EDUARDO C. ROBRENO, District Judge.
1. For purposes of this Action, this Court has subject matter jurisdiction and, for purposes of the settlement only, this Court has personal jurisdiction over the Parties, including all members of the Settlement Class.
2. The Court finds that the distribution of the Revised Notice of Pendency of Class Action, Settlement, Hearing Date for Court Approval and Claims Procedure, as provided for in the Order Granting Preliminary Approval of the Settlement, ECF Nos. 43, 44, constituted the best notice practicable under the circumstances to the Settlement Class and constituted due and sufficient notice to all persons entitled thereto.
3. For purposes of this settlement only, this Court certifies the following Settlement Class: "All current and former operations and laboratory employees employed by Defendant at its Philadelphia Refinery at any time from February 24, 2007 through the present." Joint Stipulation of Settlement and Release ¶ 3, Pls.' Mot. for Preliminary Approval of Settlement Ex. 1, ECF No 39-1. The Settlement Class is certified pursuant to Federal Rule of Civil Procedure 23(b)(3).
4. This Court finds, solely for purposes of this settlement, that the Action may be maintained as a class action on behalf of the Settlement Class because: (a) the Settlement Class is so numerous that joinder of all members of the Settlement Class in the Action is impracticable; (b) there are questions of law and fact common to the members of the Settlement Class that predominate over any individual questions; (c) Plaintiffs' claims are typical of the claims of the Settlement Class; (d) Plaintiffs and Class Counsel have fairly and adequately represented and protected the interests of the Settlement Class; and (e) a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
5. This Court approves the Settlement Agreement as being fair, reasonable, and adequate.
It is hereby further
It is hereby further
It is hereby further
This Joint Stipulation of Settlement and Release ("Settlement Agreement") is made and entered into by and between the following: Plaintiffs, Matthew Ripley, James P. Savage, Jr., Gabriel Swartz, Michael Olsen, Anne Minor, Joseph M. Gross and Richard J. Sim, individually and on behalf of all others similarly situated (collectively, "Plaintiffs") and Defendant Sunoco, Inc. (R&M) ("Defendant" or "Sunoco"). This Settlement Agreement is subject to the terms and conditions hereof and to the approval of the Court.
1. The Plaintiffs and Defendant herein are collectively referred to as "the Parties." "Class Counsel" is Egan Young and Galfand Berger, LLP.
2. On February 24, 2010, Plaintiffs filed a proposed Class Action Complaint in the Court of Common Pleas of Philadelphia County, Pennsylvania. Plaintiffs filed suit on behalf of themselves and other similarly situated current and former operations and maintenance workers employed by Sunoco at its refinery located at 3144 West Passyunk Avenue, Philadelphia, Pennsylvania (the "Philadelphia Refinery"). The Complaint alleged that Sunoco and two individual defendants had failed to pay Plaintiffs wages and overtime for all required work time, including but not limited to, time spent clearing a security checkpoint at the beginning of each work shift, engaged off-site and off-the-clock while "on call", donning and doffing personal protective equipment, obtaining and storing work tools, traveling to and from assigned work sites, preparing and cleaning work equipment, and engaged in required shift change briefings with co-workers. The Complaint was removed to the United States District Court for the Eastern District of Pennsylvania. Thereafter, Plaintiffs stipulated to dismiss claims against the two individual defendants. Plaintiffs also dismissed all claims on behalf of the maintenance workers at the Philadelphia Refinery with prejudice. Defendant denied liability and asserted numerous defenses to class certification and on the merits. Following pre-class certification discovery, the Parties commenced arms-length settlement negotiations in which the Parties were each represented by competent counsel. The Parties participated in extensive direct settlement negotiations as well as two settlement conferences presided over by United States Chief Magistrate Judge Thomas Rueter, Having each fully considered the costs and risks associated with continued litigation of this action, Plaintiffs and Defendant enter into this Settlement Agreement for the purposes of resolving all claims in the Complaint as amended.
3. For purposes of this Settlement Agreement, the "Settlement Class" or "Class Members" consists of all current and former operations and laboratory employees employed by Defendant at its Philadelphia Refinery at any time from February 24,2007 through the present.
4. By entering into this Agreement, Defendant in no way admits any violation of law or any liability whatsoever to Plaintiffs and/or the Class, individually or collectively, all such liability being expressly denied. Likewise, by entering into this Agreement, Defendant in no way admits to the suitability of this case for class or collective action litigation other than for purposes of settlement. Rather, Defendant enters into this Agreement to avoid further protracted litigation and to resolve and settle all disputes with Plaintiffs and the Class. Settlement of the Litigation, negotiation and execution of this Agreement, and all acts performed or documents executed pursuant to or in furtherance of this Agreement or the settlement: (a) are not, shall not be deemed to be, and may not be used as an admission or evidence of any wrongdoing or liability on the part of Defendant or of the truth of any of the factual allegations in any and all Complaints filed in the Lawsuit; (b) are not, shall not be deemed to be, and may not be used as an admission or evidence of fault or omission on the part of Defendant in any civil, criminal, administrative or arbitral proceeding; and (c) are not, shall not be deemed to be, and may not be used as an admission or evidence of the appropriateness of these or similar claims for class certification or administration or collective action treatment other than for purposes of administering this Agreement. The Parties understand and agree that this Agreement and all exhibits thereto are settlement documents and shall be inadmissible in evidence in any proceeding, except an action or proceeding to approve, interpret, or enforce the terms of the Agreement.
5. It is the desire of the Parties to fully, finally, and forever settle, compromise, and discharge all disputes and claims that have been brought in the action or that reasonably arise out of the facts alleged in the action which exist between them.
6. It is the intention of the Parties that this Settlement Agreement shall constitute a full and complete settlement and release, which release includes in its effect Sunoco, Inc. (R&M), its parent, subsidiaries, affiliates and all other related entities; its and their predecessors, successors and assigns; the past, present, and future officers, directors, shareholders, trustees, members, employees, attorneys and agents of any of the previously listed entities; any benefits plan maintained by any of the previously listed entities at any time; and the past, present and future sponsors, insurers, trustees, fiduciaries, and administrators of such benefit plans.
7. Class Counsel have conducted a thorough investigation into the facts of the action, including an extensive review of voluminous documents, written discovery, and have diligently pursued an investigation of Class Members' claims against Defendant. Based on their own independent investigation and evaluation, Class Counsel is of the opinion that the settlement with Defendant for the consideration and on the terms set forth in this Settlement Agreement is fair, reasonable, adequate, and in the best interest of the Class in light of all known facts and circumstances, including the risk of significant delay, defenses asserted by Defendant, and potential appellate issues. Defendant and Defendant's counsel also agree that the settlement is fair and in the best interest of the Settlement Class.
8. Subject to certain provisions herein, the Parties agree to cooperate and take all steps necessary and appropriate to dismiss the action with prejudice upon complete performance of the terms and conditions of the settlement.
9. The total payments under this Settlement Agreement shall be $675,000, inclusive of attorneys' fees and costs (including administration costs), subject to the provisions contained herein regarding reversion and distribution of funds. The sum of $675,000 shall be referred to herein as the "Settlement Fund."
10. Class Counsel will apply to the Court for an award of attorneys' fees in the amount of $222,750.00 — or thirty-three (33%) of the total amount of the Settlement Fund. Class Counsel will also seek from the Court an award of reasonable litigation costs, including administration costs, out of the Settlement Fund. Defendant does not contest Class Counsel's application for attorneys' fees
11. At no time will Defendant be responsible for payment of any monies in excess of the Settlement Fund.
12. NOW, THEREFORE, in consideration of the mutual covenants, promises, and warranties set forth herein, the Parties agree, subject to the Court's approval, as follows:
(a) It is agreed by and among the Parties that the action and any claims, damages, or causes of action arising out of the dispute which is the subject of the action, or that reasonably arise out of the facts alleged in the action, be settled and compromised as between the Settlement Class and Defendant, subject to the terms and conditions set forth in this Settlement Agreement and the approval of the Court.
(b)
(c) "
(d)
(i) In consideration for settlement and a release of all claims of the Settlement Class against Defendant, Defendant agrees to pay, through payments from the Net Settlement Fund, to each Class Member who was employed by Defendant as an operations or laboratory employee at any time during the relevant Class Period, and who submits a valid and timely Claim Form a payment based on the following settlement formula: Each Class Member will be compensated on a pro rata basis for each Qualifying Calendar Quarter worked during the class period ("Qualifying Quarter"). A Qualifying Quarter is each three (3) month period during which an eligible employee worked (time when the employee was present and paid according to Sunoco payroll records) for at least 8 weeks. The individual settlement amount shall be calculated as a share of the Net Settlement Fund based upon the total number of Calendar Quarters worked by the Class. All Claim Forms must be signed, completed in their entirety, and timely mailed to be considered valid. The "Net Settlement Fund" is the balance of the Settlement Fund after deducting: (1) the payments made from the Settlement Fund for attorneys' fees and costs, including administration costs, and (2) a contingency fund of $ $25,000.00 to be administered by Class Counsel for use in addressing any late or disputed claims by Class Members or unanticipated costs of concluding this settlement (the "Contingency Fund").
(ii) Class Counsel will apply to the Court for, and Defendant will not oppose, an award of attorneys' fees in the amount of $222,750.00 of the total Settlement Fund to be paid out of the Settlement Fund. Class Counsel will also seek reimbursement of reasonable litigation costs, including its costs for administration of this settlement ("Administration Costs"), to be paid out of the Settlement Fund. Plaintiffs expressly waive and release any claim to any attorneys fees, costs and expenses against Defendant.
(iii) For purposes of payment of the settlement amount, Defendant will issue two settlement checks to each Class Member. All Settlement payments to the Class Members shall be allocated as follows: $500 per employee shall be allocated to the payment of liquidated damages. The remainder shall be allocated as payment of wages.
(e) Defendant shall pay, separate and apart from the Settlement Fund, the employer portion of statutory payroll taxes. The Parties agree that the portion of payments to Class Members allocated to liquidated damages shall not be treated as wages and shall not be subject to withholding taxes. Defendant shall provide each Settlement Class Member receiving a payment from the Settlement Fund with a Form W-2 and Form 1099 as required by law consistent with the allocation set forth in paragraph 12(d)(iii) above. Payments made under this Settlement Agreement will not be included in a Settlement Class Member's compensation for purposes of calculating the benefits to which they are entitled under any employee benefit program.
(f) Defendant shall mail payments to Settlement Class Members by the later of: (1) ten (10) business days of Defendant's receipt from Class Counsel of an electronic version of an Excel Spreadsheet reflecting the gross amount of the settlement payments for each Class Member pursuant to paragraph 12(d) above, or (2) within ten (10) business days of the Effective Date of Settlement.
(g) Defendant shall wire transfer or deliver to Class Counsel payment of the attorney fees and costs within ten (10) business days of the Effective Date of Settlement.
(h) Qualified claimants will be only those individuals of the Settlement Class who submit a claim form that is signed and postmarked in a timely manner. For each Class Member submitting a claim, the Class Member's estimated share of the Net Settlement Fund will be reflected on the Claim Form. Qualified claimants may challenge the information on their Claim Form by making a challenge to Class Counsel, acting as the settlement administrator, within the time period provided for submitting the Claim Form, which challenge will be resolved without hearing by Class Counsel, who will make a final and binding determination without right to appeal.
(i) Any scheduled payments due to Class Members who opt-out of the settlement or who do not submit timely Claims Forms will be paid to a mutually agreed upon Cy Pres beneficiary.
13. The Parties have agreed that Class Counsel will perform the duties of a Settlement Administrator for the purpose of issuing Claim Forms, independently reviewing the Claim Forms, documentation associated with computation of Class Members' estimated shares of the Settlement Fund, and verifying any amounts due to qualified claimants as set forth in this Settlement Agreement. At the same time, the parties agree that Class Counsel may engage a Settlement Claims Administrator to assist in the facilitation of the settlement process as set forth herein. Class Counsel shall report, in summary or narrative form, the substance of its findings. All disputes relating to Class Counsel's ability and need to perform its duties shall be referred to the Court, if necessary, which will have continuing jurisdiction over the terms and conditions of this Settlement Agreement, until all payments and obligations contemplated by the Settlement Agreement have been fully carried out.
14. A Notice of Pendency of Class Action Settlement, Hearing Date for Court Approval and Claims Procedure ("Notice") in the form attached hereto as
(a) Class Counsel shall use the information in its files and information provided by Defendant to compile a database of all Settlement Class Members, including last known address and telephone number, and estimated time worked in a operations or lab position, as the case may be, for purposes of providing Notice and calculating the individual settlement payments. Defendant agrees to provide Class Counsel with any information available in its files necessary to supplement the database within five (5) business days of a written request by Class Counsel.
(b) Class Counsel will perform and/or direct and oversee a designated settlement claims administrator to do an address updating check prior to mailing and will use skip tracing or other appropriate steps to ensure that, the Notice and Claim Form is sent to all Class Members.
(c) Class Counsel shall act diligently and take appropriate and reasonable steps to assist Class Members in making claims hereunder.
15. Upon approval by the Court of the Claim Form attached hereto as Exhibit B, the Claim Form shall be mailed to all Class Members along with the Notice described above.
16. Class Counsel shall compute an allocation of settlement amounts from the Net Settlement Fund for all Class Members in this action, as identified herein. In connection with sending the Settlement Notice and Claim Forms, members will be advised that the preliminary allocation is subject to adjustment based on any errors discovered in the claims process. Class Members may provide the Settlement Administrator with additional documentation consisting of Defendant's records, such as payroll documents, as provided in Paragraph 12(h) above.
17. No Claim Forms will be honored if postmarked more than forty-five (45) days after the date mailed to Class Members, except that additional time may be provided to a claimant for good cause and within an amount of time determined by the Class Counsel not to exceed fifteen (15) days.
18. Class Members will have forty-five (45) days from mailing of the Settlement Notice to object to or opt out of the settlement as outlined in Sections VI and VII of the Notice of Pendency of Class Action form. During that time period, Class Counsel may contact Class Members as often as appropriate in order to obtain the executed Claim Forms in a timely manner and increase participation in the settlement.
19. All original Claim Forms shall be sent directly to Class Counsel at the address indicated on the Claim Form. Class Counsel shall review the Claim Forms and make any calculations of payments to be distributed as described above by reviewing the Claim Forms and documentation and calculating such claiming Class Members' shares. Class Counsel will notify Defendant's counsel what claims were timely filed.
20. In the event a Claim Form is submitted timely but is deficient in one or more aspects, Class Counsel shall return the Claim Form to the claimant with a letter explaining the deficiencies and that the claimant shall have fourteen (14) days from the date of the deficiency notice to correct the deficiencies and resubmit the Claim Form. The envelope containing the resubmitted Claim Form must be postmarked within fourteen (14) days of the date of the deficiency notice to be considered timely unless there is a showing of good cause of additional time. No claimant will be provided a second notice of deficiency, except upon a showing of good cause.
21. Upon receipt of all Claim Forms and resolution of any challenges of the allocations of settlement amounts, Class Counsel shall prepare and provide to Defendant a final allocation of the Net Settlement Fund payments to each of the Class Members. Any settlement allocated to Class Members who opt-out of the settlement or who do not timely return Claim Forms will be paid to a mutually agreed-upon Cy Pres beneficiary This information shall be provided to Defendant's counsel in an Excel spreadsheet. At the same time, Class Counsel shall also provide Defendant with the amounts of attorneys' fees, costs, and Administration Costs, Contingency Fund. Defendant is responsible for issuing the payments and issuing the Form W-2 and Form 1099 and any other required state and federal tax forms as set forth in Paragraph 12(e) above. Defendant will file a declaration of payment with the Court and provide a copy to Class Counsel.
22. Defendant agrees that it will issue from the Settlement Fund the settlement checks to the Class Members and wire transfer or deliver to Class Counsel the attorneys fees and costs, including Administration Costs and the Contingency Fund, within the time frames provided in paragraphs 12(f) and 12(g) above. If there is any appeal of the District Court's Order approving the settlement of the action, Defendant agrees to put the Settlement Fund into an interest bearing escrow account acceptable to both Class Counsel and Defendant, which funds shall be held in trust for the Settlement. When the District Court's Order thereafter becomes final, the principal and interest will be released to Defendant for distribution to the Class Members and the named Plaintiffs, less the amount awarded to Class Counsel as reasonable attorneys' fees and costs, including Administration Costs, which will be released to Class Counsel as payment therefor. Accrued interest will be credited pro rata to the Net Settlement Fund, payments to named Plaintiffs, Class Counsel's reasonable attorneys' fees and costs awarded, including Administration Costs, in the amounts approved by the District Court. If the District Court's Order is reversed on appeal and this settlement not approved and one or both of the Parties exercises its option to void the Settlement Agreement pursuant to Paragraphs 29 - 31 below, the full amount of the Settlement Fund plus any interest actually earned will be returned to Defendant.
23. Claimants shall have ninety (90) calendar days after mailing by Defendant to cash their settlement checks. If any claimants do not cash their checks within that 90-day period, their check will be void and a stop-pay will be placed. In such event, those claimants will be deemed to have waived irrevocably any right in or claim to a settlement share, but the Settlement Agreement will nonetheless be binding upon them.
24. Should there remain any residual from the Settlement Fund after all payments are made under this Settlement Agreement, for example, if claimants do not cash their settlement checks within ninety (90) calendar days after mailing or if the Contingency Fund is not exhausted, the parties agree that any such residential funds shall be paid to a mutually agreed Cy Pres beneficiary. Any costs associated with administering the residual (e.g., bank stop pay charges) will be deducted from the residual before donation to the Cy Pres beneficiary.
25. By operation of the entry of the Judgment and Final Approval, and except as such rights or claims as may be created by this Agreement, Plaintiffs and each Individual Class Member who does not timely opt out of the settlement forever and fully release Sunoco, Inc. (R&M), its parent, subsidiaries, affiliates and all other related entities; its and their predecessors, successors and assigns; the past, present, and future officers, directors, shareholders, trustees, members, employees, attorneys and agents of any of the previously listed entities; any benefits plan maintained by any of the previously listed entities at any time; and the past, present and future sponsors, insurers, trustees, fiduciaries, and administrators of such benefit plans from any and all past and present matters, claims, demands, and causes of action of any kind whatsoever, whether at common law, pursuant to statute, ordinance, or regulation, in equity or otherwise, and whether arising under federal, state, or other applicable law, which an such Class Member has or might have, known or unknown, asserted or unasserted, of any kind whatsoever, that are based upon or arise out of the facts, acts, transactions, occurrences, events or omissions alleged in this Litigation and that arose during any time that such Class Member worked for Sunoco as an operations or laboratory employee from February 24, 2007 through the Effective Date ("Released Claims"). The Released Claims include without limitation claims asserted in this Litigation and any other claims based on failure to pay wages and overtime for all required work time, including but not limited to, time spent clearing a security checkpoint at the beginning of each work shift, engaged off site and off-the-clock while "on call", donning and doffing personal protective equipment, obtaining and storing work tools, traveling to and from assigned work sites (including walking or riding from the locker rooms to the control rooms), preparing and cleaning work equipment and engaging in required shift change briefings with co-workers, or failure to keep records of hours worked or compensation due, and penalties for any of the foregoing, including without limitation claims under the Fair Labor Standards Act ("FLSA"), the Pennsylvania Minimum Wage Act, the Pennsylvania Wage Payment and Collection Law, the common law of Pennsylvania, and the statutes and regulations of all other states relating to the foregoing.
26, The Parties shall stipulate to the amendment of the Complaint to include a claim for violation of the Fair Labor Standards Act.
27. The Parties shall submit this Settlement Agreement to the United States District Court for the Eastern District of Pennsylvania, in support of Plaintiffs' Motion for Preliminary Approval and determination by the Court as to its fairness, adequacy, and reasonableness. Promptly upon execution of this Settlement Agreement, the Parties shall apply to the Court for the entry of a preliminary order substantially in the following form:
(a) Scheduling a fairness hearing on the question of whether the proposed settlement should be finally approved as fair, reasonable, and adequate as to the Members of the Class;
(b) Approving as to form and content the proposed Notice of Pendency of Class Action and Proposed Settlement;
(c) Approving as to form and content the proposed Claim Form and Claim Filing instructions;
(d) Directing the mailing of the Notice of Pendency of Class Action and Proposed Settlement and Claim Form by first-class mail to the Class Members;
(e) Preliminarily approving the settlement;
(f) Approving the appointment of Class Counsel's designed Settlement Claims Administrator and preliminarily approving costs of administration payable to the Settlement Administrator, estimated to be $25,000;
(g) Preliminarily approving Plaintiffs' application for payment of reasonable attorneys fees and costs as set forth herein; and
(h) Approving amendment of the Complaint to include a Fair Labor Standards Act claim.
28. Following final approval by the Court of the settlement provided for in this Settlement Agreement, Class Counsel will submit a proposed final order and judgment:
(a) Approving the settlement, adjudging the terms thereof to be fair, reasonable and adequate, and directing consummation of its terms and provisions;
(b) Approving Class Counsel's application for an award of attorneys' fees and reimbursement costs;
(c) Dismissing the action on the merits and with prejudice and permanently barring all Settlement Class Members from prosecuting against Defendant or its present and former parents, subsidiaries, general partners, limited partners, members, shareholders, officers, directors, employees, agents, servants, registered representatives, attorneys, insurers, affiliates, successors and assigns, any individual or Class claims which were asserted in or which reasonably arise out of the facts alleged in the Complaint, including without limitation any claims arising out of the acts, facts, transactions, occurrences, representations, or omissions set forth in the Complaint, upon satisfaction of all payments and obligations hereunder.
29. A failure of the Court to approve any material condition of this Settlement Agreement which effects a fundamental change of the parties' settlement shall render the entire Settlement Agreement voidable and unenforceable as to all of the Parties herein at the option of either party.
30. As a condition of the Settlement Agreement, the Company and the United Steelworkers International Union and the Philadelphia Local 10-1 (the "Union") shall enter into a Memorandum of Agreement Regarding Wage and Hour Practices attached as Exhibit C hereto. Failure of the Union to sign this Memorandum of Agreement shall void this Settlement Agreement in its entirety.
31. Defendant also retains the right to void this Settlement Agreement in its entirety if greater than five percent (5%) of the Settlement Class reject the settlement and/or dismissal of the claims.
32. The signatories hereby represent that they are fully authorized to enter into this Settlement Agreement and bind the Parties hereto to the terms and conditions hereof.
33. 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, Class Counsel shall, with the assistance and cooperation of Defendant and its counsel, take all necessary steps to secure the Court's final approval of this Settlement Agreement.
34. In the event that one or more of the Parties to this Settlement Agreement institutes any legal actions or proceedings to enforce or implement the provisions of this Settlement Agreement, the successful party or parties shall he entitled to recover from the unsuccessful party or parties' reasonable attorney fees and costs, including expert witness fees incurred in connection therewith.
35. 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 United States registered or certified mail, or overnight carrier, return receipt requested, addressed as follows;
36. The Parties hereto agree that the terms and conditions of this Settlement Agreement are the result of lengthy, intensive, arm's-length negotiations between the Parties and that this Settlement Agreement shall not be construed in favor of or against any party by reason of the extent to which any party or his or her or its counsel participated in the draft of this Settlement Agreement.
37. Paragraph titles or captions contained herein are inserted as a matter of convenience and for reference, and in no way define, limit, extend, or describe the scope of this Settlement Agreement or any provisions hereof. Each term of this Settlement Agreement is contractual and not merely a recital.
38. This Settlement Agreement may not be changed, altered, or modified, except in writing and signed by the Parties hereto, 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 the Parties hereto.
39. This Settlement Agreement constitutes 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.
40. This Settlement Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, trustees, executors, administrators, and successors. The Parties hereto 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 except as set forth herein.
41. It is agreed that because the Class Members are so numerous, it is impossible or impractical to have each Class Member execute this Settlement Agreement. The Notice of Pendency of Class Action and Proposed Settlement, Exhibit A hereto, will advise all Class Members of the binding nature of the release and such shall have the same force and effect as if this Settlement Agreement were executed by each Class Member.
42. Class Counsel agrees not to issue any press release or to seek any publicity regarding this settlement that makes any statement that contradicts any of the terms of this Agreement or which is disparaging or damaging to the business organization, goodwill or reputation of Defendant.
43. 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 on Settlement Agreement, which shall be binding upon and effective as to all of the Parties.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the date indicated below:
