, and Defendant s Counsel will limit their statements to supporting the settlement. Class Counsel and the Named Plaintiffs shall not engage in any conduct or make any statement, directly or indirectly, that the settlement of claims contemplated by this Settlement Agreement constitutes an admission of liability or an admission of the validity or accuracy of any of the allegations in this Litigation. However, nothing shall limit: (a) the ability of Class Counsel to communicate privately with a Class Member concerning the settlement; (b) the ability of Defendant or its successors to make such public disclosures as the federal securities laws require or to provide information about the settlement to state and federal regulators, other government officials, or its insurers/reinsurers; and (c) the ability of Class Counsel to disclose their participation in the Litigation in future cases. Nothing herein is intended to limit or waive the attorney-client privilege between Class Counsel and their current clients and/or class members, nor is anything herein intended to limit the ability of Class Counsel -37-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 39 of 88 to make truthful representations to judicial authorities regarding either their appointment as Class Counsel or the settlement of the Litigation. The Parties further acknowledge and agree to continue to abide by the confidentiality provisions of the Parties Mediation Agreement. I. TERMINATION OF AGREEMENT 1. Unilateral Termination by Defendant 132. Defendant s willingness to settle this Litigation on a class-wide basis and to agree to the certification of conditional Settlement Classes is dependent upon achieving finality in this Litigation and avoiding the expense of this and other litigation. Consequently, Defendant shall have the unilateral and unfettered right to either modify the Settlement Agreement through further negotiations with Class Counsel or terminate this Settlement Agreement, declare it null and void, and have no further obligations under this Settlement Agreement to the Named Plaintiffs, Class Members, or Settlement Class Counsel, if any of the following conditions subsequently occurs: a. The Court fails or declines to grant Preliminary or Final Approval in accordance with all material terms of this Settlement Agreement, including if the Court makes a material modification to the Preliminary or Final Approval Order such that it is not acceptable to Defendant; b. If, after the Opt-Out Deadline Date and before the Final Approval Hearing, the number of Rule 23(b)(3) Settlement Class Members who have timely filed opt out requests equals or exceeds the number specified in 83 of this Settlement Agreement. c. The Effective Date does not occur for any reason, including the entry of an order by any court that would require either material modification or termination of the Settlement. -38-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 40 of 88 133. The failure of any court to approve the Attorneys Fees or service awards in the requested amounts, or any amounts whatsoever, shall not be grounds for Named Plaintiffs or Class Counsel to terminate this Settlement Agreement. 2. Effect of Termination on this or Future Litigation 134. If this Settlement Agreement is terminated, the class certification portions of the Settlement Agreement shall have no further force and effect and shall not be offered in evidence or used in the Litigation or in any other proceeding; counsel for the Parties shall seek to have any Court orders, filings, or other entries in the Court s file that result from this Settlement Agreement set aside, withdrawn, and stricken from the record; the Settlement Agreement and all negotiations, proceedings, and documents prepared, and statements made in connection with either of them, shall be without prejudice to any Party, shall not be used by any party to prove or disprove the validity of any claim, and shall not be deemed or construed to be an admission or confession by any Party of any fact, matter, or proposition of law; and the Parties shall stand in the same procedural position as if the Settlement Agreement had not been negotiated, made, or filed with the Court. 3. Effect on Monies Paid Pursuant to Settlement Agreement 135. If this Settlement Agreement is terminated or the Effective Date otherwise does not occur, the Defendant s Payment, including interest earned but less Taxes and Tax Expenses that have been properly disbursed pursuant to this Settlement Agreement, shall be returned directly to Defendant or its designee(s) within five (5) business days of notification by Defendant. -39-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 41 of 88 J. PARTIES AUTHORITY 136. The Parties and their respective signatories represent and warrant that they have the capacity and full authority to enter into this Settlement Agreement and to bind the Parties to the terms and conditions set forth in this Settlement Agreement. K. MUTUAL FULL COOPERATION 137. The Parties agree to fully cooperate with each other to accomplish the terms of this Settlement Agreement, including, but not limited to, execution of such documents and to take such other action as may reasonably be necessary to implement the terms of this Settlement Agreement. The Parties to this Settlement Agreement shall use their best efforts, including all efforts contemplated by this Settlement Agreement and any other efforts that may become necessary by order of the Court, or otherwise, to effectuate this Settlement Agreement and the terms set forth herein. Class Counsel shall, with the cooperation of Defendant and Defendant s Counsel, take all reasonable and necessary steps to secure the Court s approval of the Settlement Agreement. 138. The Parties agree to waive any and all rights to appeal the Court s approval of the Settlement Agreement, unless the Court materially changes the terms of the Settlement Agreement. L. NO PRIOR ASSIGNMENTS 139. The Parties represent, covenant, and warrant that they have not directly or indirectly assigned, transferred, encumbered, or purported to assign, transfer, or encumber to any person or entity any portion of any liability, Claim, demand, action, cause of action, or rights herein released and discharged. -40-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 42 of 88 M. NO ADMISSION 140. Nothing contained in this Settlement Agreement, nor the consummation of this Settlement Agreement, is to be construed or deemed an admission of liability, culpability, negligence, or wrongdoing on the part of Defendant. Each of the Parties has entered into this Settlement Agreement with the intention to avoid further disputes and litigation with the attendant inconvenience and expenses. This Settlement Agreement is a settlement document and shall, pursuant to Fed. R. Evid. 408, be inadmissible in evidence in any proceeding. The preceding sentence shall not apply to an action or proceeding to approve, interpret, or enforce this Settlement Agreement. 141. For settlement purposes only, the Parties will stipulate that classes may be certified, as described in this Settlement Agreement. The Parties agree that certification for settlement purposes under the standard applied to settlements is in no way an admission that class certification is proper under the more stringent standard applied for litigation purposes, and agree that evidence of this limited stipulation for settlement purposes only will not be deemed admissible in this or any other proceeding. N. NOTICES 142. Unless otherwise specifically provided herein, all notices, demands, or other communications given hereunder shall be in writing and shall be deemed to have been duly given as of the third business day after mailing by first class United States mail, return receipt requested, with a copy by e-mail and addressed as follows: To the Settlement Classes: James A. Francis (members of all classes) Francis & Mailman, P.C. Land Title Building, Suite 1902 100 South Broad Street Philadelphia, PA 19110-41-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 43 of 88 (215) 735-8600 jfrancis@consumerlawfirm.com Irv Ackelsberg (members of all classes) Langer Grogan & Diver, P.C. 1717 Arch Street, Suite 4130 Philadelphia, PA 19103 iackelsberg@langergrogan.com Shawn Wanta (Rule 23(b)(2) Class Members only) Baillon Thome Jozwiak & Wanta 100 South 5 th Street, Suite 1200 Minneapolis, MN 55402 sjwanta@baillonthome.com To Defendant: Donald M. Lewis Nilan Johnson Lewis PA 120 South 6 th Street, Suite 400 Minneapolis, MN 55402 dlewis@nilanjohnson.com O. CONSTRUCTION 143. The Parties agree that the terms and conditions of this Settlement Agreement are the result of lengthy, intensive arms-length negotiations between the Parties and their counsel. The Parties have jointly participated in the drafting and approval of this Settlement Agreement, which shall not be construed in favor of or against any party by reason of the extent to which any Party or his, her, or its counsel participated in the drafting of this Settlement Agreement. This Settlement Agreement shall be governed by and interpreted in accordance with the substantive law of the State of Maryland, without regard to choice of law. P. CAPTIONS AND INTERPRETATIONS 144. Section and paragraph titles or captions contained in this Settlement Agreement are inserted as a matter of convenience and for reference, and in no way define, limit, extend, or -42-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 44 of 88 describe the scope of this Settlement Agreement or any of its provisions. Each term of this Settlement Agreement is contractual and not merely a recital. Q. MODIFICATION 145. This Settlement Agreement may not be changed, altered, or modified, except in writing and signed by the Parties, and approved by the Court. This Settlement Agreement may not be discharged except by performance in accordance with its terms or by a writing signed by all of the Parties. R. MERGER AND INTEGRATION 146. This Settlement Agreement and its exhibits contain the entire agreement between the Parties relating to the settlement and transaction contemplated hereby, and all prior or contemporaneous agreements, understandings, representations, and statements, whether oral or written and whether by a Party or such Party s legal counsel, are merged herein. No rights hereunder may be waived except in writing. S. BINDING ON ASSIGNS 147. This Settlement Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, trustees, executors, administrators, successors, and assigns. T. COUNTERPARTS 148. This Settlement Agreement may be executed in counterparts, and when each party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original and, when taken together with other signed counterparts, shall constitute one Settlement Agreement, which shall be binding upon and effective as to all Parties. 149. Any party may execute this Settlement Agreement by causing its counsel to sign on the designated signature block below and transmitting that signature page via facsimile or.pdf electronic mail attachment to counsel for the other party. Any signature so made and transmitted -43-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 45 of 88
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 46 of 88
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 47 of 88 DATED 20t7 Charmaine Freckleton DATED: 2017 Thomas J. Just DATED: 20t7 TARGET CORPORATION Name: Title: APPROVED AS TO FORM AND CONTENT: DATED: 20t7 JAMES A. FRANCIS Attorney for Named Plaintiff and Members of the Settlement Class DArED: fi* ){.20t7 w Attomey fornamed Plaintiff and Members of the Settlement Class DATED: 20t7 DONALD M. LEWIS Attorney for Defendant Target Corporation 4823-983s-5770-42-
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 48 of 88
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 49 of 88 Exhibit A
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 50 of 88 EXHIBIT A UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND CHARMAINE FRECKLETON AND THOMAS JUST, on behalf of themselves and others similarly situated, Plaintiff, C.A. No. 14-cv-00807-GLR CLASS ACTION v. TARGET CORPORATION Defendant. FINAL APPROVAL ORDER This matter, having come before the Court on the Plaintiffs Charmaine Freckleton and Thomas Just s Motion for Final Approval of the proposed class action settlement with Defendant Target Corporation ( Target or Defendant ); the Court having considered all papers filed and arguments made with respect to the settlement, and having provisionally certified, by Order entered, 2017 (Doc. ), two Settlement Classes, and the Court, being fully advised in the premises, finds that: 1 A. For purposes of settlement, this action satisfies the applicable prerequisites for class action treatment under Fed. R. Civ. P. 23(a), (b)(2), and (b)(3). The classes as defined in this Court s Preliminary Approval Order (the Classes ) are each so numerous that joinder of all members is not practicable, there are questions of law and fact common to each of the Classes, the claims of the Class Representatives are typical of the classes they seek to represent, and the Class 1 Unless otherwise defined herein, all capitalized terms in this Order have the same meaning as in the Settlement Agreement.
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 51 of 88 Representatives will fairly and adequately protect the interests of the Classes. Questions of law and fact common to the members of the Classes predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. B. Notice to the Classes required by Rule 23(e) of the Federal Rules of Civil Procedure has been provided in accordance with the Court s Preliminary Approval Order, and such notice by email, postal mail, and website has been given in an adequate and sufficient manner, constitutes the best notice practicable under the circumstances, and satisfies Rule 23(e) and due process. C. Defendant has timely provided notification of this settlement to the appropriate federal and state officials pursuant to the Class Action Fairness Act of 2005 ( CAFA ), 28 U.S.C. 1715. The Court has reviewed such notification and accompanying materials, and finds that Defendant s notification complies fully with the applicable requirements of CAFA. D. The Settlement Agreement was arrived at as a result of arms-length negotiations conducted in good faith by counsel for the Parties, and is supported by the Class Representatives. E. The settlement as set forth in the Settlement Agreement is fair, reasonable and adequate to members of the Classes in light of the complexity, expense, and duration of litigation and the risks involved in establishing liability and damages, and in maintaining the class action through trial and appeal. F. The relief provided under the settlement constitutes fair value given in exchange for the releases of claims against the Released Parties. G. persons have excluded themselves from the Rule 23(b)(3) Settlement Class in accordance with the provisions of the Preliminary Approval Order. Those persons are identified on Exhibit A to this Order, which has been filed under seal. 2
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 52 of 88 H. The Parties and each member of the Classes have irrevocably submitted to the exclusive jurisdiction of this Court for any suit, action, proceeding or dispute arising out of the Settlement Agreement. I. It is in the best interests of the Parties and the members of the Classes and consistent with principles of judicial economy that any dispute between any member of the Classes (including any dispute as to whether any person is a member of the Class) and any Released Party which in any way relates to the applicability or scope of the Settlement Agreement or this Final Judgment and Order of Dismissal should be presented exclusively to this Court for resolution by this Court and should be transferred to this Court should it initially be filed in another venue. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED THAT: 1. This action is finally certified as a class action for settlement purposes only against Defendant Target Corporation on behalf of two Classes defined as follows: (a) The Rule 23(b)(2) Settlement Class: All internal and external applicants for employment, promotion, or transfer on whom Target Corporation obtained a consumer report for employment purposes beginning November 13, 2010, through November 13, 2016, who executed the Consent & Disclosure Form attached as Exhibit D to the Settlement Agreement or a form substantially similar, and who are not Excluded Individuals. (b) The Rule 23(b)(3) Settlement Class: All internal and external applicants for employment, promotion, or transfer on whom Target Corporation obtained a consumer report for employment purposes beginning March 17, 2012, through June 13, 2016, who were not employed, promoted, or transferred by Target because of the consumer report, and who are not Excluded Individuals. 2. The Settlement Agreement submitted by the Parties is finally approved pursuant to Rule 23(e) of the Federal Rules of Civil Procedure as fair, reasonable and adequate and in the best 3
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 53 of 88 interests of the Class Members. The Parties are directed to consummate the Agreement in accordance with its terms. 3. If the Rule 23(b)(3) Claims Made Payments are equal to or exceed Six Hundred Dollars ($600.00), Defendant is authorized and ordered, for tax purposes, to supply the Settlement Administrator with the social security numbers that Defendant has in its possession for Rule 23(b)(3) Validated Claims Made Class Members. 4. This action is hereby dismissed on the merits, with prejudice, and without costs. 5. Without affecting the finality of this judgment, the Court hereby reserves and retains jurisdiction over this action, including the administration and consummation of the settlement. In addition, without affecting the finality of this judgment, the Court retains exclusive jurisdiction over Defendant, Plaintiffs, and each Class Member for any suit, action, proceeding, or dispute relating to this Order or the Settlement Agreement. Without limiting the generality of the foregoing, any dispute concerning the Settlement Agreement, including, but not limited to, any suit, action, arbitration, or other proceeding by any Class Member in which the provisions of the Settlement Agreement are asserted as a defense in whole or in part to any claim or cause of action or otherwise raised as an objection, is a suit, action or proceeding relating to this Order. Solely for purposes of such suit, action, or proceeding, to the fullest extent possible under applicable law, the Parties hereto and all members of the Class are hereby deemed to have irrevocably waived and agreed not to assert, by way of motion, as a defense or otherwise, any claim or objection that they are not subject to the jurisdiction of this Court, or that this Court is, in any way, an improper venue or an inconvenient forum. 4
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 54 of 88 6. Upon consideration of Class Counsel s application for fees and expenses, the Court shall enter a separate Order awarding reasonable fees and expenses in an amount to be set forth in that Order. 7. The balance of the Settlement Fund, in the amount of Eight Million Three Hundred Ninety-Five Thousand Dollars and Zero Cents ($8,395,000.00), shall be paid by Defendant to the Settlement Administrator within ten (10) business days after the Effective Date, but only in the event that such payment has not previously been made. 8. Upon consideration of the application for an individual settlement and service award, Class Representatives Charmaine Freckleton and Thomas Just are each awarded the sum of Three Thousand Nine Hundred Dollars and Zero Cents ($3,900.00) in consideration for their respective individual claims against Defendant and the valuable service they have each performed for and on behalf of the Classes. 9. Upon consideration of the Parties request, the Maryland Volunteer Lawyers Network, the Minnesota Volunteer Lawyers Network, and Equal Justice Works are approved as cy pres recipients for purposes of the Settlement Agreement. 10. All Class Members shall be bound by all of the terms, conditions, and obligations of the Settlement Agreement, and all determinations and judgments in the action concerning the Settlement. 11. Neither the Settlement, nor any of its terms or provisions, nor any of the negotiations or proceedings connected with it, shall be construed as an admission or concession by any party of the truth of any allegation in the Lawsuit or of any liability, fault, or wrongdoing of any kind. 5
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 55 of 88 12. Final Judgment is hereby entered in this action, consistent with the terms of the Settlement Agreement. BY THE COURT: Dated: HON. GEORGE L. RUSSELL, III UNITED STATES DISTRICT JUDGE 6
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 56 of 88 Exhibit B
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 57 of 88 EXHIBIT B Injunctive Relief and Consent Order The Court, being fully advised in this matter, and pursuant to the parties agreement to settle this action, hereby orders that: 1. Target Corporation has revised its current Consent and Disclosure Forms to eliminate the verbiage highlighted in Exhibit A. 2. Target Corporation shall ensure that any revised Consent and Disclosure Forms, an exemplar of which is attached as Exhibit B, comply with 15 U.S.C. 1681b(b)(2) and FCRA State and Local Equivalents. 3. Target has revised its notices pursuant to 15 U.S.C. 1681 b(b)(3) and has taken steps to ensure and shall continue to ensure that an adverse action is taken no earlier than eight (8) days after sending the notice required under 15 U.S.C. 1681b(b)(3), and restrict access to any preliminary score of not cleared to proceed or any equivalent score until the eight (8) day period has passed. 4. Any action by Target Corporation determined in good faith to be reasonably necessary to comply with any federal, state, or local law, enactment, regulation, or judicial ruling shall not constitute a violation of this injunction. 5. In the event that any obligation under this injunction becomes inconsistent with any future federal, state, or local law, enactment, regulation, or judicial ruling, Target shall notify the Court and Class Counsel of the new obligation and the proposed change(s) to its Consent and Disclosure Forms. Within ten (10) business days of such notice, Class Counsel shall file any objections with the Court. If no objections are filed within ten (10) business days, Target shall automatically be permitted to implement the proposed change(s). 6. This injunction will remain in effect for one year from the date of entry.
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 58 of 88 Exhibit C
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 59 of 88 EXHIBIT C UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND CHARMAINE FRECKLETON AND THOMAS JUST, on behalf of themselves and all others similarly situated, Plaintiffs Case No. 14-cv-00807-GLR v. CLASS ACTION TARGET CORPORATION, Defendant ORDER PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT AND DIRECTING NOTICE TO CLASSES The Court, having reviewed the Settlement Agreement 1 entered into by the Parties and for the reasons set forth in the Memorandum in Support of the Parties Joint Motion for Preliminary Approval, hereby Orders that: 1. The Court provisionally certifies two classes for settlement purposes only, pursuant to Fed. R. Civ. P. 23(b)(2) and (3), as follows: (a) The Rule 23(b)(2) Settlement Class: All internal and external applicants for employment, promotion or transfer on whom Target Corporation obtained a consumer report for employment purposes beginning November 13, 2010, through November 13, 2016, who executed the Consent & Disclosure Form attached as Exhibit D to the Settlement Agreement or a form substantially similar, and who are not Excluded Individuals. (b) The Rule 23(b)(3) Settlement Class: 1 Unless otherwise defined herein, all capitalized terms in this Order have the same meaning as in the Settlement Agreement.
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 60 of 88 All internal and external applicants for employment, promotion, or transfer on whom Target Corporation obtained a consumer report for employment purposes beginning March 17, 2012, through June 13, 2016, who were not employed, promoted, or transferred by Target because of the consumer report, and who are not Excluded Individuals. 2. Excluded from the Classes are counsel of record (and their respective law firms) for any of the parties; the presiding judge in the action and his staff; and all members of their immediate families. 3. Excluded from the Rule 23(b)(3) Settlement Class are all persons who submit timely and valid requests to be excluded from that class pursuant to the terms of the Settlement Agreement and this Order. 4. The Settlement Agreement entered into between Plaintiffs Charmaine Freckleton and Thomas Just, and Defendant Target Corporation as of May 25, 2017 appears, upon preliminary review, to be fair, reasonable, and adequate to the Classes. Accordingly, the proposed settlement is preliminarily approved, pending a fairness hearing as provided for herein. 5. The Court finds this action is maintainable as a class action under Fed. R. Civ. P. 23(b)(2) and 23(b)(3) for settlement purposes. 6. Pursuant to Fed. R. Civ. P. 23, Plaintiffs Charmaine Freckleton and Thomas Just are approved as Class Representatives. This Court appoints the firms of Francis & Mailman, P.C.; Langer, Grogan & Diver, P.C.; and Gordon, Wolf & Carney, CHTD., as Class Counsel for both classes and the firm of Baillon Thome Jozwiak & Wanta as Class Counsel for the Rule 23(b)(2) Class only. 2
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 61 of 88 7. The Court will hold a Final Approval Hearing pursuant to Fed. R. Civ. P. 23(e) on, 2017, in Courtroom, United States District Court, 101 West Lombard Street, Baltimore, MD 21201, at.m. for the following purposes: (a) To finally determine whether, for purposes of settlement, this action satisfies the criteria for class certification set forth in Fed. R. Civ. P. 23(a) and (b); (b) To determine whether the proposed settlement is fair, reasonable, and adequate and should be granted final approval by the Court; (c) To determine whether a final judgment should be entered dismissing the claims of the Classes, with prejudice; (d) To consider the application of Class Counsel for an award of attorneys fees and expenses, and for individual settlement and service awards to the Class Representatives; and (e) To rule upon other such matters as the Court may deem appropriate. 8. Within thirty (30) calendar days of the entry of this Order, Defendant shall provide the Settlement Administrator with the Class List in readable and searchable electronic form. The Settlement Administrator shall proceed with the Notice Plan as set forth in the Settlement Agreement. 9. Within ten (10) calendar days of the entry of this Order, Defendant shall transfer the sum of One Hundred Five Thousand Dollars ($105,000) to an escrow account opened by the Settlement Administrator. 10. The Court finds that the manner of giving notice set forth in the parties Settlement Agreement fully satisfies the requirements of Fed. R. Civ. P. 23 and due process, constitutes the best notice practicable under the circumstances, and shall constitute due and sufficient notice to all persons entitled thereto. 3
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 62 of 88 11. The Settlement Administrator shall file, no later than twenty (20) days before the Final Approval Hearing, proof of transmittal of notice and of the establishment and maintenance of the settlement websites and telephone assistance program. 12. If a Rule 23(b)(3) Settlement Class Member chooses to opt-out of the Rule 23(b)(3) Settlement Class, such Rule 23(b)(3) Settlement Class Member is required to submit a written and signed exclusion request to the Settlement Administrator, post-marked on or before the date specified in the Rule 23(b)(3) Settlement Class Notice, which date shall be no later than forty (40) calendar days before the Final Approval Hearing. A Rule 23(b)(3) Settlement Class Member who submits a timely and valid exclusion request using the procedure identified in the Settlement Agreement shall be excluded from the Rule 23(b)(3) Settlement Class only for any and all purposes; he or she shall not be excluded from the Rule 23(b)(2) Settlement Class. No later than twenty (20) days prior to the Final Approval Hearing, Class Counsel shall file with the Court under seal, and serve on counsel, a list of all persons who have submitted timely and valid exclusion requests to the Settlement Administrator. 13. A Rule 23(b)(3) Settlement Class Member who does not file a timely and valid exclusion request shall be bound by all subsequent proceedings, orders, and judgments in the litigation. Prior to the date of the Final Approval Order, the Court may permit a Rule 23(b)(3) Settlement Class Member who has filed a timely and valid exclusion request to withdraw such exclusion request and to participate in the Rule 23(b)(3) Settlement Class as if such exclusion request had never been made. 14. An individual who is a member solely of the Rule 23(b)(2) Class has no right to exclude himself or herself from that class. 4
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 63 of 88 15. A Class Member may object to the settlement except that an individual who has excluded himself or herself from the Rule 23(b)(3) Settlement Class may object as a member of the Rule 23(b)(2) Settlement Class only. To exercise this objection right, the Class Member must provide written notice of the objection via first class mail to the Clerk of Court, Class Counsel, and Defendant s Counsel. For an objection to be considered by the Court, the objection must be postmarked on or before the date specified in the applicable Notice, which date shall be no later than forty (40) calendar days before the Final Approval Hearing. For an objection to be considered by the Court, the objection must also set forth: (a) (b) (c) the name of the litigation; the objector s full name, address, and telephone number; all grounds for the objection, accompanied by any legal support for the objection known to the objector or his counsel; (d) the number of times in which the objector has objected to a class action settlement within the five years preceding the date that the objector files the objection, the caption of each case in which the objector has made such objection, and a copy of any orders related to or ruling upon the objector s such prior objections that were issued by the trial and appellate courts in each listed case; (e) the identity of all counsel who represent the objector, including any former or current counsel who may be entitled to compensation for any reason related to the objection to the Settlement or fee application; (f) any and all agreements that relate to the objection or the process of objecting whether written or oral between objector or objector s counsel and any other person or entity; 5
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 64 of 88 (g) the identity of all counsel representing the objector who will appear at the Final Approval Hearing; (h) a list of all persons who will be called to testify at the Final Approval Hearing in support of the objection; (i) a statement confirming whether the objector and/or his or her attorney intends to personally appear and/or whether the objector intends to testify at the Final Approval Hearing; and (j) the objector s signature (an attorney s signature is not sufficient). Objections to Class Counsel s attorneys fees may be supplemented up to five (5) business days after the filing of the motion for such fees to address additional information or materials in the motion. 16. Any lawyer who intends to appear at the Final Approval Hearing must enter a written Notice of Appearance of Counsel with the Clerk of the Court no later than forty (40) calendar days before the Final Approval Hearing and shall include the full caption and case number of each previous class action case in which that counsel has represented the objector. 17. The right to object must be exercised individually by an individual Class Member, not as a member of a group or subclass and, except in the case of a deceased or incapacitated Class Member, not by the act of another person acting or purporting to act in a representative capacity. 18. All briefs, memoranda, petitions and affidavits to be filed in support of final approval of the settlement, for individual awards to the Class Representatives, and for an award of attorney s fees and expenses, shall be filed no later than ten (10) business days before the Final Approval Hearing. 6
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 65 of 88 19. The Court retains exclusive jurisdiction over this action to consider all further matters arising out of or connected with the Settlement Agreement. Dated: BY THE COURT: HON. GEORGE L. RUSSELL, III UNITED STATES DISTRICT JUDGE 7
Case 1:14-cv-00807-GLR Document 118-1 Filed 05/26/17 Page 66 of 88 Exhibit D
Case 1:14-cv-00807-GLR 1:14-cv-00807-WDQ Document 118-1 92-1 Filed 05/26/17 10/26/15 Page 67 1 of 188 Extraneous marketing rhetoric that discloses nothing about consumers FCRA rights. Purpose, meaning and intent unclear. Extraneous and/or redundant disclosure about possible future background investigations. Extraneous, confusing and improper language giving Target authorization to share consumers application information with unspecified other persons and law enforcement agencies/government. Unclear what information will be shared, and who it will be shared with. Attempts to expand FCRA s consumer report consent provision to a blanket authorization to share all applicant information with anyone and for any purpose. Incorrect and extraneous statement of FCRA rights. Since 1996, under the FCRA, a consumer is entitled to all information in his or file upon making a request to a consumer reporting agency (i.e. LexisNexis), not merely the nature and scope of the report that was obtained. See 15 U.S.C. 1681g. Also includes extraneous information about inapplicable statespecific law. Extraneous false statement of law. Under the FCRA, consumers can dispute inaccuracies on their consumer reports at any time. See 15 USC 1681i. In addition, employer is required under the FCRA to wait before taking any adverse action based upon the report.