Beruflich Dokumente
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STIPULATION OF SETTLEMENT
This Stipulation of Settlement ("Agreement" or "Stipulation") is made by and between
the Plaintiffs Wanda Estrada, Walter Estrada, Jonathan Estrada, and Natalie Estrada ("Named
Plaintiffs"), individually and on behalf of all other persons similarly situated ("Plaintiffs"), and
Defendant Progressive Direct Insurance Company ("Defendant" or "Progressive" (as defined
RECITALS
WHEREAS, Plaintiffs filed a purported Class Action Complaint, which is now pending
in the United States District Court for the District of Massachusetts, Boston Division (the
A9l27lI5 Page 2 of 65
o'Court"), now entitled V/anda Estrada, Walter Estrada, Jonathan Estrada, and Natalie Estrada,
individually and on behalf of all other persons similarly situated vs. Progressive Direct Insurance
Company, Civil Action No. 3:12-CV-30020-FDS (the "Action") which, through this Settlement,
will
be accepted as a certified class action, but for settlement purposes only, on behalf of the
WHEREAS, Plaintiffs allege they were Progressive insureds for purposes of personal
injury protection ("PIP") coverage under a Progressive auto insurance policy that was purchased
by Wanda Estrada via Progressive's Massachusetts direct sales website ("Massachusetts
website"); and
WHEREAS, the Action alleges that, as a result of Ms. Estrada's answering "yes" to a
question on the Massachusetts website that asked whether all members of her household were
covered by health insurance (the "health insurance question"), the Massachusetts website
automatically recommended that she purchase an auto insurance policy that contained an $8,000
PIP deductible instead of a $0.00 PIP deductible, which she did;and
WHEREAS, the Action alleges that the Named Plaintiffs were involved in an auto
accident, sought PIP benefits under Ms. Estrada's Progressive auto insurance policy, and were
denied PIP benefits due to the $8,000 PIP deductible on the policy; and
WHEREAS, the Action alleges that the Massachusetts website did not contain sufficient
information and disclosures regarding PIP coverage and the operation of the PIP deductible, and
that the operation of the Massachusetts website constituted unfair or deceptive acts or practices
in the conduct of trade or commerce, in violation of Massachusetts General Laws, chapter 934;
and
WHEREAS, Progressive has defended and intends to vigorously contest each and every
claim in the Action, denies all material allegations of the Action, as to which Progressive asserts
it has numerous merits and class defenses, and further maintains that it has consistently acted in
accordance with governing laws at all times; and
WHEREAS, Plaintiffs' Counsel has been provided with sufficient discovery to evaluate
the legal and factual merits of the claim and defenses at issue in the Action; and
WHEREAS, during the mediation and settlement negotiations, the parties agreed on the
material terms of this Settlement Agreement; and
WHEREAS, Plaintiffs, through counsel, believe that the claims asserted in the Action
have substantial merit, examined the benefits to be obtained under the terms of the Settlement,
considered the risks associated with the continued prosecution and possible appeal of this
complex and time-consuming litigation and the likelihood of success on the merits of the Action,
and believe that, in consideration of
Agreement is fair, reasonable, adequate and in the best interests of the Settlement Class
Members; and
without admiuing liability, nevertheless agreed to enter into this Agreement to avoid further
expense, inconvenience and the distraction of burdensome and protracted litigation, andto be
completely free of any further controversy with respect to the claims which were asserted or
could have been asserted in, or relate in any way whatsoever to, the Action;
I.
DEFINITIONS
In addition to the foregoing, the following terms shall have the meanings set forth below:
1.
exhibits thereto.
2.
Company, l2-CV-30020 FDS pending in the United States District Court for the District of
Massachsuetts.
3.
4.
"Claim Period" means the period commencing on the InitialNotice Date and
continuing until thirty (30) calendar days after the entry of Final Judgment.
5.
Faribault, MN 55021. The Settlement Administrator shall be approved by the Court in the
Preliminary Approval Order.
6.
"Class Counsel" means: Connor, Morneau & Olin, LLP,273 State Street,
Springfield, MA 0l 103 and Alekman DiTusa, LLC, I 550 Main Street, Springfield, MA 0l 103
7.
"Class Notice" means the Short Form Notice, substantially in the form attached
hereto as Exhibit
l;
Long Form Notice substantially in the form attached hereto as Exhibit 4, and
Reminder Postcard Notice substantially in the form attached hereto as Exhibit 3, subject to
changes agreed to by the Parties for accuracy, formatting, or clarity.
8.
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l,
Page 5 of 65
of
9.
"Court" means the United States District Court for the District of Massachusetts,
Boston Division.
10.
"Direct Mail" Claim Form shall mean the Claim Form substantially in the form
attached as Exhibit 2 to this Agreement, subject to changes agreed to by the Parties for accuracy,
formatting, or clarity.
1.
12.
"Effective Date" means that date defined in Section XII of this Agreement.
"Final Judgment" orooFinal Approval Order" means the Court's Final Approval
Order and Final Judgment, that finally approves the Settlement and dismisses the Action with
prejudice, which shall be substantially in the form attached as S[i!!!l to this Agreement,
subject to changes agreed to by the Parties for accuracy, formatting, or clarity.
13.
ooFinal
approval hearing at which the Court shall determine whether to grant final approval of this
Settlement Agreement and consider any objections to the Settlement Agreement.
14.
is related to the Named Insured by blood, mariage, or adoption. This includes wards, step-
15.
"Initial Notice Date" means the date upon which the Class Notice is first mailed
16.
ooNamed
Insured" means the frst person in whose name the insurance policy is
issued.
5
17.
"Named Plaintiffs" means Wanda Estrada, Walter Estrada, Jonathan Estrada, and
Natalie Estrada.
18.
"Parties" means the Settlement Class Members, including the Named Plaintiffs,
and Progressive.
19.
20.
"Preliminary Approval Order" means the order that preliminarily approves the
[|!f
to this Agreement,
21.
22.
23.
ooProgressive"
XV.
"Released Claims" means and includes any and all known and Unknown Claims
whatever kind or nature, whether in contract, tort or in equity, debts, liens, liabilities,
agreements, interest, costs, expenses, attorneys' fees, losses or damages (whether actual,
consequential, treble, statutory andlor punitive or exemplary or other) of or by a Settlement Class
judgment; unfair competition; unjust enrichment; deceptive practices; unfair business practices;
O9l27lI5 Page 7 of 65
breach of fiduciary duty; breach of the implied covenant of good faith; mental or emotional
distress and/or common law or statutory bad faith.
24.
ooReleased
Persons" means:
a.
b.
all of the past and present offlrcers, directors, employees, agents, attorneys,
c.
25.
'oRequest for
26.
"Settlement" means the terms and conditions of this Agreement reached by the
27.
28.
"Settlement Class Members" means Persons who fall within the Settlement Class
29.
30.
that
will
contain the most recent filed Complaint, the Court's Order granting Preliminary
Approval, the Short Form Notice and Long Form Notice. The Settlement Website will also
identify key deadlines (e.g., the Claim Form deadline, the Request for Exclusion Deadline,
Objection Deadline, the date of Final ApprovalHearing), instruct Settlement Class Members on
how to submit Claim Forms or Request for Exclusion, or How to Object. The Settlement
website shall also include a "Frequently Asked Questions" section.
31
insurance policy that was initially purchased from Progressive over its website during the period
from May 1,2008 through April27,2010,rcgarding which policy the applicant answeredooyes"
to the health insurance question on the website, and which policy contained an $8,000 PIP
deductible. The Subject Policies will include all renewals of an initial Subject Policy that (a)
continue to contain an $8,000 PIP deductible and (b) were issued without change to the
deductible.
32.
"Unknown Claims" means claims arising out of facts found hereafter to be other
than or different from the facts now believed to be true, relating to any matter covered by this
Agreement, as to any of the Released Claims, as specifically defined above, so that each
Settlement Class Member shall be deemed to have expressly waived any and all Unknown
Claims relating to any matter covered by this Agreement to the full extent permitted by law, and
to the
II.
res
judicata protections.
33.
The "Settlement Class" means (a) all Named Insureds under a Subject Policy and
(b) all Household Members and all other individuals eligible for coverage under a Subject
Policy, who (i) were involved in an automobile accident for which the Subject Policy potentially
provided PIP coverage, (ii) submitted a PIP claim to Progressive for PIP coverage as a result of
the accident, and
(iii)
had that PIP claim wholly denied due to the $8,000 PIP deductible during
the Class Period. Excluded from the Class are: all present or former officers and/or directors
of
Progressive, Class Counsel and their resident relatives, Progressive's counsel of record and their
resident relatives, and the Judge in this case and his resident relatives.
8
ilI.
PRELIMINARYCLASSCERTIFICATION
34.
Within ten (10) calendar days following execution of this Agreement, the Parties
shall submit this Agreement to the Court and jointly request the Court to enter a Preliminary
Approval Order, which shall be substantially in the form set forth in Ebijll, subject to
changes agreed to by the parties for accuracy, formatting, or clarity
35.
For purposes of this Settlement only, the Parties stipulate and agree to the
certification of the Settlement Class and that: (i) the Settlement Class meets the requirements of
Federal Rule of Civil Procedure 23(a) and (bX3); (ii) the proposed notice is the best and most
practicable under the circumstances, and satisfies the requirements of Rule 23 and Due Process;
and
36.
Settlement Class Representatives and Class Counsel by the Court shall be binding only with
respect to the Settlement of the
terms, or a Final Judgment for any reason does not occur, the certification of the Settlement
Class shall be nullified, and the Action shall proceed as though the Settlement Class had never
been certified, without prejudice to the Court's consideration, on the merits, of any properly
submitted Motion for Class Certification. The Named Plaintiffs and Class Counsel agree that
neither this Agreement, nor any pleading or other paper related in any way.to this Agreement,
nor any act or communication in the course of negotiating, implementing or seeking approval
of
this Agreement, shall be deemed an admission by the Named Plaintiffs or Class Counsel of any
matter related in any manner thereto, or by Progressive, that certification of any class is
appropriate in this litigation or any other litigation, or otherwise shall preclude Progressive from
opposing or asserting any argument it may have with respect to certifrcation of a class in this or
any other matter.
37.
entry of the Preliminary Approval Order, allproceedings in the Action shall be stayed until
further order of the Court, except such proceedings as may be necessary either to implement the
Settlement or to comply with or effectuate the terms of this Agreement. Additionally, any other
litigation against Progressive that includes claims that fall within the scope of this Agreement
shall be stayed or enjoined by the Court.
IV.
38.
The Settlement Administrator shall disseminate the Class Notices, Claim Forms;
receive Claim Forms and Requests for Exclusion; and perform other obligations, as set forth
herein, beginning immediately upon entry of the Preliminary Approval Order and throughout the
duration of the Claim Period. Defendant shall bear the costs associated with retaining the
Settlement Administrator, disseminating the Class Notices, and administering the claim process
as set forth in this Agreement, except for costs associated with the Reminder Postcard, which
will
be paid for by
39.
Plaintiffs' Counsel.
Progressive certifies it will, to the best of its ability, identify through a search
of
its business records all Settlement Class Members (and their last known address) and will share
that list of Settlement Class Members (the "Progressive List") with Class Counsel and the
Settlement Administrator within forty-five (45) days of the entry of the Preliminary Approval
Order. Progressive represents that, based on a prior search of business records, it believes that
there are 4,279 Settlement Class Members. An individual not on the Progressive List may only
become a Settlement Class Member by submitting a timely and valid Claim Form and supporting
information in a timely manner establishing that the claimant qualifies as a member of the
10
accordance with paragraphT3, and is only to be used for purposes of effectuating this
Settlement.
40.
Notice of the pendency of the Action and of the Settlement shall be made by the
will
following procedure.
41.
Within seventy (70) days of the entry of the Preliminary Approval Order, the
Settlement Administrator shall send the Short Form Class Notice in the form attached hereto as
Exhibit
1 ("Short Form
hereto as
'[!!!
envelope directly to Settlement Class Members via direct mail using the last known addresses
according to Progressive's records. Any Short Form Notices and Direct Mail Claim Forms
returned to the Settlement Administrator with a forwarding address shall be re-mailed by the
Settlement Administrator within fourteen (14) business days following receipt of the returned
mail.
42.
and Direct
Settlement Administrator without a forwarding address, the Settlement Administrator shall use
the National Change of Address Database to search for the correct mail addresses, and shall
promptly re-mail the Short Form Notice and Direct Mail Claim Form to any newly-found
addresses.
43.
The Settlement Administrator shall send a second notice to all Settlement Class
Members who have not filed a claim form in the form of a reminder postcard in the form
1t
attached hereto as
sij!]
("Reminder Postcard")
2l
Plaintiffs' Counsel will pay for the administration costs related to the Reminder Postcard notice.
44.
The Settlement Administrator will establish the Settlement Website which shall
include the word "Progressive" in the URL. The Settlement Website will contain The Settlement
Agreement, the Court's Order granting Preliminary Approval, the Short Form Notice, and the
Long Form Class Notice attached hereto as Ebii!-4. The Settlement Website will also identify
key deadlines (e.g., the claim submission deadline, the request for exclusion deadline, objection
deadline, the date of the Final Approval Hearing), instruct Settlement Class Members on how to
submit a claim form or request for exclusion, and how to object. The Settlement Website shall
also include a "Frequently Asked Questions" section. A PDF version of a claim form, in the form
of Exhibit 5 ("PDF Claim Form") attached hereto, will be available on the Settlement Website.
The Settlement Website will also include instructions for complying with the claim submission
process. Settlement Class Members shall be given the option to complete and submit a claim
form online, in the form of Exhibit 6 ("Online Claim Form") attached hereto, on the Settlement
Website.
45.
The Settlement Administrator will establish a toll-free telephone support line that
Class Members with general information about the litigation and which
contain responses to frequently asked questions about the action and claim procedure.
46.
Unless expressly indicated otherwise in this Stipulation, Progressive shall pay all
Class Members and providing notice of the pendency of the Action and of the Settlement
embodied herein to the Settlement Class Members in accordance with the terms of the Court's
12
1-3
of 65
Preliminary Approval Order. Costs of administration (including, but not limited to, printing and
mailing the Short Form Notice, address updating costs and costs to re-mail the Short Form
Notice, printing and distributing Payments to Settlement Class Members and all postage relating
to the foregoing) will be paid by Progressive from its own funds.
V.
CLAIMS PROCEDURE
47.
will
if they timely
submit a written request for exclusion from the Settlement Class postmarked no later than 30
calendar days before the Final Approval Hearing, in the manner set forth below in Paragraph 68.
48.
Settlement Class Members may submit the Direct Mail Claim Form or the PDF
Claim Form to the Settlement Administrator by mail. Settlement Class Members may also
submit claims online through the Settlement Website using the Online Claim Form. If a
Settlement Class Member choses to submit a Direct Mail Claim Form or a PDF Claim Form, in
order to potentially qualify to receive a Settlement Class Payment, the Settlement Class Member
must submit the completed and signed Direct Mail Claim Form or PDF Claim Form to the
Settlement Administrator by mail, postmarked not later than the end of the Claim Period. The
Settlement Administrator shall establish, as of the date of the initial mailing of the Short Form
Notice, a dedicated P.O. Box to be used for submission of Direct Mail Claim Forms and PDF
Claim Forms. If a Settlement Class Member choses to submit an Online Claim Form using the
Settlement Website, the Settlement Class Member must submit the completed and electronically
signed Online Claim Form to the Settlement Administrator over the Settlement V/ebsite no later
than the end of the Claim Period.
49.
Form, or Online Claim Form submitted by a Settlement Class Member on the Progressive List is
promptly notify the Settlement Class Member and specify any additional or corrective
information that must be submitted. If the Settlement Administrator receives a Direct Mail
Claim Form, PDF Claim Form, Online Claim Form, or other assertion of a claim submitted by an
individual not on the Progressive List (a "Non-Listed Claim"), the Settlement Administrator will
promptly notify the Claimant that he or she may only become a Settlement Class Member by
establishing that the Claimant falls within the definition of the Settlement Class. The
notifications shall be by first class mail or email unless the Settlement Class Member or other
claimant specifies another mode of notification. The Settlement Administrator will
contemporaneously provide Class Counsel and Progressive with (a) copies of the notifications
and (b) copies of the submitted claim forms or other assertions of a claim by a Claimant. Such
individuals shall have 2l days from the date the notification is mailed to submit the requested
information. If
Administrator, the claim will be denied and the Claimant so-notified by the Settlement
Administrator. If
shall promptly provide the information received from the Claimant to Class Counsel and
Progressive.
50.
with the Class Notice requirements in this Agreement. Such declaration shall be provided to the
Parties, and filed with the Court by Plaintiffs' Counsel no later than fourteen
(la)
calendar days
VL
PAYMENT AMOUNT
51.
The Settlement Class Payments set forth in this Section shall be the only
l4
will
be entitled.
52.
Each Settlement Class Member that submits a timely and valid Direct Mail Claim
Form, PDF Claim Form, or Online Claim Form shall receive a Settlement Class Payment
of
53.
Settlement Class Payments shall be made no later than 60 days after the Effective
Date or 60 days after the Settlement Class Member submitted his or her claim, whichever is later.
Settlement Class Payment checks shall, unless otherwise directed in writing, be made payable to
the Settlement Class Member.
If it is determined
incapacitated or otherwise unavailable, the check shall, unless otherwise mutually directed, be
made payable to the duly authorized legal representative of that party. Each Settlement Class
Member, or his or her legal representative, must supply a valid Tax ldentification Number (TIN)
or Social Security Account Number when submitting a claim or otherwise prior to receiving a
Settlement Class Payment.
VII.
54.
Class Counsel of the basis for its objection and the evidence on which it relies, and the following
a.
be denied,
the Settlement Administrator shall be so informed, and the Settlement Administrator shall send
to the claimant (with copies to Class Counsel and Progressive) a notice advising that the claim
will not
be paid, supplying the evidence and reason(s) for that decision, and advising the
claimant of his or her right to apply to the Court for relief. A claimant may challenge that
decision by
of
such notice. On such an application, the burden of proving that the claim should be paid shall be
on the claimant. The claim shall be paid or disallowed as provided by the Court.
15
b.
1-6
of 65
l5
be
Progressive files with the Court and serves upon the claimant and Class Counsel an application
with the Court to disallow the Claim. On such an application, the burden of proving that
Deficient Claim should be denied shall be on Progressive; the burden of proving that a NonListed Claim should be paid shall be on the claimant. The Claim shall be paid or disallowed
as
55.
Claims to which Progressive does not object shall be paid by the Settlement
Administrator. Progressive shall have the right to review any Direct Mail Claim Form, PDF
Claim Form, or Online Claim Form before payment of that claim is made.
VNI.
56.
The Long Form Class Notice shall list Class Counsel's address and telephone
number. Communications relating to the Action or this Settlement with Persons receiving Class
Notices and Settlement Class Members shall be handled through Class Counsel, and/or the
Settlement Administrator, as necessary.
57.
Members in the normal course of its business operations, from submitting notices or other
documents relating to this Agreement directly to Settlement Class Members, and/or from
continuing to adjust and resolve pending or future claims, even if they otherwise fall within the
scope of this Agreement, before this Agreement is
IX.
finally approved.
16
58.
fees and expenses for the work performed and the results obtained in the
will
seek Court approval for an award of attorneys' fees and expenses not to exceed $2,000,000
l4) calendar days before the Final Approval Hearing. For purposes of
determining an award of reasonable attorneys' fees and expenses, the Parties agree that the total
monetary value of the settlement to the Settlement Class Members is at least $8,023,125, plus
attorneys' fees and costs. Progressive will not object to, oppose or undermine and will pay an
award of attorneys' fees and expenses approved by the Court up to $2,000,000. The attorneys'
fees and expenses awarded by the Court shall be in addition to the Settlement Class Payment
amounts paid to Settlement Class Members pursuant to this Agreement, and shall be paid by
Progressive within 30 calendar days of the Effective Date, as deflrned in Section
law firm of Connor, Morneau & Olin, LLP, which law firm shall be solely responsible for further
distribution of any award of attorneys' fees and expenses made by the Court.
59.
The Parties recognize that Named Plaintiffs are entitled to Incentive Awards for
the risk and effort undertaken in prosecuting this Action. No later than fourteen (14) calendar
days before the Final Approval Hearing, Plaintiffs
will
$2,500 for each Named Plaintiff, in addition to their Settlement Payment. Payments of any
Incentive Awards under this provision shall be made from the award of attorneys' fees and
expenses and shall be paid to the Named Plaintiffs within seven (7) calendar days of the
Plaintiffs' Counsel's receipt of payment of attorneys' fees and expenses. Progressive shall not
be responsible for payment of any Incentive Awards.
X.
t7
of
60.
The Named Plaintiffs, Settlement Class Members, and Progressive consent to the
entry of a Final Judgment substantially in the form attached as Exhibit 8 without material
alteration.
6l
enters the
Final Judgment but it is reversed or vacated on appeal, this Agreement shall be null and void and
of no force and effect. If the Court materially modifes any provision of the Agreement or
proposed Final Judgment, or
for modification, or if any of the terms of this Agreement is impaired in any materialway, then
Progressive shall have the option of terminating this Agreement and withdrawing its consent to
the entry of the FinalJudgment, in which case this Agreement shall be nulland void and of no
force and effect. Progressive shall have the right to determine, in its discretion, materiality in
connection with the above provisions, except that such determination shall be made in good faith
and in compliance with prevailing law regarding the standards for determining materiality.
Progressive shall have fifteen (15) days from the event that triggers its option to inform Class
Counsel that it is exercising its option of terminating this Agreement.
62.
If the Court
does not
obligations of Progressive under this Agreement terminate, including but not limited to any
obligation to pay attorneys' fees. Additionally, the Parties agree that neither this Agreement, nor
any pleading or other paper related in any way to this Agreement, nor any act or communication
in the course of negotiating, implementing or seeking approval of this Agreement, shallbe
deemed an admission by Progressive that certification of a class is appropriate in this or any
other litigation, or otherwise shallpreclude Progressive from opposing or asserting any argument
l8
63.
exceeds
10%o,
O9l27lI5 Page L9 of 65
In the event the number of Settlement Class Members who elect to opt out
Progressive in its sole discretion may elect to terminate this Agreement on the
ground that the exclusion of Settlement Class Members at that level threatens to frustrate
Progressive's essential purpose in entering into this Agreement. Progressive's election to
terminate under this paragraph shall be made not later than ten (10) days after the end of the optout period set forth in paragraph 68 below by notifying Class Counsel in writing of its election.
XI.
64.
Class Counsel
will
will
be stated in the
Preliminary Approval Order, and stated in the Long Form Class Notice. The Parties will request
that the Final Approval Hearing be held at the earliest date that the Court is available to hear the
matter that is at least one hundred twenty (120) days after the Preliminary Approval Order.
Class Counsel shall request the Court to enter a Final Judgment substantially in the form of the
Final Order and Judgment Approving Settlement and Dismissing Action with Prejudice attached
hereto as
ESjj!_!, approving the Settlement without material alteration, and directing the
Parties and their counselto comply with and consummate the terms of this Agreement.
XII.
EFFECTIVE DATE
65.
The "Effective Date" of this Agreement shall be the first date after which all the
a.
b.
and
approved this Agreement, the Settlement set forth herein, and the method for providing notice to
the Settlement Class; and
19
c.
The Court has entered the Final Judgment, finally approving this
Agreement, without material alteration from the form attached hereto as s[!!Q, and releasing
the Released Persons from the Released Claims and dismissing with prejudice, and without leave
to amend, the Action and all claims asserted therein, except reserving claims as to those
Settlement Class Members who timely request exclusion; and
d.
intervention to contest same, (i) the expiration (without the filing or noticing of an appeal) of the
time to appealfrom the FinalJudgment;or (ii) the entry of a hnal dismissalorder of any and all
appeals from the Final Judgment; or
material alteration; or (iv) if a ruling or decision is entered by an appellate court affirming the
Final Judgment, the time to petition for reconsideration or further appeal of that ruling or
decision has expired; or (v) if a petition for reconsideration or further appeal of that appellate
ruling or decision is filed, the petition has been denied or dismissed or, if granted, has resulted in
affirmance of the Final Judgment without material alteration.
66.
entire Agreement shall become null and void, except Progressive shall have the option at its sole
discretion to agree in writing to waive the event or condition and proceed with this Settlement, in
which case the Effective Date shall be deemed to have occurred on the date of said written
agreement, or a date otherwise specified in said written agreement.
67.
pertaining solely to the Class Representative award, or the award of attorneys' fees and costs to
Class Counsel, shall not in any way delay the Effective Date, except with respect to those
appealed items.
20
XUI.
68.
Settlement Class Members who wish to exclude themselves from the Settlement
Class must submit a written request for exclusion, postmarked not later than 30 days before the
Final Approval Hearing, which shall be sent to the Settlement Administrator at the address
provided in the Long Form Class Notice. Written requests for exclusion must be signed by the
Settlement Class Member and include the Settlement Class Member's name, address, and
telephone number, and expressly state the desire to be excluded from the Settlement Class. No
Settlement Class Member may effect an exclusion of a class of individuals or represent such a
class.
69.
The Settlement Administrator shall promptly log each request for exclusion that
it
receives and provide copies ofthe log and all such requests for exclusion to Progressive and
Class Counsel.
70.
Prior to the Final Approval Hearing, Class Counsel and Progressive's Counsel
alltimely
Settlement Administrator as of that date and fle such list of names with the Court. Such persons
will
71.
a notice
Settlement Class Members who do not file a timely request for exclusion may file
of intent to object to the Settlement, or to intervene in the Action for the purpose of
contesting the Settlement. The written notice of intent to object and/or intervene must: (a) be
fled with the Clerk of the Court not later than 30 days before the date set for the Final Approval
Hearing as stated in the Short Form Notice; (b) contain the information required by the
Preliminary Approval Order and Long Form Class Notice, including the reasons for the
objection, whether the objector plans to appear at the Fairness Hearing, and any legal support or
21
evidence supporting the objection; and (c) be sent by first-class mail, postmarked not later than
30 days before the date set for the Final Approval Hearing, to
For the Class:
For Progressive
Jeffrey Morneau
Connor, Morneau & Olin, LLP
73 State Street, Suite 310
Springfield, MA 01103
A. Hugh Scott
Choate, Hall & Stewart LLP
Two International Place
Boston,
MA
02110
Any Settlement Class Member who does not timely object or intervene waives the right
to do so in the future, and shall be forever barred from intervening or making any objection to
the Settlement or Final Judgment.
XIV.
72.
proprietary business information of Progressive (the "Proprietary Information"): (a) the names,
addresses, policy numbers, and other data concerning Settlement Class Members compiled by
Progressive and/or the Settlement Administrator in effectuating the Settlement; and (b) the
electronic data processing and other record keeping procedures and materials to be utilized by
Progressive and/or the Settlement Administrator in identifying the Settlement Class Members
and effectuating Progressive's other obligations under this Agreement and/or the Settlement.
The confidentiality of all Proprietary Information provided to Class Counsel by Progressive shall
be protected from disclosure by Class Counsel and/or other attorneys for the Named Plaintiffs in
this Action to any persons other than those described in Paragraph 73 below.
73.
foregoing, and such other persons as the Court may order, after hearing on notice to all counsel
74.
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Within 90 days after the Effective Date, Class Counsel shall upon request return
to Progressive or destroy all Proprietary Information they have received, other than the list of
Settlement Class Members provided by Progressive to Class Counsel in connection with this
Agreement. Upon request, Class Counsel shall deliver a letter to Progressive certifying their
compliance with this Paragraph. The parties agree that neither Class Counsel, nor anyone
employed with, retained by, or otherwise associated with Class Counsel, shall use any of this
Proprietary Information in any other litigation or proceeding, current or future, unless
independently obtained through discovery or other procedures in such other litigation.
75.
media, orally or in writing, about the Action, or this Agreement, other than statements which are
XV.
76.
Upon the Court's Final Approval of this Agreement and the Settlement set forth
herein, the Final Judgment shall be entered providing for the dismissal, with prejudice and
without leave to amend, of the Action, and the Release by the Settlement Class Members,
including the Named Plaintiffs, and including their past, present or future agents, legal
representatives, trustees, parents, estates, heirs, executors and administrators, of all Released
77.
As of the Effective Date, by operation of the entry of the Final Judgment, each
Settlement Class Member, including the Named Plaintiffs, and including their past, present or
future agents, legal representatives, trustees, parents, estates, heirs, executors and administrators,
shall be deemed to have fully released, waived, relinquished and discharged, to the fullest extent
possible by law, the Released Persons from the Released Claims.
23
78.
The Settlement Class Members, including the Named Plaintiffs, and including
their past, present or future agents, legal representatives, trustees, parents, estates, heirs,
executors and administrators, expressly agree as of the Effective Date that they, acting
individually or together, shall not and shall not seek to institute, maintain, prosecute, sue, assert
or cooperate in any action or proceedings against any of the Released Persons for any of the
Released Claims.
79.
Notwithstanding the Court's entry of the Final Judgment, the Court shall retain
ongoing jurisdiction over this Action for purposes of enforcing and interpreting this Agreement,
including entering such orders and injunctions to prevent any collateral litigation that may be
XVI.
DENIAL OF LIABILITY
80.
the material
allegations set forth in the Action. Progressive nonetheless has concluded that it is in its best
interest that the Action be settled on the terms and conditions set forth in this Agreement.
Progressive reached this conclusion after considering the factual and legal issues in the Action,
the substantial benefits of a final resolution of the Action, the expense that would be necessary to
defend the Action through trial and any appeals that might be taken, the benefrts of disposing
protracted and complex litigation, and the desire of Progressive to conduct its business
unhampered by the distractions of continued litigation, and the Settlement of this matter by
Progressive, and any steps taken in accordance therewith, shall not be used in any way as
precedent in any pending or future actions including any actions against any of the Released
Persons.
24
of
81.
As a result of the foregoing, the Released Persons enter into this Agreement
without in any way acknowledging any fault, liability, or wrongdoing of any kind. Neither this
Agreement, 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 the Released Persons
of
the truth of any of the allegations made in the Action, or of any liability, fault, or wrongdoing
of
82.
To the extent permitted by law, neither this Agreement, nor any of its terms or
provisions, nor any of the negotiations or proceedings connected with it, shall be utilized or
offered as evidence or received in evidence in any pending or future civil, criminal, or
administrative action or proceeding, for any purpose including to establish any liability or
admission by the Released Persons, except in any proceedings brought to enforce the Agreement
or otherwise with the written consent of Progressive.
83.
Neither this Agreement, nor any pleading or other paper related in any way to this
Agreement, nor any act or communication in the course of negotiating, implementing or seeking
approval of this Agreement, shallbe deemed an admission by Progressive that certification of a
class or subclass is appropriate in any other litigation, or otherwise shall preclude Progressive
from opposing or asserting any argument it may have with respect to certiflrcation of any
class(es) or subclass(es) in any proceeding.
XVII.
84.
deceased Settlement Class Member's estate. Before distributing any funds, Progressive may
request that the Court approve the party submitting such a claim as the proper party to receive
distribution of funds. In addition, if and when necessary, Progressive may request that estates
deemed entitled to benefrts under this Agreement be reopened before such benefits
25
will
be paid.
XVIII.
85.
incapacitated Settlement Class Member. Before distributing any funds, Progressive may request
that the Court approve the party submitting such a claim as the proper party to receive
distribution of funds.
XIX.
TAX OBLIGATIONS
86.
Tax obligations which may arise by virtue of the Settlement Class Payments made
such
Settlement Class Payments, and are not the responsibility of Progressive. The Parties to this
Agreement do not in any way express any belief or opinion regarding the existence of such tax
obligations and do not undertake to provide any advice to any Settlement Class Member
regarding any tax obligations which may arise by virtue of any Settlement Class Payments made
pursuant to this Agreement.
XX.
MISCELLANEOUSPROVISIONS
87
This Agreement shall not be construed to affect or limit the rights of Settlement
Class Members against third parties unrelated to Progressive. In particular, nothing in this
Agreement shall be construed to affect in any way, or require the forfeiture or compromise of,
any personal injury claims against third parties. Nothing in this Agreement shall be construed to
affect in any way the other existing policy rights of Settlement Class Members or Progressive
concerning any other aspect of their insurance agreements unrelated to the present controversy.
88.
The Parties hereto and their undersigned counsel agree to undertake their best
efforts and mutually cooperate to effectuate this Agreement and the terms of the Settlement set
forth herein, including taking all steps and efforts contemplated by this Agreement, and any other
steps and efforts which may become necessary by order
26
hereto and their undersigned counsel further agree to defend this Agreement against objections
made to final approval of the Settlement or in any appealof the FinalJudgment or collateral
89.
Neither the Parties nor their counsel shall make any defamatory statement
concerning any Party with regard to this case, the underlying facts or the terms of this
Agreement. Class Counsel, Progressive, and Progressive's Counsel may provide factual
information about this Action, this Agreement, the Notice, and the Direct Mail Claim Form, PDF
Claim Form, and Online Claim Form, and other Settlement documents that have been approved
by the Court. The Parties or their counsel may also make any public statements about this
Action, the Settlement or its effect that are required by statute, regulation, or court mandate.
This Paragraph is not to be construed as a waiver by any Party of any claim for defamation, libel,
slander, or other cause of action arising independently of this Agreement. The Parties further
agree that information regarding Settlement Class Member names,and addresses, other than
Named Plaintiffs, shall remain confidential and may not be disclosed to any other person, except
as necessary
90.
enter into the terms and conditions of this Agreement on behalf of their respective clients.
91.
Exhibits contain the entire agreement between the Parties hereto, and supersede any prior
agreements or understandings between them.
not mere recitals. The terms of this Agreement are and shall be binding upon each of the Parties
hereto, their agents, attorneys, employees, successors and assigns, and upon all other Persons
27
O9l27lt5 Page 28 of 65
claiming any interest in the subject matter hereof through any of the Parties hereto, including any
Settlement Class Member.
92.
by counsel for all Parties hereto. Amendments and modifcations may be made without
additional notice to the Settlement Class Members unless such notice is required by the Court.
93.
The exhibits to this Agreement are an integral part of the Settlement and are
94.
None of the Parties shall be considered to be the drafter of this Agreement or any
provision hereoffor the purpose ofany statute, case law or rule ofinterpretation or construction
that would or might cause any provision to be construed against the drafter.
95.
complete defense to, and may be used as the basis for an injunction against, any action, suit or
other proceeding which may be instituted, prosecuted or attempted in breach of this Agreement.
96.
Progressive, the Named Plaintiffs, and each Settlement Class Member inevocably
submit to the exclusive jurisdiction of the Court for any suit, action, proceeding or dispute
arising out of or relating to this Agreement or the applicability of this Agreement and exhibits,
but for no other purpose.
97.
This Agreement shall be deemed to have been executed upon the last date of
28
98.
an
be deemed
By the Plaintiffs,
By the Defeuclant,
WANDA ESTRADA
PRO GRES
Darecl:
{f-b'}$-
Title
WALTER ESTRADA
Dated:
q*1-l'r
AN ESTRADA
JONA
Datecl:
tl-
NA'IALIE ESTRADA
INSURANCE COMPANY
Dated:
Datecl:
- l3- | f
MORNEAU & OLIN, LLP
(BBO # 643668)
73S
Springfield, MA 0l103
Tel. (413) 4s5-1730
Fax (413) 455-1594
rrrorneaulOcnro larvvers.cot1
cl- tg_
tf
29
LLC
DiTusa (BBO # 649218)
State Stteet
Springfielcl,
MA
01103
lot:ett@a lek
rnan<l
itusa.coln
cl*
t\ - |
700633'.1
30
98,
an
By the Plaintiffs,
By the Defendant,
WANDA ESTRADA
Dated:
rn",ll5"s.."4 t"
Dated: f -/8 -,;?/5
WALTER ESTRADA
Dated
JONATHAN ESTRADA
Dated
hscott@cho-qlg.com
NATALIE ESTRADA
INSURANCE COMPANY
Dated
Dated:
Tel. (al3)
Fax (413)
i
455-1730
455-1594
mo eauf).cmol
aw yers. so nr
29
q*
98,
an
By the Plaintiffs,
By the Defendant,
WANDA ESTRADA
COMPANY
By:
Dated
Title:
WALTER ESTRADA
Dated:
Dated
r"rAl,L &
OA
WART, LLP
JONA'|HAN ESTRADA
Dated
h s o t
NATALIE ESTRADA
f).c
h oir
t. cun]
Dated:
29
qf,a/tf
Exhibit 1
to Stipulation of Settlement
Lesal Notice
lf Progressive Direct lnsurance Company Denied Your Auto lnsurance PIP Glaim
You May Be Eligible to Receive $1,875 From A Class Action Settlement
A
Settlement has been reached with the Progressive Direct Insurance Company ("Progressive") in a class action
lawsuit about Personal Injury Protection ('.PIP") benefits for medical bills, lost wages, or expenses. The
Settlement provides payments to people who submit valid claim forms, and you may be eligible.
The United States District Court for the District of Massachusetts will have a hearing to decide whether to give
fnal approval to the Settlement so that payments can be made. Get a detailed notice at www.masspipclaims.com
or by calling l -800-000-0000.
What is the lawsuit about?
This lawsuit is about whether Progressive engaged in an unfair and deceptive business practice by
having its Massachusetts direct sales website recommend consumers with health insurance to purchase
automobile insurance with an $8,000 PIP deductible. Progressive denies any wrongdoing.
Am I included?
Progressive's records show you probably are a Class Member. The Class
includes anyone who had a PIP claim wholly denied by Progressive due to an $8,000 deductible under a policy
described in the next section.
To get a payment you need to submit a Claim Form online or by mail by Month 00, 2015 or 30 days after entry
of the Final Approval Order, whichever is later. This date will be posted on the website. Claim Forms are also
available at www.masspipclaims.com or by calling I -800-000-0000.
What are my rights and options?
a payment
from this Settlement and you don't want to be legally bound by it, you must exclude
yourself by Month 00, 2015 or you won't be able to sue Progressive about the claims in this case. If you ask to
be excluded, you can't get a payment from this Settlement. If you stay in the Settlement, you may object to it by
Month 00, 2015. The detailed notice explains how to exclude yourself or object.
The Court will hold a hearing on Month 00, 2015, to consider whether to approve the Settlement, and a
request by Class Counsel for attorneys' fees and expenses of up to $2 million. Class Counsel will also ask for
a payment of $2,500 for each of the Class Representatives, who helped the lawyers on behalf of the whole
Class. If you wish, you or your own lawyer may ask to appear and speak at the hearing at your own cost.
1-800-000-0000
www.masspipclaims.com
O9l27lt5 Page 36 of 65
Exhibit 2
of Settlement
Stipulation
to
Use Only
01
Estrada Settlement Administrator
PO Box L234
Faribault,
MN
55021-1234
Anytown, MN 55105
Estrada v Progressive Claim Form
lf the pre-printed information below is not correct or if there is no pre-printed information, please
Name
Street Address
Named lnsured
Household Member
was a:
n other
lwish to participate and receive my 51,825.00 settlement pyment. With my signature below,
declare, under penalty of perjury, that the information in this Claim Form is true and correct to the
best of my knowledge. I understand that this Claim Form may be subject to verification.
I
Signatu re
Date:
This Claim Form must be postmarked or filed online by Month 00, 2015 or 30 days after entry of the
Final Approval Order, whichever is later and mailed to: Estrada Settlement Administrator, PO Boxt234,
Faribault, MN 55021-1234.
Quesrols? Gn-l
Bxhibit 3
to Stipulation of Settlement
REMINDER POSTCARI)
(back)
This is a reminder that to be paid, you rnust submit a Clairn Form online or by mail by
Month 00" 2015 or 30 days after final approval of the settlement, whichever is later.
The Claim Forms and instructions on how to submit them are available
www.masspipclaims.com or by calling 1 -800-000-0000.
at
(front)
ISTRATOR
Exhibit 4
to Stipulation of Settlement
Page 42 of 65
O9l27lI5 Page 43 of 65
auto
with
("Progressive") in a class action lawsuit about Personal Injury Protection ("PIP") benefits
for medical bills, lost wages, or expenses.
The lawsuit claims that Progressive engaged in an unfair and deceptive business practice
by having its Massachusetts direct sales website recommend consumers with health
insurance to purchase automobile insurance with an $8,000 deductible. Progressive
denies any wrongdoing. The parties agreed to the Settlement to avoid the costs and risks
of trial.
The Settlement includes anyone who was involved in an automobile accident where a PIP
claim was denied by Progressive under an included policy (see Question 6).
if
Asx ro Be
Get no benefits from the Settlement. This is the only option that allows you
to par"ticipate in any other lawsuit against Progressive about the claims in this
Excr-uoeo
case.
Oeecr
Go ro A HEARTNG
Do NorHrrc
The Court in charge of this case still has to decide whether to approve the Settlement.
Payments will only be made if the Court approves the Settlement and after any appeals
are resolved. Please be patient.
Quesror.s? Cell 1 -800-000-0000 oR vrsrr www.MAssprpcLArMS.coM
PnRn u Horrrcect. tN ESpAor, LLAMAR o vrsrrAR NUESTRo wEBStrE.
O9l27lI5 Page 44 of 65
..........3
WHO IS PART OF THE SETTLEMENT?...........
6. How do I know if I am part of the Settlement?
7. How do I know if my Progressive automobile insurance policy is included?
8, What if I am not sure whether I am included in the Settlement?
THE SETTLEMENT BENEFITS
9.
10.
1.
12.
1
16.
.
1l
If I do not exclude myself, can I sue Progressive for the same thing
lf I exclude myself, can I still get a payment?
later?
21.
............6
.............6
oR vrsrr www.MAssptpcLAtMS.coM
Bnsrc lruroRmaroru
1. Whv is there a notice?
A Court authorized this notice because you have a right to know about a proposed Settlement of this class
action lawsuit and about all of your options before the Court decides whether to give final approval to the
Settlement. This notice explains the lawsuit, the Settlement, and your legal rights.
Judge Saylor of the United States District Court for the District of Massachusetts, Boston Division is
overseeing this case. This litigation is known as Estrada v. Progressive Direct Insurance Company, No.
l2-cv-30020. The people who sued are called the "Plaintiffs." Progressive is the "Defendant."
2. What
The lawsuit claims that Progressive engaged in an unfair and deceptive business practice by having its
Massachusetts direct sales website recommend consumers with health insurance to purchase automobile
insurance with an $8,000 PIP deductible. Progressive denies these claims.
3. What
is Personal
Protection
PIP is a type of car insurance that covers medical bills, lost wages, and funeral and other expenses
resulting from a collision.
4.
In a class action, one or more people called "class representatives" sue on behalf of themselves and other
people with similar claims. All of these people together are the ooclass" or 'oclass members." In this case,
the Class Representatives are Wanda Estrada, Walter Estrada, Jonathan Estrada, and Natalie Estrada. One
court resolves the issues for all Class Members, except for those who exclude themselves from the Class.
5. Wh is there a Settlement?
By agreeing to settle, both sides avoid the cost and risk of a trial, and the people affected will get a chance
to receive compensation. The Class Representatives and their attorneys think the Settlement is best for all
Class Members. The Settlement does not mean that Progressive did anything wrong.
is included?
To be included:
oR vrsrr wr/vw.MASSPtPcLAtMS.coM
-3-
The Massachusetts automobile insurance policy must have been initially purchased from
Progressive over its website from May l, 2008 through April27,20101,
The named insured must have answered "yes" to the health insurance question during
purchase stating that he or she was covered by health insurance; and
The automobile insurance policy contained an $8,000 PIP deductible.
If you are not sure whether you are included in the Settlement, you may call 1-800-000-0000 or visit
www.masspipclaims.com for information, or call Class Counsel listed in Question 20. You may also
write with questions to the Estrada Settlement Administrator, at P.O. Box1234, Faribault, MN 550211234.
in a
document called
www.masspipclaims.com.
13)
people as described
in the
is
available at
www.masspipclaims.com.
The Settlement Agreement describes the released claims with specific descriptions, so read it carefully. If
you have any questions you can talk to Class Counsel listed in Question 20 for free or you can, ofcourse,
talk to your own lawyer if you have questions about what this means.
oR vrsrr www.MAssprpcLArMS.coM
If you
Your signature.
You must mail your exclusion request, postmarked no later than Month 00, 2015, to Estrada Settlement
Administrator, at P.O. Box1234, Faribault, MN 55021-1234.
f
6. If I do not exclude mvself. can I sue Prosressive for the same thine later?
No.
Settlement resolves,
No. You will not get a payment if you exclude yourself from the Settlement
Tne LnvwERS
Quesrorus?
Cell
REPRESENTTNG
You
-5-
this
.
o
r
o
.
it,
The Court
Your nalre, address, telephone number, and policy number (if known);
statement saying that you object to the Settlement in Estrada v. Progressive Direct
Insurqnce Company, No. 1 2-cv-30020;
The reasons you object to the Settlement, along with any supporting materials;
Whether you intend to appear at the Fairness Hearing (see Question 22);
Your signature.
You must mail your objection to each of the following addresses, and your objection must be postmarked
by Month 00,2015:
Counr
Clerk of the Court
City, ST 00000
Courrsu
CLAss CoUNSEL
DEFENSE
Jeffrey Morneau
Connor, Morneau & Olin, LLP
273 State Street
Springfield, MA 01103
413-455-1730
A. Hugh Scott
Choate,
Hall&
Stewart
Ryan Alekman
Alekman DiTusa, LLC
1550 Main Street, Suite 401
Springfield, MA 0l 103
413-781-0000
-6
want to be part of the Class. If you exclude yourself, you have no basis to object because the case no
longer affects you.
22. When and where will the Court decide whether to approve the Settlement?
The Court will hold a Fairness Hearing at XX:00 x.m. on Month 00, 2015, at the fCourthouse], Street
Address, City, ST 00000. The hearing may be moved to a different date or time without additional notice,
so it is a good idea to check www.masspipclaims.com or call 1-800-000-0000. At this hearing, the Court
will consider whether the Settlement is fair, reasonable, and adequate. If there are objections, the Court
will consider them and will listen to people who have asked to speak at the hearing. The Court may also
decide how much to pay Class Counsel. After the hearing, the Couft will decide whether to approve the
Settlement. We do not know how long these decisions will take.
No.
Class Counsel will answer questions the Court may have. But, you or your own lawyer is welcome
to attend at your expense. If you send an objection, you do not have to come to Court to talk about it. As
long as you mailed your written objection on time, the Court will consider it. You may also have your
own lawyer attend, but it is not necessary.
to Estrada Settlement Administrator at P.O. Box 7234, Faribault, MN 55021*1234, or call the toll-free
number at 1-800-000-0000, or call Class Counsel listed in Question 20. You can also get a Claim Form at
the website.
-7
oR vrsrr www.MAssprpcLAtMs.coM
Exhibit 5
to Stipulation of Settlement
e Only
01
Estrada Settlement Administrator
PO Box 1234
Faribault, MN 55021-1234
Street Address
State
City
zip
EmailAddress
Policy Number (if known)
Named lnsured
Household Member
other
t wish to participate and receive my 57,875.00 settlement payment. With my signature below,
declare, under penalty of perjury, that the information in this Claim Form is true and correct to the
best of my knowledge. I understand that this Claim Form may be subject to verification.
Signatu re:
Date:
This Claim Form must be postmarked or filed online by Month 00, 2015 or 30 days after entry of the
Final Approval Order, whichever is later and mailed to: Estrada Settlement Administrator, PO Box 1234,
Faribault, MN 55021"-1234.
Exhibit 6
to Stipulation of Settlement
Street Address
zip
State
City
Social Security Number or Tax lD #
Phone
Email Address
Policy Number (if known)
Named lnsured
Household Member
f,
other
I wish to pqrticipote and receive my 51,825.00 settlement poyment. I understand that with my
electronic signature below and by clicking "Submit" at the bottom of this page, I declare, under
penalty of perjury, that the information in this Claim Form is true and correct to the best of my
tr
Date
This claim form must be completed and submitted by Month 00, 2015 or 30 days after the entry of the
Exhibit 7
to Stipulation of Settlement
)
)
)
)
)
Plaintiffs,
)
)
)
)
)
)
)
)
)
IPROPOSDD]
Approval Of Class Action Settlernent And Related Matters (the "Motion"). The Court having
reviewed that Motion, the Stipulation Of Settlement (the "Stipulation") (Exhibit t hereto), and
the record in this case, and being otherwise fully advised:
1.
the Motion is
RAN'|ED
as
follows:
Capitalized terms used in this Order that are not othsrwise defined herein have the
2.
Stipulation and finds that the proposed settlement is sufficiently f'air, reasotrable, and adequate to
wanant providing notice of this action and proposed settlement to the Settlement Class Members
and holding a
3.
4.
5.
The Court appoints Wanda Estrada, Walter Estrada, Jonathan Estrada, and Natalie
6.
The Court approves the retention by Progressive and Class Counsel of Rust
'Ihe Courl pproves thc proposed Class Notice (Exhibits 1, 3, and 4 to the
Stipulation) and claim foms (Exhibits 2,5, and 6 to the Stipulation) and the procedures for
giving notice provided in the Stipulation, The Court directs the Settlernent Administrator to
insert the deadlines and hearing dates set fbrth herein, and additional contact and mailing
8.
Not later than forty-five (45) days after the entry of this Order, Progressive shall
complete a search of its business records to identify all Settlement Class Members it is able to
find and prepare a list therof (the "Progressive List") which Progressive shall provide to the
Settlement Administrator and Class Coursel. The Progressive List shall be confidential
as
L
as
The Settlement Adrninistrator shall give notice of this action and this settiement
provided in the Stipulati<n. Not later than seventy (70) days after the entry of this Order, the
Settlement Adrninistrator shail cause copies of the Short Form Notice (Exhibit
to the
Stipulation) to be mailed by frst ciass mail, postage prepaid, to all Settlement Class Members
identified on the Progressive List, The date of this mailing shall constitute the InitialNotice
Date, No later than twenty-one (21) days before the Final Approval Hearing, the Settlement
Administrator shall cause a second notice in the form of a reminder postcard (Exhibit 3 to the
Stiptrlation) to be sent to all Settlement Ciass Members who have not tiied a claim fbrm,
10.
The Court finds that the notice to be provided as set tbrth in this Order is the best
practicable means of providing notice to the Settlement Class Members under the circumstances,
and r.vhen eompleted, shall constitute due and suffcient notice of the settlement ancl the Final
Approval Hearing to all persons affcted by and/or entitled to participate in the settlement or the
Final Approvai Hearirrg, in full compliance with the requirements of due process and the Federal
Rules Of Civil Procedure,
1,
Any Settlement Class Members who wish to exclude themselves from the
settlement nusl fbllow the proceclures provided in the Stipulation and the Class Notice. To
exclucle themsclves from the settlement, Settlement Class Members must submit a written notiae
of their election to opt out of the settlement that confbrms to the requirements of the Stipulation
and the Class Notice and is postmarked no later than thirty (30) days prior to the Final Approval
Hearing. No later than twenty-one (21) days prior to the Final Approval Hearing, the Settlement
Administrator shall prclvide to Class Counsel and Progressive a list of those Settlement Class
Members that have submitted timely requests for exclusion from the settleme*, together with
copies of the exclusion requests.
12,
If the settlement receives final approval and becomes effective, any Settlement
Class Member who does not opt out of the Settlemenl by submitting a timely and proper request
for exclusiorr
as described
in the Stipulation and the Class Notice shall be bound by all the terms
and provisions of the Stipulation, including but not limited to the dismissal of action with
i3,
Any Settlernent Class Member who wishes to object to the settlement or any part
of it may do so by submitting
Stipulation and the Class Notice and postmarked no later than thirty (30) days prior to the Final
Approval Hearing, Any Settlement Class Member who wishes to address the Court regarding
the settlement at thc Final Approval Hearing shall submit a letter to the Clerk so indicating in
conlbrmity with the provisions of the Stipulation and the Class Notice,
Requests For Payment Under The Settlemcnt
14.
Any Settlement Class Member who wishes to receive a Settlement Class Payment
or submitted online no later than the Settlernent Subrnission Deadline which shall be thity (30)
days after entry of the Final Approval Order.
15.
Ciass Counsel's application for attolneys' fees and expenses and the Ciass
Representatives' applications fbr Class Representative incentive Awards shall be filed by Class
Counsel no later than fourteen (1a) days prior to the Final Approval Hearing.
16.
Counsei
17,
at
No later than fourteen (14) days prior to the Finai Approval l"Iearing, Class
and a supporting memorandum,
A Final Approval llearing shall take place before this Court on [ . iuql clqls-
insert _ing_
], in Courtroom
J,
O9l27lI5 Page 59 of 65
a,
reasonable, and adequate and in the best interests of the Settlement Class, and its provisions
shoulcl be ordered to be implemented;
b.
provicled in the Stipulation ancl dismissing the action with prejudice based upon the settlement;
c.
d.
e.
18.
if
The Court may finally approve the settlement at or after the Final Approval
Hearing with any modifications agreed to by the Parties, and without fuither notice to the
Settlement Class Members,
So Ordered,
Dated
"
2015
F, Dennis Saylor
IV
6-t0tz20
Exhibit I
to Stipulation of Settlement
)
)
)
)
)
)
) Civil Action No, 12-cv-30020-FDS
)
)
)
)
)
)
)
)
IPROPOSEDI
-[:]I!lLElg"l
2015 to settle the above-captioned class action and this Court preliminarily approved the
-..*;
and
WHER-EAS, in accordance with the Preliminary Approval Order, Class Notice was sent
to all Settlernent Class Members via first class mail n a timely manner on
reminder notice
on
WHEREAS,
l"insert
ll
datcl
linserl
datel
I and
WHEREAS,
with
[ .l Settlement
Setllemenl, which objections were sett to this Court for its consideration; and
WHEREAS,
on
linsert
datel
proposed settlement of this class action, at which objectors to the settlement could appear and
l_l objectors
appearecl; and
WHEREAS, the Pafties and the Settlement Aciministrator have complied with the
Preliminary Approval Order; and
WHEREAS, the claims at issue in the Action involve issues as to which there are
substantial grounds for difference of clpinion, and the proposed settlement of this action
constitutes a resolution of those issues that is fair, reasonable, and adeqrrate;
NOW, THEREFORE, based upon the submissions of the Parties and Class Members, due
consicierati<ln of any objections, any testimony adducecl at the Final Approval Hearing, the
pleadings on file, and the arguments of counsel, and having reviewed the pleadings and evidence
fled in support of the request for final approval of the Settlement, the Court frncls, and IT IS
HER-EBY ORDR-ED, as fbllows:
1.
Capitalized terms used herein shall have the same rneaning as set follh in the
2,
The Court has personaljurisdiction over the Narned Plaintif's, the Settlement
u.s.c.
The Court has subject matter jurisdiction over this action pursuant to 28
1332(d).
3.
J'he settlement was reached by arm's-length negotiations between the Parties with
4,
The settlement is fair, reasonable, and adequate, consistent with all applicable
Constitution (including the Due Process Clause), and any other applicable law; and in the best
interests of the Parties and Settlement Class.
5,
In negotiating the settlement, Named Plaintiffb and Class Counsel have fairly and
adequately represented and protected the interests of all of the Class Members,
6.
The form and method of delivery of the Class Notice: (i) constituted the best
practicable notice under the circumstances; (ii) was concise, clear and in plain, easily understood
language and was reasonably oaloulated, under the circumstnces, to apprise Settlement Class
Members of the pendency of the action, the claims, and the issues presented in the action, the
definition of the Settlement Class certified, the right of Settlement Class Members to opt out of
the action, the terms of the settlement, including the settlement consideration and the rclease to
be providecl to Progressive, the right of Settlement Class Members to object to the settlement, the
right of Settlement Class Members to appear at the Final Approval Hearing, through counsel
desired, and the binding eff'ect of a juclgment on the Settlement Class;
(iii)
if
constituted due, adequatc, and sufficient notice to all persons entitled to receive notice; and (iv)
met all applicable requiremcnts of the Federal Rules Of Civii Procedure, the United States Code,
the United States Constitution (including the Due Process Clause), and any other applicable law.
7.
Thc terms of the settlement and tliis Final Order And Judgmnt arc binding on the
Named PlaintifTs and the Settlement Class, except Settlement Class Members who timely
excluded thenrselves fiom the settlement.
8.
Ater clue oonsideration by the Court, all timely objections to the settlement
are
hereby overuled.
9,
The Paftie s, their counsel, and the Settlement Administrator are ordered to carry
out and implement the settlement according to its terms and provisions as provided in the
Stipulation Of Settlement, including compliance with all deadlines set forth therein and in the
Prel ir"ninary
Approval Order.
10.
1
Releases are binding and valid against the Named Plaintiffs and the Settlement Class. Settlement
Class Members who have not properly excluded themselves f'rom the Settlement ate conclusively
deemecl to have released Progressive
Settlement, ancl are forever barred and errjoined from instituting or firrther prosecuting against
Progressive, in any forum, any causes of action, suits, olaims or demands of any nature, whether
knowr or unknown at this time, which the Settlement Class Members now have or ever lnay
have, arising out or relating to the Released Claims.
12.
The Parties are authorized, without further approval t'om the Court, to agree to
and adopt such amendments, moclifications and expansions of the settlement and the Stipulation
Of Settlement attached hereto as (i) may be necessary and are consistent with this Judgment, and
(ii) do not limit the rights of the Settlernent Class under the settlement.
13.
The Stipulation Of Settlernent and any proceedings taken pursuant thereto are not,
(ii)
of
any liability, fault, wrongdoing, or other dereliction of duty by any Released Person; provided,
however, that reference may be made to the Stipuiation Of Settlement in proceedings that may be
necessary to effectuate the provisions of the Stipuiation Of Settlement,
14.
The Court hereby grants final approval of the Settlement as set ftrth in the
Stipulation Of Settlement.
1
5.
The Court hereby grants final approval of the Settlement Class Payment as set
16.
The Court hereby grants final approval of (i) an award of attorneys'fees and
of
tinserl
anrount)
",
17,
i
8.
Pursuant to the terms hereof, final judgment shall be entered as provided herein,
So Ordered.
Dated
201 5
F. Dennis Saylor IV
Unitecl States District Judge
6? I 0708