. SETTLEMENT AGREEMENT AND
STIPULATION OF CLASS ACTION SETTLEMENT
This Settlement Agreement and Stipulation of Class Action Settlement ("Agreement") is
entered into as of September 26, 2016 by, between, and among (a) the Named Plaintiffs listed on
Exhibit C, individually and on behalf of all Class Members as defined herein (collectively
"Plaintiffs"), acting by and through their undersigned attorneys, and (b) the corresponding
Defendants listed on Exhibit C (collectively "Defendants"), acting by and through their
undersigned attorneys. The Plaintiffs and Defendants may be individually referred to herein as a
"Party" or collectively as the "Parties."
BACKGROUND AND RECITALS
A.
This Agreement arises out of several lawsuits originally filed by plaintiff
automobile purchasers in the Court of Common Pleas of Aiken County, South Carolina,
including: Heather Herron, et al. v. Dick Dyer & Associates, Inc., et al., C.A. No. 06-CP-021230 ("Herron case"); Howard Adams, et al. v. Action Ford Mercury, Inc., et al., Case No. 2007CP-02-1232 ("Adams case"); and Janet L. West-Cox, et al v. Cale Yarborough Honda, Inc. alk!a
Cale Yarborough Motors of SC, et al., Case No. 2007-CP-02-1154 ( "West-Cox case"). The
Herron case was filed on August 29, 2006, the West-Cox case was filed on August 22, 2007, and
the Adams case was filed on September 4, 2007. One of the lawsuits, Natalie Armstrong v.
Galeana Chrysler Jeep, Inc., Case No. 2013-CP-02-00241, has been severed from the Herron
case, and assigned another case number. There are now no remaining defendants in the Herron
case. In the lawsuits, all plaintiffs, and the automobile dealership defendants with whom they
transacted business, were joined in the same lawsuit. The Parties to this Agreenient include
some, but not all, of the original plaintiffs and defendants in the Herron, Adams, and West-Cox
cases, and the parties in the case of Christopher Lee Morris v. Hilton Head Hyundai, LLC, et al.
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Case No. Case No. 2016-CP-27-0048, filed on February 12, 2016.
B.
Plaintiffs, on behalf of themselves and all others similarly situated, claim that
Defendants, which operate motor vehicle dealerships in South Carolina, improperly assessed and
charged Closing Fees, as defined herein, in motor vehicle sales transactions from approximately
August 2002 to the present. Plaintiffs allege that the Defendants have failed to comply with the
then-applicable provisions of S.C. Code § 37-2-307 ("Closing Fee Statute"), a statute that
authorizes the charging of Closing Fees by motor vehicle dealers.
Plaintiffs also allege
Defendants have violated the South Carolina Regulation of Manufacturers, Distributors and
Dealers Act, S. C. Code § 56-15-10 et seq ("Dealers Act"). The Plaintiffs seek recovery {a) under
the Dealers Act for damages in the amount of two times the amount of the Closing Fees paid in
sales transactions during the four-year period prior to the date the complaint was filed in the
respective Actions, and (b) for equitable relief of disgorgement of any Closing Fees paid after the
date the complaint was filed.
C.
Defendants deny all of the material allegations contained within the complaints in
these lawsuits, deny that they failed to comply with the Closing Fee Statute or the Dealers Act,
and deny that there was anything improper about the Closing Fees they charged.
D.
The Parties, through their counsel, have engaged in protracted and vigorous
settlement negotiations. At all times, the Parties' negotiations were adversarial, non-collusive,
and at arms' length, reflecting the contentious and adversarial nature of years of litigation in
these lawsuits and related actions.
E.
Plaintiffs, through their attorneys ("Class Counsel"), on their own behalf and on
behalf of all Class Members, as defined herein, have made an extensive investigation of the facts
and circumstances underlying the issues and applicable law raised in these lawsuits. Plaintiffs
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have concluded that further litigation of these actions would be protracted and expensive, and
that no Party has an assurance of a successful outcome. Accordingly, Plaintiffs have determined
that it is in the best interests of themselves and the Class Members to enter into this Agreement.
F.
Defendants expressly deny and disclaim any liability or any wrongdoing of any
kind whatsoever and deny all of the contentions and claims alleged by Plaintiffs. Defendants
affirmatively contend that their actions have been consistent and in compliance with applicable
law at all times.
Nonetheless, Defendants have concluded that further litigation could be
protracted and expensive and would divert management and employee time from normal
business operations. Defendants have taken into account the uncertainty and risks inherent in
litigation. Defendants therefore have concluded that it is desirable that the claims by Plaintiffs
be settled in the manner and upon the terms and conditions set forth in this Agreement.
STIPULATION AND AGREEMENT
NOW, THEREFORE, for good and valuable consideration provided for herein, it is
agreed by, between and among the Parties that, subject to Court approval, the Actions, as defined
herein, shall be fully and completely settled, as to the Parties to this Agreement only, according
to the following terms and conditions:
1.
DEFINITIONS.
For purposes of this Settlement Agreement, the following terms shall have the meanings
specified herein:
(a)
"Actions" means and includes any claims, causes of action, and demands for
relief as between the Plaintiffs and Defendants listed on Exhibit C, as set forth in the Complaints
filed in the following lawsuits: :
i.
Howard Adams, et al. v. Action Ford Mercury, Inc., et al., Case No. 2007CP-02-1232; and
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ii.
Janet L. West-Cox, et al v. Cale Yarborough Honda, Inc. a/k/a Cale
Yarborough Motors of SC, et al., Case No. 2007-CP-02-1154; and
iii.
Natalie Armstrong v. Galeana Chrysler Jeep, Inc., Case No. 2013-CP-02-
00241; and
iv.
Christopher Lee Morris v. Hilton Head Hyundai, LLC; NRAM Holdings,
LLC; New River Auto Mall, LLC; Coastal States Automotive Group, LLC; and Coastal
States Automotive Group, LLC flkla New River Auto Mall, LLC f/k/a NRAM Holdings,
LLC, Case No. 2016-CP-27-048.
v.
For all relevant settlement purposes, the Actions necessarily include
numerous Sub Actions (arising in the Adams and West-Cox cases), i.e., the claims,
causes of action, and demands for relief between any particular Plaintiff(s) and the
corresponding Defendant listed on Exhibit C with whom the Plaintiffs(s) entered into a
Qualifying Transaction(s). If necessary in the implementation of this Agreement, any
such Sub Actions may be considered separately from all other Sub Actions, or severed
from the Actions, to fully effectuate and implement this Agreement, subject to Court
approval.
(a)
"Administration Expenses" means the expenses incurred by the Settlement
Administrator in handling the administration of the settlements, including, but not limited to,
expenses related to the preparation and mailing of the Settlement Notice, expenses related to the
processing of the Claim Forms submitted by Class Members pursuant to this Agreement, and
expenses related to the preparing and mailing of checks and/or gift cards to the Class Members.
(b)
"Claim Form" refers to the form by which Class Members seek benefits under
this Settlement Agreement, substantially in the form as attached as Exhibit B to this Settlement
Agreement.
(c)
"Claimant" means a Class Member who has properly and timely
submitted a Claim Form for a Qualifying Transaction to the Settlement Administrator.
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( d)
"Claims Period/Claims Deadline" means the time period during which a Class
Member may timely submit a Claim form to the Settlement Administrator, which is the period
beginning when the Settlement Administrator mails the Settlement Notice and ending forty (40)
calendar days later.
(e)
"Class" or "Class Member(s)" means, with respect to the settlement of the
claims as to each Defendant, the group of Persons to be certified for purposes of settlement only,
following the entry of an appropriate order by the CoIDi, who, during the applicable Class Period,
purchased or leased a motor vehicle from that Defendant and paid a Closing Fee as referenced in
S.C. Code § 37~2-307. The Class shall not include any Class Member(s) who timely and
properly submit a Request for Exclusion or any judge presiding over this case, and the immediate
family members of any such person(s). Also excluded from the Class are purchasers, corporate
or individual, in any commercial or dealer-trade motor vehicle sales transaction. For all relevant
settlement purposes, the Class and Class Members necessarily include numerous Sub Classes
corresponding to the Defendant with whom the Class Member(s) entered into Qualifying
Transaction(s). Excluded from any Sub Class are the corresponding Defendant and any parent,
subsidiary, affiliate, or control person of that Defendant, as well as the officers, directors, agents,
and current employees of that Defendant.
(f)
"Class Counsel" means Brady Ryan Thomas, J. David Butler, and Terry E.
.,,,
Richardson, Jr. of Richardson Patrick Westbrook & Brickman, LLC; Michael E. Spears of
Michael Spears, PA; Richard A. Harpootlian of Richard A. Harpootlian, P.A.; A. Camden Lewis
of Lewis Babcock, L.L.P.; and Gedney M. Howe, III of Law Office of Gedney M. Howe, III,
PA., or any other attorney employed by; or associated by, these law firms.
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"Class Period" means the following time period for each of the Actions and any
(g)
corresponding Sub Actions:
~;;;~~~~;;:~;;,fsev~~;~:i,·~;;b0f4,;~
et al., Case No. 2007-CP-02-1232
j
'I Janet L West-Cox, et al v. Cale Yarborough
I Honda, Inc. a/k/a Cale Yarborough Motors ofSC,
t al., Case No. 2007-CP-02-1154
-·-------··-·--·-········--·-·---------·---·---·---------···--··-·---· -----·------·-··-·--·-
____________ ,
,
, __ ,
, ,
-·--·-·----------·-----··-···"--"""""
. . , ,. , , ,__ I __ ,
Natalie Armstrong v. Galeana Chrysler Jeep, Inc.,
~Case No. 2013-CP-02-00241
L. -----·-=-···~·--·· -----·--------·····---···-----·---------------·-----------------------·---------··--
Christopher Lee Morris v. Hilton Head Hyundai,
I LLC; NRAM Holdings, LLC; New River Auto Mall,
LLC; Coastal States Automotive Group, LLC; and
Coastal States Automotive Group, LLC f/k/a New
River Auto Mall, LLC f/kla NRAM Holdings, LLC,
1
"
·------- . ··---·-----·----- .. -----· --
August 21, 2003, to August 20, 2007
. ,_, ,_, ,_, _, . . . ---- - - -·- --"-"" __ . ,_,.
I August 30, 2002, to August 29, 2006
j
I
. _._J
I February 13, 2012 to February 12, 2016
·-------··----··-------·----·· ·---··
· -· - -
. . ·-----·----- -------------·-·-·---·· --- --
I
Case No. 2016-CP-27-048.
1..... ---------------··--·-·-----------------------------· ---·-·--··-·-------------------J
,
, _ . _,,,,
,
" ····---------· -------·---- . . -----·---·-·--
If a Defendant so elects, the Class Period may also include all or any part of the four year
period prior to June 20, 2016 for the respective Defendant's Sub Class.
(h)
"Class Representatives" means the individual, named Plaintiff(s) asserting a
claim against a Defendant, as listed in Exhibit C. For all relevant settlement purposes, Class
Representatives are also considered Class Members of the Class they represent.
(i)
"Class Representative Award" means such funds as may be awarded by the
Court to the Class Representatives to compensate them for their efforts in bringing the Actions
and achieving the benefits of this Agreement on behalf of the Class.
0)
"Closing Fee(s)" means a fee charged in connection with the sale or lease of
motor vehicles as referenced in the Closing Fee Statute, S.C. Code Ann. § 37-2~307, which are
also commonly referred to as "administrative" or "procurement" or "document" fees.
(k)
"Complaint" means the Complaint(s) or other amended pleadings filed by the
Plaintiffs in the Actions.
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I
I
I
(1)
"Court"means the Court of Common Pleas for Aiken County, South Carolina,
the Honorable Doyet A. Early, III, currently presiding, or any other court that obtains competent
jurisdiction over the Actions.
(m)
"Date of Notice'' means the date the Settlement Administrator mails the
Settlement Notice to Class Members.
(n)
"Defendants" mean the entities that seek to settle the claims against them in the
Actions by way of this Agreement. The Defendants are listed on Exhibit C.
(o)
"Defendants'Counsel" means the attorney of record for each of the Defendants
in the Actions.
(p)
"Dismissal Order"means the order dismissing the Actions on the merits with
prejudice as to the Defendants, which is to be entered by the Court after entry of the Final
Approval Order and as soon as reasonably practicable after the occurrence of the Effective Date.
(q)
"Effective·Date" means the date, if any, upon which the Settlement shall become
effective and occurs when the Final Approval Order has become final, binding, and no longer
subject to appeal, which shall be the latest of the following events: (a) the date upon which the
time expires for filing or noticing any appeal of the Final Approval Order; (b) if there is an
appeal or appeals, the date of completion, in a manner that finally affirms and leaves in place the
Final Approval Order without any material modification, of all proceedings arising out of the
appeal or appeals (including, but not limited to, the expiration of all deadlines for motions for
reconsideration or petitions for review and/or certiorari, all proceedings ordered on remand, and
all proceedings arising out of any subsequent appeal or appeals following decisions on remand);
or (c) the date of final dismissal of any appeal or the final dismissal of any proceeding on
certiorari.
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(r)
"Fairness Hearing" means the hearing before the Court where the Parties will
request that the Final Approval Order be entered by the Court approving the Agreement as fair,
reasonable, and adequate, and approving the payment of Settlement Benefits to the Claimants,
the Class Representative Award, and the Fee Award.
(s)
"Fee Award" means the amount of attorneys' fees and reimbursement of costs
awarded by the Court to Class Counsel to compensate Class Counsel for all of the past, present,
and future attorneys' fees, costs (including court costs), expenses, and disbursements incurred by
them, their experts, staff, and consultants in connection with pursuing claims against these
Defendants.
(t)
"Final Approval Order" means the Court's order granting Final Approval of
Class Action Settlement, to be entered by the Court after the Fairness Hearing approving this
Agreement, without material modifications that are unacceptable to any of the Parties, as fair,
adequate, and reasonable in accordance with applicable jurisprudence,
confirming the
certification of the Class or any Sub-Class, and issuing such other findings and determinations as
the Court or the Parties deem necessary and appropriate to effectuate all terms of this Agreement.
(u)
"Objection" means the written communication that must be mailed to Class
Counsel and Defendants' Counsel prior to the Opt-Out/Objection Deadline by a Class Member
in order to object to the Final Approval of this Agreement or any portion thereof.
(v)
"Opt-Out" means to opt-out of or request exclusion from the Class for purposes
of this Settlement as provided in Section 10 below.
(w)
"Opt-Out/Objection
Deadline" means the date to be set by the Court for a Class
Member to submit a Request for Exclusion or an Objection which is the period beginning when
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the Settlement Administrator mails the Settlement Notice and ending forty (40) calendar days
later.
(x)
"Party" or ''Parties" means the Plaintiffs or Defendants, or both.
(y)
"Person" means any individual, corporation, trust, partnership, limited liability
company, or other legal entity and their respective predecessors, successors, or assigns.
(z)
"Plaintiffs"
means the . individual Plaintiffs pursuing claims against the
Defendants, and each of the Class Members they represent. For all relevant settlement purposes,
Plaintiffs are also considered Class Representatives and Class Members of the Class they
represent.
(aa)
"Preliminary Approval Order" means the Court's order granting conditional
certification of the Class or any Sub-Class for settlement purposes only, preliminary approval of
this Agreement, as well as approval of the Settlement Administrator and approval of the form,
schedule, and methods of dissemination of the Settlement Notice anq the Claim Form.
(bb)
"Qualifying Transaction" means each consumer purchase or lease transaction
with Defendants during the Class Period, in which, according to the Defendants' currently
available electronically stored information, the Class Member(s) paid a Closing Fee. If a
Qualifying Transaction involved more than one purchaser or lessee, then any Settlement Benefits
shall be payable jointly to any such purchasers or lessors.
(cc)
"Released Claims" means any claims belonging to any Releasing Party arising
out of, or in any way related to, Closing Fees charged by any of the Released Entities during the
Class Period, and includes all claims, demands, actions, and causes of action of any kind or
nature whatsoever, known or unknown, direct or consequential, foreseen or unforeseen,
developed or undeveloped, arising under common law, regulatory law, statutory law (federal
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and/or state), or otherwise, that is, has been, could have been, or in the future might be asserted
by Plaintiffs or any Releasing Party in the Actions or in any other action or proceeding in this
Court, or any other court, administrative venue, tribunal, or arbitration or other forum, regardless
of the type or amount of relief or damages claimed, against any of the Released Entities.
Plaintiffs acknowledge that they may discover facts in addition to or different from those that
they now know or believe to be true with respect to the subject matter of the Released Claims,
but that it is their intention to finally and forever settle and release the Released Claims,
notwithstanding any unknown facts.
( dd)
"Released Entities" means any Defendant and each and all of its past, present,
and future parent corporations or partnerships, subsidiaries,
affiliated
companies and
corporations, and each and all of their past, present, and future directors, officers, managers,
employees, general partners, limited partners, principals, agents, shareholders, attorneys,
advisors, representatives, predecessors, successors, divisions, joint ventures, assigns, or related
entities, and each and all of its executors, successors, assigns, and legal representatives, and each
of its insurers during the applicable Class Period.
( ee)
"Releasing Party" means any Plaintiff and any Class Member and any other
Person claiming by or through any Plaintiff or Class Member, including, but not limited to,
his/her spouse, child, heir, associate, attorney, agent, administrator, devisee, predecessor,
successor, assignee, representative of any kind, partner, employee, or affiliate.
(ff)
"Request for Exclusion" means a timely written communication by or on behalf
of a Class Member stating that he or she wishes to "opt-out" or be excluded from the Class. To
be timely, a Request for Exclusion must be postmarked on or before the last day of the OptOut/Objection Deadline.
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(gg)
"Settlement Administrator(s)" means; subject to approval by the Court, any
capable class action settlement administrator agreeable to the Parties.
(hh)
"Settlement Benefits" means the benefits a Class Member is eligible to receive
pursuant to this Agreement, as provided in Section 6.
(ii)
"Settlement Notice" means the notices to be mailed to Class Members in
substantially the form attached hereto as Exhibit A.
2.
FOR SETTLEMENT PURPOSES ONLY; NO ADMISSION.
This Agreement, whether or not consummated, and any actions or proceedings taken
pursuant to this Agreement, are for settlement purposes only, and neither the fact of any
provision contained in this Agreement, nor any action taken hereunder or in filings or arguments
made with the Court in connection with seeking the Final Approval of this Agreement, shall
constitute, or be construed as, or be admissible as evidence of an admission of the validity of any
claim or any fact alleged by Plaintiffs in this case or in any other pending or future action, nor as
an admission of any wrongdoing, fault, violation of law, or liability of any kind on the part of
Defendants, or as an admission by Defendants of any claim or allegation made here or in any
other pending or future action, nor as an admission by Plaintiffs or Class Counsel of the validity
of any fact or defense asserted against them in the Actions or in any pending or future other
action, nor as an admission as to any other fact or matter of any kind. Neither this Agreement,
nor the exhibits thereto, nor the fact of settlement, nor any settlement negotiations or discussions,
nor the orders to be entered approving this settlement, nor any related document, shall be deemed
an admission, concession, presumption, or inference against any Party to this Agreement in a
proceeding other than one to enforce this Agreement.
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3.
PRESENTATION
(a)
OF SETTLEMENT TO THE COURT; COOPERATION.
Preliminary Approval. As soon as reasonably practicable after execution of this
Agreement, counsel for the Parties shall jointly move the Court for preliminary approval of this
Agreement and shall submit this Agreement and a proposed Order of Preliminary Approval of
Class Action Settlement.
(b)
Cooperation/Timing. The Parties shall, in good faith, cooperate, assist, and
undertake all reasonable actions and steps in order to accomplish required events on the schedule
set by the Court, The Parties shall use their best efforts to complete all actions necessary to
complete the settlement process described herein for each Action, including the Fairness Hearing
and entry of the Final Approval Order, as soon as reasonably possible. The Parties also agree
that time is of the essence and that the dates set forth herein are material terms of this Agreement.
4.
STIPULATION FOR CERTIFICATION OF THE CLASS.
For the sole and limited purpose of this settlement only, the Parties stipulate to and
request that the Court certify the Class as defined herein. The Court's certification of the Class
shall not be deemed to be an adjudication of any fact or issue for any purpose other than the
accomplishment of the provisions of this Agreement. It shall not be considered the law of the
case, res judicata, or collateral estoppel in the Actions or any other proceeding unless and until
the Effective Date. The Parties' agreement to class certification for settlement purposes only
(and any statements or submissions made by the Parties in connection with seeking the Court's
approval of this Agreement) shall not be a stipulation as to the propriety of class certification or
an admission of fact or law regarding any request for class certification in these or any other
actions or proceedings, whether or not involving the same or similar claims. If, for any of these
Actions or Sub Actions, the Effective Date does not occur, or this Agreement is otherwise
terminated or rendered null and void, the Parties will be returned to the status quo prior to the
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execution of this Agreement and this stipulation of class certification shall be void and of no
further effect.
In such event, nothing in this Agreement shall be argued as support for, or
admissible in, these or any other proceedings to certify any class in this Court or any other court
or any acknowledgement that the Class Representatives have any right to pursue a group action
without complying with Rule 23, SCRCP.
5.
RELEASE.
(a)
In consideration of the Settlement Benefits described herein and offered to all
Class Members, each and all of the Plaintiffs, on behalf of themselves and the Class Members,
hereby agree to and by operation of law shall be deemed to agree to fully, finally, and
completely release and forever discharge the Released Claims.
(b)
Plaintiffs, on behalf of themselves and the Class Members, by and through Class
Counsel, shall do all things necessary under this Agreement to obtain the entry of the Final
Approval Order, which, upon occurrence of the Effective Date, shall fully and forever release
and discharge all of the Released Claims against the Released Entities.
From and after the
Effective Date, the Released Parties shall have no further liability to any Class Member arising
out of or relating to the Released Claims, whether such liability is asserted directly, by cross
claim, by counterclaim, by third-party claims, by affirmative defense, or otherwise, except to
comply with the terms of this Agreement. Plaintiffs, individually and on behalf of the Class,
shall execute or authorize execution of all documents or instruments necessary to effect the
dismissal of the claims against the Defendants, with prejudice, and the release of the Released
Claims.
(c)
Plaintiffs, on behalf of themselves and the Class Members, hereby agree and
acknowledge, and by operation of law will be deemed to agree and acknowledge as of the
Effective Date, that each and all provisions of this Paragraph 5, separately and severally,
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constitute essential terms of this Agreement and shall be construed in favor of effectuating a
complete settlement of the Actions as to the Defendants.
6.
SETTLEMENT BENEFITS AVAILABLE TO THE CLASS MEMBERS.
(a)
The Settlement Benefits available to Class Members shall be payable solely on
the· basis of a Qualifying Transaction.
If a Qualifying Transaction involved more than one
purchaser or lessee, then any Settlement Benefits shall be payable jointly to any such purchasers
or lessors. Only Class Members who properly and timely submit a Claim Form shall be eligible
to receive any Settlement Benefits.
(b)
The Class Member(s) for each Qualifying Transaction occurring during the Class
Period will be eligible to receive a cash payment equal to 25% of the Closing Fee above $150.00,
and a gift card equal to 75% of the Closing Fee above $150.00. If a Defendant so elects, the
Class Period may also include all or any part of the four year period prior to June 20, 2016 for
the respective Defendant's Sub-Class, and such Class Members will receive a gift card of $35.
Notwithstanding the foregoing, any Class Member with an identifiable arbitration agreement in
their financing agreement or other document contained in their transaction file may only receive
a gift card of $35.
( c)
Any checks for the cash component of the Settlement Benefits shall be valid and
negotiable for ninety (90) days from the date of issue. The funds for any checks which are not
timely negotiated by the Class Member(s) shall revert to the Defendants.
(d)
Terms of usage for gift cards.
1.
Each gift card may only be used at the Defendant's dealership where the
Class Member(s) entered into a Qualifying Transaction.
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2.
Gift cards may be redeemed for any products or services sold at the
Defendant's dealership, or the purchase of a new or used car, or both, at the
option of the Defendant.
3.
Gift cards shall not be transferable to any other person or entity.
4.
Gift cards may not be stacked. If a Class Member(s) has more than one
Qualifying Transaction and receives multiple gift cards, the gift cards cannot be
redeemed in the same transaction.
5.
Gift cards shall remain valid for one-hundred fifty (150) calendar days
from the date the gift card is mailed to the Class Member(s). Once expired, the
Defendants shall have no obligation to honor the gift card.
6.
The gift card may not be redeemed for cash, or applied as a credit toward
future purchases of products or services, or as payment on any current debt
between a Class Member and Defendant.
(e)
Each Class Representative will each receive a payment of $3,000.00 as a Class
Representative Award for their service as Class Representative, in addition to any settlement
consideration received as a Class Member.
(f)
For any Defendant Sub-Class, if Class Members representing more than 35% of
the Qualifying Transactions submit Claim Forms for Settlement Benefits, then all sums due in
connection with all Claim Forms for that Defendant Sub-Class will be reduced pro-rata.
7.
SETTLEMENT ADMINISTRATION.
(a)
Administration. The Settlement Administrator shall administer the relief
provided by this Agreement in an equitable, efficient, rational, cost-effective, and timely manner,
responsive to Class Counsel and Defendants' Counsel and at all times subject to the supervision
of the Court.
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(b)
Cost. Defendants will be responsible for paying their pro-rata share of all
Administration Expenses.
(c)
Communications.
Class Counsel and their employees shall not initiate any
communications with Class Members, other than the Class Representatives, except through
court-approved notices mailed by the Settlement Administrator.
This prohibition on the
initiation of communications to Class Members shall not preclude responding to particular
questions or requests for information from Class Members after receipt of any court-approved
notices.
(d)
Administration
Activities and Maintenance
of Records.
The Settlement
Administrator shall maintain reasonably detailed records of its activities under this Agreement.
All such records shall be maintained as required by applicable law and in accordance with sound
business practices; and such records will be made available to Class Counsel and Defendants'
Counsel upon request.
The Settlement Administrator shall also provide reports and other
information to the Court as the Court may require. The Settlement Administrator shall provide
Class Counsel and the Defendants' Counsel with information concerning notice, administration,
and implementation of the Agreement.
Without limiting the foregoing, the Settlement
Administrator shall:
1.
Notice of Settlement. Mail the Settlement Notice to Class Members;
2.
Website.
Maintain a website where Class Members can view copies of
certain pleadings, Court orders, the Agreement, and the Settlement Notice, and
provide a toll-free telephone number whereby Class Members may leave
messages requesting additional information;
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3.
Opt-Outs.
Receive and review Requests for Exclusion from Class
Members seeking to exclude themselves from this Agreement and provide Class
Counsel and the Defendants' Counsel with copies thereof within two (2) business
days of the receipt;
4.
Receive and review Claim Forms. If the Settlement Administrator deems
a Claim Form to be materially incomplete or if there is evidence of abuse or fraud,
the Settlement Administrator shall provide Class Counsel and Defendants'
Counsel with copies thereof within two (2) calendar days of receipt;
5.
Files. Make available for inspection by Class Counsel and Defendants'
Counsel the Claim Forms and any supporting documentation received by the
Settlement Administrator at any time upon reasonable notice;
6.
Mailing Settlement Benefits to Class Members. No later than thirty (30)
calendar days from the entry of the Dismissal Order, the Settlement Administrator
shall distribute the Settlement Benefits to the Class Members who have timely
returned a properly completed Claim Form.
7.
Requests for Additional Information. In the exercise of its duties outlined
in this Agreement, the Settlement Administrator shall have the right to reasonably
request additional information from the Parties or any Class Member;
8.
Opt-Out List. Within fifteen (15) calendar days of the Opt-Out Period/
Objection Deadline, the Settlement Administrator will send Class Counsel and
Defendants' Counsel a final list showing the name, address, and date of
transaction of all Class Members who opted-out pursuant to Section I 0 herein.
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(e)
Privacy.
Because of the presence of personal identifying information, the
Settlement Administrator shall utilize the data regarding the Class Members in a manner that is
protective of the privacy rights of the Class Members. Any filings containing such data shall be
made under seal or as otherwise ordered by the Court in a manner consistent with the intent of
the federal Financial Identity Fraud and Identity Theft Protection Act.
8.
NOTICE TO THE CLASS.
Within a reasonable time after entry of the Preliminary Approval Order (and as the Court
may direct), the Settlement Administrator shalJ disseminate the Settlement Notice to the Class
Members, and the Parties shall fully cooperate to accomplish this end.
(a)
The Settlement Notice will be substantially in the form(s) attached as Exhibit A.
(b)
Each Defendant shall, based on its currently available electronically stored
information, provide the Settlement Administrator with at least the following information
regarding each Qualifying Transaction: (1) name(s) of purchaser(s); (2) last known U.S. mail
address; (3) the date of the transaction, (4) the stock number of the vehicle or other identifying
transaction number such as VIN, and (5) the amount of the Closing Fee paid. As soon as
practicable after receipt of this information, the Settlement Administrator shall conduct a
National Change of Address Update and utilize any other commercially reasonable procedures
to find the most current mailing address for each Class Member.
(c)
After updating the addresses as provided for in Paragraph 8(b), the Settlement
Administrator shall provide Defendants' Counsel an updated list, if requested, and a summary
regarding the updated addresses to Class Counsel and Defendant's Counsel, if requested.
(d)
As soon as practicable after the update of such addresses the Settlement Notice
will be sent to all Class Members by First Class U.S. Mail.
Page 18 of30
DM: 4648124 v.10
(e)
For any Settlement Notices returned to the Settlement Administrator as unable to
be delivered as addressed, the Settlement Administrator shall employ commercially reasonable
means to locate a more current address for the Class Member(s). If a more current address is
located, the Settlement Administrator shall mail the materials to that address, at which point the
Claims Period for that Class Member shall begin. If the second mailing of the Settlement Notice
to any Class Member is returned as undeliverable, the Settlement Administrator shall not be
required to further attempt to locate a Class Member.
9.
CLAIM FORM SUBMISSION.
The Settlement Notice shall include a Claim Form, substantially in the form attached as
Exhibit B.
Class Members wishing to receive the Settlement Benefits pursuant to this
Agreement must properly and timely mail completed Claim Forms to the Settlement
Administrator, and those Claim Forms must be postmarked on or before the Claims Deadline.
Any Claim Form that is postmarked after the Claims Deadline or hand delivered to the
Settlement Administrator after the Claims Deadline shall be deemed untimely, invalid, and a
waiver by the submitting Class Member of any claim for any Settlement Benefits under this
Agreement. Any Class Member who fails to properly and timely return the Claim Form shall
have forever waived and released his, her, or its right to receive Settlement Benefits.
10.
OPT-OUT RIGHTS.
Any Class Member may request to be excluded from the Class at any time before the
Opt-Out/Objection Deadline, by complying with the procedures as set forth in the Courtapproved Settlement Notice. In order to exercise the right to opt-out and be excluded from the
Class, the Class Member(s) seeking to do so must complete and return to the Settlement
Administrator a Request for Exclusion, such that it is postmarked on or before the OptOut/Objection Deadline.
Requests for Exclusion that are postmarked
Page 19 of30
OM; 4648124 v.10
after the Opt-
Out/Objection Deadline will be considered invalid and of no effect, and any Class Member who
submits an untimely Request for Exclusion will become a Class Member and will be bound by
any Orders entered by the Court, including a Judgment approving the Agreement and
implementing the Release contemplated thereby.
All Class Members will be bound by this
Agreement and the Final Approval Order, including the Release herein contained. Any Class
Member who timely and properly submits a Request for Exclusion shall not (1) be bound by any
orders or Judgment entered in the Actions nor by the Release herein contained; (2) be entitled to
any relief under this Agreement; (3) gain any rights by virtue of this Agreement; or (4) be
entitled to object to any aspect of this Agreement or the Actions. Each Class Member requesting
exclusion from the Class must personally sign his or her own individual Request for Exclusion.
No Person may opt-out of the Class for any other Person, or be opted-out by any other Person,
and no Person shall be deemed opted-out of the Class through any purported "mass" or "class"
opt-outs. Any Class Member who fails to comply with the provisions and deadlines of this
Paragraph shall waive and forfeit any and all rights he or she may have to exclude him/herself
from the Class, and shall be bound by all the terms of this Agreement, by the Release, and by all
other proceedings, orders) and the Final Approval Order in the Actions.
11.
OBJECTIONS.
Any Class Member who intends to object to this Agreement must submit an Objection to
Class Counsel and Defendants' Counsel. Any Objection shall apply only as to the Defendant
Sub-Class to which the objecting Class Member belongs.
The Objection must include the
following: (1) the personal signature of the objector; (2) the objector's full name and address; (3)
evidence that the objector or intervenor is a member of the Class as defined above; (4) a
statement of the objection(s) being asserted; (5) a detailed description of the facts and legal
authorities underlying each objection; (6) a statement of whether the objector intends to attend
Page20 of30
OM: 4648124 v.10
the Fairness Hearing; (7) a list of witnesses who may be called to testify at the Fairness Hearing,
whether in person, by deposition, or affidavit; and (8) a list of exhibits, and copies of same,
which the objector may offer at the Fairness Hearing. The Objection must be postmarked on or
before the Opt-Out/Objection Deadline. No Class Member shall be heard, and no papers, briefs,
or pleadings submitted by such Class Member shall be received or considered by the Court
unless the Class Member has timely completed and submitted an Objection. Any Class Member
who fails to timely or properly file a written Objection shall be deemed to have waived his or her
objections and be forever barred from making any such objections in the Actions or in any other
action or proceeding. Any Class Member who fails to comply with the provisions and deadlines
of this Paragraph 11 shall waive and forfeit any and all rights he or she may have to appear
separately and/or object, and shall be bound by all the terms of this Agreement, by the Release,
and by all other proceedings, orders, and the Final Approval Order in the Actions.
12.
ATTORNEYS' FEES, COSTS, AND EXPENSES.
(a)
Attorneys' Fees and Costs. Class Counsel may apply to the Court for an award
of attorneys' fees and costs in a total amount not to exceed 25% of the Settlement Benefits
available to all Class Members. Defendants will not oppose an attorney's fee award from the
Court which does not exceed the foregoing amounts. The attorney's fee award set forth herein
will be paid by Defendants in 24 equal monthly installments beginning not later than five (5)
days after entry of the Dismissal Order, and continuing each month thereafter until the full award
is paid. The payment of attorney's fees provided for herein is separate from and in addition to
any other payments agreed to as part of this settlement, and shall constitute complete
consideration for all work performed and all expenses and costs incurred to date and for all work
to be performed and all expenses and costs to be incurred through the completion of the
Page 21 of30
DM: 4648124 v.10
settlements
contemplated
by this Agreement and the dismissal of the Actions as to these
Defendants, other than those costs described herein below.
(b)
AdministrationExpenses.
Defendants shall each pay their pro-rata share of all
Administration Expenses in addition to any other payments required by this Agreement.
13.
CONSIDERATION FOR THE SETTLEMENTBENEFITS.
As an express element and condition of this Agreement and in consideration ofthe
Settlement Benefits offered hereunder to the Class Members:
(a)
Release.
As set forth more fully in Paragraph 5, the Class Representatives,
individually and on behalf of all Class Members, shall and do hereby settle, compromise, resolve,
release, waive, discharge, and terminate any and all Released Claims against the Released
Entities and shall execute or authorize the execution of any documents or instruments necessary
to effect such a release, as well as dismissal of the Actions with prejudice.
(b)
Dismissal with Prejudice. Following the entry of the Final Approval Order,
the Actions and the Released Claims as hereinabove defined shall be dismissed as to the
Defendants on the merits, with prejudice, thereby forever barring such claims.
(c)
Effect of Paymentby Defendants. Defendants'
tender of the consideration
required by this Agreement and their performance of their other obligations under this
Agreement shall entitle Defendants and the Released Entities to the full and complete benefits of
this Agreement.
The failure of any Class Member to claim or obtain his or her Settlement
Benefits shall not affect the releases herein, including without limitation the Released Claims,
and this Agreement shall retain its full, binding effect. As to any Class Member who does not
collect Settlement Benefits hereunder, all rights of any such Class Member to payment in these
Actions shall lapse and be forfeited. The Released Entities shall not be required to tender any
Page 22 of30
DM: 4648124 v.10
additional
consideration
to or for the benefit of any Class Member on account of his or her
forfeiture of Settlement Benefits hereunder.
( d)
Defendants
Representative
shall not be obligated
to pay more than the total of any Class
Award(s), the total of all Settlement Benefits payable to Class Members, the Fee
Award approved by the Court (up to the maximums set forth for each Defendant in Paragraph
12(a)), and its pro-rata share of the Administration
Expenses in total settlement of the Actions.
The payments described in this Agreement plus the Settlement Benefits will constitute adequate
consideration
for the settlement
and will be made in
full and final settlement of: (1) the
Released Claims; (2) Administration Expenses; (3) Claims for attorneys' fees and costs; (4) the
Class Representative Award; and (5) any other obligation of the Parties under this Agreement.
14.
OPINION OF CLASS COUNSEL.
Class Counsel are of the opinion that the settlement embraced in this Agreement is fair
and reasonable and in the best interests of the Class as a whole when the factors set forth in the
"Recitals" above are given due consideration.
15.
FINAL APPROVAL AND ORDER.
(a)
No later than five (5) calendar days prior to the Fairness Hearing, the Settlement
Administrator shall file with the Court and serve on counsel for all Parties a declaration stating
that any required notice has been completed in accordance with the terms of the Preliminary
Approval Order. The Settlement Administrator will report to the Court, Class Counsel, and
Defendants' Counsel, the number of Claims made and the number of Opt-Outs.
(b)
No later than five (5) calendar days prior to the Fairness Hearing:
1.
The Parties shall file a joint motion requesting that the Court grant final
approval of the Agreement, with Class Counsel filing a memorandum of points
and authorities in support of such motion;
Page 23 of30
DM: 4648124 v.10
2.
Class Counsel shall file with the Court and serve on counsel for the
Defendants its motion requesting the Court's approval of the Fee Award; and
3.
Class Counsel and Defendant's Counsel shall jointly file a memorandum
addressing any timely submitted Objections to the settlement.
( c)
This Agreement is subject to and conditioned upon the issuance by the Court and
entry of the Final Approval Order which grants Final Approval of this Agreement in accordance
with applicable jurisprudence, and providing the relief specified below, which relief shall be
subject to the terms and conditions of this Agreement, the occurrence of the Effective Date, and
the Parties' performance of their continuing rights and obligations hereunder. Such order shall:
1.
Decree that neither the Final Approval Order nor this Agreement
constitute an admission by Defendants of any liability or wrongdoing whatsoever;
2.
Determine that this Agreement is entered into in good faith and is
reasonable, fair, and adequate, and in the best interests of the Class;
3.
Bar and enjoin all Releasing Parties from asserting against any Released
Entity any Released Claim which the Releasing Party had or has against the
Defendants, including in the Actions and any other action;
Release each Released Entity from the Released Claims, which any Releasing
Party has against such Released Entity;
4.
Preserve the Court's continuing and exclusive jurisdiction over the Parties
to this Agreement, including Defendants and all Class Members, to administer,
supervise, construe, and enforce this Agreement in accordance with its terms for
the mutual benefit of the Parties, but without affecting the finality of the Final
Approval Order; and
Page 24 of30
DM: 4648124 v.10
5.
Incorporate any other provisions deemed necessary and just which are
consistent with this Agreement.
(d)
No later than thirty (30) calendar days from the Effective Date, the Settlement
Administrator shall disburse the Settlement Benefits to all Claimants.
(e)
No later than twenty (20) calendar days after all Settlement Benefits have been
,
mailed, the Settlement Administrator shall file with the Court and serve on counsel for all Parties
a declaration stating that all Settlement Benefits have been mailed to the Claimants, and that the
distribution of Settlement Benefits has been completed in accordance with the terms of the Final
Approval Order.
16.
FAILURE TO OBTAIN COURT APPROVAL; EFFECT OF APPEAL.
(a)
If the Court enters an order in any of the Actions or as to any Sub Action at
variance with the terms hereof, then this Agreement, at the option of the Class Representative(s)
or Defendant(s) for any Sub-Class, may be declared null and void for all purposes as to the
respective Sub-Class. If any Class Representative or Defendant elects to exercise this right,
they must do so in writing, with copies to all counsel and to the Court, within three (3) calendar
days ofreceipt of any such order.
(b)
If the Final Approval Order as to any Action, is not entered as provided herein, or
if the Final Approval Order as to any Action is reversed on appeal, or if appealed, the Final
Approval Order as to any Action is not affirmed in total, this Agreement shall be null and void
for all purposes, as to that Action.
17.
EXCLUSIVE REMEDY; JURISDICTION OF COURT.
(a)
This Agreement shall be the sole and exclusive remedy of Class Members against
any Released Entity relating to any and all Released Claims. Upon the Effective Date, each and
every Class Member shall be permanently barred and enjoined from initiating, asserting, and/or
Page25 of30
DM: 4648124 v.10
prosecuting any Released Claim(s) against any Released Entity in any court, tribunal, forum, or
proceeding of any kind or nature, legal or equitable.
(b)
The Parties agree that the Court shall retain exclusive and continuing jurisdiction
over the Actions, the Parties, Class Members, and the Settlement Administrator in order to
interpret and enforce the terms, conditions, and obligations under this Agreement.
18.
NOTICES TO COUNSEL.
All notices to counsel required by this Agreement shall be made in writing and
communicated by facsimile and email to the following:
19.
Ifto Class Counsel:
Ifto Defendants' Counsel:
Brady R. Thomas, Esq.
Richardson Patrick Westbrook &
Brickman, LLC
PO Box 1368
Barnwell, SC 29812
[email protected]
(803) 259~4403
James Y. Becker
Haynsworth Sinkler Boyd, PA
Post Office Box 11889
Columbia, SC 29211
[email protected]
(803) 765-1243
MISCELLANEOUS.
Other Lawsuits.
(a)
Other civil actions involving Closing Fees in which the
Plaintiffs' Attorneys were associated as of June 20, 2016, may be settled pursuant to this
Agreement, by agreement of the parties to the action and by supplemental order of the Court.
Persons Bound. This Agreement shall be binding upon and inure to the benefit
(b)
of the Parties to this Agreement, the Released Entities, Plaintiffs, and the Class Members, and
each of their respective heirs, predecessors,
successors, assigns, executors,
and legal
representatives.
(c)
No Opinions Concerning Tax Liability.
No opinion concerning the tax
consequences, if any, of this Agreement as to individual Class Members is being given by Class
Page 26 of30
DM: 4648124 v.10
Counsel or by Defendants or by Defendants'
Counsel, nor is any representation
this regard made by virtue of this Agreement.
or warranty in
Class Members are directed to consult their own
tax advisors regarding the tax consequences of the Agreement, and any tax-reporting
obligations
they may have with respect thereto. Each Class Member's tax obligations, and the determination
thereof, are the sole responsibility
consequences
Member.
of the Class Member, and it is understood
may vary depending· on the particular
circumstances
that the tax
of each individual
Class
Nothing in this Agreement is to be construed as tax advice of any kind.
(d)
Extensions
of Time.
Subject
to Court
approval,
the Parties
may
agree
to
reasonable extensions of time to carry out any of the provisions of this Agreement.
(e)
Drafting.
The determination
of the terms of, and the drafting of, this Agreement,
has been by mutual agreement after negotiation,
with consideration
by and participation
of all
Parties hereto and their counsel. Accordingly, the rule of construction that any ambiguities are to
be construed against the drafter shall have no application.
was drafted by Class Counsel and Defendants'
All Parties agree that this Agreement
Counsel at rums' length, and that no extrinsic
evidence may be offered to explain, construe, contradict, or clarify its terms, the intent of the
Parties or their attorneys, or the circumstances
under which the Agreement was negotiated, made,
or executed.
(f)
Agreement
Severability,
In the event that any one or more of the provisions contained in this
shall for any reason be held invalid, illegal, or unenforceable
invalidity, illegality, or unenforceability
(g)
convenience
Headings.
shall not affect any other provisions of this Agreement.
The headings
used in this Agreement
and do not constitute part of the Agreement
construe the meaning of the Agreement or any part thereof.
Page27 of30
DM: 4648124 v.10
in any respect, such
are for the purpose
of
arid no heading shall be used to help
(h)
Governing
Law.
This Agreement
shall be governed
by, and construed
in
accordance with, the laws of the State of South Carolina.
(i)
one
01·
Execution
by Counterparts.
This Agreement may be executed by the Parties in
more counterparts, each of which shall be deemed an original but all of which together
shall constitute one and the same instrument. Facsimile signatures or signatures sent by email
shall be deemed original signatures and shall be binding.
20.
ENTIRE AGREEMENT.
This Agreement, including all exhibits hereto, and the Comprehensive Settlement Term
Sheet and Agreement of June 20, 2016, attached as Exhibit D, shall constitute the entire
Agreement among the Parties with regard to the subject matter of this Agreement and shall
supersede any previous agreements, representations, communications, and understandings
among the Parties with respectto the subject matter of this Agreement. This Agreement may not
be changed, modified, or amended except in writing signed by all Parties, subject to Court
approval.
The Parties contemplate that, subject to Court approval or without such approval
where legally permissible, the exhibits to this Agreement may be modified by subsequent
agreement of Class Counsel and Defendants' Counsel prior to dissemination to the Class.
Included and an integral part of this Agreement are two exhibits:
(A) proposed Settlement
Notice, and (B) proposed Claim Form.
21.
REPRESENTATIONS AND WARRANTIES.
Each signatory represents and warrants:
(a)
That he or she, as licensed attorney for the respective Parties, has all requisite
power and authority to execute, deliver, and perform this Agreement and to consummate the
transactions contemplated hereby;
Page 28 of30
DM: 4648124 v.10
(b)
That the execution, delivery, and performance of this Agreement and the actions
contemplated herein have been duly authorized by the Parties represented by the signatory,
including any necessary corporate action by any corporate Party;
( c)
That all co-counsel for any signatory have fully consented to the execution and
delivery of this Agreement; and
(d)
That this Agreement has been duly and validly executed and delivered by each
signatory and constitutes its legal, valid, and binding obligation.
By executing this Agreement, the Parties and their counsel signify their agreement to
abide by all the terms of this Agreement.
Signed on the dates below written with an effective date as first written above:
CLASS COUNSEL:
I··
-·
Richardson Patrick Westbrook & Brickman,
LLC
By:
~~r-
T~.
Richardson, Jr
Brady R. Thomas
J. David Butler
Post Office Box 1368
Barnwell, SC 29812
(803) 541-7850
[email protected]
[email protected]
[email protected]
September
t.b, 2016
[additional signatures on following page]
Page29 of30
DM; 4648124 v.10
DEFENDANTS' COUNSEL:
Bradford Neal Martin & Associates
Bradford N. Martin
Laura W. H. Teer
Post Office Box 10410
Greenville, SC 29603
(864) 522-9990
[email protected]
[email protected]
Signed on behalf of and with permission of
all other Defendants' Counsel
Septembe~
2016
Richardson Plowden & Robinson, PA
Walker & Reibold, LLC
Steven W. Hamm
H. Clayton Walker, Jr.
C. Jo Anne Wessinger Hill
Robert L. Reibold
Post Drawer 7788
Post Office Box 61140
Columbia, SC 29202
Columbia, SC 29260
(803) 771-4400
(803) 454-0955
[email protected]
[email protected]
iwessin erhill r crlaw.com
rreibold walkerreibold.net
i-g~~~~~~~~=--~---~----l-'~~~~~~===~==='---------l
J. Gregory Studemeyer
Attorney at Law
1701 Richland Street
Columbia, SC 29201
(803) 779-3363
[email protected]
1-------------------1
T. Alexander Beard
Beard Law Offices
1002 Anna Knapp Extension
Suite 103
Mount Pleasant, SC 29464
(843) 216-0331
[email protected]
Barr, Unger & Mcintosh, LLC
Capers G. Barr, III
11 Broad Street
Charleston, SC 29401
(843) 577-5083
c b ·. barrun ermcintosh.com
Page 30 of30
DM: 4648124 v.10
.
V
co ~'-1\'-~o \~
_,~ ll\
QP\...,.
'l,\)\U
.
o\(°:\\~
EX.\~
~
ou~\\~~
NOTICE OF CLASS A~fi_QIEMENT
~~~~
Howard Adams, et al. v. Action FordM~,
Inc., et al., Case No. 2007-CP-02-1232;
Janet L. West-Cox; et al v. Cale Yarborough Honda, Inc., Case No. 2007-CP-02-1154;
Natalie Armstrong v. Galeana Chrysler Jeep, Inc., Case No. 2013-CP-02-0241; and
Christopher Lee Morris v. Hilton Head Hyundai, LLC, et al., Case No. Case No. 2016-CP-27-0048
Please read this notice carefully and in its entirety,
Your legal rights will be affected by proceedings in this lawsuit.
This notice is to advise you about potential rights you may have regarding a proposed settlement of
certain class action lawsuits pending in Aiken County, South Carolina.
1. What is the lawsuit about? Plaintiffs in the above lawsuits filed complaints alleging that
Defendant, <Dealership> ("Defendant") charged an improper closing fee in connection with the
sales of motor vehicles from <Enter Relevant Time Period>. The Defendant denies any
wrongdoing. However, Plaintiffs and Defendant have concluded that further conduct of these
lawsuits would be protracted and expensive, and because neither party has an assurance of a
successful outcome, that settlement is appropriate.
2. Why have you received this notice? You have received this notice because Defendant's records
show that you purchased or leased a motor vehicle from it on our about <Enter Date>, and paid a closing
fee of <enter amount>. Thus, you are a member of the Class, and you are eligible to receive certain
benefits as a result of the settlement of this class action, if the settlement is finally approved by the Court.
3. What benefits might you be eligible to receive? The settlement benefit you are eligible to receive is
a cash payment equal to 25% of the amount by which the closing fee you paid exceeds $150.00, and a gift
card equal to 75% of the amount by which the closing fee you paid exceeds $150.00. However, if your
sales transaction documents included an arbitration provision, you are eligible to receive a gift card equal
to $35.00. Thus, according to the Defendant's records, you are eligible to receive <Settlement Benefits>.
4. What should you do if you want to receive the settlement benefits? Class Members who wish to
remain a Class Member do not need to do anything. To receive the settlement benefits described above,
however, each Class Member must submit the Claim Form that is included with this Notice. Claim
Forms must be sent to the <Settlement Administrator, Address>, by first class mail, postmarked no later
than
. If you properly complete and timely return the Claim Form, and if the
Court orders final approval of this settlement, the settlement benefits will be mailed to you.
5. When will I receive the settlement benefits? No checks or gift cards will be issued unless this
settlement is finally approved by the Court. If the Court orders final approval of this settlement, and the
lawsuit is dismissed, then benefits will be mailed within thirty (30) days after this lawsuit is dismissed.
6. Do you have to pay attorneys' fees? As part of the settlement, Defendant has agreed to pay the
court-appointed class counsel up to 25% of the settlement benefits available to the Class Members, and a
$3,000.00 service payment to Plaintiff, subject to approval by the court. These attorneys' fees will not
reduce the settlement benefits available to Class Members. Class Members do not need to pay class
counsel. If you wish to hire your own attorney for this matter, you may do so at your own expense .
DM: 4649365 v.4
. Page 1 of2
7. Can you exclude yourself from this settlement? If you do not wish to remain in this lawsuit, then
you may exclude yourself. If you exclude yourself, you will not be eligible to receive any settlement
benefits. If you do not exclude yourself, you give up the right to sue Defendant for the claims raised in
this lawsuit. Your request to be excluded from this lawsuit must be in writing and must provide your
name and address and a statement that you wish to be excluded from the Settlement Class relating to
Defendant in <Case Name>. This statement must be sent to the <Settlement Administrator, Address>, by
first class mail, postmarked no later than
. If you request exclusion on behalf of anyone
other than yourself, you must describe your legal authority to make such a request.
...
8. Can you object to the settlement? As a Class Member, you may object to the settlement, provided
that you send a written objection to Class Counsel, Brady R. Thomas, Richardson, Patrick, Westbrook &
Brickman, LLC, 1730 Jackson Street, Barnwell, SC 29812 and defense counsel, James Y. Becker, P.O.
Box 11889, Columbia, SC 29211.
Any objections must be postmarked no later than
---------· Your written objection must be personally signed by you and include: (1)
your full name and address; (2) evidence that you are a member of the Settlement Class that may be
entitled to settlement benefits; (3) a statement of the objection(s) you are asserting; (4) a detailed
description of the facts and legal authorities underlying each objection; (5) a statement of whether you
intend to attend the Fairness Hearing; (6) a list of witnesses you may call to testify at the Fairness
Hearing, whether in person, by deposition, or affidavit; and (7) a list of exhibits, and copies of same,
which you may offer at the Fairness Hearing.
9. The Court will hold a Final Fairness Hearing on
, at
. at
---------------· '· to determine whether the proposed settlement is fair,
reasonable and adequate. You are not required to attend, but you may attend if you wish. The Court
has reserved the right to delay and reschedule the Final Fairness Hearing at a later date. If the Final
Fairness Hearing is rescheduled, notice of the new date and time will be provided online at
10. Can you get more information? This is a summary notice of the settlement. You may view a copy
of the complete Settlement Agreement online at
, or by written
request to the Settlement Administrator. Any questions you have concerning the matters contained in this
Notice should be directed to Class Counsel, Brady R. Thomas, Richardson, Patrick, Westbrook &
Brickman, LLC, 1730 Jackson Street, Barnwell, SC 29812,
Do not call the Court, the clerk's office, or the Defendant.
BY ORDER OF THE COURT
The Hon. Doyet A. Early, III
Circuit Judge, State of South Carolina
Date:
-------
, 2016
Page2 of2
DM: 4649365 v.4
Directions: If you are interested in receiving settlement benefits from <Dealership Name> pursuant
to the settlement in the class action identified above, this completed Claim Form must be postmarked
on or before
. Your claim form shouldbe sent to the
_
PART I: BUYER INFORMATION
Name of Buyer:
<Name>
_
Name of Co-Buyer(if applicable):----------------------CurrentMailing Address: -----------------------City: ----------------
State:
Zip Code:
_
PART 2: INFORMATION ABOUT YOUR VEHICLE TRANSACTION
Date of Purchase: _<Deal Date>__
. Amount of Closing Fee Paid: $_<Fee Paid>__
NOTE: If you purchased more than one vehicle from <Dealership>during the class period, you
will be sent a payment Claim Form for each vehicle. You must sign and return each claim form
to receive the settlement benefits for that vehicle transaction.
PART 3: CERTIFICATION
By signing below, you verify under penalty ofperjury that:
1.
To the best of your knowledge the information above is truthful and correct.
2.
You purchased or leased a vehicle from <Dealership> on <Date of Transaction>.
3.
You were charged and paid a closing fee in connection with the purchase or lease of your
vehicle from <Dealership>.
4.
You have not previously released your claims against <Dealership> pursuant to another
settlement agreement, final judgment, or other dealings with <Dealership>.
Buyer Signature
Buyer Printed Name
Page 1 of2
Date
(If applicable)
Co-Buyer Signature
Telephone Number(s) (optional):
Co-Buyer Printed Name
(_ _ _)
Date
- ----
The Court must approve the settlement and certain other conditions must be met before any
benefits will be issued. If the Court approves the settlement, all other conditions of the
Settlement Agreement are met, and your claim is deemed valid,
benefits will be sent in the next several months.
ALL COMPLETED AND SIGNED CLAIM FORMS MUST BE POSTMARKED ON OR
BEFORE
OR THEY WILL NOT BE CONSIDERED.
<Settlement Administrator>
<Address>
Id
Name
Addressl
Address2
City, State Zip
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Defendant (as named in the cemnlaint)
Baker Motor Company of Charleston
Beach Ford Lincoln Mercury Volvo, Inc.
Benson Ford Mercury, Inc.
Big "0'' Dodge of Greenville, Inc.
BMS Inc. d/b/a Breakaway Honda
Bradshaw Acura
Bradshaw Automotive Group, Inc.
Baker Motor Com1 anY..oC ~-•~!MiJnc.
Beach Ford Lin
"' V'l!fvo, Inc.
Benson Ford T.,..,
curv Volvo . Inc.
Biz "O" Dod€A& ~ieenville, Inc ..
BMS Inc. d/bfa Breakaway Honda
Bradshaw Inc. of Greenville d/b/a Bradshaw Acura
Bradshaw Automotive Group, Inc.
8
Burns Ford Mercury, Inc.
Burns Ford-Mercury, Inc.
9
Cale Yarborough Honda, Inc. a/k/a Cale
Yarborough Motors of SC
Clinton Family Ford
Conwav Ford, Inc.
D&D Motors, Inc.
Fairway Ford, Inc.
Fred Caldwell's Clover Chevrolet
1
2
J
10
II
12
13
14
Defendant (iuALlc,,.aJ ni11m1)\~'
~:."\
~-
Cale Yarborough Motors of S.C. d/b/a Cale
Yarborough Honda, Inc.
Clinton Family Ford
Conwav Ford, Inc.
D&D Motors, Inc.
Fairway Ford Inc.
Caldwell Chevrolet, Inc. d/b/a Fred Caldwell Clover
Chevrolet
Galeana Chrysler-Jeep, Inc., a/k/a Galeana Galeana Chrysler-Jeep, Inc ..
Chrysler Pl vmouth
Grand Strand Nissan
Grand Strand Nissan, Inc.
I Names of nil named
Plaintiffs
Minnie Blackwell, Beverly Jones
Judith Post
Dorrene Chapman, Robert Schaffer
Larry Bever Sherry Nix
Richard Lanford
Gus Ward
Norris King, James Miller, Christine
Rayburn
Linda Pegram, Denise Robertson,
Mack Faile, John Myers, Gail Meyers,
Melissa Allman a/k/a Melissa Evans
Henry McKnight
Bobby Ferrell Robert Nash
Richard Ricciardi
Roger Miller
Shonya Heyward
Jerry Brown
19
William Buffington, Donna Callahan,
Doris Gimbruch, Albert Tucker
Samuel David Yozzo, Christopher
Robbins
Hilton Head Chrysler Jeep Dodge/Hyundai First Team SJD, LLC d/b/a Hilton Head Chrysler Jee] Tracy Lynn Eve, Elaine Busby,
Dodge
Richard Vollmer, Walter Kissick
Hilton Head Hyundai, LLC; NRAM
Hilton Head Hyundai, LLC; NRAM Holdings, LLC; Christoper Lee Morris, John Kerry
Newman
Holdings, LLC; New River Auto Mall, LLC New River Auto Mall, LLC; Coastal States
Coastal States Automotive Group, LLC; anc Automotive Group, LLC; and Coastal States
Coastal States Automotive Group, LLC f/kh Automotive Group, LLC flk/aNew River Auto Mall,
New River Auto Mall, LLC f/k/a NRAM LLC f/k/a NRAM Holdings, LLC
Holdings, LLC
Stokes-Hodges Aiken, Inc. d/b/a Honda Cars of Aike Thomasina Brunson, Durand Coats
Honda Cars of Aiken
20
21
John Finger Mazda
Kevin Whitaker Chevrolet Cadillac, Inc.
John Finger Motors, Inc. d/b/a John Finger Mazda Donna Glick
Kevin Whitaker Chevrolet, Inc., d/b/a Kevin Whitake George Marianos, Gertrude Butler
Chevrolet and Kevin Whitaker Chevrolet-Cadillac
22
Kia Country a/k/a SC Automotive
Investments, LLC
Lake Keowee Chrysler Dodge, LLC
O.C. Welch Ford Lincoln Mercury
Prestige Motorcars, LLC alb/a Hilton Head
Jaguar
Toyota Center, LLC
SC Automotive Investments, Inc. d/b/a Kia Country
and/or Kia Country of Charleston
Lake Keowee Chrysler-Dodge, LLC
0.C. Welch Ford-Lincoln-Mercury
Prestige Motorcars, LLC d/b/a Hilton Head Jaguar
15
16
17
18
23
24
25
26
27
28
Anderson Columbia, LLC d/b/a/ Fred Anderson
Toyota of Columbia f/d/b/a Toyota Center
Toyota of Easley, Inc.
Toyota of Easley, Inc
Upstate Automotive Chevrolet Cadillac a/kl ~ino Automotive Group, LLC d/b/a Upstate
Chevrolet-Cadillac
Upstate Automotive Group
Tabitha Bessent
Arthur McWhorter, Paul Zak
Dolores Bland
Louis Hatt
Jas W. Hunt Jr.
Elliott Sharpe, Ralph Belland
Collen Van Burns, Candy Wallace
0 ~~\\.~\)~ _/
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,\JV
O~\UIHIBITf>\~'"'\
Heather Herron, et al. v.
~~~
~
£~DY.eC~~it1s,
0
Inc, et at.
Case N~~- ~~~230
~·~~~
Howard Adams, et al. ~\A'Ction Ford Mercury et al.
C.A. No. 2007-CP-02-1232
Janet L. West-Cox, et al v. Cale Yarborough Honda, et al.
Case No. 2007-CP-02-1154
COMPREHENSIVE SETTLEMENT TERM SHEET AND AGREEMENT
This Comprehensive Settlement Term Sheet and Agreement ("Agreement") is entered
into as of the Effective Date set forth below, by and between the Plaintiffs' Attorneys,
Defendants' Attorneys, and the South Carolina Automobile Dealers Association ("Association")
(collectively, the "Parties").
The purpose of this Agreement is to promote the resolution and eventual settlement of
any and all claims involving closing fees in motor vehicle sales transactions by and between the
Named Plaintiffs and the corresponding Defendants in the Actions. This Agreement will set
forth terms and conditions for a global settlement template or model ("Model Settlement'')for
settlement of the claims between the individual Named Plaintiff(s), and in some cases the Class
Members they may represent, and the corresponding Defendants with whom the Named
Plaintiffs and Class Members entered into Qualifying Transactions, as defined below. The
Model Settlement will be recommended to its members by the Association and to the Named
Plaintiffs and Defendants, by their undersigned attorneys, for acceptance and implementation.
1.
Definitions:
(a)
"Actions" includes the following civil actions originally filed in the Court of
Common Pleas of Aiken County, South Carolina: Heather Herron, et al. v: Dick Dyer &
Associates, Inc. et al., Case No. 200:6-CP-02-1230; Howard Adams, et al. v. Action Ford
Mercury et al., Case No. 2007-CP-02-1232; Janet L. West-Cox, et al. v. Cale Yarborough Honda,
et al., Case No. 2007-CP-02-1154, and any civil actions subsequently severed from the Actions.
(b)
"Named Plaintiffls)" are the individual plaintiffs now living and named in the
complaints in the Actions who purport to sue on behalf of themselves and others similarly
situated, and including any Named Plaintiffs subsequently severed from the Actions.
(c)
"Defendant/s)" are the defendant businesses operating automobile dealerships
originally named in the Actions, and including any Defendants subsequently severed from the
Actions.
( d)
"Defendant Categories" include the following situations based on the dollar
amount of the closing fee charged in the Qualifying Transaction and certain other attributes
regarding the sale or lease contract of the Named Plaintiff with the corresponding Defendant:
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DM: 4572313 v.l
0)
Category 1: The corresponding Named Plaintiff(s) has no arbitration
clause in its Qualifying Transaction documentation with the Defendant;
(ii)
Category 2: The corresponding Named Plaintiff(s) has an arbitration
clause in its Qualifying Transaction documentation with the Defendant, but the
arbitration clause does not include a class action waiver;
(iii)
Category 3: The corresponding Named Plaintiff(s) has an arbitration
clause in its Qualifying Transaction documentation with the Defendant, and the
arbitration clause does include a class action waiver;
(iv)
Category 4: The corresponding Named Plaintiff(s) is deceased;
(v)
Category 5: The Defendant's automobile dealership or franchise is closed
and no longer operating;
(vi)
Category 6: The Defendant charged a closing 'fee in all Qualifying
transactions that was less than $150.
(e)
"Plaintiffs' Attorneys" shall include any attorney, paralegal, or other employee in
the law firms of Richardson, Patrick, Westbrook & Brickman, LLC; Lewis & Babcock, LLP;
Richard A. Harpootlian P.A.; Michael E'.· Spears, P.A.; or Gedney M. Howe, III, P.A.
(f)
"Defendants' Attorneys" shall include any attorney, paralegal, or other employee
in the law firms of Bradford Neal Martin & Associates, P.A.: Richardson Plowden & Robinson,
P.A.; Walker & Reibold, LLC; Haynsworth Sinkler Boyd, P.A., and J. Gregory Studemeyer,
which collectively represent approximately 90% or more of the remaining Defendants in the
Actions.
(g)
The "Relevant Time Period" for each Defendant is the four year period preceding
the date that the original complaint in the Action involving the Defendant was initially filed. For
Category 1 and Category 2 Defendants, the Relevant Time Period may also include, at the option
of the Defendant, the four year period preceding the effective date of this Agreement.
(h)
"Qualifying Transaction" means each consumer purchase or consumer lease
transaction at the automotive dealership operated by the Defendant during the Relevant Time
Period, in which, according to the Defendant's currently available electronically stored
. information, the purchaser(s) or lessor(s) paid a closing fee, a/k/a procurement fee, doc fee, or
administrative fee.
(i)
"Class," or "Class Member(s)" with respect to each Defendant, is defined as all
persons who entered into a Qualifying Transaction with any Defendant
G)
"Settling Defendants" includes any Defendant which accepts this Agreement and
the Model Settlement as set forth herein.
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OM: 4572313 v.1
(k)
Settlement Agreement(s) will be a detailed agreement incorporating the terms of
theModel Settlement between any Settling Defendants and the corresponding Named Plaintiffs.
Settlements may be accomplished on an individual basis with the Named Plaintiffs only, rather
than a Class basis, and any settlement agreements on behalf of a Class will be drafted and
administered pursuant to Rule 23 of the South Carolina Rules of Civil Procedure. Settlement
Agreements may include multiple Settling Defendants and corresponding Named Plaintiffs. All
Category 1 Settling Defendants and all Category 2 Settling Defendants who elect to settle on
behalf of a Class may participate in a single settlement approval process.
2.
Settlement Benefits to Class Members.
(a)
The Settlement Benefits to Class Members shall be payable solely on the basis of
a Qualifying Transaction. If a Qualifying Transaction involved more than one purchaser or
lessor, then any Settlement Benefits shall be payable jointly to any such purchasers or lessors.
(b)
Only Class Members who timely and properly file a claim form in the settlement
administration process shall be eligible to receive any Settlement Benefits.
(c)
Settlement Benefits to Class Members will be paid in either cash or gift cards
issued by Defendant, or both, depending upon the factors set forth in Section 4.
(i)
Any checks for the cash component of the Settlement Benefits shall be
valid and negotiable for ninety (90) days from the date of issue. The funds for
any checks which are not timely negotiated by the Class Member(s) shall revert to
the Defendant.
(ii)
Terms of usage for gift cards.
(1)
Each gift card may only be used at the Defendant's dealership
. where the Class Member made a Qualifying Transaction.
(2)
Gift cards may be redeemed for any products or services sold at the
Defendant's dealership, or the purchase of a new or used car, or both, and
may be issued in incremental amounts, at the option of the Settling
·
Defendant, with approval of the Plaintiffs' Attorneys.
(3)
Gift cards shall not be transferable to any other person or entity.
( 4)
Gift cards may not be stacked. If a Class Member has more than
one Qualifying Transaction and receives multiple gift cards, the gift cards
cannot be redeemed in the same transaction.
(5)
Gift cards shall remain valid for one-hundred fifty (150) days from
the date the gift card is mailed to the Class Member. Once expired, the
Defendant shall have no remaining obligation to honor the gift card.
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DM: 4572313 v.l
(6)
The gift card may not be redeemed for cash, or applied as a credit
toward future purchases of products or services, or as payment on any
current debt between a Class Member and Settling Defendant.
3.
Class Settlement Administration.
(a)
Each Class will be certified by the Court pursuant to Rule 23 of the South
Carolina Rules of Civil Procedure for purposes of effectuating this settlement on the agreed
terms herein.
(b)
Any Class settlement may be administered by a third party administrator (the
"Administrator") to be chosen by agreement of the Parties.
(c)
The Settling Defendants will be responsible for paying the costs of administration
of the Class settlement, including all mailings and advertisements.
( d)
Plaintiffs' Attorneys shall not initiate any communications with Class Members,
other than the Named Plaintiffs, except through court approved notices mailed by the
Administrator. This prohibition on the initiation of communications to absent Class Members
does not include responding to particular questions or requests for information from Class
Members after receipt ofany court approved notices.
·
(e)
Settlement Materials:
(i)
Upon Court approval of the settlement, the Administrator or Settling
Defendant shall timely send a notice to each Class Member at his, her, or its last
known address. The notice shall contain a description of the settlement with
instructions on how to opt out and a Claim Form for Settlement Benefits. The
Claim Form shall include an affirmation by the Class Member that they purchased
or leased a vehicle from the Defendant during the Relevant Time Period. The
Claim Form must be returned by the Class Member and received by the
settlement administrator within 40 days of the mailing of the notice of settlement
or it will be invalid.
(ii)
For any notices returned to the Administrator or Settling Defendant as
unable to be delivered as addressed, the Administrator shall employ reasonable
means to locate a more current address for the Class Member. If a more current
address is located, the Administrator shall mail the materials to that address, at
which point the 40 day time period for such Class Member(s) to complete and
return the Claim Form shall begin to run. The Administrator shall not be required
to further attempt to locate a Class Member if the second attempt at mailing the
notice fails.
·
(iii) Any Class Member who fails to timely return the Claim Form shall have
forever waived and released his, her, or its right to participate in the Settlement
Benefits. Any Class Member who does not timely opt out shall have forever
waived and released his, h~r, or its right to assert claims (whether individually or
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OM: 4572313 v.l
as part of a class) against any of the Defendants with respect to any claim or
action involving or related to the charging or collection of closing fees,
administrative fees or procurement foes.
(f)
If Class Members representing more than 35% of the Qualifying Transactions
submit Claim Forms for Settlement Benefits, then all sums due in connection with the excess
Claim Forms will be reduced pro-rata,
(g)
Settling Defendants utilizing an Administrator will provide lists of all Qualifying
Transactions to the Administrator including the following information: stock # or other
identifying transaction number, date of transaction, name(s) of purchaser(s) or lessor(s), mailing
address, and amount of closing fee accounted for in the transaction.
4.
Amount of Settlement Benefits available to Named Plaintiffs and Class Members
(a)
The amount of the Settlement Benefits offered to Named Plaintiffs and Class
Members and the amount of attorney's fees payable to Plaintiffs' Attorneys by the Settling
Defendant will vary based on the Categories Defendants.
or
(b)
Category 1: Named Plaintiff(s) without arbitration clause.
(i)
Class Members in the four year period prior to the date the complaint in
the Action was filed will receive cash equal to 25% of the closing fee above $150,
and, a gift card equal to 75% of the closing fee above $150. If the Settling
Defendant elects, Class Members in-the four year period prior to the effective date
of this Agreement will receive a gift card of $35. Notwithstanding the foregoing,
any Class Member with an identifiable arbitration agreement in their financing
agreement or other document contained in their transaction file shall receive a gift
card of $35.
(ii)
Named Plaintiffs will receive $3,000 cash.
(iii)
Plaintiffs' Attorneys fee equal to 25% of the Settlement Benefits available
to all Class Members, for the four year period preceding the filing of the
Complaint in the respective Action, paid by or on behalf of the Settling Defendant.
(c)
Category 2: Named Plaintiff(s) with arbitration clause without a class waiver.
(i)
If a Settling Defendant in this category elects to settle on behalf of a Class,
Class Members in the four year period prior to the date the complaint in the
Action was filed will receive a gift card equal to 50% of the closing fee above
$150. If the Settling Defendant elects, Class Members in the four year period
prior to the effective date of this Agreement will receive a gift card of $35.
Notwithstanding the foregoing, any Class Member with an identifiable arbitration
agreement in their financing agreement or other document contained in their
transaction file shall receive a gift card of $35, or 30% of the closing fee above
$150, whichever is less.
i-·
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DM: 4572313 v.I
(ii)
Named Plaintiff(s) will receive $3,000 cash.
(iii)
Plaintiffs' Attorneys fee of $35,000, paid by or on behalf of the Settling
Defendant.
(d)
Category 3: Named Plaintiff(s) with arbitration clause with a class waver;
(i)
Named Plaintiff(s) will receive $5,000.
(ii)
Plaintiffs Attorneys fee of $5,000, paid by or on behalf of the Settling
Defendant.
(e)
Category
(i) ·
4: Named Plaintiff(s) are deceased:
The decedent's family or estate will receive $3,000.
(ii)
Plaintiffs Attorneys fee of $3,000, paid by or on behalfofthe Settling
Defendant.
(f)
Category 5: Defendant dealership has closed;
(i)
Named Plaintiff(s) will receive $3,000.
(ii)
Plaintiff's Attorneys fee of $3 ,000, paid by or on behalf of the Settling
Defendant.
(g)
Category 6: Defendant dealership charged a closing fee of $15 0 or less:
(i)
Named Plaintiff(s) will receive $5,000.
(ii)
Plaintiff's Attorneys fee of $5 ,000, paid by or on behalf of the Settling
Defendant.
(h)
Category 7: To the extent that one of the above categories does not apply to a
particular Defendant:
(i)
· Named Plaintiff(s) will receive $5,000.
(ii)
Plaintiffs Attorneys fee of $5,000, paid
Defendant.
5.
by or on behalf of the Settling
Attorneys' Fees to Plaintiffs' Attorneys.
(a)
Settling Defendants will not oppose an attorney's fee award from the Court which
does not exceed the amounts in Section 4 for any Settling Defendants entering into class action
settlements.
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DM: 4572313 v.l
(b)
The Court's award of attorneys' fees, or any other payment of Plaintiffs'
Attorneys' fees pursuant to this Agreement, may be payable in up to 24 equal monthly
installments beginning five days after final approval of the Settlement Agreement and expiration
of any appeal period, and continuing each month thereafter until the full award is paid.
(c)
Defendants agree to provide to the Court upon request, any relevant financial
information to demonstrate ongoing compliance with the terms of any final Settlement
Agreement,
6.
Miscel1aneous
(a)
The Plaintiffs' Attorneys signing this Agreement represent that they have the
authority to execute this Agreement on behalf of the Plaintiffs and all other counsel of record for
the Plaintiffs in the Actions.
(b)
Defendants' Attorneys agree to recommend that their respective clients accept this
Agreement and the Model Settlement applicable to their dealership, as outlined above. However,
each individual Defendant retains the right to accept or reject this Agreement. Neither the
Defendants' Attorneys nor the Association can or do guarantee that any Defendant will
ultimately accept this Agreement or the Model Settlement.
(c)
Any Defendant may accept the terms of this Agreement on or before 60 days from
the effective date of this Agreement, but not thereafter, unless otherwise agreed to by Plaintiffs'
Attorneys. The acceptance may be made by letter to the Plaintiffs' Attorneys identifying the
Defendant and the Defendants' Category.
(d)
This Agreement will not.remain effective unless the total Plaintiffs Attorney's
fees to be paid by the Settling Defendants equals or exceeds $4, 185,000. In no event shall the
Plaintiffs' Attorneys fees to be paid pursuant to this Agreement exceed $4,650,000.
(e)
Defendants in other closing fee litigation in which the Plaintiffs' Attorneys are
involved as of the date of this Agreement may agree to settle their cases pursuant to this
Agreement.
(f)
Plaintiff's attorneys will agree not to oppose any motion or petition to vacate or
de-publish the Supreme Court opinion in Freeman v. Hendrick Honda if 100% of the Defendants
remaining in the Actions and the Defendants referenced in subparagraph ( d) above accept this
Agreement.
(g)
Settling Defendants will agree for the Court to retain jurisdiction over the Parties
for enforcement of the terms of any final ;settlement agreement, including payments of funds paid
for Plaintiffs' Attorneys' court approved attorneys' fees.
(h)
The Parties shall use their best efforts to complete all actions necessary to
complete the settlement process described herein for all Defendants, including the fairness
hearing and entry of a final order approving settlement, within 6 months of the Effective Date of
this agreement.
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•.·• . .-iL (i)
:~F. E.CTIVE _ DATE.: Accepted and agreed to by the undersigned Parties this,
2016.
ZJ}JJL dayof::..1411/£_.,
·j Richardso:n, Pa:tdck, Westbrook &:
·By:~--
; .Brielenan, LLC
: DEFENDANTS COUNSEL:
. B1:aat~1:~fNea1 1Viar1iri &. 'Asso.ci.ates,
: P.A.
Haynsworth Sinkler Boyd, P.A .
....... -
---·
_
- .. - -
_, __
. J. Gregory Studemeyer
-- -·
__
- .. -·-·- ..
:""sourffcARO"fiNA.AUTOfVioBj{,E
j
.DEALERS ASSOCIATION
.••
••
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