SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is made by and between Alexandra M.
Alvarez on behalf of herself and the Class Members, as defined below ("Plaintiff'), on the one
hand, and Kmart Corporation and Sears Holding Corporation ("Defendant"), on the other hand.
Plaintiff and Defendant collectively are referred to in this Agreement as the "Parties." This
Agreement is subject to the approval of the Superior Court of the State of California, in and for
the County of San Diego.
I.
DEFINITIONS
In addition to other terms defined in this Agreement, the terms below have the following
meaning in this Agreement:
A.
"Action" means the proceedings styled as Alexandra M Alvarez v. Kmart
Holding Corporation, pending in the Superior Court of the State of California, in
and for the County of San Diego, Case No. 37-2008-00097746-CU-BT-CTL.
B.
"Cash Award" means a check for $10.
C.
"Claim Deadline" means forty-five (45) days after notice is sent to the Class.
D.
"Class" or "Class Members" means all persons from whom Defendant requested
and recorded a ZIP code in conjunction with a credit card purchase transaction in
a California Kmart retail store during the Class Period.
Excluded from the Class are: (a) officers and directors of Kmart and its corporate
parents, subsidiaries, affiliates, or any entity in which Kmart has a controlling
interest, and the legal representatives, successors, or assignees of any such
excluded persons or entities; and (b) the Court.
The following transactions do not qualifY an individual as a Class Member:
(a) any specific transaction wherein a credit card issued to a business was used;
(b) any specific transaction that involved a special purpose incidental but related
to the transaction, and that required personal identification information, including
but not limited shipping, delivery, servicing, cash advance or layaway, tailoring or
alterations, installation, tax exempt transactions, gift registry, or special orders; (c)
any specific transaction that involved returns or exchanges of purchased
merchandise.
E.
"Class Counsel" means Gene J. Stonebarger of Stonebarger Law, APC, and James
R. Patterson and Allison H. Goddard of Patterson Law Group, APC.
F.
"Claims Administrator" means KCC, LLC.
G.
"Class Counsel Fees" means the amounts awarded to Class Counsel by the Court
to compensate them for their fees in connection with the Action.
H.
"Class Counsel Expenses" means the amounts awarded to Class Counsel by the
Court to compensate them for the expenses in connection with the Action.
I.
"Class Members' Data" means for each Class Member: name and last known
mailing or email address.
J.
"Class Notice" means the long form Notice to Class Members Re: Pendency of
Class Action Settlement and Notice of Hearing on Proposed Settlement
substantially in the form as evidenced by Exhibit A to this Agreement and
incorporated herein by reference.
K.
"Class Period" means the period of time from December 10, 2007 through
December 8, 2008.
L.
"Class Representative Payment" means the incentive payment made to Plaintiff in
her capacity as "Class Representative" to compensate her for initiating the Action
and performing work in support of the Action.
M.
"Court" means the Superior Court of the State of Cali fomi a, in and for the County
of San Diego.
N.
"Effective Date" means the date by which all of the following have occurred:
1.
Defendant has not voided this Settlement pursuant to section IILE.6;
2.
This Agreement is finally approved by the Court; and
3.
The Judgment becomes Final.
o.
"Final" means the date upon which any of the following events occurs: (I) the
expiration of the time for filing an appeal if there are any objections filed by any
Class Member; (2) the conclusion of any appeal taken if there are any objections
filed by any Class Member; (3) the withdrawal of the last objection to the
Settlement; or (4) if there are no objections filed by any Class Member, the date
the court has entered Judgment.
P.
"Final Approval Hearing" means the hearing to be conducted by the Court to
determine whether to approve [mally and implement the terms of this Agreement.
Q.
"Fund Residue" means money remaining from the Settlement Fund after
subtracting out all benefits claimed by Class Members, Class Representative
Payment, Class Counsel Fees, Class Counsel Expenses, and Administration Costs.
R.
"Settlement Fund" means the fund of twenty-one million dollars ($21,000,000) to
be funded by Defendant as provided by this Agreement.
S.
"Defendant's Counsel" means Call & Jensen, a Professional Corporation.
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II.
T.
"Judgment" means the Judgment entered by the Court following the final
approval of this Agreement.
U.
"Known Class Members" means all Class Members for whom Defendant has a
home or e-mail address and whose Class Notice is not returned as undeliverable.
V.
"Unknown Class Members" means all Class Members for whom Defendant does
not have a home address or email address or whose Class Notice is returned as
undeliverable.
W.
"Non-Participating Class Member" means a Class Member who elects not to
participate in the Settlement.
x.
"Merchandise Voucher" means a voucher redeemable for use during any purchase
at Kmart, whether claimed or distributed as Fund Residue, is good on all sale and
discounted merchandise and can be used in connection with all promotions, is
fully transferrable, and will expire five (5) years from the date issued.
Merchandise Vouchers may only be used for a single transaction.
Y.
"Shop Your Way Rewards Points" means points for use during any purchase at
Kmart, whether claimed or distributed as Fund Residue, are good on all sale and
discounted merchandise and can be used in connection with all promotions, and
are otherwise subject to the current Shop Your Way Rewards terms and
conditions.
Z.
"Preliminary Approval of the Settlement" means the Court's Order preliminarily
approving the Settlement.
AA.
"Settlement" means the disposition of the Action and all related claims
effectuated by this Agreement.
BB.
"Participating Class Member" means a Class Member, Known or Unknown, who
does not submit a valid and timely request to opt out ofthe Settlement.
CC.
"Qualified Settlement Fund" means an account established solely for the benefit
of Class Counsel and Plaintiff, and does not mean an escrow or contingent
account.
RECITALS
A.
Through this Action Plaintiff alleged that Defendant violated California Civil
Code Section 1747.08 and customer privacy by requesting and recording credit
card customers' personal identification information, in the form of their ZIP
codes, at the point of sale in Defendant's California retail stores. Defendant denies
these allegations.
B.
Since filing the Action, the Parties have engaged in substantial formal discovery,
and Defendant has provided Class Counsel with extensive documents and data
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regarding the claims in the Action, which were thoroughly analyzed by Class
Counsel on behalf of Plaintiff and the Class.
C.
On September 27, 2012, July 16, 2013, and October 30, 2014, the Parties
participated in mediations presided over by Michael Dickstein, Esq., of Dickstein
Dispute Resolution.
D.
On January 3, 2014 the Court certified the following Class of similarly situated
persons: all persons from whom Kmart requested and recorded a ZIP code in
conjunction with a credit card purchase transaction in its California retail stores
since December 10,2007.
E.
On October 22, 2015, the Parties participated in a mediation presided over by
Judge Edward Infante, Ret., of JAMS - San Francisco. Following mediation,
Judge Infante made a mediator's proposal that was accepted by the Parties and
forms the basis of this Agreement.
F.
The Parties have reached an agreement to settle this case fully and finally. In that
regard, Defendant does not admit any liability or that they have in any way
violated Civil Code Section 1747.08 or any other provision of law.
Based on these Recitals, which are incorporated herein below, the Parties agree as
follows:
III.
SETTLEMENT TERMS AND CONDITIONS
A.
Settlement Fund Amount. Subject to the terms and conditions of this
Agreement, Defendant has agreed to pay $21,000,000 in cash and benefits to
resolve this case.
The Settlement Fund will be available to satisfY: (a) Cash Awards to Participating
Class Members; (b) Merchandise Vouchers to Participating Class Members; (c)
Shop Your Way Rewards Points to Participating Class Members; (d) the Class
Representative Payment, as discussed below, approved by the Court; (e) Class
Counsel Fees and Class Counsel Expenses, as discussed below, approved by the
Court; and (f) settlement administrative costs.
B.
Settlement Share.
1.
Distribution of Benefits
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Known Class Members have the option of receiving a single Cash Award of $1 0,
a single $15 Merchandise Voucher, or $15 worth of Shop Your Way Rewards
Points. Known Class Members need only return the Claim Form (substantially in
the form of Exhibit E) indicating the benefit elected and will not be required to
provide any additional information on the Claim Form or otherwise.
Unknown Class Members who submit a valid and timely claim form
(substantially in the form of Exhibit F attached hereto), may elect to receive either
a single Cash Award of $10, a single $15 Merchandise Voucher, or $15 worth of
Shop Your Way Rewards Points. Should an Unknown Class Member fail to elect
a benefit on an otherwise valid and timely claim form, Defendant shall issue that
Unknown Class Member a single $15 Merchandise Voucher.
C.
D.
Payments to Plaintiff and Class Counsel. Subject to the terms and conditions of
this Agreement, and within ten (10) days of entry of Judgment by the Court,
Defendant will make the following payments to a Qualified Settlement Fund of
Class Counsel's choice:
1.
For Plaintiff: The amount awarded to Plaintiff by the Court as a Class
Representative Payment to Plaintiff. Plaintiff will apply to the Court for a
Class Representative Payment of up to $25,000. Defendant will not
oppose Plaintiff's request so long as it is not greater than $25,000.
2.
For Class Counsel: The amount awarded to Class Counsel by the Court
for Class Counsel Fees and Class Counsel Expenses. Class Counsel will
apply to the Court for up to $7,000,000 in Class Counsel Fees, and up to
$200,000 in Class Counsel Expenses. Defendant will not oppose Class
Counsel's requests so long as they are not in excess of $7,200,000 in
Expenses and Fees.
3.
Qualified Settlement Fund: The Class Counsel Fees, Class Counsel
Expenses, and Class Representative Payment awarded by the trial Court
shall be due and payable when the trial Court enters Judgment, regardless
of any objections or appeals by any party or Class Member as to the
amounts of these payments or any other terms of the Agreement. The
awarded amounts shall be deposited into a Qualified Settlement Fund of
Class Counsel's choosing within ten (10) days of entry of Judgment.
Under no circumstances shall Defendant be entitled to any of the money
deposited in the Qualified Settlement Fund, which is not a contingent or
escrow account.
Distribution of Fund Residue
1.
After subtracting out all benefits claimed by Participating Class Members,
Class Representative Payment, Class Counsel Fees, Class Counsel
Expenses, and Administration Costs, any remaining money from the
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Settlement Fund will be distributed on a pro-rata basis to non-claiming
Known Class Members.
E.
2.
Non-Claiming Known Settlement Class Members who are Shop Your
Way Rewards Members shall receive their pro rata portion of the Fund
Residue in the form of Shop Your Way Rewards Points credited to their
Shop Your Way Rewards accounts.
3.
Non-Claiming Known Settlement Class Members who are not Shop Your
Way Rewards Members shall receive their pro rata portion of the Fund
Residue in the form of a single Merchandise Voucher.
4.
The entire Settlement Fund shall be exhausted through distribution of any
Fund Residue.
Procedure for Approving Settlement.
1.
2.
Unopposed Motion for Preliminary Approval of the Settlement by the
Court.
a.
Plaintiff will file a motion for an order glvmg Preliminary
Approval of the Settlement, setting a date for the Final Approval
Hearing, and approving the Class Notice, and Claim Forms, which
motion shall be unopposed provided the requested relief is in
accordance with the terms and conditions set forth in this
Agreement (the "Unopposed Motion for Preliminary Approval").
b.
At the hearing on the Unopposed Motion for Preliminary
Approval, the Parties will jointly appear, support the granting of
the Motion, and submit an order granting preliminary approval of
the Settlement approving the forms of notice to the Class of the
Settlement, Claim Form, and setting the Final Approval Hearing.
c.
Should the Court decline to approve any material aspect of the
Settlement, the Settlement will be null and void, and the Parties
will have no further obligations under it, and the Parties will revert
to their prior positions in the Action as if the Settlement had not
occurred.
Notice to Class Members. After the Court enters its order granting
Preliminary Approval of the Settlement, Class Notice informing Class
Members of their rights under the Settlement, and of their ability to elect
not to participate, will be provided to all Class Members as follows:
a.
Direct Notice: Within fourteen (14) days after the Court enters its
order granting Preliminary Approval of the Settlement, the Claims
Administrator will mail and/or email the Summary Notice and
Claim Form (substantially in the form attached as Exhibits Band
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E, respectively) to all Known Class Members using the mailing
and email address infonnation from Kmart's databases, unless
modified by any updated address infonnation that it obtains in the
course of the mailing or after perfonning a national change of
address search. One reminder email shall be sent to all Known
Class Members for whom Defendant has an email address and who
have not submitted a claim approximately seven (7) days prior to
the expiration of the Claims deadline.
b.
If a Class Notice is returned because of an incorrect address or
email address, the Claims Administrator will promptly search for a
more current address for the Known Class Member and re-mail, or
re-email, the Class Notice and Claim Fonn to the Known Class
Member. If Class Notice is re-sent, the Claims Administrator will
note for its own records and notify Class Counsel and Defendant's
Counsel of the date of each such re-mailing as part of a weekly
status report provided to the Parties.
c.
In-Store Notice: Within fourteen (14) days after the Court enters
its order granting Preliminary Approval of the Settlement,
Defendant will post at each point-of-sale in each of its California
Kmart stores, a clear and conspicuous copy of the Summary InStore Notice (substantially in the fonn attached as Exhibit C)
containing instructions for Unknown Class Members to submit a
claim, elect not to participate or object. These notices shall remain
posted in Defendant's stores for at least thirty (30) days.
d.
Published Notice: Within fourteen (14) days after the Court enters
its order granting Preliminary Approval of the Settlement, the
Claims Administrator will publish at least four times during a two
week period the Summary Published Notices (substantially in the
fonn attached as Exhibit D) in a 118 page advertisement in the
California Edition of USA Today containing instructions for
Unknown Class Members to submit a claim, elect not to participate
or object.
As part of its weekly status report, the Claims Administrator will
infonn Class Counsel and Defendants' Counsel of any NonParticipating Class Members.
e.
Settlement Website. Within fourteen (14) days after the Court
enters its order granting Preliminary Approval of the Settlement,
the Claims Administrator shall create and maintain a settlement
website where Class Members can submit claims electronically, or
obtain the Class Notice (substantially in the fonn of Exhibit A) and
Unknown Class Member Claim Fonn (substantially in the fonn of
Exhibit F). The Website shall remain active until the Effective
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Date; however, claims will only be accepted on the website
through the Claim Deadline.
f.
3.
Not later than fourteen (14) days prior to the Final Approval
Hearing, the Claims Administrator will serve on the Plaintiff and
file with the Court a declaration of due diligence setting forth its
compliance with its obligations under this Agreement. Prior to the
Final Approval Hearing, the Claims Administrator will supplement
its declaration of due diligence if any material changes occur from
the date of the filing of its prior declaration.
Claim Process:
Completing Claim Forms: Class Members may submit Claim Forms by
mail or electronically through the settlement website. Known Class
Members only need to indicate the benefit elected and will not be required
to provide any additional information on the Claim Form or otherwise.
Unknown Class Members must submit a valid and timely Claim Form
(substantially in the form of Exhibit F attached hereto), providing
information on the approximate date of the transaction(s) at issue and the
ZIP code(s) provided during the transaction(s), and indicating the
requested benefit.
For Claim Forms submitted by mail, the date of the postmark on the
envelope containing the completed Claim Form shall be the exclusive
means used to determine whether a Class Member has "timely" returned
the Claim Form on or before the Claim Deadline.
For Claim Forms submitted electronically on the settlement website the
date of the electronic submission shall be the exclusive means used to
determine whether a Class Member has "timely" returned the Claim Form
on or before the Claims Deadline.
If a Claim Form is timely returned to the Claims Administrator but
defective as to any other reason, the Class Member shall be given one
opportunity to cure the defect(s). The Claims Administrator shall mail or
email a notice of deficiency with a copy of the defective Claim Form to
the Class Member who submitted the Claim. The Class Member shall be
given fourteen (14) days from the date the notice of deficiency was sent to
cure the defect(s) and return the corrected Claim Form to the Claims
Administrator. If the corrected Claim Form is not completely corrected
and sent within the fourteen (14) day period, it shall be deemed untimely
and rejected.
An Unknown Class Member who does not file a timely Claim Form and
does not timely opt-out of the settlement as set forth below in Section 4,
shall not be eligible to receive a benefit under this Settlement, but shall be
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a Participating Class Member who is bound by all terms and conditions of
the Settlement and Judgment, if the Settlement becomes Final.
4.
Objections to Settlement; Elections Not to Participate in Settlement.
Participating Class Members may submit objections to the Settlement.
Class Members who decide to opt-out of the Settlement shall submit a
request to opt out of the settlement pursuant to the following procedures:
a.
Objections to Settlement. The Class Notice will provide that
Participating Class Members who wish to object to the Settlement
may serve on Class Counsel and Defendant's Counsel, not later
than forty-five (45) days after notice is sent, a written objection to
the Settlement. Participating Class Members may also object by
appearing at the Final Approval Hearing.
b.
Election Not to Participate in Settlement. The Class Notice also
will provide that Class Members who wish to exclude themselves
from the Settlement must mail to the Claims Administrator, not
later than forty-five (45) days after notice is mailed, a signed
request to opt out of the Settlement. The request must state that the
Class Member wants to be excluded from the Settlement and
include the Class Member's name, address, telephone number,
signature, and refer to the case - Alexandra M Alvarez v. Kmart
Holding Corporation, Case No. 37-2008-00097746-CU-BT-CTL.
A Class Member who submits a valid request to opt out shall be
considered a Non-Participating Class Member.
A NonParticipating Class Member will not participate in or be bound by
the Settlement and Judgment nor have any right to object to,
comment on, or appeal the Settlement and/or Judgment.
A Class Member who does not complete and mail a timely request
to opt out of the Settlement in the manner and by the deadline
specified above will automatically become a Participating Class
Member and be bound by all terms and conditions of the
Settlement and Judgment, if the Settlement is approved by the
Court, regardless of whether he or she has objected to the
Settlement.
c.
5.
Reporting. Not later than fourteen (14) days after the Claim
Deadline, the Claims Administrator will provide Class Counsel
with a complete and accurate list of all Non-Participating Class
Members.
No Solicitation of Comment, Objection, or Election Not to Participate.
Neither the Parties nor their respective counsel will solicit or otherwise
encourage directly or indirectly any Class Member to elect not to
9
participate in the Settlement, comment on or object to the Settlement, or
appeal from the Judgment.
6.
Right of Defendant to Void Settlement. Defendant will have the right,
but not the obligation, to void the Settlement if any of the following
occurs:
(a)
If 20,000 or more Class Members timely opt-out of the Settlement,
Defendant will have the right, but not the obligation, to void the
Settlement. If that occurs, Defendant will have no further
obligations under the Settlement, including any obligation to create
the Settlement Fund or any amounts that otherwise would have
been owed under the Settlement.
Defendant will remain
responsible for any administration costs incurred.
(b)
If the Court does not grant final approval of the Settlement or
grants final approval conditioned on any material change to the
terms of the Settlement with respect to the payments to be made to
Participating Class Members, or the scope of the release of claims,
then Defendants will have the right, but not the obligation, to void
the Settlement. If that occurs, Defendant will have no further
obligations under the Settlement, including any obligation to create
the Settlement Fund or any amounts that otherwise would have
been owed under the Settlement.
Defendant will remain
responsible for any administration costs incurred. An award by the
Court of a lesser amount than that sought by Plaintiff and Class
Counsel for the Class Representative Payment, the Class Counsel
Fees, or the Class Counsel Expenses will not constitute a material
change to the Settlement; or
(c)
If, after a notice of appeal, a petition for review, or a petition for
certiorari, or any other motion, petition, or application, the
reviewing court vacates, reverses, or modifies the Judgment such
that there is a material modification to the Settlement, and that
court's decision is not completely reversed and the Judgment is not
fully affIrmed on review by a higher court, then Defendant will
have the right to void the Settlement. If that occurs, Defendant
will have no further obligations under the Settlement, including
any obligation to create the Settlement Fund or any amounts that
otherwise would have been owed under the Settlement. Defendant
will remain liable for any incurred administration expenses. A
vacation, reversal, or modification of the Court's award of the
Class Representative Payment, the Class Counsel Fees, or the
Class Counsel Expenses will not constitute a vacation, reversal, or
material modification of the Judgment.
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7.
Additional Briefing and Final Approval.
a.
Not later than five (5) court days before the Final Approval
Hearing, Plaintiff will file with the Court and serve on Defendant a
supporting memorandum of points and authorities, and any
necessary supporting declarations for final approval of the
Settlement.
b.
Not later than five (5) court days before the Final Approval
Hearing, Plaintiff will file with the Court and serve on Defendant a
supporting memorandum of points and authorities, and any
necessary supporting declarations for fmal approval for the awards
of the Class Representative Payment, and the Class Counsel Fees
and Class Counsel Expenses pursuant to this Settlement.
c.
Upon final approval of the Settlement by the Court at or after the
Final Approval Hearing, the Parties will present the Final Approval
Order and Judgment, respectively, to the Court for approval and
entry. After entry of the Judgment, the Court will have continuing
jurisdiction over the Action and the Settlement solely for purposes
of (i) enforcing this Agreement, (ii) addressing settlement
administration matters, and (iii) addressing such post-Judgment
matters as may be appropriate under court rules or applicable law.
8.
Waiver of Right to Appeal. Except as otherwise provided herein, and
provided that the Judgment is consistent with the terms and conditions of
this Agreement, Plaintiff, Participating Class Members who did not timely
submit an objection to the Settlement, Defendant, and their respective
counsel hereby waive any and all rights to appeal from the Judgment,
including all rights to any post-judgment proceeding and appellate
proceeding, such as a motion to vacate or set aside judgment, a motion for
new trial, and any extraordinary writ, and the Judgment therefore will
become nonappealable at the time it is entered. The waiver of appeal does
not include any· waiver of the right to oppose any appeal, appellate
proceedings or post-judgment proceedings. This paragraph does not
preclude the parties from appealing a refusal by the Court to award the
requested Class Representative Payment or the Class Counsel Fees and
Class Counsel Expenses in the amounts set forth in paragraphs III(C)(1)
and (2).
9.
Timing of Provision of Settlement Benefits and Payments. Within
sixty (60) days of the Effective Date, Defendant (through the Claims
Administrator) shall deliver to the Participating Class Members the
requested benefits.
Within ten (10) days after Judgment is entered, Defendant shall deliver the
Court-approved Class Representative Payment and the Court-approved
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Class Counsel Fees and Class Counsel Expenses to a qualified settlement
fund of Class Counsel's choice established for the benefit of Plaintiff and
Class Counsel. These payments will be made regardless of whether there
have been any objections or appeals filed by any Party or Class Member.
10.
F.
G.
Final Report by the Claims Administrator Regarding Settlement
Tasks. Within thirty (30) days of the disbursement of the Settlement
benefits and payments set forth herein, the Claims Administrator will
serve on the Parties and file with the Court, a declaration confirming the
disbursements of all funds required under the Settlement.
Release of Claims.
1.
Release by Plaintiff and the Class. As of the Effective Date, Plaintiff
and all Class Members shall be deemed to hereby fully and irrevocably
release, waive, and discharge Defendant and each of their respective past,
present and future owners, stockholders, parent corporations, related or
affiliated companies, subsidiaries, officers, directors, shareholders,
employees, agents, principals, heirs, representatives, accountants,
attorneys, and their respective successors and predecessors in interest,
from any and all past and present liabilities, claims, causes of action
(whether in contract, tort, or otherwise, including statutory, common law,
property, and equitable claims), damages, costs, attorneys' fees, losses, or
demands, whether known or unknown, existing or potential, or suspected
or unsuspected, which were or could have been asserted in the Action
based on the facts alleged, therein (the "Released Claims").
2.
Release by Defendant. As of the Effective Date, Defendants release and
forever discharge Plaintiff, and Class Counsel from any claims of abuse of
process, malicious prosecution, or any other claims arising out of the
institution, prosecution, assertion, or resolution of the claims in the
Complaint or Action, including, but not limited to, sanctions of any kind.
Miscellaneous Terms.
1.
Integrated Agreement. After this Agreement is signed and delivered by
all Parties and their counsel, this Agreement and its exhibits will constitute
the entire agreement between the Parties relating to the Settlement, and it
will then be deemed that no oral representations, warranties, covenants, or
inducements have been made to any Party concerning this Agreement or
its exhibits other than the representations, warranties, covenants, and
inducements expressly stated in this Agreement and its exhibits.
2.
No Admission of Liability. Defendant does not admit to any liability and
this Agreement, and any Judgment entered based thereon, shall not be
considered or operate as a finding of wrongdoing.
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3.
Attorney Authorization. Class Counsel and Defendant's Counsel
warrant and represent that they are authorized by Plaintiff and Defendant,
respectively, to take all appropriate action required or pennitted to be
taken by such Parties pursuant to this Agreement to effectuate its tenns,
and to execute any other documents required to effectuate the tenns of this
Agreement. The Parties and their counsel will cooperate with each other
and use their best efforts to effect the implementation of the Settlement.
In the event the Parties are unable to reach agreement on the fonn or
content of any document needed to implement the Agreement, or on any
supplemental provisions that may become necessary to effectuate the
tenns of this Agreement, the Parties will seek the assistance of the Court,
and in all cases all such documents, supplemental provisions and
assistance of the Court will be consistent with this Agreement.
4.
Agreement Binding on Successors. This Agreement will be binding
upon, and inure to the benefit of, the successors of each of the Parties.
5.
Applicable Law. All tenns and conditions of this Agreement and its
exhibits will be governed by and interpreted according to the laws of the
State of California, without giving effect to any conflict of law principles
or choice of law principles.
6.
Cooperation in Drafting. The Parties have cooperated in the drafting and
preparation of this Agreement. This Agreement will not be construed
against any Party on the basis that the Party was the drafter or participated
in the drafting.
7.
Fair Settlement. The Parties and their respective counsel believe and
warrant that this Agreement reflects a fair, reasonable, and adequate
settlement of the Action and have arrived at this Agreement through annslength negotiations, taking into account all relevant factors, current and
potential.
8.
Plaintiff's Waiver of Right to be Excluded and Object. Plaintiff agrees
that by signing this Agreement she becomes bound by the tenns herein
stated and further agrees not to opt-out of the Settlement or object to any
of the tenns of the Settlement. Thus, any non-compliance with this
paragraph (e.g., request for exclusion or objection) shall be void and of no
force or effect.
9.
Headings. The descriptive heading of any section or paragraph of this
Agreement is inserted for convenience of reference only and does not
constitute a part of this Agreement.
10.
Notice. All notices, demands or other communications given under this
Agreement will be in writing and deemed to have been duly given as of
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the third (3rd) business day after mailing by United States mail, addressed
as follows:
To the Plaintiff and Class:
Gene J. Stonebarger
STONEBARGER LAW, APC
75 Iron Point Circle, Suite 145
Folsom, California 95630
Telephone: (916) 235-7140
Facsimile: (916) 235-7141
Email: [email protected]
James R. Patterson
PATTERSON LAW GROUP, APC
402 West Broadway, 29th Floor
San Diego, California 92101
Telephone: (619) 756-6993
Facsimile: (619) 756-6991
Email: [email protected]
To Defendant:
Matthew R. Orr
Scott R. Hatch
CALL & JENSEN
610 Newport Center Drive, Ste. 700
Newport Beach, CA 92660
Telephone: (949) 717-3000
Facsimile: (949) 717-3100
Email: [email protected]
[email protected]
11.
Five Year Trial Deadline. Defendant extends the requirement set forth in
California Code of Civil Procedure section 583.310 to bring this action to
trial to January 31, 2018. This deadline shall be further extended during
any appeals.
12.
Execution in Counterpart. This Agreement may be executed in one or
more counterparts. All executed counterparts and each of them will be
deemed to be one and the same instrument. Any executed counterparts
will be admissible as evidence to prove the existence and contents of this
Agreement.
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[CONTINUED ON FOLLOWING PAGE]
15
IV.
EXECUTION BY PARTIES AND COUNSEL
The Parties and their counsel hereby execute this Agreement.
2016
Dated:
Dated:
--
,2016
Alexandra M. Al varez
Kmart Corporation
By:
Its
2016
Sears Holding Corporation
8y:
Its
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IV.
EXECUTION BY PARTIES AND COUNSEL
The Parties and their counsel hereby execute this Agreement.
Dated: _ _ _ ,2016
Dated:? /
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Alexandra M. Alvarez
,2016
By:
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Dated:2".!l \ ,2016
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Sears Holding Corporation
By:
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AGREED AS TO FORM:
Dated: March 11,2016
PATTERSON LAW GROUP, APC
By:
---------------------------------James R. Patterson
Class Counsel
Dated:
;IIWt~ It, 2016
STONEBARGER LAW, APC
By:
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_
_
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J. Stonebarger
Class Counsel
Dated: - - -,2016
CALL & JENSEN
By:
---------------------------------Matthew R. Orr
Scott R. Hatch
Counsel for Defendant
16
AGREED AS TO FORM:
Dated: _ _ _ ,2016
PATTERSON LAW GROUP, APC
By:
--------------------------------James R. Patterson
Class Counsel
Dated: - - -,2016
STONEBARGER LAW, APe
By: _______________________________
Gene 1. Stonebarger
Class Counsel
Dated: March 11, 2016
CALL & JENSEN
By:
k~
--------~-----------------------
Matthew R. Orr
Scott R. Hatch
Counsel for Defendant
17
EXHIBIT "A"
EXHIBIT A
NOTICE OF CLASS ACTION SETTLEMENT
Alexandra M. Alvarez v. Kmart Holding Corporation,
Case No. 37-2008-00097746-CU-BT-CTL
Superior Court of California, San Diego County
All persons from whom Kmart requested and recorded a ZIP code in conjunction with a
credit card purchase transaction in a California Kmart retail store during the period of
time from December 10, 2007 through December 15, 2008.
FT
TO:
A California Superior Court authorized this notice. This is not a solicitation from a lawyer.
•
Under the Settlement you are entitled to receive one ofthree awards:
1) A Cash Award, which is a check for $10;
2) a $15 Merchandise Voucher, which is a voucher redeemable for use during a single
purchase at Kmart, is good on all sale and discounted merchandise and can be used in
connection with all promotions, is fully transferrable, and will expire after five (5) years
from the date issued; or
Your legal rights are affected whether you act or don't act. Please read this entire
notice carefully.
R
•
A
3) $15 worth of Shop Your Way Rewards Points, which are points for use during any
purchase at Kmart, are good on all sale and discounted merchandise and can be used in
connection with all promotions, will expire after one (1) year from the date issued, and
are otherwise subject to the current Shop Your Way Rewards terms and conditions.
If you received notice of this Settlement in the mail or by email,
then you are a Known Class Member. You must fully complete
and timely submit a claim form to receive either the $10 Cash
Award, $15 Merchandise Voucher, or $15 Shop Your Way
Rewards Points.
D
RECEIVE SETTLEMENT
BENEFITS
If you do not submit a claim form, you will receive a pro rata
share of any amount remaining in the $21,000,000 Settlement
Fund, after subtracting out all payments required under the
Settlement Agreement, either in the form of Shop Your Way
Rewards Points if you are a member of that program, or a
Merchandise Voucher if not.
If you did not receive notice of this Settlement by mail or email,
you are an Unknown Class Member. You will not receive any
follow the instructions
benefits under the Settlement unless
set forth in this Notice and submit a claim form to receive either
the $10 Cash Award, $15 Merchandise Voucher, or $15 Shop
Your Way Rewards Points.
Get no Settlement benefits, and be able to bring your own suit.
OBJECT
Tell the Court about why you don't like the Settlement.
Go TO A HEARING
Ask to speak in Court about the fairness of the Settlement.
FT
EXCLUDE YOURSELF
•
These rights and options-and the deadlines to exercise them-are explained in this notice.
•
The Court in charge of this case still has to decide whether to approve the Settlement.
Settlement benefits will become available if the Court approves the Settlement and after any
appeals are finished. Please be patient.
BASIC INFORMATION •...........................••.......•................•.........•.........•.......•....
1. Why did I get this notice?
Page 3
A
2. What is this lawsuit about?
3. Why is this a class action?
4. Why is there a Settlement?
Who is in the Settlement ............................................................................... Page 4
5. How do I know if! am part of the Settlement?
The Settlement Benefits-What You Get .................................................... Page 5
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6. What does the Settlement provide?
How You Can Participate in the Settlement .............................................. Page 4
7. How can I participate in the Settlement?
8. When will I receive my Settlement benefits?
9. What am I giving up to stay in the Class and receive a benefit?
Excluding Yourself From the Settlement .................................................... Page 5
D
10. How do I get out of the Settlement?
11. If I don't exclude myself, can I sue Kmart for the same thing later?
12. If I exclude myself, can I still benefit from this Settlement?
The Lawyers Representing You ................................................................... Page 6
13. Do I have a lawyer in the case?
14. How will the lawyers be paid?
Objecting to the Settlement ........................................................................... Page 6
15. How do I tell the Court that I don't like the Settlement?
16. What's the difference between objecting and excluding?
2
THE COURT'S FAIRNESS HEARING ................................................................
17. When and where will the Court decide whether to approve the Settlement?
18. Do I have to come to the hearing?
19. May I speak at the hearing?
Page 7
If You Do Nothing .......................................................................................... Page 8
20. What happens if I do nothing at all?
Getting More Information ............................................................................ Page 8
D
R
A
FT
21. Are there more details about the Settlement?
22. How do I get more information?
3
BASIC INFORMATION
The Court ordered this notice because you have a right to know about a proposed Settlement of a
class action lawsuit of which you may be a member, and about your options, before the Court
decides whether to approve the Settlement.
FT
If the Court approves it, and after any objections and appeals are resolved, if you submit a valid
Claim Form, Kmart will provide you with either the Cash Award, Merchandise Voucher or Shop
Your Way Rewards Points. This notice explains the lawsuit, the Settlement, your legal rights, the
benefits available, who is eligible for them, and how to get them.
The Court in charge of the case is the Superior Court for the State of California, County of San
Diego, and the case is entitled Alexandra M Alvarez v. Kmart Holding Corporation,
Case No. 37-2008-00097746-CU-BT-CTL.
The person who sued is called the Plaintiff, and the companies she sued, Kmart Corporation and
Sears Holding Corporation ("Kmart"), are called the Defendants.
A
The lawsuit claimed that Kmart violated California Civil Code section 1747.08 by requesting and
recording personal identification information, in the form of ZIP codes, from its customers who
paid for merchandise with a credit card at retail stores located in California. Kmart denies that it
violated California Civil Code section 1747.08.
R
On October 22, 2015, the Parties participated in a mediation presided over by Judge Edward
Infante, Ret., of JAMS - San Francisco. Following mediation, the Parties reached an agreement
to settle this case fully and finally. Kmart does not admit any liability or that they have in any
way violated Civil Code Section 1747.08 or any other provision oflaw.
Under the Settlement, Class Members are entitled to receive one of three awards:
1) A Cash Award, which is a check for $10;
D
2) a $15 Merchandise Voucher, which is a voucher redeemable for use during a single
purchase at Kmart, is good on all sale and discounted merchandise and can be used in
connection with all promotions, is fully transferrable, and will expire after five (5) years
from the date issued; or
3) $15 worth of Shop Your Way Rewards Points, which are points for use during any
purchase at Kmart, are good on all sale and discounted merchandise and can be used in
connection with all promotions, will expire after one (1) year from the date issued, and
are otherwise subject to the current Shop Your Way Rewards terms and conditions.
4
FT
In a class action, one or more people, called Class Representatives (in this case Alexandra M.
Alvarez), sue on behalf of people who have similar claims. All these people are a Class or Class
Members. One court resolves the issues for all Class Members, except for those who ask to be
excluded from the Class. Superior Court Judge Joel Pressman is in charge of this class action.
Both sides agreed to the Settlement. Plaintiff and her attorneys think the Settlement is best for
the Class Members because it will avoid the cost and delay of appeals, and the risks inherent
with continuing to litigate the claims.
WHO IS IN THE SETTLEMENT
You are part of the Settlement if:
A
• You used a credit card issued for consumer credit purposes to purchase goods from a
Kmart retail store in the State of California during the period of time from December 10,
2007 through December 15, 2008 ("Class Period"); and
• A Kmart employee requested and recorded your ZIP code in conjunction with the credit
card transaction, unless one of the following applies ("Excluded Transactions"):
o You used a credit card issued to a business;
R
o The information was requested in connection with a special order, delivery, cash
advance or layaway, tailoring or alterations, installation, tax exempt transactions,
or gift registry; or
o The transaction was a return or exchange of purchased merchandise.
D
THE SETTLEMENT BENEFITS-WHAT You GET
The Settlement provides for Kmart to establish a monetary fund in the amount of$21 ,000,000.
This monetary fund paid by Kmart will be available to satisfy: (a) Cash Awards to Class
Members; (b) Merchandise Vouchers to Class Members; (c) Shop Your Way Rewards Points to
Class Members; (c) the Class Representative Payment, as discussed below, approved by the
Court; (d) Class Counsel Fees and Litigation Expenses Payment, as discussed below, approved
by the Court; and (e) settlement administrative costs.
Under the Settlement, Class Members can elect one of three awards:
5
1) A Cash Award, which is a check for $10;
2) a $15 Merchandise Voucher, which is a voucher redeemable for use during a single
purchase at Kmart, is good on all sale and discounted merchandise and can be used in
connection with all promotions, is fully transferrable, and will expire after five (5) years
from the date issued; or
FT
3) $15 worth of Shop Your Way Rewards Points, which are points for use during any
purchase at Kmart, are good on all sale and discounted merchandise and can be used in
connection with all promotions, will expire after one (1) year from the date issued, and
are otherwise subject to the current Shop Your Way Rewards terms and conditions.
After all timely Claims are submitted, any remaining money from the $21,000,000 Settlement
Fund, after subtracting out all Claims benefits, Class Representative Payment, Class Counsel
Fees, Class Counsel Expenses, and Administration Costs, will be distributed on a pro-rata basis
to the non-claiming Known Class Members. Non-Claiming Known Class Members Who Are
Shop Your Way Rewards Members shall receive their pro rata portion of the Fund Residue in the
form of Shop Your Way Rewards Points. Non-Claiming Known Class Members Who Are Not
Shop Your Way Rewards Members shall receive their pro rata portion of the Fund Residue in the
form of a Merchandise Voucher.
A
How You CAN PARTICIPATE IN THE SETTLEMENT
The process to receive benefits offered under the Settlement depends on how you received notice
of the Settlement.
R
If you received notice of this Settlement by mail or email, then Kmart records show that you are
a Known Class Member. If you submit a timely claim form, you will receive your choice of a
Cash Award of$lO, a $15 Merchandise Voucher, or $15 worth of Shop Your Way Rewards
Points. If you do not submit a timely claim form, you will receive a pro rata share ofthe
settlement fund, after the payments and distribution of awards to persons who submit a claim, in
the form of either a Merchandise Voucher or Shop Your Way Rewards Points if you are already
enrolled in that program.
D
If you did not receive notice of this Settlement in the mail or email, you must submit a timely
claim form to receive any benefits offered under this Settlement. You must provide the
information requested on the claim form, including the approximate date of the transaction(s) at
issue, the ZIP code(s) provided during the transaction(s), and your choice of settlement benefit.
If you fail to elect a benefit on an otherwise valid and timely claim form, Kmart will issue you a
$15 Merchandise Voucher.
Class Members must submit Claim Forms no later than _ _ ,2016, by mail at the address
below, or electronically through the settlement website at w w w . . c o m .
6
Claim Forms submitted by U.S. Mail to the Claims Administrator must be sent to the following
address:
Kmart Class Action Settlement
FT
If the Court approves the Settlement, the Claim Form will be reviewed by the Claims
Administrator, and if you are eligible, you will receive your elected benefit. You can check on
the progress of the Settlement by visiting the website www. _ _ .com.
The Court will hold a hearing on July 1,2016, at 10:30 a.m. at San Diego Superior Court, Hall of
Justice, 330 West Broadway, San Diego, CA 92101, Department 66 to decide whether to
approve this Settlement. If the Court approves the Settlement, and there are no objections to the
Settlement, you should receive your benefit approximately 60 days later.
A
There may be appeals. It is always uncertain how these appeals might be resolved, and resolving
them can take time, perhaps even more than a year. You may continue to check on the progress
of the Settlement by visiting the website www..com.
Unless you exclude yourself, you are staying in the Class, and that means that you can't sue,
continue to sue, or be part of any other lawsuit against Kmart and certain affiliated companies
and people about the legal issues in this case if the Settlement is approved. It also means that all
of the Court's orders will apply to you and legally bind you.
R
As part of the Settlement, all claims of the members of Settlement Class relating to the claims
brought in the Action will be released. This means, for example, that all persons who do not optout of the Settlement will be barred from bringing any claims on their own against Kmart for
violations of Cali fomi a Civil Code section 1747.08, even if they do not file a claim or receive a
benefit.
EXCLUDING YOURSELF FROM THE SETTLEMENT
D
If you don't want to participate in this Settlement, but you want to keep the right to sue or
continue to sue Kmart on your own about the legal issues in this case, then you must take the
steps described in the next section to exclude yourself from the Settlement.
7
To exclude yourself from the Settlement, you must send a letter by mail to the Claims
Administrator saying that you want to be excluded from the Settlement. Be sure to include your
name, address, telephone number, your signature, and refer to the case - Alexandra M Alvarez v.
Kmart Holding Corporation, Case No. 37-2008-00097746-CU-BT-CTL. You must mail your
exclusion request to the Claims Administrator postmarked no later than _ _ _ _ _ _ __
2016 to:
FT
Kmart Class Action Settlement
You can't exclude yourself by phone or e-mail. If you ask to be excluded, you will not receive
any of the Settlement benefits, and you cannot object to the Settlement. You will also not be
legally bound by anything that happens in this lawsuit. You keep your right to sue Kmart on
your own.
A
No. Unless you exclude yourself, you give up the right to sue Kmart for the claims that this
Settlement resolves. If you have a pending lawsuit, speak to your lawyer in that lawsuit
immediately. You must exclude yourself from this Class to continue your own lawsuit.
Remember, the exclusion deadline is
,2016.
R
No. If you exclude yourself, you cannot seek benefits under the Settlement. But, you may sue or
be part of a different lawsuit against Kmart for the same claim.
THE LA WYERS REPRESENTING You
D
The Court has appointed the law firms of Stonebarger Law, APC and Patterson Law Group, APC
to represent you and the Class. These lawyers are called Class Counsel. If you want to be
represented by your own lawyer, you may hire one at your own expense.
The attorneys who brought the cases on your behalf will request attorney fees in the amount of
up to $7,000,000, and reimbursement oflitigation expenses of up to $200,000, all of which must
be approved by the Court. The Class Representative will also seek compensation for her efforts
in the amount of $25,000, which must be approved by the Court. The Court may award less than
these amounts. Kmart will pay the fees and expenses that the Court awards and the costs to
8
administer the Settlement, from the settlement fund. However, the fees and costs awarded will
have no impact on the benefits claimed by Class Members.
OBJECTING TO THE SETTLEMENT
You can tell the Court that you don't agree with the settlement or some part of it.
FT
If you stay in the Class, you can object to any part of the Settlement that you don't like. You can
give reasons why you think the Court should not approve it. The Court will consider your views.
To object, you can send a letter saying that you object to the Settlement in Alexandra M Alvarez
v. Kmart Holding Corporation, Case No. 37-2008-00097746-CU-BT-CTL.
Be sure to include the case name (Alexandra M. Alvarez v. Kmart Holding Corporation,
Case No. 37-2008-00097746-CU-BT-CTL) your name, address, telephone number, your
signature, and the reasons you object to the Settlement. If you received notice of this Settlement
by mail or email, you are a Known Class Member and your written objection must identify (1)
the last four digits of the credit card used during each transaction, and (2) your ZIP code at the
time of each transaction. If you did not received notice of this Settlement by mail or email, you
are an Unknown Class Member and your written objection must also identify (3) the date(s) of
your credit card transaction(s) with Kmart during the class period, (4) the store location where
each transaction took place, and (5) the month and year of the transaction.
A
Mail the objection to Class Counsel and Defense Counsel postmarked no later than
________ , 2016 at the following addresses:
Matthew M. Orr
Call & Jensen
610 Newport Center Drive
Suite 700
Newport Beach, CA 92660
James R. Patterson
Patterson Law Group, APC
402 W. Broadway, 29th Floor
San Diego, CA 92101
R
You can also object by appearing at the Final Approval Hearing, which will be at the San Diego
Superior Court on July 1,2016, at 10:30 am, at 330 West Broadway, San Diego, CA 92101,
Department 66. If you submit a written objection, you do not need to attend the hearing.
D
Objecting is simply telling the Court that you don't like something about the Settlement. You
can object only if you stay in the Class. Excluding yourself is telling the Court that you don't
want to be part of the Class. If you exclude yourself, you cannot object because the case no
longer affects you.
THE COURT'S FINAL ApPROVAL HEARING
The Court will hold a hearing to decide whether to approve the Settlement. You may attend and
you may ask to speak, but you don't have to.
9
FT
The Court will hold a Final Approval Hearing on July 1,2016, at 10:30 a.m. at San Diego
Superior Court, Hall of Justice, 330 West Broadway, San Diego, CA92101, Department 66, to
consider whether the Settlement is fair, reasonable and adequate. If there are objections, the
Court will consider them. The Court will listen to people who ask to speak at the hearing. The
Court may also decide how much to pay Class Counsel. After the hearing, the Court will decide
whether to approve the Settlement. We do not know how long these decisions will take. The
hearing may be continued without further notice.
No. Class Counsel will answer questions the Court may have. You are welcome to come at your
own expense. If you send a written objection, you don't 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
retain and pay your own lawyer to attend.
IF You Do NOTHING
A
If you do nothing at all, you will remain in the Class and whether or not you receive a benefit
from the Settlement depends on whether you return a Claim Form and on whether you received
notice of the Settlement by mail or email. For any questions as to how to claim a benefit under
the Settlement, see Question 7 above: "How can I participate in the Settlement?"
R
If you do not exclude yourself, did not receive notice of this Settlement in the mail or email, and
do not return a valid and completed claim form; you will receive no benefit from the Settlement,
and you won't be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit
against Kmart about the legal issues in this case.
GETTING MORE INFORMATION
D
This notice summarizes the proposed Settlement. More details are in the Settlement Agreement.
You can obtain a copy of the Settlement Agreement online by visiting the Claims
Administrator's website at w w w . . c o m .
You can write to the Claims Administrator, KCC, LLC,
, or call
______ to ask questions about the Settlement, sign up to be notified if the Settlement is
10
approved, or obtain other information to help you determine whether you are a Class Member
.com or
and whether you are eligible for a payment. You may also visit www.
contact Class Counsel listed under Question 15 above, or by email at
[email protected].
D
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A
FT
DO NOT ADDRESS ANY QUESTIONS ABOUT THIS LAWSUIT TO THE CLERK OF THE
COURT, THE JUDGE, COUNSEL FOR KMART, OR TO ANY KMART AGENT OR
EMPLOYEE. They are not permitted to answer your questions.
11
EXHIBIT "B"
EXHIBIT B
NOTICE OF CLASS ACTION SETTLEMENT
TO:
All persons from whom Kmart requested and recorded a ZIP code in conjunction
with a credit card purchase transaction in a California Kmart retail store during
the period of time from December 10,2007 through December 15,2008.
IF YOU ARE A MEMBER OF THIS CLASS OF PERSONS, YOU SHOULD READ
THIS NOTICE CAREFULLY BECAUSE IT WILL AFFECT YOUR RIGHTS.
FT
A settlement has been proposed in a class action lawsuit titled Alexandra M Alvarez v. Kmart
Holding Corporation, pending in the Superior Court of the State of California, in and for the
County of San Diego, Case No. Case No. 37-2008-00097746-CU-BT-CTL ("Action"). The
lawsuit claims that Kmart violated California Civil Code section 1747.08 by requesting and
recording personal identification information, in the form of ZIP codes, from customers who
paid for merchandise with a credit card at retail stores located in California. Kmart denies that it
violated California Civil Code section 1747.08.
Under the Settlement, Class Members are entitled to receive their choice of one of three awards:
1) A Cash Award, which is a check for $10;
A
2) a $15 Merchandise Voucher, which is a voucher redeemable for use during a single
purchase at Kmart, is good on all sale and discounted merchandise and can be used in
connection with all promotions, is fully transferrable, and will expire after five (5) years
from the date issued; or
3) $15 worth of Shop Your Way Rewards Points, which are points for use during any
purchase at Kmart, are good on all sale and discounted merchandise and can be used in
connection with all promotions, will expire after one (1) year from the date issued, and
. are otherwise subject to the current Shop Your Way Rewards terms and conditions.
R
If you wish to receive a Cash Award of $1 0, a $15 Merchandise Voucher, or $15 worth of Shop
Your Way Rewards Points, you must submit a Claim Form. Your Claim Form is provided
directly below that you may complete and return via U.S. Mail to the Claims Administrator at
[address], or electronically through the settlement website at www.
.eom, no later
than [date], 2016.
D
Any remaining money from the $21,000,000 Settlement Fund, after subtracting out all Claims
benefits, Class Representative Payment, Class Counsel Fees, Class Counsel Expenses, and
Administration Costs, will be distributed on a pro-rata basis to Known Class Members who did
not submit a claim form. Known Class Members who are Shop Your Way Rewards Members
shall receive their pro rata portion as Shop Your Way Rewards Points. All other Known Class
Members will receive their pro rata portion of the remaining funds in the form of a Merchandise
Voucher.
To exclude yourself from the Action and Settlement, you may mail a request, postmarked no
later than [DATE], to the Claims Administrator at the address above, identifying the Action as
Alexandra M Alvarez v. Kmart Holding Corporation, Case No. 37-2008-00097746-CU-BT-CTL
and asking to "opt out" of the Settlement. If you request to be excluded, you will not receive any
EXHIBITB
benefits from the Settlement, and you will not be bound by the Settlement or any resulting
judgment. You can also object to the Settlement by submitting a written objection according to
the procedures in the Full Notice no later than [DATE], or by appearing at the Fairness Hearing
on July 1,2016, lO:30 am, at the San Diego Superior Court, 330 W. Broadway, San Diego, CA
92101, Department 66.
D
R
A
FT
For additional information regarding this Settlement, the Full Notice of Class Action and
Proposed Settlement ("Full Notice") is available at w w w . . c o m .
EXHIBIT "C"
EXHIBITC
NOTICE OF CLASS ACTION SETTLEMENT
TO: All persons from whom Kmart requested and recorded a ZIP code in conjunction with
a credit card purchase transaction in a California Kmart retail store during the period of
time from December 10,2007 through December 15,2008.
IF YOU ARE A MEMBER OF THIS CLASS OF PERSONS, YOU SHOULD READ
THIS NOTICE CAREFULLY BECAUSE IT WILL AFFECT YOUR RIGHTS
FT
A settlement has been proposed in a class action lawsuit titled Alexandra M Alvarez v. Kmart
Holding Corporation, pending in the Superior Court of the State of California, in and for the
County of San Diego, Case No. Case No. 37-2008-00097746-CU-BT-CTL ("Action"). The
lawsuit claims that Kmart violated California Civil Code section 1747.08 by requesting and
recording personal identification information, in the form of ZIP codes, from customers who
paid for merchandise with a credit card at retail stores located in California. Kmart denies that it
violated California Civil Code section 1747.08.
Under the Settlement, Class Members are entitled to receive their choice of one of three awards:
1) A Cash Award, which is a check for $10;
A
2) a $15 Merchandise Voucher, which is a voucher redeemable for use during a single
purchase at Kmart, is good on all sale and discounted merchandise and can be used in
connection with all promotions, is fully transferrable, and will expire after five (5) years
from the date issued; or
3) $15 worth of Shop Your Way Rewards Points, which are points for use during any
purchase at Kmart, are good on all sale and discounted merchandise and can be used in
connection with all promotions, will expire after one (1) year from the date issued, and
are otherwise subject to the current Shop Your Way Rewards terms and conditions.
R
If you believe you are a Class Member, you must submit a Claim Form to receive one of these
settlement awards. The Claim Form is available at w w w . . c o m . Your claim
must be submitted no later than [date] to the Claims Administrator by mail at Kmart Class Action
Settlement Claims Administrator, [address], or electronically through the settlement website at
w w w . . c o m . Additional information regarding this Action and the Settlement,
including the Full Notice of Class Action and Proposed Settlement, is available at
www. _ _ _ _ _ _ _.com.
D
To exclude yourself from the Action and Settlement, you may mail a request, postmarked no
later than [date] to the Claims Administrator at the address above, identifying the Action as
Alexandra M Alvarez v. Kmart Holding Corporation, Case No. 37-2008-00097746-CU-BT-CTL
and asking to "opt out" of the Settlement. If you request to be excluded, you will not receive any
benefits from the Settlement, and you will not be bound by the Settlement or any resulting
judgment. You can also object to the Settlement by submitting a written objection according to
the procedures in the Full Notice no later than [DATE], or by appearing at the Fairness Hearing
on July 1,2016, 10:30 am, at the San Diego Superior Court, 330 W. Broadway, San Diego, CA
92101, Department 66.
EXHIBIT "D"
EXHIBITD
NOTICE OF CLASS ACTION SETTLEMENT
TO: All persons from whom Kmart requested and recorded a ZIP code in conjunction with a
credit card purchase transaction in a California Kmart retail store during the period of time
from December 10, 2007 through December 15, 2008.
IF YOU ARE A MEMBER OF THIS CLASS OF PERSONS, YOU SHOULD READ
THIS NOTICE CAREFULLY BECAUSE IT WILL AFFECT YOUR RIGHTS
FT
A settlement has been proposed in a class action lawsuit titled Alexandra M. Alvarez v. Kmart
Holding Corporation, pending in the Superior Court of the State of California, in and for the
County of San Diego, Case No. Case No. 37-2008-00097746-CU-BT-CTL ("Action"). The
lawsuit claims that Kmart violated California Civil Code section 1747.08 by requesting and
recording personal identification infonnation, in the fonn of ZIP codes, from customers who paid
for merchandise with a credit card at retail stores located in California. Kmart denies that it
violated California Civil Code section 1747.08.
Under the Settlement, Class Members are entitled to receive their one of three awards: 1) a
$10 Cash Award; 2) a $15 Merchandise Voucher; or 3) $15 in Shop Your Way Rewards Points.
A
If you believe you are a Class Member, you must submit a Claim Fonn in order to receive a
settlement award. The Claim Fonn is available at w w w . . c o m . Your Claim
Fonn must be submitted no later than [date] to the Claims Administrator by mail at Kmart Class
Action Settlement Claims Administrator, [address], or electronically through the settlement
website at www.
,coW. Additional infonnation regarding this Action and the
Settlement, including the Full Notice of Class Action and Proposed Settlement, is available at
www. _ _ _ _ _ _ _.com.
D
R
To exclude yourself from the Action and Settlement, you may mail a request, postmarked no
later than [PATE], to the Claims Administrator at the address set forth above, identifying the
Action as Alexandra M Alvarez v. Kmart Holding Corporation, Case No. 37-2008-00097746CU-BT-CTL and asking to "opt out" of the Settlement. If you request to be excluded, you will
not receive any benefits from the Settlement, and you will not be bound by the Settlement or any
resulting judgment. You can also object to the Settlement by submitting a written objection
according to the procedures in the Full Notice no later than [DATE], or by appearing at the
Fairness Hearing on July 1, 2016, 10:30 am, at the San Diego Superior Court, 330 W.
Broadway, San Diego, CA 92101, Department 66.
EXHIBIT "E"
EXHIBIT E - KNOWN CLASS MEMBERS
[CLASS MEMBER CODE]
CLAIM FORM
lfmailed, this Claim Form must be postmarked no later than [dateL 2016.
lfsubmitted online it must be submitted by 11:59 p.m. PTon [date], 2016.
A.
ADDRESS INFORMATION FOR DELIVERY OF CLASS AWARD
Full Name
Home Street Address
City, State ZIP Code
Telephone Number:
B.
FT
Please note any corrections below.
[Pre-printed with Known Class Members' Contact Information]
(~--~)------------------------
TRANSACTION INFORMATION
According to information in possession of Kmart, you entered into a credit card purchase
transaction with Kmart and provided a ZIP code on at least one occasion between December 10,
2007, and December 15,2008.
ELECTION OF CLASS AWARD
A
C.
Please indicate whether you wish to receive the $10 Cash Award, $15 Merchandise Voucher, or
$15 Shop Your Way Rewards Points:
$10 Cash Award
$15 Merchandise Voucher
$15 Shop Your Way Rewards Points
R
_
If you do not indicate an award selection or select more than one award, you will receive the $15
Shop Your Way Rewards points if you are currently a Shop Your Way Rewards member; or the
$15 Merchandise Voucher if you are not a Shop Your Way Rewards member.
SIGNATURE
D
D.
Signed
Dated
EXHIBIT E - KNOWN CLASS MEMBERS
[CLASS MEMBER CODE]
YOUR CLAIM FORM MUST BE SUBMITTED NO LATER THAN [DATE], 2016, ONLINE
AT www..com. OR BY MAILTO THE CLAIMS ADMINSTRATOR, AT THE
ADDRESS BELOW:
D
R
A
FT
KCC,LLC
[address]
[address]
EXHIBIT "F"
EXHIBIT F- UNKNOWN CLASS MEMBERS
[CLASS MEMBER CODE]
CLAIM FORM
{[mailed, this Claim Form must be postmarked no later than {date], 2016.
Jfsubmitted online, it must be submitted by 11:59 p.m. PTon {date], 2016.
A.
ADDRESS INFORMATION FOR DELIVERY OF CLASS A WARD
Full Name
Home Street Address
City, State ZIP Code
Telephone Number:
B.
FT
Please provide your contact information below.
(~--~)------------------------
TRANSACTION INFORMATION
I entered into a credit card transaction with Kmart between December 10, 2007 and December
15,2008, and provided the following ZIP code (s) during the transaction(s):
C.
ZIP code(s) provided
A
Approximate Transaction Date (month/year)
CERTIFICATION OF ELIGIBILITY
R
By signing and submitting this Claim Form, you certify that you entered into a credit card
transaction during the period of time from December 10, 2007 to December 15, 2008 with
Kmart, that you did not use a credit card issued to a business, that your purchase was not a
layaway or a special order delivery, and that the ZIP code you gave was your ZIP code at the
time of the transaction.
D.
ELECTION OF CLASS A WARD
D
Please indicate whether you wish to receive the $10 Cash Award, $15 Merchandise Voucher, or
$15 Shop Your Way Rewards Points:
$10 Cash Award
$15 Merchandise Voucher
_
$15 Shop Your Way Rewards Points (Shop Your Way Rewards Member # ______~)
EXHIBIT F - UNKNOWN CLASS MEMBERS
[CLASS MEMBER CODE]
If you do not indicate an award selection or select more than one award, you will receive the $15
Shop Your Way Rewards points if you are currently a Shop Your Way Rewards member; or the
$15 Merchandise Voucher if you are not a Shop Your Way Rewards member.
E.
SIGNATURE UNDER PENALTY OF PERJURY
Signed
FT
I verify under penalty of perjury under the laws of the State of Cali fomi a that the information in
the "Transaction Information" and "Certification of Eligibility" sections are true and accurate.
Dated
YOUR CLAIM FORM MUST BE SUBMITTED NO LATER THAN [DATE], 2016, ONLINE
AT www..com. OR BY MAILTO THE CLAIMS ADMINSTRATOR, AT THE
ADDRESS BELOW:
D
R
A
KCC,LLC
[address]
[address]