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1 Michael W. Sobol (State Bar No. 194857)


(msobol@lchb.com)
2 Allison Elgart (State Bar No. 241901)
(aelgart@lchb.com)
3 LIEFF, CABRASER, HEIMANN &
BERNSTEIN, LLP th
4 275 Battery Street, 30 Floor
San Francisco, CA 94111-3339
5 Telephone: (415) 956-1000
Facsimile: (415) 956-1008
6
Michael A. Caddell (State Bar No. 249469)
7 (mac@caddelchapman.com)
Cynthia B. Chapman (State Bar No. 164471)
8 (cbc@caddellchapman.com)
George Y. Niño (State Bar No. 146623)
9 (gyn@caddellchapman.com)
CADDELL & CHAPMAN
10 1331 Lamar, Suite 1070
Houston, TX 77010
11 Telephone: (713) 751-0400
Facsimile: (713) 751-0906
12
ATTORNEYS FOR PLAINTIFFS
13
Additional counsel and parties listed on
14 signature pages
15
UNITED STATES DISTRICT COURT
16
CENTRAL DISTRICT OF CALIFORNIA
17
SOUTHERN DIVISION
18
19
20 TERRI N. WHITE, et al., Case No. 05-cv-1070 DOC (MLGx)
(Lead Case)
21 Plaintiffs,
AND RELATED CASES
22 v. 05-cv-1073, 05-cv-7821, 06-cv-3924,
05-cv-1172, 06-cv-5060
23 EXPERIAN INFORMATION
SOLUTIONS, INC., SETTLEMENT AGREEMENT
24 AND RELEASE
Defendant.
25 JUDGE: DAVID O. CARTER

26 and RELATED CASES


27
28
SETTLEMENT AGREEMENT AND
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1 SETTLEMENT AGREEMENT AND RELEASE


2 This Settlement Agreement and Release (“Settlement Agreement”) is made
3 and entered into by and between (1) Plaintiffs, individually and as representatives
4 of the 23(b)(3) Settlement Class as defined below; (2) Equifax Information Services
5 LLC (“Equifax”); (3) Experian Information Solutions, Inc. (“Experian”); and (4)
6 TransUnion LLC (“TransUnion”). Equifax, Experian and TransUnion are
7 collectively referred to as the “Defendants.” Plaintiffs and Defendants are
8 collectively referred to herein as the “Parties.” This Settlement Agreement is
9 intended by the Parties to fully, finally, and forever resolve, discharge, and settle all
10 released rights and claims, to the extent set forth below, subject to the terms and
11 conditions set forth herein.
12 RECITALS
13 A. WHEREAS, on or about October 3, 2005, plaintiff Jose Hernandez
14 filed an action against Defendants in the United States District Court for the
15 Northern District of California, in which he asserted claims on behalf of a putative
16 nationwide class of consumers relating to each of Defendants’ procedures for
17 reporting pre-bankruptcy debts of consumers who have obtained discharges through
18 Chapter 7 bankruptcy proceedings;
19 B. WHEREAS, on or about November 2, 2005, plaintiff Terri N. White
20 filed separate actions1 against each of the Defendants in this District, in which she
21 asserted claims on behalf of a putative nationwide class of consumers relating to
22 each of Defendant’s procedures for reporting and reinvestigating pre-bankruptcy
23 debts of consumers who have obtained discharges through Chapter 7 bankruptcy
24 proceedings;
25
1
The original named plaintiffs in the action against Equifax were Terri N.
26 White, Robert Radcliffe, Chester Carter, and Milagros Gabrillo. The original
named plaintiffs in the action against Experian were Terri N. White, Robert
27 Radcliffe, Chester Carter, and Arnold E. Lovell, Jr. The original named plaintiffs
in the action against TransUnion were Terri N. White, Robert Radcliffe, Chester
28 Carter, and Maria Falcon.
SETTLEMENT AGREEMENT AND
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1 C. WHEREAS, on or about August 11, 2006, plaintiff Jose Hernandez


2 and the White plaintiffs filed three separate Second Amended Consolidated Class
3 Action Complaints2, one against each Defendant (“Second Amended Complaints”),
4 in which they assert claims for (i) willful and/or negligent violation of Section
5 1681e(b) of the FCRA, and its CCRAA counterpart, California Civil Code Section
6 1785.14(b), for failure to maintain reasonable procedures to assure maximum
7 possible accuracy; (ii) willful and/or negligent violation of Section 1681i of the
8 FCRA and its California counterpart, Cal. Civ. Code Section 1785.16, for failure to
9 reasonably investigate consumer disputes regarding the status of the discharged
10 accounts; and (iii) violation of California’s Unfair Competition law, Bus. & Prof.
11 Code section 17200, et seq.;
12 D. WHEREAS, in or around September 2006, Defendants answered the
13 various Second Amended Complaints, denying the allegations therein, denying that
14 the actions are suitable for certification pursuant to Federal Rule of Civil Procedure
15 23, asserting affirmative defenses that Defendants contend are meritorious
16 notwithstanding their willingness to enter into this Settlement Agreement;
17 E. WHEREAS, plaintiff Jose L. Acosta, Jr., filed an action against
18 TransUnion in California Superior Court on or around May 12, 2003, and later filed
19 a new action against TransUnion in federal court on August 14, 2006 joined by
20 plaintiffs Robert Randall and Bertram Robison,3 and plaintiff Kathryn Pike filed an
21 action in California Superior Court against Equifax on or around October 14, 2005,
22 in which they also assert claims on behalf of a putative California class of
23 consumers relating to TransUnion’s or Equifax’s procedures for reporting pre-
24
25
2
26 The Second Amended Complaints added two new plaintiffs: Clifton C.
Seale, III, and Alex K. Gidi. On October 19, 2007, plaintiffs Terri N. White,
27 Alex K. Gidi, and Milagros Gabrillo were dismissed by court order.
3
Plaintiff Acosta has since been dismissed from the federal court action and
28 has dismissed his state court action.
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1 bankruptcy debts of consumers who have obtained discharges through Chapter 7


2 bankruptcy proceedings;
3 F. WHEREAS, all of these cases have been either filed, transferred, or
4 removed such that they are before the Honorable Judge David O. Carter in the
5 Central District of California under the following case numbers: Terri N. White, et
6 al. v. Experian Information Solutions, Inc., Case No. cv 05-01070 (Lead Case
7 number); Terri N. White, et al. v. Equifax Information Services LLC, Case No. cv
8 05-7821; Terri N. White, et al. v. TransUnion LLC, cv 05-1073; Jose Hernandez v.
9 Equifax Information Services, LLC, et al., Case No. cv 06-3924; Jose L. Acosta et
10 al., v. TransUnion LLC, et al., Case No. cv 06-5060; and Kathryn L. Pike v. Equifax
11 Information Services, LLC, Case No. cv 05-1172 (collectively, the “Litigation”);
12 G. WHEREAS, Plaintiffs in the various cases have undertaken substantial
13 investigation and formal discovery in the Litigation (including review of tens of
14 thousands of pages of documents, retention and consultation of numerous experts in
15 the fields of credit reporting and consumer bankruptcies, interviews with numerous
16 consumers, review of thousands of consumer credit reports, creation and review of
17 several credit scoring analyses, creation and review of several accuracy analyses,
18 and about 50 depositions in support of the prosecution of the Litigation and
19 settlement negotiations relating thereto;
20 H. WHEREAS, the Parties have vigorously litigated these matters, which
21 included four rounds of briefing concerning class certification;
22 I. WHEREAS, on or about August 15, 2007, the Court urged the Parties
23 to proceed to mediation and, since then, the Parties have conducted arms-length,
24 contentious, lengthy, and complicated negotiations (with the participation of
25 Defendants’ insurance carriers) that have included at least six in-person mediation
26 sessions with the Honorable Lourdes Baird (Ret.), four in-person mediation
27 sessions with mediator Randall Wulff, and several additional sessions involving
28 counsel for the Parties;
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1 J. WHEREAS, on or about April 3, 2008, the parties to the Litigation


2 entered into the Injunctive Relief Settlement Agreement in which Defendants
3 agreed to retroactively update the credit files of 23(b)(2) Settlement Class members
4 to reflect the discharge of certain categories of pre-bankruptcy civil judgments and
5 tradelines. Defendants also agreed to adopt new procedures for the update of
6 certain pre-bankruptcy civil judgments and tradelines when a public record entry of
7 the bankruptcy has been added to the consumer’s file. On August 19, 2008, the
8 Court approved these new procedures, found them to be reasonable under the
9 FCRA, and entered an Approval Order Regarding Settlement and Release regarding
10 the injunctive relief pursuant to the Injunctive Relief Settlement Agreement
11 (Docket No. 290, as filed in Lead Case White v. Experian, No. 05-cv-1070-DOC);
12 K. WHEREAS, on January 26, 2009, counsel for the parties to the
13 Litigation appeared for a hearing on Plaintiffs’ Motion for Class Certification and,
14 prior to the scheduled hearing, the Court issued a tentative ruling denying
15 Plaintiffs’ Motion for Class Certification pursuant to Fed. R. Civ. P. 23(b)(3) and
16 directed the Parties to make a final attempt to settle the Litigation;
17 L. WHEREAS, on January 29, 2009, counsel for the parties to the
18 Litigation, Defendants, and Defendants’ insurance carriers participated in an
19 additional mediation session before mediator Randall Wulff, but did not reach an
20 agreement;
21 M. WHEREAS, the Court ordered a further mediation with Mr. Wulff at
22 the courthouse on February 5, 2009, and counsel for the parties to the Litigation,
23 Defendants, and Defendants’ insurance carriers appeared therefore, at the
24 conclusion of which a settlement was reported to the Court as between plaintiffs
25 and Equifax and Experian without objection from any party to the Litigation or
26 their counsel, and thereafter on February 18, 2009, TransUnion reported to the
27 Court it had also reached a settlement on the same terms;
28
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1 N. WHEREAS, this Settlement Agreement was reached only after each


2 Defendant’s respective insurance carriers agreed to fund such Defendant’s required
3 payments under this Settlement Agreement, subject to such Defendant’s exhaustion
4 of any remaining self-insured retention.
5 O. WHEREAS, this Settlement Agreement was reached with the efforts
6 of mediator Randall Wulff;
7 P. WHEREAS, the Parties are willing to enter into this Settlement
8 Agreement to settle the claims of the 23(b)(3) Settlement Class because of, among
9 other reasons, the attendant expense, risks, difficulties, delays, and uncertainties of
10 continued litigation;
11 Q. WHEREAS, Plaintiffs and Proposed 23(b)(3) Settlement Class
12 Counsel believe that this Settlement Agreement provides fair, reasonable, and
13 adequate relief to the 23(b)(3) Settlement Class, and is in the best interests of the
14 23(b)(3) Settlement Class as a whole;
15 R. WHEREAS, Defendants deny all claims asserted against them in the
16 Litigation, deny that class certification would be appropriate if the cases are
17 litigated rather than settled, deny all allegations of wrongdoing and liability, and
18 deny that anyone was harmed by the conduct alleged, but nevertheless desire to
19 settle Plaintiffs’ monetary claims on the terms and conditions set forth in this
20 Settlement Agreement solely for the purpose of avoiding the burden, expense, risk
21 and uncertainty of continuing the proceedings on those issues in the Litigation, and
22 for the purpose of putting to rest the controversies engendered;
23 NOW THEREFORE, IT IS AGREED, by and among the Parties, without
24 (a) any admission or concession on the part of Plaintiffs of the lack of merit of the
25 Litigation whatsoever, or (b) any admission or concession of liability or
26 wrongdoing or the lack of merit of any defense whatsoever by Defendants, that the
27 Litigation and all claims of the 23(b)(3) Settlement Class for monetary damages be
28
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1 settled, compromised, and dismissed on the merits and with prejudice as to


2 Defendants on the terms set forth below, subject to the approval of the Court.
3 The recitals stated above are true and accurate and are hereby made a part of
4 the Settlement Agreement.
5 I. DEFINITIONS
6 As used in this Settlement Agreement, the terms defined below shall have the
7 meanings assigned to them when capitalized in the same fashion as in this Part I,
8 and any other terms that relate to the credit reporting industry shall have the
9 customary meaning accorded to those terms in the credit reporting industry.
10 1.1 “Bankruptcy Date” means the month during which—according to an
11 entry in the public records section as reflected in the applicable
12 Defendant’s computer systems—a Consumer filed a bankruptcy
13 petition that later led to a public record in the Consumer’s File of the
14 entry of a discharge order pursuant to Chapter 7 of the United States
15 Bankruptcy Code. The “Bankruptcy Date” may be reflected as the
16 “date filed” in the public records section of a Consumer’s File.
17 1.2 “Claimant” means a proposed 23(b)(3) Settlement Class Member who
18 properly registers or submits a claim pursuant to Subsection 5.1a.
19 1.3 “Closed Account” means that an account is reporting with a zero
20 balance and has a narrative or other code indicating that the account
21 was closed by a consumer or creditor in a month that predates the
22 Bankruptcy Date.
23 1.4 “Consumer” means a natural person residing in the United States of
24 America or its territories whose File in a Defendant’s computer
25 systems includes, or at any time from March 15, 2002 to the present
26 (or for residents of the State of California in the case of Defendant
27 TransUnion, from May 12, 2001 to the present) included, a public
28 record entry reporting an order of discharge pursuant to Chapter 7 of
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1 the United States Bankruptcy Code, as determined from the


2 Defendant’s current Files and/or archived files as retrieved on an
3 annual basis.
4 1.5 “Court” means the United States District Court for the Central District
5 of California.
6 1.6 “Date of Initial Delinquency” means the first month during which a
7 derogatory event is reported for a tradeline, as shown in the applicable
8 Defendant’s records. Based upon differences in reporting methods,
9 each Defendant may, at its option, use such dates as the Purge Date,
10 Date of First Delinquency or Date of Last Activity to determine the
11 Date of Initial Delinquency for purposes of compliance with this
12 Settlement Agreement.
13 1.7 “Defendants” mean Equifax, Experian, and TransUnion.
14 1.8 “Effective Date” is the date on which this Court’s entry of the Final
15 Approval Order and this Court’s orders regarding Monetary Relief
16 Fees and Injunctive Relief Fees have all become final because either (i)
17 no appeal of the Final Approval Order or the Court’s orders referenced
18 above have been filed and the time provided in the applicable rules of
19 procedure within which an appeal may be filed has lapsed, or (ii) if one
20 or more timely appeals have been filed, all such appeals are finally
21 resolved, with no possibility of further appellate review, resulting in
22 final judicial approval of this Settlement. For purposes of this
23 definition, the term “appeal” includes writ proceedings.
24 1.9 “Equifax” means Equifax Information Services LLC.
25 1.10 “Equifax’s Counsel” means Kilpatrick Stockton LLP.
26 1.11 “Experian” means Experian Information Solutions, Inc.
27 1.12 “Experian’s Counsel” means Jones Day.
28
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1 1.13 “FCRA” means the federal Fair Credit Reporting Act,


2 15 U.S.C. § 1681, et seq.
3 1.14 “FCRA State Equivalents” means any statute or regulation of any state,
4 U.S. territory, the District of Columbia, or Puerto Rico, that has the
5 purpose or effect of regulating the collection or reporting of consumer
6 credit information (including, without limitation, California’s
7 Consumer Credit Reporting Agencies Act (“CCRAA”), Civil Code
8 Sections 1785.1-1785.44, and New York’s Fair Credit Reporting Act,
9 General Business Law Section 380-380-u).
10 1.15 “Fee and Expense Award” means the attorneys’ fees and expenses
11 applied for by 23(b)(3) Settlement Class Counsel relating to this
12 Settlement Agreement and approved by the Court.
13 1.16 “File” means a “file,” as defined in 15 U.S.C. § 1681a(g), in a
14 Defendant’s computer system.
15 1.17 “Final Approval” means the approval of the Settlement Agreement by
16 the Court at or after the Final Approval Hearing, and entry on the
17 Court’s docket of the Final Approval Order.
18 1.18 “Final Approval Order” means a final order and judgment entered by
19 the Court giving Final Approval of the Settlement Agreement and
20 dismissing with prejudice Plaintiffs’ claims for monetary relief that is
21 in a form mutually agreeable to the Parties, and entering a judgment
22 according to the terms set forth in this Settlement Agreement.
23 1.19 “Final Approval Hearing” or “Final Fairness Hearing” means the
24 hearing at which the Court will consider and finally decide whether to
25 approve this Settlement, enter the Judgment, and make such other
26 rulings as are contemplated by this Settlement. The Final Approval
27 Hearing shall not be scheduled for a date less than 90 days following
28 CAFA Notice as set forth in Section 4.5.
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1 1.20 “Injunctive Relief Fee Agreement” means a separate settlement


2 agreement addressing the payment of 23(b)(2) Settlement Class
3 Counsel’s fees in connection with the Injunctive Relief Settlement.
4 1.21 “Injunctive Relief Fees” means the attorneys fees and expenses,
5 including fees for expert witnesses, incurred by 23(b)(2) Settlement
6 Class Counsel and to be awarded in connection with their efforts in
7 achieving the Injunctive Relief Settlement.
8 1.22 “Injunctive Relief Settlement” means the Settlement Agreement and
9 Release filed with the Court in this action on April 3, 2008, pursuant to
10 which on August 19, 2008, the Court entered an Approval Order
11 Regarding Settlement Agreement and Release (Docket No. 290, as
12 filed in Lead Case White v. Experian, No. 05-cv-1070-DOC).
13 1.23 “Mail Notice” means the notice (in a form substantially similar to that
14 attached hereto as Exhibit A and approved by the Court) that will be
15 mailed to proposed 23(b)(3) Settlement Class Members pursuant to the
16 Notice Plan.
17 1.24 “Monetary Relief Fees” means the attorneys’ fees and expenses,
18 including fees for expert witnesses, incurred by Proposed 23(b)(3)
19 Settlement Class Counsel in prosecuting and settling the Litigation, but
20 excluding the Injunctive Relief Fees, as defined in Section 1.24.
21 1.25 “Named Plaintiffs” or “Plaintiffs” means the settling plaintiffs,
22 specifically, Jose Hernandez, Robert Randall, Bertram Robison, and
23 Kathryn Pike.
24 1.26 “Notice Plan” means the plan for disseminating notice to 23(b)(3)
25 Settlement Class Members as described in Section 4.3 hereof.
26 1.27 “Parties” means Plaintiffs, Equifax, Experian, and TransUnion.
27
28
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1 1.28 “Post-bankruptcy Credit Report” means a credit report, as defined in


2 15 U.S.C. § 1681a(d), that is issued by a Defendant in or after the
3 Bankruptcy Date.
4 1.29 “Post-bankruptcy Employment Inquiry” means an entry in a
5 Consumer’s File that contains a record of a Defendant’s publication of
6 the Consumer’s Post-bankruptcy Credit Report to a subscriber who has
7 certified an employment eligibility purpose and/or caused the
8 Defendant to mail to the consumer a notice made pursuant to 15 U.S.C.
9 §1681k.
10 1.30 “Post-bankruptcy Hard Inquiry” means an entry in a Consumer’s File
11 that contains a record of a Defendant’s publication of the Consumer’s
12 Post-bankruptcy Credit Report to a lender or other prospective creditor
13 for purposes of evaluating a loan or other credit application that was
14 initiated by the Consumer.
15 1.31 “Pre-bankruptcy Civil Judgment” means a public record judgment that
16 a Defendant reported in a Consumer’s File with either a month filed or
17 a month of judgment (or both) that predates or is equal to the
18 Bankruptcy Date in such File.
19 1.32 “Pre-bankruptcy Collection Account” means an account identified by a
20 Defendant as reflecting the collection activity of a third party
21 collection agency or debt buyer on behalf of the original creditor that is
22 reported with a Date of Initial Delinquency, a date referred to
23 collection, or an date opened month that predates or is equal to the
24 Bankruptcy Date.
25 1.33 “Pre-bankruptcy Installment or Mortgage Loan” means an installment
26 or mortgage loan that a Defendant reported in a Consumer’s File with a
27 date opened month that predates or is equal to the Bankruptcy Date in
28 such File.
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1 1.34 “Pre-bankruptcy Revolving Account” means a revolving account, open


2 account, or line of credit that a Defendant reported in a Consumer’s
3 File with a date opened month that predates or is equal to the
4 Bankruptcy Date in such File.
5 1.35 “Preliminary Approval” means the preliminary approval of the
6 Settlement Agreement by the Court, conditional certification of the
7 23(b)(3) Settlement Class, and approval of the method and content of
8 notice to the 23(b)(3) Settlement Class.
9 1.36 “Proposed 23(b)(3) Settlement Class Counsel” or “23(b)(3) Settlement
10 Class Counsel” means Leonard A. Bennett, Esq., Consumer Litigation
11 Associates, P.C.; Mitchell A. Toups, Esq., Weller, Green, Toups &
12 Terrell, L.L.P.; Michael Caddell, Esq., Caddell & Chapman; Michael
13 W. Sobol, Esq., Lieff Cabraser Heimann & Bernstein; Charles
14 Delbaum and Stuart T. Rossman, National Consumer Law Center; and
15 Lee A. Sherman, Esq., Callahan, McCune & Willis, APLC.
16 1.37 “Publication Notice” means the notice (in a form substantially similar
17 to that attached hereto as Exhibit B and approved by the Court) to the
18 proposed 23(b)(3) Settlement Class under the Notice Plan that will be
19 published.
20 1.38 “Released Claims” means and includes any and all duties, obligations,
21 demands, claims, actions, causes of action, suits, damages, rights or
22 liabilities of any nature and description whatsoever, whether arising
23 under local, state or federal law, whether by Constitution, statute
24 (including, but not limited to, the FCRA and FCRA State Equivalents),
25 tort, contract, common law or equity or otherwise, whether known or
26 unknown, concealed or hidden, suspected or unsuspected, anticipated
27 or unanticipated, asserted or unasserted, foreseen or unforeseen, actual
28 or contingent, liquidated or unliquidated, fixed or contingent, that have
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1 been or could have been asserted in the Litigation based upon the
2 Defendants’ furnishing of consumer reports that contained or were
3 alleged to contain false or misleading reporting of debts, accounts,
4 judgments, or public records, or other obligations, that had been
5 discharged in bankruptcy or their alleged failure to have properly
6 reinvestigated such inaccuracies, by Plaintiffs or the 23(b)(3)
7 Settlement Class Members or any of their respective heirs, spouses,
8 executors, administrators, partners, attorneys, predecessors, successors,
9 assigns, agents and/or representatives, and/or anyone acting or
10 purporting to act on their behalf. Released Claims include, but are not
11 limited to, all claimed or unclaimed compensatory damages, damages
12 for emotional distress, statutory damages, consequential damages,
13 incidental damages, treble damages, punitive and exemplary damages,
14 as well as all claims for equitable, declaratory or injunctive relief under
15 any federal or state statute or common law or other theory that was
16 alleged or could have been alleged based on the facts forming the basis
17 for the Litigation, including but not limited to any and all claims under
18 deceptive or unfair practices statutes, or any other statute, regulation or
19 judicial interpretation. Released Claims further include interest, costs
20 and fees arising out of any of the claims asserted or that could have
21 been asserted in the Litigation. Notwithstanding the foregoing,
22 nothing in this Settlement Agreement shall be deemed a release of the
23 Parties’ respective rights and obligations under this Settlement
24 Agreement.
25 1.39 “Released Parties” means and refers to: (a) Equifax and its present,
26 former and future officers, directors, partners, employees, agents,
27 attorneys, servants, heirs, administrators, executors, members, member
28 entities, shareholders, predecessors, successors, affiliates (including,
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1 without limitation, CSC Credit Services, Inc.), subsidiaries, parents,


2 representatives, trustees, principals, insurers, vendors and assigns,
3 individually, jointly and severally; (b) Experian and its present, former
4 and future officers, directors, partners, employees, agents, attorneys,
5 servants, heirs, administrators, executors, members, member entities,
6 shareholders, predecessors, successors, affiliates, subsidiaries, parents,
7 representatives, trustees, principals, insurers, vendors and assigns,
8 individually, jointly and severally; and (c) TransUnion and its present,
9 former and future officers, directors, partners, employees, agents,
10 attorneys, servants, heirs, administrators, executors, members, member
11 entities, shareholders, predecessors, successors, affiliates, subsidiaries,
12 parents, representatives, trustees, principals, insurers, vendors and
13 assigns, individually, jointly and severally.
14 1.40 “Settlement” means the agreement between Plaintiffs, on behalf of
15 themselves and as proposed representatives of the 23(b)(3) Settlement
16 Class, and Equifax, Experian, and TransUnion, to settle and
17 compromise all of Plaintiffs’ and the 23(b)(3) Settlement Class’ claims
18 in the Litigation for monetary damages, including without limitation
19 statutory and punitive damages (and all issues relating thereto), fully,
20 finally and forever, as memorialized in this Settlement Agreement and
21 the accompanying documents attached hereto.
22 1.41 “Settlement Administrator” shall mean the administrator for the
23 Settlement Agreement that Proposed 23(b)(3) Settlement Class
24 Counsel will identify and propose as described in Section 3.2.
25 1.42 “Settlement Agreement” means this Settlement Agreement and
26 Release.
27 1.43 “Settlement Fund” means the amount paid pursuant to Section 7.1
28 herein.
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1 1.44 “Settlement Web site” means the Internet Web site established by the
2 Settlement Administrator for purposes of facilitating notice to, and
3 communicating with, the 23(b)(3) Settlement Class.
4 1.45 “TransUnion” means TransUnion LLC.
5 1.46 “TransUnion’s Counsel” means Stroock & Stroock & Lavan LLP.
6 1.47 “23(b)(2) Settlement Class” means the same as defined in Section 2.32
7 in the Approval Order Regarding Settlement Agreement and Release
8 entered by the Court in the Litigation on August 19, 2008.
9 1.48 “23(b)(3) Settlement Class” or “23(b)(3) Settlement Class Member”
10 shall mean and refer to all Consumers who have received an order of
11 discharge pursuant to Chapter 7 of the United States Bankruptcy Code
12 and who, any time between and including March 15, 2002 and the
13 present (or, for California residents in the case of TransUnion, any
14 time between and including May 12, 2001 and the present), have been
15 the subject of a Post-bankruptcy Credit Report issued by a Defendant
16 in which one or more of the following appeared:
17 a. A Pre-bankruptcy Civil Judgment that was reported as
18 outstanding (i.e., it was not reported as vacated, satisfied, paid,
19 settled or discharged in bankruptcy) and without information
20 sufficient to establish that it was, in fact, excluded from the
21 bankruptcy discharge;
22 b. A Pre-bankruptcy Installment or Mortgage Loan that was
23 reported as delinquent or with a derogatory notation (other than
24 “discharged in bankruptcy,” “included in bankruptcy” or similar
25 description) and without information sufficient to establish that
26 it was, in fact, excluded from the bankruptcy discharge;
27 c. A Pre-bankruptcy Revolving Account that was reported as
28 delinquent or with a derogatory notation (other than “discharged
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1 in bankruptcy,” “included in bankruptcy” or similar description)


2 and without information sufficient to establish that it was, in
3 fact, excluded from the bankruptcy discharge; and/or
4 d. A Pre-bankruptcy Collection Account that remained in
5 collection after the Bankruptcy Date.
6 Provided, however, that “23(b)(3) Settlement Class” and “23(b)(3)
7 Settlement Class Member” shall exclude: (i) all persons who timely
8 and validly request exclusion from the Class; (ii) all Consumers who
9 would qualify for membership in the “23(b)(3) Settlement Class”
10 based solely on a Post-bankruptcy Credit Report for which the
11 Consumer has released all claims as to the issuing Defendant; (iii)
12 Defendants’ officers, directors, and employees; (iv) Defendants’
13 attorneys; (v) Plaintiffs’ attorneys; and (vi) Judge David O. Carter and
14 the members of his immediate family.
15 II. NO ADMISSION OF LIABILITY OR ELEMENTS OF CLASS
16 CERTIFICATION
17 2.1 Defendants’ Denial Of Wrongdoing Or Liability
18 Defendants have asserted and continue to assert many defenses to this
19 Litigation and have expressly denied and continue to deny any fault, wrongdoing or
20 liability whatsoever arising out of the conduct alleged in the Litigation. Defendants
21 expressly deny any fault, wrongdoing or liability whatsoever, as well as the validity
22 of each of the claims and prayers for relief asserted in the Litigation. The Parties
23 expressly acknowledge and agree that neither the fact of, nor any provision
24 contained in, this Settlement Agreement nor any of the implementing documents or
25 actions taken under them, shall constitute or be construed as any admission of the
26 validity of any claim, any status, or any fact alleged in the Litigation or any fault,
27 wrongdoing, violation of law, or liability of any kind on the part of Defendants, or
28 any admission by Defendants of any claim or allegation made in any action or
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1 proceeding against Defendants. Defendants have denied and continue to deny each
2 and all of the claims and allegations in the Litigation. Neither this Settlement
3 Agreement nor any document referred to herein, nor any action taken to carry out
4 this Settlement Agreement and/or the Settlement, or their willingness to enter into
5 this Settlement Agreement, nor any or all negotiations, communications, and
6 discussions associated with them are, or may be construed as, or may be used in
7 any proceeding as, an admission by or against any or all Defendants of any fault,
8 wrongdoing or liability whatsoever, or any infirmity of any defenses asserted by
9 any or all Defendants
10 2.2 No Admission by Defendants of Elements of Class Certification
11 Defendants deny that a class should be certified other than for purposes of
12 this Settlement and reserve their rights to contest any litigation class motion.
13 Defendants contend that this Litigation could not be certified as a class action under
14 Federal Rule of Civil Procedure 23(b)(3) and, indeed, this Court has issued a
15 written tentative ruling denying certification of a litigation class that had been
16 proposed by Plaintiffs. Nothing in this Settlement Agreement shall be construed as
17 an admission by any Defendant that this Litigation or any similar case is amenable
18 to class certification for trial purposes. Furthermore, nothing in this Settlement
19 Agreement shall prevent any Defendant from opposing class certification or
20 seeking de-certification of the conditionally certified 23(b)(3) Settlement Class if
21 Final Approval of this Settlement is not obtained, or not upheld on appeal,
22 including review by the United States Supreme Court.
23 III. MOTION FOR PRELIMINARY APPROVAL
24 3.1 On or before April 24, 2009, Proposed 23(b)(3) Settlement Class
25 Counsel shall file this Settlement Agreement with the Court together
26 with a motion for Preliminary Approval that seeks entry of an order
27 that would, for settlement purposes only:
28
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1 a. certify a conditional settlement class under Federal Rule of Civil


2 Procedure 23 composed of the 23(b)(3) Settlement Class
3 Members as described in Section 1.49,
4 b. preliminarily approve the proposed Settlement Agreement,
5 c. approve the proposed Notices to the 23(b)(3) Settlement Class in
6 forms substantially similar to those attached hereto as Exhibits
7 A-C,
8 d. appoint 23(b)(3) Settlement Class Counsel, and
9 e. appoint the Settlement Administrator.
10 3.2 Three (3) business days before the hearing for Preliminary Approval
11 Proposed 23(b)(3) Settlement Class Counsel shall identify and propose
12 to Defendants a Settlement Administrator.
13 IV. NOTICE PLAN
14 4.1 Preparation and Production of List of Identified Class Members from
15 Defendants’ Archive Files
16 a. On or before July 31, 2009, each Defendant shall provide the
17 Settlement Administrator with a list of identified 23(b)(3)
18 Settlement Class Members prepared pursuant to the procedures
19 set forth in this Section in an electronically accessible format.
20 In generating these lists, each Defendant shall use commercially
21 reasonable procedures to search a selection of their archive files
22 to identify each Consumer who, based on the information
23 appearing in those archive files, appears to satisfy all of the
24 following conditions:
25 (i) The Consumer was the subject of a credit report issued by
26 such Defendant after the Chapter 7 discharge and on or
27 after March 15, 2002 (or, for California residents in the
28 case of TransUnion, after May 12, 2001); and
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1 (ii) The Consumer has at least one tradeline in one of the


2 following categories:
3 (A) A Pre-bankruptcy Civil Judgment that does not
4 appear with an indicator that it was vacated, satisfied,
5 paid, settled, included in bankruptcy, or any of the
6 following: (1) a judgment obtained by a governmental
7 child support agency or taxing authority; or (2) a tax lien,
8 whether or not reduced to judgment;
9 (B) A Pre-bankruptcy Installment or Mortgage Loan
10 that does not appear with an account status reflecting a
11 Chapter 7 bankruptcy and that does not appear with a
12 Metro 2 account code type (or such other Defendant-
13 specific or Metro 1 coding equivalent) of 12 (Education),
14 50 (Family Support), 65, 66, 67, 68, 69, 70, 71
15 (Government Fine), 72, 73, 74, 75, 93 (Child Support), 94
16 (Spouse Support per Metro 1) or 95 (Attorney Fees); an
17 indication that the property was voluntarily surrendered or
18 was subject to a deed in lieu of foreclosure; or an
19 indication that the account is a Closed Account;
20 (C) A Pre-bankruptcy Revolving Account that does not
21 appear with an account status reflecting a Chapter 7
22 bankruptcy and that does not appear with an indicator that
23 it was reported with a Metro 2 account code type (or such
24 other Defendant-specific or Metro 1 coding equivalent) of
25 12 (Education), 50 (Family Support), 65, 66, 67, 68, 69,
26 70, 71 (Government Fine), 72, 73, 74, 75, 93 (Child
27 Support), 94 (Spouse Support per Metro 1) or 95
28 (Attorney Fees); a code indicating that the Consumer was
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1 an “authorized user” on the account; or an indication that


2 the account is a Closed Account; or
3 (D) A Pre-bankruptcy Collection Account that does not
4 appear with an account status reflecting a Chapter 7
5 bankruptcy and that does not appear with a Metro 2
6 account code type (or such other Defendant-specific or
7 Metro 1 coding equivalent) of 12 (Education), 50 (Family
8 Support), 65, 66, 67, 68, 69, 70, 71 (Government Fine),
9 72, 73, 74, 75, 93 (Child Support), 94 (Spouse Support
10 per Metro 1) or 95 (Attorney Fees) or an indication that
11 the account is a Closed Account.
12 b. The Parties agree that, in conducting the searches contemplated
13 under Subsection 4.1a, it shall be sufficient for each Defendant
14 to search only both of the following:
15 (i) an archive file created in the month immediately preceding
16 the month each Defendant implemented Section 4.1 of the
17 Injunctive Relief Settlement; and
18 (ii) one (1) set of its archive files for each twelve-month period
19 between March 15, 2002 through September 31, 2008,
20 with such searches to be conducted on a staggered
21 schedule under which Experian will search its archive files
22 for the month of June, Equifax will search its archive files
23 for October, and TransUnion will search its archive files
24 for February. It is not a violation of this provision if a
25 Defendant, due to a legitimate business need, uses
26 archives from the month immediately preceding or
27 immediately following the above-identified months.
28
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1 c. Each Defendant shall use commercially reasonable methods to


2 remove from its list of identified class members any repetitious
3 or duplicative listing of any particular Consumer. No Defendant
4 shall be required to make any attempt whatsoever to determine
5 whether any particular Consumer who appears on its list also
6 appears on any other Defendant’s list. Nor shall Defendants
7 have any obligation to merge Defendants’ respective lists into a
8 single, combined list of identified class members.
9 d. On or before July 31, 2009, each Defendant shall forward to the
10 Settlement Administrator a list of Consumers who have been
11 identified using the procedures described in this Section,
12 excluding any Consumers who have released any claims against
13 that Defendant as a result of prior litigation or otherwise. With
14 respect to each Consumer, the list shall include the following
15 information:
16 (i) the Consumer’s name, last known address (to the extent
17 such information is reasonably available in that
18 Defendant’s current database), social security number, and
19 date of birth;
20 (ii) The date of the Consumer’s Chapter 7 discharge order as
21 reflected in the public records section of the Consumer’s
22 File;
23 (iii) Whether or not (i.e., “yes” or “no”) — with respect to each
24 annual archive that the Defendant reviews pursuant to
25 Subsections 4.1a, b — a Post-bankruptcy Hard Inquiry
26 appears on the Consumer’s File, and the date of the
27 archival period in which it so appears, together with any of
28 the following:
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1 (A) A Pre-bankruptcy Civil Judgment that satisfies the


2 criteria set forth in Subsection 4.1a(ii)(A);
3 (B) A Pre-bankruptcy Installment or Mortgage Loan
4 that satisfies the criteria set forth in Subsection
5 4.1a(ii)(B);
6 (C) A Pre-bankruptcy Revolving Account that satisfies
7 the criteria set forth in Subsection 4.1a(ii)(C); or
8 (D) A Pre-bankruptcy Collection Account that satisfies
9 the criteria set forth in Subsection 4.1a(ii)(D).
10 (iv) Whether or not (i.e., “yes” or “no”) — with respect to the
11 most recent archive file that the Defendant created prior to
12 that Defendant’s implementation of the Retroactive Scrub
13 pursuant to Subsection 3.1 of the Approval Order
14 Regarding Settlement Agreement and Release entered on
15 August 19, 2008 — a Post-bankruptcy Hard Inquiry
16 appears in that archive, and the date or the month of the
17 date such Post-bankruptcy Hard Inquiry so appeared,
18 together with any of the following:
19 (A) A Pre-bankruptcy Civil Judgment that satisfies the
20 criteria set forth in Subsection 4.1a(ii)(A);
21 (B) A Pre-bankruptcy Installment or Mortgage Loan
22 that satisfies the criteria set forth in Subsection
23 4.1a(ii)(B);
24 (C) A Pre-bankruptcy Revolving Account that satisfies
25 the criteria set forth in Subsection 4.1a(ii)(C); or
26 (D) A Pre-bankruptcy Collection Account that satisfies
27 the criteria set forth in Subsection 4.1a(ii)(D).
28
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1 (v) Whether or not (i.e., “yes” or “no”) — with respect to


2 inquiries made within 2 years of the date that each
3 respective Defendant performs the searches pursuant to
4 Subsections 4.1a, b — a Post-bankruptcy Employment
5 Inquiry appears on the Consumer’s File.
6 4.2 Preparation of a Combined List of Identified 23(b)(3) Settlement Class
7 Members
8 The Settlement Administrator shall merge Defendants’ respective lists as
9 described above in Subsection 4.1c into a single, combined list of identified 23(b)(3)
10 Settlement Class Members (the “Class List”). The Settlement Administrator will
11 use commercially reasonable measures to remove any duplication of Consumers
12 appearing on more than one Defendants’ list and to resolve any conflicts relating to
13 a Consumer’s address by using the National Change of Address process as licensed
14 by the U.S. Postal Service.
15 4.3 Notice to Proposed 23(b)(3) Settlement Class by the Settlement
16 Administrator
17 a. For purposes of providing Court-approved class notices and
18 establishing that the best practicable notice has been given, the
19 provision of class notice will be accomplished in accordance
20 with the provisions of this Section 4.3.
21 b. Mail Notice: On or before August 31, 2009, the Settlement
22 Administrator shall cause the Mail Notice (in a form
23 substantially similar to that attached hereto as Exhibit A) to be
24 sent via U.S. mail, postage prepaid requesting either forwarding
25 service or change service to each Settlement Class Member
26 identified on the Class List. The Mail Notice shall be sent to the
27 last known address reflected in the Class List. For up to forty-
28 five days (45) days following the mailing of the Mail Notice, the
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1 Settlement Administrator will re-mail the Mail Notice via


2 standard U.S. Mail, postage prepaid, to updated addresses of
3 23(b)(3) Settlement Class Members to the extent that it received
4 address change notifications from the U.S. Postal Service. Not
5 later than seven (7) days before the Final Fairness hearing, the
6 Settlement Administrator shall cause proof of the mailing of the
7 Mail Notice to be filed with the Court. Neither the Parties nor
8 the Settlement Administrator shall have any further obligation to
9 send notice of the Settlement to 23(b)(3) Settlement Class
10 Members.
11 c. Internet Notice: The Settlement Administrator shall establish an
12 internet web site containing information about the Settlement.
13 The Settlement Website will be accessible no later than five (5)
14 days prior to the mailing of the Mail Notice described above.
15 The Settlement Website will set forth the following information:
16 (i) the full text of the Settlement Agreement; (ii) a Long-Form
17 Notice (in a form substantially similar to that attached hereto as
18 Exhibit C and approved by the Court); (iii) the Preliminary
19 Approval Order and other relevant orders of the Court; and (iv)
20 contact information for 23(b)(3) Settlement Class Counsel and
21 the Settlement Administrator. Nationwide access to the
22 Settlement Website will be ensured via the following methods:
23 (i) the Settlement Website will be registered with Google so that
24 appropriate queries on Google will yield a link to the Settlement
25 Website; and (ii) the Mail Notice and Publication Notice will
26 reference the Settlement Website. Not later than seven (7) days
27 before the Final Fairness hearing, the Settlement Administrator
28
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1 shall cause proof of the establishment and maintenance of the


2 Settlement Website to be filed with the Court.
3 d. The Mail Notice shall include a tear-away, postage pre-paid,
4 pre-addressed (to the Settlement Claims Administrator) Claim
5 Form, and shall bear a stamped claim number unique for each
6 recipient which shall state that each 23(b)(3) Settlement Class
7 Member must return the Claim Form to be eligible for benefits
8 available under the Settlement and shall provide “check box”
9 options for the 23(b)(3) Settlement Class Member to make his or
10 her election, in substantially the following form:
11
BANKRUPTCY CREDIT REPORTING CLASS ACTION CLAIM FORM
12
In order to obtain an award from the Settlement, you must select ONE AND
13 ONLY ONE of the options below and return this Claim Form by U.S. mail,
postmarked on or before October 15, 2009.
14
 Option 1: I cannot make the certification required for Option 2, but I wish to
15 receive a Convenience Award which is estimated to be about $20, depending on
how many people choose this Option. I believe that there have been one or more
16 errors in my credit reports regarding debt discharged in bankruptcy.
17  Option 2: I hereby CERTIFY that I believe I have been damaged by an error in
my credit reports regarding debt discharged in bankruptcy with respect to one or
18 more of the following transactions (check as many as apply) and wish to receive an
Actual Damage Award, which is estimated to range from $150 to $750, depending
19 on the transaction involved and on how many people choose this option.
20 Month/Year
 A denial of employment I applied for
21  A mortgage loan or housing rental I sought
 A credit card, auto loan or other credit applied for
22
IMPORTANT: you must provide an approximate date (month and year) of the
23 transaction so that your claim can be verified. If you do not do so, your claim will
be rejected.
24
NOTE: if you do not choose either of these options or you do not return this form
25 postmarked by October 15, 2009, you will get nothing from the Settlement and—
unless you exercise your right to opt-out of the settlement as detailed in the
26 accompanying Class Notice—you will lose your right to damages based on the
practices that are the subject of the Settlement.
27
I hereby affirm that the foregoing is true and correct to the best of my knowledge.
28
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1
[Signature]
2
e. Publication Notice: Between August 31, 2009 and September
3
30, 2009, the Settlement Administrator shall cause the
4
Publication Notice (in a form substantially similar to that
5
attached hereto as Exhibit B and approved by the Court) to be
6
published one time in a nationally distributed newspaper or
7
magazine. Not later than seven (7) days before the Final
8
Fairness hearing, the Settlement Administrator shall cause proof
9
of the publication of the Publication Notice to be filed with the
10
Court.
11
f. Telephone Assistance Program: The Settlement Administrator
12
will establish a toll-free telephone number, which will be staffed
13
by the Settlement Administrator, to answer questions from
14
23(b)(3) Settlement Class Members. The toll-free number will
15
provide access to live support, a voice response unit (“VRU”) or
16
a combination of live support and VRU. Not later than seven
17
(7) days before the Final Fairness hearing, the Settlement
18
Administrator will cause proof of the establishment and
19
maintenance of the Telephone Assistance Program to be filed
20
with the Court.
21
4.4 Expenses of Notice and Administration
22
a. All notice, claims and other administration costs, excluding the
23
costs associated with CAFA Notice as described in Section 4.5,
24
shall be invoiced by the Settlement Administrator and paid
25
promptly from the Settlement Fund.
26
b. Within thirty (30) days after the Effective Date, the Settlement
27
Administrator will provide to the 23(b)(3) Settlement Class
28
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1 Counsel and Defendants a detailed statement of the costs that


2 will be incurred in generating and disbursing checks to
3 Claimants. Within sixty (60) days of the Effective Date and
4 subject to Defendants’ and 23(b)(3) Settlement Class Counsel’s
5 approval, the Settlement Administrator shall retain this amount
6 from the Settlement Fund to pay for such costs. Any disputes
7 relating to this Subsection shall be brought to the Court for
8 resolution.
9 c. The total expenses associated with notice, claims, and
10 administration shall not increase the amount paid by Defendants
11 as part of the Settlement under any circumstances. All payments
12 shall come from the Settlement Fund.
13 4.5 Notice Under Class Action Fairness Act of 2005 (“CAFA Notice”)
14 Defendants will send CAFA Notice to the appropriate federal and state
15 officials identified in 28 U.S.C. § 1715(a), not later than ten (10) days after this
16 Settlement Agreement is filed with the Court. Defendants shall bear equal shares of
17 the costs of this CAFA Notice.
18 V. PROCEDURES FOR SUBMISSION OF CLAIMS, OPT-OUTS, AND
19 OBJECTIONS
20 5.1 Claims Administration
21 a. Claims Procedure
22 23(b)(3) Settlement Class Members may submit claims by no later than
23 October 15, 2009, by either (1) registering for a claim on the Settlement Website; or
24 (2) returning via U.S. mail the registration form that was attached to the Mail
25 Notice to the Settlement Administrator provided they do not opt-out. Such
26 registration shall be permitted commencing on the first day on which notice is
27 disseminated and concluding on October 15, 2009. The electronic registration form
28 shall be simplified, requiring only the 23(b)(3) Settlement Class Member’s name,
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1 current postal address, current telephone number, and last four digits of the class
2 member’s Social Security number. The 23(b)(3) Settlement Class shall also be
3 required to select one of the monetary relief options identified in the Mail Notice.
4 Registrations submitted by U.S. mail shall contain the same information contained
5 in the electronic registration form and the 23(b)(3) Settlement Class Member’s
6 signature and shall be mailed to a separate, dedicated post office box established by
7 the Settlement Administrator exclusively for the purpose of receiving such
8 registrations as provided herein.
9 b. Deceased Claimants
10 Claims may be filed by deceased Claimants through representatives of their
11 estate if appropriate documentation is provided. Any claims paid to a deceased
12 Claimant shall be made payable to the estate of the deceased Claimant.
13 c. Determining Adequacy of Claims
14 Registration forms, whether submitted electronically via the Settlement
15 Website or by U.S. Mail, that do not meet the requirements as set forth in this
16 Settlement Agreement and in the registration form instructions shall be rejected.
17 This shall include but is not limited to any failure to provide accurate information,
18 any failure to make the required representations and attestations concerning
19 membership in the 23(b)(3) Settlement Class, and any failure to sign a registration
20 form submitted by U.S. Mail.
21 The Settlement Administrator shall have the authority to determine whether
22 registration by any 23(b)(3) Settlement Class Member is complete and timely. The
23 Settlement Administrator’s determinations in this regard shall be final and non-
24 appealable. Any 23(b)(3) Settlement Class Member whose claim is rejected shall
25 be barred from receiving any payment from the Settlement Fund, but shall in all
26 other respects be bound by the terms of this Settlement Agreement and by the Final
27 Approval Order entered in the Litigation, unless such 23(b)(3) Settlement Class
28 Member has submitted a timely request to opt out pursuant to Subsection 5.2a.
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1 The Settlement Administrator shall notify, in a timely fashion, any claimant


2 whose claim form has been rejected, setting forth the reasons therefor. The
3 Settlement Administrator shall timely provide copies of all rejection notices to
4 Proposed 23(b)(3) Settlement Class Counsel and to Defendants.
5 d. No Liability for Determinations Relating to Adequacy of Claims
6 No person shall have any claim against Defendants, Plaintiffs, the 23(b)(3)
7 Settlement Class, 23(b)(3) Settlement Class Counsel, Defendants’ Counsel, or the
8 Settlement Administrator based on any eligibility determinations made in
9 accordance with this Settlement Agreement.
10 e. Confidentiality
11 The Settlement Administrator (and any person retained by the Settlement
12 Administrator) shall sign a confidentiality agreement in a form agreed to by
13 Defendants’ counsel and Proposed 23(b)(3) Settlement Class Counsel. The
14 confidentiality agreement will provide that the Settlement Administrator shall treat
15 as confidential the names, addresses and other identifying information concerning
16 23(b)(3) Settlement Class Members. The confidentiality agreement will further
17 provide that the Settlement Administrator shall use such information only for
18 purposes of fulfilling its duties and responsibility as provided for under this
19 Settlement Agreement.
20 5.2 Opt-Out
21 a. Opt-Out Procedure for Proposed 23(b)(3) Class Settlement Class
22 Member
23 A proposed 23(b)(3) Settlement Class Member may request to be excluded
24 from the 23(b)(3) Settlement Class by sending a written request for exclusion to
25 “Exclusion Requests - White Settlement Administrator.” The 23(b)(3) Settlement
26 Class Member’s opt-out request must contain the class member’s original signature,
27 current postal address and telephone number, and the last four digits of the class
28 member’s Social Security number, and a specific statement that the proposed
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1 23(b)(3) Settlement Class Member wants to be excluded from the 23(b)(3)


2 Settlement Class. Opt-outs must be postmarked no later than October 15, 2009. In
3 no event shall persons who purport to opt out of the 23(b)(3) Settlement Class as a
4 group, aggregate, or class involving more than one claimant be considered valid
5 opt-outs. Requests for exclusion that do not comply with any of the foregoing
6 requirements are invalid.
7 b. List of Opt Outs
8 No later than seven (7) business days after the deadline for submission of
9 requests for exclusion or opt-out, the Settlement Administrator shall provide to
10 Proposed 23(b)(3) Settlement Class Counsel and Defendants a complete list of all
11 persons who have properly opted-out of the Settlement together with copies of the
12 opt-out requests.
13 5.3 Objections from Proposed 23(b)(3) Settlement Class Members
14 a. Any proposed 23(b)(3) Settlement Class Member who does not
15 opt out, but who instead wishes to object to the Settlement or
16 any other matters as described in the Notice s, may do so by
17 filing with the Court a notice of their intention to object (which
18 shall set forth each objection and the basis therefore and
19 containing the objecting 23(b)(3) Class Member’s signed
20 verification of membership in the Settlement Class), with any
21 papers in support of their position, and serve copies of all such
22 papers upon 23(b)(3) Class Counsel and Defendants’ Counsel.
23 Objections must be filed and served no later than October 15,
24 2009. Finally, the written objection must indicate whether the
25 class member and/or his lawyer(s) intends to appear at the Final
26 Fairness Hearing. Any lawyer who intends to appear at the
27 Final Fairness Hearing must enter a written Notice of
28 Appearance of Counsel with the Clerk of the Court no later than
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1 the date set by the Court in its order preliminarily approving this
2 Settlement Agreement.
3 b. All responses to Objections submitted pursuant to Section 5.3a
4 shall be filed by October 30, 2009.
5 VI. FINAL FAIRNESS HEARING AND FINAL APPROVAL
6 6.1 Final Fairness Hearing
7 The Court will hold the Final Fairness Hearing to consider approval of the
8 Settlement of the Litigation as provided for herein on November 9, 2009. On or
9 before October 19, 2009, Proposed 23(b)(3) Settlement Class Counsel shall file a
10 motion for entry of the Final Approval Order. The Parties agree that the Final
11 Approval Order constitutes a dismissal of this Litigation with prejudice.
12 6.2 Final Approval
13 All of the affirmative relief contemplated by this Settlement Agreement is
14 expressly contingent upon the Settlement Agreement receiving the Court’s Final
15 Approval.
16 VII. SETTLEMENT FUND
17 7.1 Creation of and Deposit Into Settlement Fund
18 a. Within ten (10) days following Preliminary Approval, if by that
19 date the Injunctive Relief Fee Agreement has been signed by the
20 Parties to this Agreement, the Parties will petition the Court for
21 approval to deposit the Settlement Fund with the Registry of the
22 Court, pursuant to Fed. R. Civ. P. 67. By the later of (1) seven
23 (7) days thereafter or (2), June 15, 2009, each Defendant shall
24 cause to be deposited into the Registry of the Court an amount
25 equal to fifteen million dollars ($15,000,000.00). The
26 Defendants’ payments are several, and not joint.
27 b. Until such time as the Settlement Fund shall be used or
28 disbursed as provided in this Settlement Agreement and as
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1 approved by the Court, the Settlement Fund shall be held in the


2 Registry of the Court and invested in accordance with 28 U.S.C.
3 § 2041.
4 7.2 Settlement Fund Tax Status
5 a. The Parties agree to treat the Settlement Fund as being at all
6 times a “qualified settlement fund” within the meaning of Treas.
7 Reg. § 1.468B-1. In addition, the Settlement Administrator shall
8 timely make such elections as necessary or advisable to carry
9 out the provisions of this Subsection, including the “relation-
10 back election” (as defined in Treas. Reg. § 1.468B-1) back to
11 the earliest permitted date. Such elections shall be made in
12 compliance with the procedures and requirements contained in
13 such regulations. It shall be the responsibility of the Settlement
14 Administrator to timely and properly prepare and deliver the
15 necessary documentation for signature by all necessary parties,
16 and thereafter to cause the appropriate filing to occur.
17 b. For the purpose of Treasury Regulation § 1.468B of the Internal
18 Revenue Code of 1986, as amended, and the regulations
19 promulgated thereunder, the “administrator” shall be the
20 Settlement Administrator. The Settlement Administrator shall
21 timely and properly file all informational and other tax returns
22 necessary or advisable with respect to the Settlement Fund
23 (including, without limitation, the returns described in Treas.
24 Reg. § 1.468B-2(k)). Such returns (as well as the election
25 described in Subsection 7.2a above) shall be consistent with this
26 Subsection and in all events shall reflect that all Taxes
27 (including any estimated Taxes, interest or penalties) on the
28
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1 income earned by the Settlement Fund shall be paid out of the


2 Settlement Fund as provided in Subsection 7.2c hereof.
3 c. All (a) Taxes (including any estimated Taxes, interest or
4 penalties) arising with respect to the income earned by the
5 Settlement Fund, including any Taxes or tax detriments that may
6 be imposed upon the Released Parties with respect to any
7 income earned by the Settlement Fund for any period during
8 which the Settlement Fund does not qualify as a “qualified
9 settlement fund” for federal or state income tax purposes
10 (“Taxes”), and (b) expenses and costs incurred in connection
11 with the operation and implementation of this Subsection
12 (including, without limitation, expenses of tax attorneys and/or
13 accountants and mailing and distribution costs and expenses
14 relating to filing (or failing to file) the returns described in
15 Subsection 7.2b (“Tax Expenses”), shall be paid out of the
16 Settlement Fund; in no event shall the Released Parties have any
17 responsibility for or liability with respect to the Taxes or the Tax
18 Expenses. The Settlement Administrator shall indemnify and
19 hold the Released Parties harmless for Taxes and Tax Expenses
20 (including, without limitation, Taxes payable by reason of any
21 such indemnification). Further, Taxes and Tax Expenses shall
22 be timely paid by the Settlement Administrator out of the
23 Settlement Fund without prior order from the Court, and the
24 Escrow Agent shall be obligated (notwithstanding anything
25 herein to the contrary) to withhold from distribution any funds
26 necessary to pay such amounts, including the establishment of
27 adequate reserves for any Taxes and Tax Expenses (as well as
28 any amounts that may be required to be withheld under Treas.
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1 Reg. § 1.468B-2(l)); the Released Parties are not responsible


2 therefor nor shall they have any liability with respect thereto.
3 The Parties hereto agree to cooperate with the Settlement
4 Administrator, each other, and their tax attorneys and
5 accountants to the extent reasonably necessary to carry out the
6 provisions of this Section.
7 7.3 Monetary Relief Fees
8 a. On or before October 19, 2009, Proposed 23(b)(3) Settlement
9 Class Counsel shall file an application or applications to the
10 Court for reimbursement of Monetary Relief Fees from the
11 Settlement Fund. The application or applications shall be
12 noticed to be heard at the Final Fairness Hearing.
13 b. The application or applications for Monetary Relief Fees, and
14 any and all matters related thereto, shall not be considered part
15 of the Settlement Agreement, and shall be considered by the
16 Court separately from the Court’s consideration of the fairness,
17 reasonableness and adequacy of the Settlement. Plaintiffs and
18 Proposed 23(b)(3) Settlement Class Counsel agree that this
19 Settlement Agreement is not conditional on the Court’s approval
20 of Monetary Relief Fees or Injunctive Relief Fees in the
21 requested amount or in any amount whatsoever. The Court’s
22 ruling on the application or applications for such fees shall not
23 operate to terminate or cancel the Settlement.
24 c. Except as provided under the Injunctive Relief Fee Agreement,
25 Defendants shall have no responsibility for, or any liability with
26 respect to, the payment of attorneys’ fees and expenses to
27 23(b)(3) Settlement Class Counsel, and the sole source of any
28 award of Monetary Relief Fees shall be the Settlement Fund.
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1 That amount includes not only the payment of all attorneys’


2 fees, costs, and expenses to 23(b)(3) Settlement Class Counsel,
3 but also payment for all attorneys and other persons working
4 under the direction of 23(b)(3) Settlement Class Counsel in the
5 Litigation.
6 7.4 Letter of Credit or Other Suitable Form of Security
7 Monetary Relief Fees, in the amount approved by the Court, shall be paid
8 pursuant to Section 7.6(b) provided that the Defendants receive a Letter of Credit or
9 other form of security suitable to them, in form and substance and from an issuer
10 satisfactory to them. The Letter of Credit or other form of security must ensure the
11 repayment to Defendants and Defendants’ insurers, in proportion to their
12 contributions to the Settlement Fund, of any sums paid to 23(b)(3) Settlement Class
13 Counsel, including interest at the 60-day Treasury Bill Rate at the time of the Letter
14 of Credit, if any appeal is timely filed and the settlement approval, the award of
15 attorneys fees and costs, or both, is reversed on appeal. If security is not honored
16 when presented or the issuer fails to perform in accordance with its terms, 23(b)(3)
17 Settlement Class Counsel is immediately jointly and severally obligated to repay to
18 Defendants and Defendants’ insurers, in proportion to their contributions to the
19 Settlement Fund any sums paid to 23(b)(3) Settlement Class Counsel, including
20 interest as set forth above, without recourse to the Letter of Credit or other form of
21 security. If no Letter of Credit or other suitable form of security is obtained, the
22 Attorneys’ fees and expenses will be paid through distribution from the 23(b)(3)
23 Settlement Class Settlement Fund by the Settlement Administrator within ten (10)
24 days of the Effective Date.
25 7.5 Incentive Awards to the Named Plaintiffs
26 a. On or before October 19, 2009, Proposed 23(b)(3) Settlement
27 Class Counsel shall file an application or applications to the
28 Court for an incentive award, to each of the Named Plaintiffs
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1 serving as class representatives in support of the Settlement, and


2 each such award not to exceed $5,000.00.
3 b. Incentive Awards and the other benefits provided by this
4 Settlement will be the only compensation the Plaintiffs will
5 receive for their participation in this Litigation, and will be paid
6 in consideration of their full and complete release of all claims
7 relating to the claims brought in this Litigation.
8 7.6 Use and Disbursement of Settlement Fund
9 The Settlement Fund shall be used only in the manner and for the purposes
10 provided for in this Section or in Subsection 7.2c. No portion of the Settlement
11 Fund shall be disbursed except as expressly provided for herein:
12 a. After Preliminary Approval, the Parties shall jointly petition the
13 Court to pay the Settlement Administrator for the costs of notice
14 and related administrative expenses incurred with respect to
15 effecting the Notice Plan as provided in Section 4.3;
16 b. Within ten (10) days of the entry of order granting Final
17 Approval of the Settlement, the Parties shall jointly petition the
18 Court to pay from the Settlement Fund the Monetary Relief Fees
19 as approved by the Court to 23(b)(3) Settlement Class Counsel
20 as provided in Section 7.3 to the extent that 23(b)(3) Settlement
21 Class Counsel has fulfilled the letter of credit or security
22 obligations set forth in Section 7.4
23 c. Within ten (10) days of the Effective Date, the Parties shall
24 jointly petition the Court to pay from the Settlement Fund the
25 Incentive Awards to the Named Plaintiffs as provided in Section
26 7.5; and
27 d. Within ten (10) days of the Effective Date, the Parties shall
28 jointly petition the Court to pay the funds remaining in the
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1 Registry of the Court (after payments of amounts pursuant to


2 Sections 7.6(b) and (c)) to the Settlement Administrator in trust
3 for distribution to the Claimants. Within ninety (90) days
4 following the Effective Date, all money remaining in the
5 Settlement Fund may be paid to Claimants, including any and all
6 reasonable and necessary expenses for the administration of
7 such payments (e.g., costs associated with generating and
8 mailing checks to Claimants) pursuant to the Distribution Plan
9 set forth in Section 7.5.
10 7.7 Distribution Plan
11 a. Each of the 23(b)(3) Settlement Class Members who return to
12 the Settlement Administrator a properly completed Claim Form
13 postmarked on or before October 15, 2009, shall be entitled to
14 receive an award from the Settlement Fund, as provided herein.
15 b. Convenience Awards. The Settlement Administrator shall pay
16 each 23(b)(3) Settlement Class Member who elected to receive a
17 Convenience Award (or “Option 1”) on his or her Claim Form,
18 or who made more than one election for more than one type of
19 monetary award, (“Convenience Award Claimant”) as provided
20 herein:
21 (i) The Settlement Administrator shall determine the amount
22 available to pay the total of all Convenience Awards
23 (herein, the “Available Convenience Award Funds”) by
24 subtracting from the total amount that Defendants paid
25 into the Settlement Fund the sum of all (i) Administrative
26 and Notice Costs; (ii) Incentive Awards paid to Plaintiffs
27 (iii) amounts paid for Monetary Relief Fees; and (iv)
28 estimated amounts to be paid for Actual Damage Awards,
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1 which shall be calculated by the Settlement Administrator


2 by identifying the highest award to which each Actual
3 Damage Award Claimant may be entitled, multiplying the
4 total number of such claims in each category, and totaling
5 the results for all categories, but in no event shall the
6 Available Convenience Award Funds be less than $10
7 Million.
8 (ii) The Settlement Administrator shall pay each Convenience
9 Award Claimant an equal pro rata share of the Available
10 Convenience Award Funds (i.e., the amount of such equal,
11 pro rata share shall be determined by dividing the total
12 amount of Available Convenience Award Funds by the
13 total number of Convenience Award Claimants), via check
14 sent via U.S. mail to the last and best known address of the
15 Convenience Award Claimant.
16 (iii) The Convenience Awards will be distributed within ninety
17 (90) days of the Effective Date of the settlement, and any
18 unclaimed or uncashed Convenience Awards will expire
19 after ninety (90) days from issuance and the amounts
20 thereof added to the amounts available for payment of the
21 Predetermined Actual Damage Awards.
22 c. Actual Damage Awards. The Settlement Administrator shall
23 pay each 23(b)(3) Settlement Class Member who elected to
24 receive an Actual Damage Award (or “Option 2”) on his or her
25 Claim Form (“Actual Damage Award Claimant”) as provided
26 herein:
27 (i) The Settlement Administrator shall review each Claim for
28 an Actual Damage Award and will determine: whether
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1 the Defendants’ records as provided pursuant to Section


2 4.1 hereof indicate that a Post-bankruptcy Hard Inquiry
3 appears in the Actual Damage Award Claimant’s File
4 within six (6) months of the date indicated by the Actual
5 Damage Award Claimant on the Claim Form, or whether
6 the Defendants’ records as provided pursuant to Section
7 4.1 hereof indicate that a Post-bankruptcy Employment
8 Inquiry appears in the Actual Damage Award Claimant’s
9 File. The Settlement Administrator shall accept all Actual
10 Damage Award Claims which meet these criteria, unless
11 the Settlement Administrator has a basis for believing that
12 any Actual Damage Award Claim is fraudulent or
13 otherwise invalid, in which case the Settlement
14 Administrator should withhold payment of such claims
15 and advise the Court accordingly.
16 (ii) Prior to payment of the Actual Damage Award Claims, the
17 Settlement Administrator shall review one thousand
18 (1,000) Actual Damage Award Claims, including, if the
19 Settlement Administrator deems it appropriate, an
20 examination of information appearing in the archived
21 credit files for the Actual Damage Award Claimants in
22 question, to confirm the validity of such claims. The
23 Defendants shall bear the cost of providing such
24 information from its archived credit files, if any, for this
25 limited initial review; provided, however, that this review
26 shall be submitted to each Defendant as a single batch
27 request. If the Settlement Administrator deems it
28 necessary to conduct further review of Actual Damage
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1 Award Claims, the costs of doing so will be borne by the


2 Settlement Fund and subject to Court approval.
3 (iii) The Settlement Administrator shall pay all accepted
4 Actual Damage Award Claims via check sent via U.S.
5 mail to the last and best known address of the Actual
6 Damage Award Claimant according to the following
7 schedule:
8
9 Type Amount of Award
10 1. Employment If the Actual Damage Claimant’s File, as
11 provided to the Settlement Administrator
12 pursuant to Section 4.1, shows a Post-
13 bankruptcy Employment Inquiry made which
14 is consistent with an employment inquiry, or if
15 there is no other evidence of the lack of such
16 an employment inquiry, then the award shall
17 be $750.
18
19 2. Mortgage/Housing If the Actual Damage Award Claimant’s File
20 shows a Hard Inquiry made on a date within
21 six (6) months of the date provided by the
22 Actual Damage Award Claimant which is
23 consistent with mortgage loan, landlord or
24 other housing inquiry, then the award shall be
25 $500.
26
27
28
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1
Type Amount of Award
2
3. Other Credit Inquires If the Actual Damage Award Claimant’s File
3
shows a Post-bankruptcy Hard Inquiry within
4
six (6) months of the date provided by the
5
Actual Damage Award Claimant, and such
6
Claimant has not opted for an Employment or
7
a Mortgage/Housing award, then the award
8
shall be $150.
9
(iv) The Settlement Administrator shall pay to the Actual
10
Damage Award Claimant the highest award for which he
11
or she is eligible. Awards hereunder shall not be
12
cumulative. The applicable award for each category will
13
be increased or decreased, pro rata, to reflect (i) the
14
number of valid claims in each category of Actual
15
Damage Awards, and (ii) the funds available for
16
distribution to the Actual Damage Award Claimants,
17
including the addition of any unclaimed or uncashed
18
Convenience Awards as set forth in Section 7.7b.
19
(v) If the Settlement Administrator determines that a Actual
20
Damage Award Claimant is ineligible for a Actual
21
Damage Award, then such Actual Damage Award
22
Claimant’s claim shall be converted into a Convenience
23
Award Claim.
24
7.8 Capped Fund
25
Except for the costs of CAFA Notice pursuant to section 4.5 hereof, all of the
26
following must be paid from the $15,000,000.00 (fifteen million dollars) paid into
27
the Settlement Fund by each Defendant: (i) notice and administration costs,
28
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1 including without limitation the costs incurred by each Defendant in providing any
2 additional information requested by Plaintiffs and/or 23(b)(3) Settlement Class
3 Counsel, which shall be reimbursed promptly to each Defendant from the
4 Settlement Fund; (ii) payments to the Claimants; and (iii) payments to 23(b)(3)
5 Settlement Class Counsel for Monetary Relief Fees. The Parties and their
6 respective counsel agree that under no circumstances will each Defendant pay or
7 cause to be paid more than $15,000,000.00 (fifteen million dollars) pursuant to this
8 Settlement.
9 VIII. RELEASE OF CLAIMS
10 8.1 Release of All Claims
11 Upon the Effective Date, Plaintiffs and each member of the 23(b)(3)
12 Settlement Class who has not opted out and his or her respective spouses, heirs,
13 executors, administrators, representatives, agents, attorneys, partners, successors,
14 predecessors and assigns and all those acting or purporting to act on their behalf
15 acknowledge full satisfaction of, and shall be conclusively deemed to have fully,
16 finally and forever settled, released and discharged the Released Parties of and from
17 all Released Claims. Subject to the Court’s approval, all 23(b)(3) Settlement Class
18 Members shall be bound by this Settlement Agreement and all of their Released
19 Claims shall be dismissed with prejudice and released as against the Released
20 Parties, even if they never received actual notice of the Settlement prior to the
21 hearing on final approval of the Settlement.
22 8.2 Waiver of California Civil Code Section 1542
23 Plaintiffs, for themselves and for each 23(b)(3) Settlement Class Member,
24 acknowledge that they are aware that they may hereafter discover facts in addition
25 to or different from those that they or 23(b)(3) Settlement Class Counsel now
26 knows or believes to be true with respect to the subject matter of these releases, but
27 it is their intention to, and they do hereby, upon the Effective Date of this
28 Settlement Agreement, fully, finally and forever settle and release any and all
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1 Released Claims, without regard to the subsequent discovery or existence of such


2 different or additional facts. Plaintiffs, for themselves and for each 23(b)(3)
3 Settlement Class Member, waives any and all rights and benefits afforded by
4 California Civil Code Section 1542, which provides as follows:
5 A GENERAL RELEASE DOES NOT EXTEND TO
6 CLAIMS WHICH THE CREDITOR DOES NOT KNOW
7 OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
8 THE TIME OF EXECUTING THE RELEASE, WHICH
9 IF KNOWN BY HIM OR HER MUST HAVE
10 MATERIALLY AFFECTED HIS OR HER
11 SETTLEMENT WITH THE DEBTOR.
12 Plaintiffs, each 23(b)(3) Settlement Class Member and 23(b)(3) Settlement
13 Class Counsel understand and acknowledge the significance of this waiver of
14 California Civil Code Section 1542 and/or of any other applicable federal or state
15 law relating to limitations on releases.
16 IX. TERMINATION AND SUSPENSION
17 9.1 Rights to Terminate Agreement
18 Defendants’ willingness to settle this Litigation on a class-action basis and to
19 agree to the certification of a conditional 23(b)(3) Settlement Class is dependent
20 upon achieving finality in this Litigation, the desire to avoid the expense of this and
21 other litigation, and the ability and willingness of each Defendant’s insurers to fund
22 the Settlement Fund. Consequently, each Defendant shall have the unilateral and
23 unfettered right to individually terminate this Settlement Agreement, declare it null
24 and void, and have no further obligations under this Settlement Agreement to the
25 Plaintiffs, 23(b)(3) Settlement Class Members, or Proposed 23(b)(3) Settlement
26 Class Counsel if any of the following conditions subsequently occurs:
27 a. The Court fails to grant Preliminary Approval;
28
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1 b. More than 1,000 individuals request exclusion from the


2 Settlement pursuant to Section 5.2;
3 c. The Court fails to enter the Final Approval Order that is
4 mutually acceptable to the parties;
5 d. Such Defendant's insurer or insurers refuse to or otherwise fail
6 to fund in full the Settlement Fund as provided in Subsection
7 7.1, subject to the Defendant’s exhaustion of its self-insured
8 retention, and such Defendant gives notice of its termination of
9 this Settlement Agreement within ten (10) days after the date for
10 funding the Settlement Fund as provided in Subsection 7.1;
11 e. The Court does not enter an order approving Injunctive Relief
12 Fees in an amount equal to or less than the amount set forth in
13 the Injunctive Relief Fee Agreement; and
14 f. The Effective Date does not occur for any reason, including the
15 entry of an order by any court that would require either material
16 modification or termination of the Settlement.
17 9.2 Agreement Among Defendants is Not Required
18 In determining whether to exercise its right to terminate this Settlement
19 Agreement pursuant to the circumstances described in Subsection 9.1, each
20 Defendant may act independently and agreement among Defendants to terminate is
21 not required. The Settlement Agreement shall remain in full force and effect as to
22 any settling Defendant who does not want to terminate pursuant to this Section, and
23 the termination of the Settlement Agreement by one or more other Defendants shall
24 not increase any non-settling Defendant’s obligations under any provision in this
25 Settlement Agreement.
26 9.3 Plaintiffs’ Right To Terminate This Settlement Agreement
27 Plaintiffs shall have the unilateral and unfettered right to terminate this
28 Settlement Agreement, declare it null and void, and have no further obligations
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1 under this Settlement Agreement to any of the Defendants in the event that any two
2 of the three Defendants exercises their right to terminate this Settlement Agreement
3 pursuant to Section 9.1 hereof, and Plaintiffs exercise their termination right within
4 thirty (30) days of the second Defendant’s exercise of its termination right.
5 9.4 Plaintiffs’ Right To Seek Modification Of This Settlement Agreement
6 Plaintiffs shall have the unilateral and unfettered right to seek from the Court
7 a modification of this Settlement Agreement in the event that: (a) one of the three
8 Defendants exercises its right to terminate this Settlement Agreement pursuant to
9 Section 9.1 hereof; or (b) prior to the dissemination of class notice, one or more of
10 the Defendant’s class lists provided to the Settlement Administrator pursuant to
11 Section 4.1 hereof exceeds twelve million (12,000,000) class members. Plaintiffs’
12 right to seek such modification extends to, but is not limited to, the amount and
13 manner of payments of Convenience Awards or Actual Damage Awards, the
14 manner and method of notice to the Class, and the general administration of the
15 Settlement, but shall expressly exclude any modification to the scope of the releases
16 provided herein or any modification to the amounts paid by Defendants as provided
17 herein.
18 9.5 The failure of any Court to approve the Monetary Relief Fees or the
19 Injunctive Relief Fees in the requested amounts or any amounts whatsoever, shall
20 not be grounds for Named Plaintiffs or Proposed 23(b)(3) Settlement Class Counsel
21 to terminate this Settlement Agreement.
22 9.6 Effect of Termination on This or Future Litigation
23 If this Settlement Agreement is terminated and only as to those Parties to the
24 extent the Settlement Agreement has been terminated as to them:
25 a. the class-certification portions of the Settlement Agreement
26 shall have no further force and effect and shall not be offered in
27 evidence or used in the Litigation or any other proceeding;
28
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1 b. counsel for the Parties shall seek to have any Court orders,
2 filings, or other entries in the Court’s file that result from this
3 Settlement Agreement set aside, withdrawn, and stricken from
4 the record;
5 c. the Settlement Agreement and all negotiations, proceedings, and
6 documents prepared, and statements made in connection with
7 either of them, shall be without prejudice to any party and shall
8 not be deemed or construed to be an admission or confession by
9 any Party of any fact, matter, or proposition of law; and
10 d. the Parties shall stand in the same procedural position as if the
11 Settlement Agreement had not been negotiated, made, or filed
12 with the Court.
13 9.7 Effect of Termination on Monies Paid by Defendants Pursuant to
14 Settlement Agreement
15 If this Settlement Agreement is terminated and only as to those Defendants to
16 the extent that the Settlement Agreement is terminated as to some of them: The
17 Settlement Fund, including interest earned, less Taxes, Tax Expenses, and notice,
18 claims, and other administration costs (including fees, costs, and other expenses of
19 the Court Registry) that have been properly disbursed pursuant to this Settlement
20 Agreement, shall be returned to such Defendant(s) and such Defendant’s insurers in
21 equal proportions to their contributions into the Settlement Fund.
22 X. PUBLIC STATEMENTS
23 10.1 The Parties will negotiate and agree upon the language that may be
24 used in press releases and other forms of public statements concerning the
25 Settlement that would be issued prior to entry by the Court of the Final Approval
26 Order.
27 The Parties and/or their counsel shall make no statements to any third party
28 regarding the Settlement prior to entry by the Court of the Final Approval Order,
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1 without the reasonable consent of the other Parties or his, her or its counsel, unless
2 such statements are reasonably necessary in effecting the terms of this Settlement
3 Agreement, or are required by law, including, without limitation, any disclosure
4 obligations imposed on Defendants by federal or state securities or tax laws.
5 Subsequent to the entry by the Court of a Final Approval Order, no party shall
6 make any public statements concerning this Settlement or this Litigation that
7 contains disparaging language of any of the Parties or their counsel.
8 10.2 Proposed 23(b)(3) Settlement Class Counsel and all Defendants’
9 Counsel agree that all extra-judicial statements in regard to the Settlement will
10 comport with Rule 5-120 of the California Rules of Professional Conduct.
11 Proposed 23(b)(3) Settlement Class Counsel may communicate with Claimants,
12 23(b)(3) or 23(b)(2) Settlement Class Members, clients, or potential clients.
13 XI. MISCELLANEOUS PROVISIONS
14 11.1 Admissibility of Settlement Agreement
15 This Settlement Agreement shall not be offered or be admissible in evidence
16 in any action or proceeding except (1) the hearings necessary to obtain and
17 implement Court approval of this Settlement; or (2) any hearing to enforce the
18 terms of this Settlement Agreement or any related order by the Court.
19 11.2 Successors and Assigns
20 The terms of this Settlement Agreement shall apply to and bind the Parties as
21 well as their heirs, successors and assigns.
22 11.3 Communications Relating to Settlement Agreement
23 All notices or other formal communications under this Settlement Agreement
24 shall be in writing and sent by mail to counsel for the party to whom the notice is
25 directed at the following addresses:
26
27
28
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1 Equifax:
2 Craig E. Bertschi, Esq.
Cindy Hanson, Esq.
3 KILPATRICK STOCKTON LLP
1100 Peachtree Street, Suite 2800
4 Atlanta, GA 30309-4530

5 Experian:
Daniel J. McLoon, Esq.
6 Michael G. Morgan, Esq.
JONES DAY
7 555 South Flower Street
Fiftieth Floor
8 Los Angeles, CA 90071-2300
9 TransUnion:
10 Julia B. Strickland, Esq.
Stephen J. Newman, Esq.
11 STROOCK & STROOCK & LAVAN LLP
2029 Century Park East, Suite 1800
12 Los Angeles, CA 90067

13 Plaintiffs:
Michael W. Sobol, Esq.
14 LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 30th Fl.
15 San Francisco, California 94111
16 Michael Caddell, Esq.
CADDELL & CHAPMAN
17 1331 Lamar, Suite 1070
Houston, TX 77010
18
Lee A. Sherman, Esq.
19 CALLAHAN, MCCUNNE & WILLIS, APLC
111 Fashion Lane
20 Tustin, California 92780-3397
21
Any Party may, by written notice to all the other Parties, change its designated
22
recipient(s) or notice address provided above.
23
11.4 Defendants’ Communications with Consumers in the Ordinary Course
24
of Business
25
Defendants reserve the right to continue communicating with their customers
26
and Consumers, including 23(b)(3) Settlement Class Members, in the ordinary
27
course of business. To the extent Consumers initiate communications regarding
28
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1 this Settlement Agreement, Defendants may confirm the fact of a settlement and
2 refer inquiries to the Settlement Administrator. Nothing herein is intended to
3 prohibit Defendants from communicating with Consumers regarding disputes
4 relating to tradelines and the reporting of Chapter 7 bankruptcies.
5 11.5 Efforts to Support Settlement
6 The Parties and their counsel agree to cooperate fully in seeking Court
7 approval for this Settlement Agreement and to use their best efforts to effect the
8 consummation of the Settlement and to protect the Settlement Agreement by
9 applying for appropriate orders enjoining others from initiating or prosecuting any
10 action arising out of or related to facts or claims alleged in the Litigation, if so
11 required.
12 11.6 Procedures for Disputes Between Parties Relating to the Settlement
13 Agreement
14 To the extent any disputes or issues arise with respect to documenting or
15 effecting the Settlement Agreement, the Parties agree to use their best efforts to
16 informally resolve any such disputes or issues; but in the event any such dispute or
17 issue cannot be resolved informally, to bring any such dispute or issue to the Court
18 for resolution.
19 11.7 Entire and Voluntary Agreement
20 The Parties intend the Settlement Agreement to be a final and complete
21 resolution of all disputes between them, except for those disputes relating to the
22 Injunctive Relief Fee Agreement and except as further specifically provided for
23 herein. The Parties agree that the terms of the Settlement Agreement were
24 negotiated at arm’s length and in good faith and were reached voluntarily after
25 consultation with competent legal counsel. This Settlement Agreement contains the
26 entire agreement and understanding concerning the subject matter between the
27 Parties, excluding those subjects that relate to the Injunctive Relief Fee Agreement,
28 and supersedes all prior negotiations and proposals, whether written or oral. No
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1 other party or any agent or attorney of any other party has made any promise,
2 representation or warranty whatsoever not contained in this Settlement Agreement
3 and the other documents referred to in this Settlement Agreement to induce them to
4 execute the same. The Parties represent that they have not executed this instrument
5 or the other documents in reliance on any promise, representation or warranty not
6 contained in this Settlement Agreement and the other documents referred to in this
7 Settlement Agreement.
8 11.8 Headings for Convenience Only
9 The headings in this Settlement Agreement are for the convenience of the
10 reader only and shall not affect the meaning or interpretation of this Settlement
11 Agreement.
12 11.9 Settlement Agreement Controls
13 All of the exhibits attached hereto are hereby incorporated by reference as
14 though fully set forth. To the extent that there is any conflict between the terms of
15 this Settlement Agreement and the exhibits attached hereto, this Settlement
16 Agreement shall control.
17 11.10 Amendments
18 The Settlement Agreement may be amended or modified only by a written
19 instrument signed by Defendants and 23(b)(3) Settlement Class Counsel, or their
20 respective successors-in-interest.
21 11.11 Authorization of Counsel
22 a. Proposed 23(b)(3) Settlement Class Counsel, on behalf of the
23 23(b)(3) Settlement Class, are expressly authorized by Plaintiffs
24 to take all appropriate action required or permitted to be taken
25 by the 23(b)(3) Settlement Class pursuant to the Settlement
26 Agreement to effectuate its terms, and also are expressly
27 authorized to enter into any modifications or amendments to the
28
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1 Settlement Agreement on behalf of the 23(b)(3) Settlement


2 Class which they deem necessary or appropriate.
3 b. Each attorney executing the Settlement Agreement on behalf of
4 any Party hereto hereby warrants that such attorney has the full
5 authority to do so.
6 11.12 Confidentiality
7 All agreements made and Orders entered during the course of the Litigation
8 relating to the confidentiality of information shall survive this Settlement
9 Agreement.
10 11.13 Court’s Jurisdiction
11 The Court shall retain jurisdiction with respect to implementation and
12 enforcement of the terms of the Settlement Agreement.
13 11.14 Construction
14 Each of the Parties has cooperated in the drafting and preparation of this
15 Settlement Agreement. Hence, in any construction to be made of this Settlement
16 Agreement, the same shall not be construed against any of the Parties. Before
17 declaring any provision of this Settlement Agreement invalid, a court should first
18 attempt to construe the provision valid to the fullest extent possible consistent with
19 applicable precedent so as to find all provisions of this Settlement Agreement valid
20 and enforceable.
21 11.15 No Claims Arising from this Settlement Agreement
22 No person shall have any claim against any Defendant, Defendant’s Counsel,
23 or 23(b)(3) Settlement Class Counsel based on distribution of benefits made
24 substantially in accordance with this Settlement Agreement or any Settlement
25 Agreement related order(s) of the Court.
26 11.16 Applicable Law
27 This Settlement Agreement shall, in all respects, be interpreted, construed
28 and governed by and under the laws of the United States of America. To the extent
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1 Dated: April __, 2009 PLAINTIFF KATHRYN PIKE


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#:10724
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. SACV 05-1070 DOC (MLGx) Date: October 20, 2010

Title: TERRI N. WHITE et. al. v. EXPERIAN INFORMATION SOLUTIONS, INC. et.al.

PRESENT:
THE HONORABLE DAVID O. CARTER, JUDGE

Kathy Peterson Not Present


Courtroom Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:

NONE PRESENT NONE PRESENT

PROCEEDING (IN CHAMBERS): ORDERING SUPPLEMENTAL BRIEFING

On July 8, 2010, Settling Plaintiffs filed a Submission Complying with the Court’s Order
Conditionally Granting Request for Second Notice and Alternative Notice Proposal (“July 8
Submission”) (Docket 704). The contents of Settling Plaintiffs’ July 8 Submission caused the Court to
treat the July 8 Submission as a motion for reconsideration. Accordingly, the Court set a briefing
schedule on the matter, allowing White Plaintiffs to file an opposition and Settling Plaintiffs to file a
Reply. See Order Setting Briefing Schedule, Aug. 6, 2010 (Docket 713). In their moving, opposing
and replying papers, the parties put forth conflicting factual accounts regarding the data used to
generate the initial class notice list as well as the number, and description, of consumers who actually
received notice. In order to resolve this factual dispute, the Court hereby ORDERS the parties to
submit supplemental briefing on this issue.

In their Motion for Reconsideration, Settling Plaintiffs aver that the group of consumers
who received the original class notice was overinclusive, exceeding the number of legitimate class
members by “perhaps millions.” Settl. Pl.’s Subm at 8. In support of this claim, Settling Plaintiffs
assert that “notice was sent to any consumer with an archived credit file reflecting a questionable
tradeline, followed by a credit inquiry, even if the next archived ‘snapshot’ showed that the
questionable tradeline had been corrected or dropped.” Id. Settling Plaintiffs explain that “[i]n many of
those cases, of course, the tradeline in question may have been corrected or dropped prior to the credit
inquiry response.” Id. However, Settling Plaintiffs contend that, in the interests of caution, class notice
was sent to consumers who showed a corrected tradeline subsequent to the issuance of a credit report,

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because there was no way to ensure whether the tradeline had been corrected prior to the credit inquiry
or not.

In their Opposition, White Plaintiffs contest Settling Plaintiffs’ factual account of the data
used to generate the class notice list. According to White Plaintiffs, “the problem with [Settling
Plaintiffs’ above-described] hypothetical is that it could never happen.” White Pl.’s Opp. at 10 n.2.
Rather, White Plaintiffs assert that “[u]nder the terms of the Settlement, the Class List is generated by
looking at an archive snapshot, which shows both a ‘questionable tradeline’ and a credit report having
been issued during the year preceding the snapshot.” Id. (emphasis in original). Relying on the factual
contention that class notice was sent only to people whose archived snapshots indicated a questionable
tradeline subsequent to the issuance of a credit report, White Plaintiffs argue that, in the case of every
person who received the initial class notice, the questionable tradeline could not possibly have been
corrected before their credit report was issued.

In Reply, Settling Plaintiffs appear to concede that notice was sent only to consumers
who showed “an errant tradeline at the end” of the archive period during which a credit report was
published. Settl. Pl’s Rep. at 7 (emphasis added). However, Settling Plaintiffs proffer a dynamic view
of credit tradelines in their Reply, arguing that tradelines can vacillate from non-questionable to
questionable during the span of one archive period. They submit that “a consumer who shows an errant
tradeline at the end of an archive period may have had a credit report published only at an earlier time
when the tradeline was not in questionable status.” Id.

As the above paragraphs demonstrate, the parties have presented the Court with
conflicting factual accounts, both concerning the nature of credit reporting and the number, and
description, of people who received the original class notice. Notably, however, none of the factual
assertions put forth in the parties’ submissions are supported by evidence. The present record,
therefore, does not allow the Court to resolve this factual dispute.

Accordingly, the Court ORDERS the parties to submit supplemental briefing on this
factual issue. The parties’ arguments shall be supported by affidavits signed under the penalty of
perjury, as well as any other evidence that the parties deem appropriate. The supplemental briefs shall
be limited to fifteen pages, not including exhibits. The parties shall submit this supplemental briefing
no later than November 4, 2010.

If, after reviewing the parties’ supplemental briefs, the Court determines that an
evidentiary hearing on this matter is necessary, the Court will schedule a hearing in a subsequent Order.

The Clerk shall serve this minute order on all parties to the action.

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1 Michael W. Sobol (State Bar No. 194857)


(msobol@lchb.com)
2 Allison S. Elgart (State Bar No. 241901)
(aelgart@lchb.com)
3 LIEFF, CABRASER, HEIMANN &
BERNSTEIN, LLP
4 275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
5 Telephone: (415) 956-1000
Facsimile: (415) 956-1008
6
Michael A. Caddell (State Bar No. 249469)
7 (mac@caddellchapman.com)
Cynthia B. Chapman (State Bar No. 164471)
8 (cbc@caddellchapman.com)
CADDELL & CHAPMAN
9 1331 Lamar St., Suite 1070
Houston, TX 77010
10 Telephone: (713) 751-0400
Facsimile: (713) 751-0906
11
Attorneys for Plaintiffs
12
13 UNITED STATES DISTRICT COURT
14 CENTRAL DISTRICT OF CALIFORNIA
15 (SOUTHERN DIVISION)
16
TERRI N. WHITE, et al., Case No. 05-CV-1070 DOC (MLGx)
17 (Lead Case)
Plaintiffs,
18
v. ORDER APPROVING SETTLING
19 PLAINTIFFS’ REVISED
EXPERIAN INFORMATION SUPPLEMENTAL NOTICES
20 SOLUTIONS, INC.,
21 Defendant. The Honorable David O. Carter
22
and Related Cases:
23
05-cv-01073-DOC (MLGx)
24 05-cv-7821-DOC (MLGx)
06-cv-0392-DOC (MLGx)
25 05-cv-1172-DOC(MLGx)
06-cv-5060-DOC (MLGx)
26
27
28
[PROPOSED] ORDER APPROVING SETTLING PLTFS’
899871.2 REVISED SUPPLEMENTAL NOTICES
CASE NO. 05-CV-1070 (MLGX)
Case 8:05-cv-01070-DOC-MLG Document 742 Filed 02/04/11 Page 2 of 3 Page ID
#:11813

1
I. INTRODUCTION AND BACKGROUND
2
On December 14, 2010, the Court granted the Settling Plaintiffs’ Motion for
3
Reconsideration with respect to the re-noticing of the entire notice list in the above-
4
captioned matter. (Dkt. No. 732.) The Court ruled that, in addition to those who
5
previously submitted Actual Damage Award and Convenience Award claims,
6
secondary notice should be sent only to individuals who previously opted out of, or
7
objected to, the settlement. (Id. at 9.) On December 22, 2010, in compliance with
8
the Court’s December 14, 2010 order, the Settling Plaintiffs filed their Submission
9
Complying with the Court’s Order Granting Plaintiffs’ Motion for Reconsideration
10
(Dkt. No. 733), which submitted proposed subsequent notices to Convenience
11
Award claimants, Actual Damage Award claimants, and opt-outs and objectors.
12
(Id. at Ex. D.)
13
On January 5, 2011, Defendants filed a Joint Statement Regarding Settling
14
Plaintiffs’ Submission Complying with the Court’s Order Dated December 14,
15
2010. (Dkt. No. 734.) On January 10, 2011, the White Plaintiffs filed Objections to
16
Settling Plaintiffs’ Proposed Supplemental Notice Forms Submitted in Response to
17
the Court’s Order Dated December 14, 2010. (Dkt. No. 737.)
18
Settling Plaintiffs revised the proposed supplemental notices to include both
19
the Defendants’ proposed language as well as the White Plaintiffs’ suggestions, and
20
filed their Notice of Revised Supplemental Notices on January 19, 2011. (Dkt. No.
21
739.)
22
II. APPROVAL OF SUPPLEMENTAL NOTICE
23
Having reviewed Plaintiffs’ Submission Complying with the Court’s Order
24
Granting Plaintiffs’ Motion for Reconsideration, Defendants’ Joint Statement
25
Regarding the Settling Plaintiffs’ Submission, the White Plaintiffs’ Objections to
26
Settling Plaintiffs’ Submission, and the Plaintiffs’ revised supplemental notices, the
27
Court now FINDS, CONCLUDES, and ORDERS as follows:
28
[PROPOSED] ORDER APPROVING PLTFS’
899871.2 -1- REVISED SUPPLEMENTAL NOTICES
CASE NO. 05-CV-1070 (MLGX)
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#:11814

1
The Court approves the form of the revised Supplemental Notices to
2
Convenience Award Claimants, Actual Damage Award Claimants, and opt-outs and
3
objectors that Plaintiffs submitted on January 19, 2011. (See Dkt. No. 739.)
4
On or before February 15, 2011, the Settlement Administrator shall cause the
5
Supplemental Notices to be mailed to the Convenience Award Claimants, Actual
6
Damage Award Claimants, opt-outs and objectors.
7
The Cost of sending the secondary notice shall be deducted from whatever
8
fees the Court awards to Settling Plaintiffs’ Counsel.
9
IT IS SO ORDERED,
10
11 February 04, 2011 ______________________________
HON. DAVID O. CARTER
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[PROPOSED] ORDER APPROVING PLTFS’
899871.2 -2- REVISED SUPPLEMENTAL NOTICES
CASE NO. 05-CV-1070 (MLGX)
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#:11698
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. SACV 05-1070 DOC (MLGx) Date: December 14, 2010

Title: TERRI N. WHITE et. al. v. EXPERIAN INFORMATION SOLUTIONS INC., and related cases

PRESENT:
THE HONORABLE DAVID O. CARTER, JUDGE

Kathy Peterson Not Present


Courtroom Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:

NONE PRESENT NONE PRESENT

PROCEEDING (IN CHAMBERS): GRANTING SETTLING PLAINTIFFS’ MOTION FOR


RECONSIDERATION

Before the Court is Settling Plaintiffs’ Motion for Reconsideration of the Court’s Order
Conditionally Granting Request for Secondary Notice in the above-captioned case (“Motion”) (Docket
704 by 713). In addition to Settling Plaintiffs’ Motion, the Court also received an Opposition filed by
the White Plaintiffs (Docket 715), a Reply filed by Settling Plaintiffs (Docket 720), and a Joint
Response filed by Defendants (Docket 721). In order to settle a factual dispute that arose from the
above-listed submissions, the Court requested and received supplemental briefs from all parties. After
considering each of these submissions, and for the reasons set forth below, the Court hereby GRANTS
Settling Plaintiffs’ Motion for Reconsideration.

I. BACKGROUND

On April 24, 2009, the parties presented to the Court a motion for preliminary approval of
a settlement of monetary relief. On May 7, 2009, the Court granted that motion for preliminary
approval and conditionally certified the class. The first hearing regarding final approval for the
settlement was held January 11, 2010. At that time, the Settling Parties indicated that the
administration of the class was ongoing and they were not yet able to provide the Court with any
concrete estimates regarding the awards for the “convenience” and “actual damages” categories based
on responses to the class notice. As the Court required these numbers for its final fairness
determination, the Court continued the hearing on the motion for final approval and requested a status

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report from the Settling Parties prior to the next hearing. The Settling Plaintiffs filed an Interim Report
and the Supplemental Report on Settlement Administration (“Supplemental Report”). The Court then
held a second hearing on the final fairness determination on May 20, 2010.

The Supplemental Report stated, inter alia, that 744,809 timely and signed claim forms
for both actual and convenience awards were received, and, after a first-level analysis, that 345,268
actual damage award claims were remaining as of May 7, 2010. Pursuant to the monetary settlement,
there are three categories of actual damage awards: employment claims, mortgage/housing claims; and
other credit claims. The Settlement Administrator exercised its discretion pursuant to the settlement
agreement to conduct an audit of 1,000 of the actual damage award claimants’ files. The Supplemental
Report stated that, while the audit was still in progress, of the employment claims evaluated in the
audit, 34% had already been invalidated; of the mortgage/housing claims, 24% had been invalidated;
and of the other credit claims, 22% had been invalidated.

Settling Plaintiffs argued that given these audit results, there were likely to be many
invalid claims in the remaining 345,268 actual damage claims, and that paying out these invalid claims
would "result in potentially millions of dollars being paid out for invalid . . . claims," which would "not
[be] tenable for the Class," largely because it would substantially diminish the payout to those with
valid claims. Supp. Report at 7. As a remedy for this high percentage of purportedly invalid claims,
Settling Plaintiffs proposed a secondary validation process requiring claimants to provide additional
information. Supp. Report at 8. Whereas the first notice required only that the class member certify to
a belief that he had been damaged through a denial of employment, mortgage loan, or credit, the
proposed second notice would require the class member to list the date of the denial, the prospective
employer/lender/or creditor, and to provide corroborating documentation.

The Court agreed with Settling Plaintiffs’ proposal and ordered that secondary notice be
sent to all actual damage award claimants informing them of the new documentation requirement.
Order Conditionally Granting Request for Secondary Notice, June 30, 2010 (“Secondary Notice
Order”) (Docket 703). The Court further mandated that secondary notice be sent to convenience award
claimants, finding that the possibility of actual damage claimants being shifted to the convenience class
“changes the evaluation by the convenience award claimants in addition to the actual damages
claimants about whether they want to assert a claim or opt out of the process.” Secondary Notice Order
at 3. The Court then examined the content of the initial notice disseminated to all people appearing on
the notice list. The Court focused on the attestation requirement contained in the notice, which asked
notice recipients to determine if they qualified as a class member before submitting a claim by attesting
to their “belie[f] that there have been one or more errors in [their] credit reports regarding debt
discharged in bankruptcy.”

In the Secondary Notice Order, the Court ultimately ordered that the attestation
requirement be removed from the class notice on the grounds that it was burdensome and misleading.
The Court mandated that a revised notice of settlement, free of this provision, be sent to the entire

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notice list. Following this ruling, Settling Plaintiffs were asked to submit a revised proposed class
notice along with information on the estimated costs of re-noticing the entire initial list.

In response, Settling Plaintiffs filed the instant Motion for Reconsideration (Docket 704),
accepting the Court’s decision to re-notice both convenience claimants and actual damage claimants but
contesting the Court’s decision to re-notice the entire initial notice list.1 Settling Plaintiffs agreed to
bear the costs of secondary notice to convenience and actual damage claimants, but not the costs of
renoticing the entire initial list – a cost that Settling Plaintiffs estimated at approximately $5 million.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 60(b) “provides for reconsideration only upon a showing
of (1) mistake, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void
judgment; (5) a satisfied or discharged judgment; or (6) ‘extraordinary circumstances’ which would
justify relief.” School Dist. No. 1J, Multnomah County v. Acands, Inc., 5 F.3d 1255, 1263 (9th Cir.
1993) (quoting Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991)). These grounds are
further limited by the Local Rules. Local Rule 7-18 provides that a motion for reconsideration of a
decision on any motion may be made only on the following grounds: “(a) a material difference in fact
or law from that presented to the Court before such decision that in the exercise of reasonable diligence
could not have been known to the party moving for reconsideration at the time of such decision, or (b)
the emergence of new material facts or a change of law occurring after the time of such decision, or (c)
a manifest showing of a failure to consider material facts presented to the Court before such decision.”
L.R. 7-18.

A district court, however, has inherent discretionary power to revisit previously issued
orders and to reopen any part of a case still pending before the court. See Marconi Wireless Tel. Co. v.
United States, 320 U.S. 1, 47-48 (1943); Natural Resources Defense Council v. Evans, 243 F. Supp. 2d
1046, 1048 (N.D. Cal. 2003); Kapco Mfg. Co. v. C & O Enterprises, Inc., 773 F.2d 151, 154 (7th Cir.
1985).

III. DISCUSSION

The Court finds that when Settling Plaintiffs submitted their Motion for Reconsideration,
they believed in good faith that the Court had manifestly failed to consider material facts and/or had
relied on erroneous facts, as required for the filing of a motion for reconsideration under the Local
Rules. Settl. Pl.’s Mot. at 4 (“The Court’s concern ... appears rooted in an oft-repeated false

1
Settling Plaintiffs titled their submission a “Response” to the Court’s Secondary
Notice Order. The Court, however, construed this submission as a Motion for
Reconsideration and set a briefing schedule on the matter. Order Setting Briefing
Schedule, Aug. 6, 2010 (Docket 713).

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premise..”). As such, Settling Plaintiffs believed that extraordinary circumstances justified
reconsideration. See Fed. R. Civ. P. 60(b).

After review, the Court finds that its decision in the Secondary Notice Order arose from a
misunderstanding of the relevant facts. The Court exercises its discretionary power to modify the
Secondary Notice Order.

A. The Entire Notice List Need Not Receive Secondary Notice

For a variety of reasons, the Court reconsiders its position on the propriety of re-noticing
the entire initial notice list. As explained in more detail below, secondary notice to the entire list would
prove both unnecessary and unwise. The Court thus GRANTS Settling Plaintiffs’ Motion for
Reconsideration with respect to this portion of the Secondary Notice Order.

1. Attestation Requirement

The Court’s decision to re-notice the entire notice list arose from concerns over the
attestation requirement included in the current class notice. Specifically, at the time of issuing the
Secondary Notice Order, the Court was persuaded by the White Plaintiffs’ argument that instructing
notice recipients to “first determine if [they were] a class member,” Notice of Final Forms of Notice of
Class Action Settlement, Ex. C at 4, Aug. 18, 2009 (Docket 458), before submitting a claim amounted
to an affirmative misrepresentation of the notice recipient’s class status. The Court reached this
conclusion in reliance on the White Plaintiffs’ factual contention that the notice list had been screened
to include only people who presumptively met the definition of a settlement class member. If this were
the case, instructing notice recipients to first “determine” whether they qualified as presumptive class
members before filing a claim constituted an affirmative misrepresentation, as it implied that notice was
received by people who did not presumptively qualify for relief.

The Court worried about the chilling effect that this seeming misrepresentation might
have had on class members’ responses. Although the attestation requirement is minimal – it merely
asks notice recipients to declare a “belief” that they qualify as a class members – the Court was
unwilling to allow affirmative misstatements to influence class members’ decisions, even in a de
minimis manner.

The Court’s position changed when it received Settling Plaintiffs’ Motion for
Reconsideration. There, Settling Plaintiffs challenged the Court’s view of the facts. In so doing,
Settling Plaintiffs necessarily challenged the conclusions reached in reliance on those “facts.” Contrary
to the White Plaintiffs’ assertions, Settling Plaintiffs urged that many people other than qualifying class
members received the initial settlement notice and that the attestation requirement was thus necessary to
ensure that non-qualified individuals did not drain the recovery pool for rightful class members. The
supplemental briefing and accompanying affidavits submitted by Settling Plaintiffs and Defendants –

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the party with the greatest first-hand knowledge of the composition of the original notice list – support
Settling Plaintiffs’ view of the facts.

The 23(b)(3) Settlement Class in this case includes “all Consumers who have received an
order of discharge pursuant to Chapter 7 of the United States Bankruptcy Code and who, at any time
between and including March 15, 2002, and May 11, 2009 (or, for California residents in the case of
TransUnion, any time between and including May 12, 2001 and May 11, 2009) have been the subject of
a Post-bankruptcy Credit Report issued by a Defendant that contained possible errors regarding debts
discharged in bankruptcy.” Order, inter alia, Granting Preliminary Approval To Proposed Class Action
Settlement at 5, May 7, 2009 (“Preliminary Approval Order”) (Docket 423). According to Defendants’
affidavits, the nature of Defendants’ record-keeping made it impossible to generate a list limited to
people who met the above criteria without also excluding people who met the criteria. In other words,
any list generated by Defendants would be either overinclusive or underinclusive. In order to ensure
that all qualified class members received notice of the action, Defendants and Settling Plaintiffs
rightfully erred on the side of overinclusiveness.

The specific problem, according to Defendants, is as follows. Defendants do not maintain


records of how consumers credit files look at every moment, Decl. of A. Granger, at ¶ 3, nor of the
content of reports issued in response to credit inquiries by third parties. Decl. of Morgan, Exh. 1 (Decl.
of P. Finneran) at ¶¶ 5-6. Rather, Defendants maintain only a list of the dates on which a credit report
is issued as well as a series of periodic snapshots indicating how a consumer’s credit file appears on
that particular day. Granger Decl. at ¶ 3. The parties generated the notice list in this case by selecting
all consumers whose credit file showed (i) the entry of a Chapter 7 discharge (ii) a qualifying tradeline,
collection or judgment; and (3) a hard inquiry within the archival period. Granger Decl. at ¶¶ 10-15.
These screening criteria, left purposely broad in order to ensure that no rightful class members were
excluded from the notice list, were not strict enough to ensure that every person who received notice
met the definition of a presumptive class member.

For example, the screening criteria did not filter out consumers whose qualifying
tradelines or collections were added to their credit file only after the credit report was issued (meaning
that the credit report itself did not contain an error). People whose file met this description would have
received the notice of settlement – but they would not qualify as a class member.

In addition, Defendants and Settling Plaintiffs point to the practice of “riding through”
revolving debt to indicate the overinclusiveness of the notice list. A consumer “rides through” a
revolving debt account when, for instance, a consumer continues to use a credit card for purchases
subsequent to the bankruptcy filing. Morgan Decl., Exh. 16. Any debt that the consumer incurs post-
bankruptcy would not be subject to a bankruptcy discharge. Id. A showing of delinquency on this
post-bankruptcy debt would not qualify a consumer for membership in this class action – but it would
qualify the consumer for a position on the notice list, given the limitations of Defendants’ records.

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A similar scenario arises when creditors use generic account-type codes in order to
describe non-dischargeable debts, i.e. student loans. Defendants report that Wells Fargo, for example,
reported 100,000 student loans to Equifax as generic unsecured loans rather than as student loans.
Decl. of L. Komanski, at ¶ 4. Any derogatory reporting of generically-listed non-dischargeable debts
would qualify a consumer for the notice list, but not for true class membership.

Defendants offer additional examples of such situations, but the Court need not belabor
the point. The above-listed examples suffice to change the Court’s position on the need for secondary
notice to every initial notice recipient. In light of Defendants’ limited records, it is entirely likely that
the parties disseminated notice to an overinclusive group of individuals. At the very least, there is no
way to ensure that this did not occur. In instructing class members to “first determine if [they were] a
class member,” before submitting a claim, the initial class notice contained no affirmative misstatement.
Rather, the attestation requirement served the vital and legitimate goal of screening out individuals who
did not qualify for settlement relief.

White Plaintiffs argue that, even if the attestation requirement was not affirmatively
misleading, the chilling effect that this requirement may have exerted on legitimate claimants cannot be
justified, given that the large majority of notice recipients were rightful class members. The Court,
however, must balance the possible disincentivizing effect of the attestation requirement against the
provision’s benefits. See Churchill Village, L.L.C. v. General Electric, 361 F. 3d 556, 575 (9th Cir.
2004) (“Fed. R. Civ. P. 23(c)(2) prescribes the “best notice practicable under the circumstances.”)
(emphasis added). Given that each class member’s recovery depends on the number of other class
members who submit a claim, some stringency in the claims process is only fair. On the other hand,
unnecessary burdens discourage legitimate class members from participating in the settlement. The
attestation requirement – which requires only a stated “belief” that a class members fits the class
definition and no documentary evidence – strikes a balance between these competing concerns. The
original notice, with the attestation requirement included, constituted the fairest possible notice under
the circumstances. Redrafting the notice to eliminate the attestation provision would prove both
unnecessary and unwise.

2. Reevaluation Rationale

The White Plaintiffs contend that the attestation requirement was not the only factor
motivating the Court’s decision in the Secondary Notice Order. Rather, the White Plaintiffs submit that
the Court also ordered wholesale re-noticing in order to give the notice recipients who previously did
not respond to the settlement a chance to reevaluate their decision in light of the newly imposed
documentation requirement to become a damages class member. The Court clarifies that it did not base
its decision to re-notice the entire notice list on this theory. Nor does the Court finds this theory
persuasive now.

As presented by the White Plaintiffs, the “reevaluation rationale” is based on two distinct

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arguments. First, the White Plaintiffs contend that people who previously took no action at all in
response to the settlement – choosing neither to opt in, exclude themselves, nor object – will be
motivated to file an objection to the perceived unfairness of the documentation requirement. The
motivation for this action would have to be purely altruistic; these hypothetical new objectors have
shown no personal interest in the settlement thus far, electing neither to claim benefits under it, exclude
themselves from it nor object to it. The Court is not inclined to believe that people who once evinced
totally apathy towards the settlement would find themselves suddenly motivated to lodge an altruistic
objection. The remote possibility that this might occur does not justify spending approximately $5
million on secondary notice.

The alternative basis of the White Plaintiffs’ theory speculates that notice recipients who
previously did nothing in response to the notice of settlement might, for self-interested reasons,
reconsider their decision to file a claim in light of the documentation requirement for actual damage
claims. Specifically, the White Plaintiffs surmise that potential actual damage claimants with
documents to support their claims might have remarked on the lack of documentation requirement in
the initial notice and decided not to file a claim, assuming that any payout would be minimal because of
the ease of claiming actual damages. White Plaintiffs contend that this same person – who previously
took no action in order to secure compensation or to preserve his or her right to bring a separate suit –
might now decide to file an claim on the assumption that the documentation requirement will make the
pro rata recovery of each actual damages claimant higher.

The Court finds this scenario as far-fetched as the last. White Plaintiffs’ hypothetical
asks the Court to believe that class members with the most supported, and thus arguably the strongest,
claims for actual damages previously would have elected to receive nothing under the settlement (and
to relinquish their right to sue at a later time) but would now prove motivated to file a claim solely
because of the documentation requirement. The Court cannot imagine that many notice recipients
would behave in accordance with the White Plaintiffs’ theory – certainly not enough to justify a $5
million re-noticing effort.

3. Response Rate Concerns

Finally, the White Plaintiffs remind the Court of its stated concerns regarding the fact that
only five percent of absent class members responded to the notice of settlement. The Court continues
to believe that a five percent response rate to a notice disseminated by direct mail is low. See Zimmer
Paper Products, Inc. v. Berger & Montague, P.C., 758 F.2d 86, 93 (3d Cir. 1985) (finding that even
though a response rate of 12% “appears low ... [i]t is in line with response rates in similar situations”)
(citing Newberg on Class Actions § 2695, Feb. 1984). A low response rate alone, however, does not
necessarily require re-noticing. Cf. Williams v. MGM-Pathe Communications Co., 129 F.3d 1026, 1027
(9th Cir. 1997) (accepting a settlement where only $3,300 was claimed out of a $4.5 million class fund
and holding that attorneys fees should have been calculated as a percentage of the $4.5 million fund).
Nor is there any guarantee that resending notice would generate a significantly higher response rate,

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especially given the Court’s decision to retain the attestation requirement as part of the notice. In
addition, given the likely overinclusiveness of the notice list, the current response rate statistics may be
skewed.

In any event, the Court must balance the possible benefits of secondary notice against the
costs. Here, secondary notice would cost approximately $5 million, removing $5 million from the
settlement fund and decreasing the compensation of each participating class member. Although White
Plaintiffs contend that the cost of resending notice could be borne by Settling Plaintiffs counsel or
Defendants, neither Settling Plaintiffs nor Defendants have offered to bear this cost. The Court finds it
unfair to impose this cost on them. As set forth above, aside from the later-discovered need to require
documentation for participation in the actual damages class, the Court finds that the original notice was
proper. The $5 million cost of secondary notice would impact the class. The costs of this notice
outweigh the benefits. See Churchill Village, 361 F.3d at 575 (upholding the district court’s decision
not to renotice the class, citing Fed. R. Civ. P. 23(c)(2)’s mandate of the “best notice practicable under
the circumstances.”)

Accordingly, the Court hereby GRANTS Settling Plaintiffs’ Motion for Reconsideration
with respect to the re-noticing of the entire notice list. Secondary notice need not be sent to the entire
initial notice list.

B. Opt-Outs and Objectors Must Be Renoticed

The “reevaluation rationale” that the Court rejected as applied to notice recipients who
previously ignored the notice of settlement applies with much greater force to individuals who
previously objected to, or opted out of, the settlement. Far from exhibiting apathy to the proposed
settlement, opt-outs and objectors evinced strong reactions to it. Fairness dictates that these individuals
be provided an opportunity to reevaluate their position in light of the changes to the settlement –
namely, the newly-added documentation requirement for actual damages claims.

The Court therefore finds that secondary notice should be sent to any notice recipients
who previously objected to, or opted out of, the settlement. Given that the rationale for re-noticing both
convenience claimants and actual damage claimants applies with equal force to the re-noticing of opt-
outs and objectors, it stands to reason that Settling Plaintiffs’ willingness to bear the costs of re-noticing
convenience claimants and actual damage claimants extends to the costs of re-noticing opt-outs and
objectors.

The Court ORDERS that Settling Plaintiffs’ file a submission confirming or denying their
willingness to bear these costs by noon on December 22, 2010. In this submission, Settling Plaintiffs
shall also provide the Court with the estimated costs of such re-noticing. Finally, this submission must
include a proposed draft of the secondary notice to opt-outs and objectors.

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IV. DISPOSITION

For the reasons stated above, the Court GRANTS Settling Plaintiffs’ Motion for
Reconsideration with respect to the re-noticing of the entire notice list. Secondary notice need not be
sent to the entire initial notice list. However, secondary notice should be sent to individuals who
previously opted out of, or objected to, the settlement.

The Court ORDERS Settling Plaintiffs to file a submission confirming or denying their
willingness to bear the costs of re-noticing opt outs and objectors by noon on December 22, 2010. In
this submission, Settling Plaintiffs shall also provide the Court with the estimated costs of such re-
noticing. Finally, this submission must include a proposed draft of the secondary notice to opt-outs and
objectors.

Other parties, including the White Plaintiffs, shall have until 5pm on Monday January 10,
2011 to object to the content of the proposed secondary notice to opt outs and objectors. Submissions
objecting to the content of the proposed secondary notice to opt outs and objectors shall not exceed ten
pages.

The Clerk shall serve this minute order on all parties to the action.

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1
2
3
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5
6
7
8 UNITED STATES DISTRICT COURT
9 FOR THE CENTRAL DISTRICT OF CALIFORNIA
10
11 TERRI N. WHITE, et al. ) CASE NO. SACV 05-1070 DOC (MLGx)
) (Lead Case)
12 Plaintiffs, )
)
13 v. ) O R D E R CONDITIONALLY
) GRANTING REQUEST FOR
14 EXPERIAN SOLUTIONS, INC., ) SECONDARY NOTICE
)
15 Defendant. )
)
16 )
)
17 )
)
18 )
)
19 _________________________________ )
20 Before the Court is the request made by Settling Plaintiffs and the 23(b)(3) Settlement
21 Class in the Supplemental Report on Settlement Administration (“Supp. Report”) that a
22 secondary notice be sent to the Class. Dkt. 667.
23 On April 24, 2009, the parties presented to the Court a motion for preliminary approval of
24 a settlement of monetary relief. On May 7, 2009, the Court granted that motion for preliminary
25 approval and conditionally certified the class. On May 21, 2009, the White Plaintiffs moved for
26 reconsideration of the Court’s grant on the basis that Settling Plaintiffs’ counsel had engaged in
27 misconduct, but the Court denied that motion. The first hearing regarding final approval for the
28 settlement was held January 11, 2010. At that time, the Settling Parties indicated that the
Case 8:05-cv-01070-DOC -MLG Document 703 Filed 06/30/10 Page 2 of 5

1 administration of the class was ongoing and they were not yet able to provide the Court with any
2 concrete estimates regarding the awards for the “convenience” and “actual damages” categories
3 based on responses to the class notice. As the Court required these numbers for its final fairness
4 determination, the Court continued the hearing on the motion for final approval and requested a
5 status report from the Settling Parties prior to the next hearing. The Settling Plaintiffs filed an
6 Interim Report and the Supplemental Report on Settlement Administration. The Court then held
7 a second hearing on the final fairness determination on May 20, 2010.
8 The Supplemental Report stated, inter alia, that 744,809 timely and signed claim forms
9 for both actual and convenience awards were received, and, after a first-level analysis, that
10 345,268 actual damage award claims were remaining as of May 7, 2010. Pursuant to the
11 monetary settlement, there are three categories of actual damage awards: employment claims,
12 mortgage/housing claims; and other credit claims. The Settlement Administrator exercised its
13 discretion pursuant to the settlement agreement to conduct an audit of 1,000 of the actual
14 damage award claimants’ files. The Supplemental Report stated that, while the audit was still in
15 progress, of the employment claims evaluated in the audit, 34% had already been invalidated; of
16 the mortgage/housing claims, 24% had been invalidated; and of the other credit claims, 22% had
17 been invalidated.
18 Settling Plaintiffs argue that given these audit results, there are likely to be many invalid
19 claims in the remaining 345,268 actual damage claims, and that paying out these invalid claims
20 would "result in potentially millions of dollars being paid out for invalid . . . claims," which
21 would "not [be] tenable for the Class," largely because it would substantially diminish the payout
22 to those with valid claims. Supp. Report at 7. As a remedy for this high percentage of
23 purportedly invalid claims, Settling Plaintiffs propose a secondary validation process in which
24 claimants are required to provide additional information. Supp. Report at 8. Whereas the first
25 notice required only that the class member certify to a belief he had been damaged through a
26 denial of employment, mortgage loan, or credit, the proposed second notice would require the
27 class member to list the date of the denial, the prospective employer/lender/or creditor, and
28 provide corroborating documentation.

2
Case 8:05-cv-01070-DOC -MLG Document 703 Filed 06/30/10 Page 3 of 5

1 Sending a secondary notice form is within the power of the court. See Zimmer Paper
2 Products, Inc. v. Berger & Montague, P.C., 758 F.2d 86, 93 (3d Cir.1985) (explaining that
3 “[b]efore approving any distribution of settlement proceeds to class members,” if the district
4 court finds cause for concern in the provision of notice, the court may “order[ ] further notice
5 procedures”). Settling Plaintiffs provided a proposed secondary notice to the Court at the May
6 hearing on the final settlement approval. The Court approves sending out a secondary notice for
7 the purpose of requiring additional information from the actual damage claimants. Such a notice
8 will effectuate the ultimate purpose of providing different awards to persons who suffered
9 different types of damage from errors in their credit report.
10 Additionally, the Court agrees with the White Plaintiffs that this secondary notice should
11 be sent out to the entire class, not solely the actual damage award claimants. By requiring
12 additional information to be provided by actual damage award claimants for verification of their
13 claims, there will naturally be a number of actual damage award claimants who are unable to
14 provide this information or provide information that does not correspond to a query, and as a
15 result, they will be shifted to the convenience damage award claimant category. As such, it
16 changes the evaluation by the convenience award claimants in addition to the actual damage
17 award claimants about whether they want to assert a claim or opt out of the process.
18 The Court separately considers the somewhat low response rate to the notice, an issue
19 raised at the final fairness hearing. There were 744,809 timely claim forms1 out of a class of 15
20 million, which is a five percent response rate. Roughly 14.25 million class members did not
21 respond. A low response rate may, in some situations, be indicative of a defect in the class
22 notice. See In re TJX Companies Retail Sec. Breach Litigation, 584 F.Supp.2d 395, 404-5 (D.
23 Mass. 2008). Therefore, while the Court originally approved the form of the Notice sent out to
24 the class, since it has already determined that the secondary notice needs to be sent to the entire
25 class, the Court reexamines the Notice at this time.
26
27
1
28 This number does not account for opt-outs and objectors.

3
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1 The White Plaintiffs have strongly objected to the class notice's requirement that class
2 members were required to sign a response form attesting, "I believe that there have been one or
3 more errors in my credit reports regarding debt discharged in bankruptcy." They object on the
4 basis that the notices were already sent to everyone who had errors in their credit report, and
5 therefore there was no justification for requiring class members to attest to their personal belief
6 as to this fact. Furthermore, they contend that many debtors would not know that there was an
7 error and that it would be very difficult for them to now investigate and confirm whether there
8 was an error.
9 Settling Plaintiffs argue that this phrasing is appropriate because it is possible that
10 someone could fall within the class definition but still be excluded from the class because, for
11 example, they previously released all of their claims against the defendant. S. Pl.’s Responses to
12 Obj. to Final Approval, at 19. However, the Court finds that the original attestation did not
13 accomplish the limited objectives now purported by Settling Plaintiffs–to ensure that none of the
14 class exclusions applied to the claimant–and a rephrasing of the attestation for convenience
15 award claimants should be used in the revised notice. Instead of the previously-required
16 attestation, convenience award claimants should only be required to attest that they believe that
17 none of the listed exclusions are applicable.
18 At oral argument, it became clear that the need for a secondary notice was at least
19 partially due to the parties’ underestimation of the number of actual damage award claims that
20 would be received. Perhaps as an acknowledgment of that fact, Settling Plaintiffs agreed to pay
21 for the cost of the re-notice to all actual damage claimants out of any attorneys’ fees award. In
22 other words, the administrative fees of the notice would not diminish the claimant award fund.
23 While the possibility of sending the secondary notice to the entire class was discussed, the costs
24 and payment of those costs were not settled at the hearing.
25 As such, Plaintiff SHALL submit to the Court with seven (7) days:
26 1. A proposed revised secondary notice incorporating the Court’s ruling.
27 2. A statement regarding the estimated administrative cost of the secondary
28 notice directed by the Court and the effect that cost would have upon the

4
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1 settlement fund, including what segment of the fund would bear the
2 administrative cost.
3 The White Plaintiffs, or any other objectors, may file an objection to the submitted revised
4 secondary notice that extends solely to the wording of the notice, not its scope, as the Court has
5 ruled upon that issue here. Any objection must be filed within seven (7) days of the filing of the
6 revised notice by Settling Plaintiffs.
7 Should the Court be satisfied with the additional submissions provided by Settling
8 Plaintiffs, the Court shall provide further direction regarding secondary notice at that time.
9 IT IS SO ORDERED.
10 DATED: June 30, 2010
11
12 _______________________________
DAVID O. CARTER
13 United States District Judge
14
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5
Case 8:05-cv-01070-DOC-MLG Document 667 Filed 05/07/10 Page 1 of 11

1 Michael W. Sobol (State Bar No. 194857)


(msobol@lchb.com)
2 Allison S. Elgart (State Bar No. 241901)
(aelgart@lchb.com)
3 LIEFF, CABRASER, HEIMANN &
BERNSTEIN, LLP
4 275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
5 Telephone: (415) 956-1000
Facsimile: (415) 956-1008
6
Michael A. Caddell (State Bar No. 249469)
7 (mac@caddellchapman.com)
Cynthia B. Chapman (State Bar No. 164471)
8 (cbc@caddellchapman.com)
George Y. Niño (State Bar No. 146623)
9 (gyn@caddellchapman.com)
CADDELL & CHAPMAN
10 1331 Lamar St., Suite 1070
Houston, TX 77010
11 Telephone: (713) 751-0400
Facsimile: (713) 751-0906
12
Attorneys for Settling Plaintiffs and 23(b)(3)
13 Settlement Class
14 UNITED STATES DISTRICT COURT
15 CENTRAL DISTRICT OF CALIFORNIA
16 (SOUTHERN DIVISION)
17
TERRI N. WHITE, et al., Case No. 05-CV-1070 DOC (MLGx)
18 (Lead Case)
Plaintiffs,
19
v. SUPPLEMENTAL REPORT ON
20 SETTLEMENT ADMINISTRATION
EXPERIAN INFORMATION
21 SOLUTIONS, INC., Date: May 14, 2010
Time: 4:30 p.m.
22 Defendant. The Honorable David O. Carter
23
and Related Cases:
24
05-cv-01073-DOC (MLGx)
25 05-cv-7821-DOC (MLGx)
06-cv-0392-DOC (MLGx)
26 05-cv-1172-DOC(MLGx)
06-cv-5060-DOC (MLGx)
27
28
SUPPLEMENTAL REPORT –
877975.3
CASE NO. 05-CV-1070 (MLGX)
Case 8:05-cv-01070-DOC-MLG Document 667 Filed 05/07/10 Page 2 of 11

1 Settling Plaintiffs Jose Hernandez, Bertram Robison, Kathryn Pike, and


2 Robert Randall hereby submit a Supplemental Report on Settlement Administration
3 regarding the 23(b)(3) Settlement (“Settlement”). The Supplemental Report
4 outlines the Settlement Administrator’s analysis of the claims data and its “audit” of
5 1,000 actual damage award claims provided for by the Settlement and described in
6 detail in the Interim Report.
7 The Settlement Administrator, The Garden City Group, Inc. (“GCG”),
8 processed 787,428 total claims. Of those, there were 744,809 timely and signed
9 claim forms. Almost 500,000 claimants – 495,699 – claimed an Actual Damage
10 Award on their claim forms and 249,110 chose a Convenience Award or did not
11 select an option. Of the 495,699 Actual Damage Award claims, 150,431 were
12 determined to be invalid based on the first level of analysis, triggering an audit of
13 1,000 individual credit files as provided in the Settlement.
14 The audit of 1,000 claims has taken place from December 2009 through early
15 May 2010 and involved approximately 1900 hours of work by GCG at a cost of
16 $140,526 (excluding expenses). The audit required the painstaking manual, visual
17 inspection of seven years of individual credit files from each Defendant for 1,000
18 claims. The audit is not yet final but the process thus far has led to the conclusion
19 that of the 1,000 Actual Damage claims in the audit, more than 34% of the
20 employment claims are invalid, more than 25% of the mortgage claims are invalid,
21 and 22% of the other credit claims are invalid.
22 A. Threshold Invalid Actual Damage Claims
23 As an initial matter, more than 30% of the Actual Damage Award claims
24 were determined to be invalid based on several threshold levels of analysis: 35,926
25 claimants chose the Actual Damage Award, but the award requested and/or date
26 provided does not comport with Defendants’ data, 17,490 claimants failed to
27 provide date information, and 97,015 claimants indicated a 2009 date (i.e., after the
28 effective date of the injunctive relief). Therefore, a total of 150,431 Actual Damage
SUPPLEMENTAL REPORT –
877975.3 -1- CASE NO. 05-CV-1070 (MLGX)
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1 Award claims were invalidated (30.34% of the total) before any individual claims
2 files were reviewed. The remaining 345,268 Actual Damage Award claims were
3 therefore treated by the Settlement Administrator as “initially valid,” pending
4 review of the individual credit files.
5 B. Audit Of 1,000 Actual Damage Award Claims
6 In light of the high percentage of invalid actual damage award claims
7 resulting from the initial review, the Settlement Administrator has exercised its
8 discretion, pursuant to the Settlement Agreement and Release (“Agreement”), to
9 require Defendants to produce the archived credit files of 1,000 Actual Damage
10 Award claimants to confirm the validity of such claims. Agreement § 7.7(c)(ii).
11 To conduct the review, GCG randomly selected a statistical sampling of
12 1,000 Actual Damage Award Claims that appeared initially valid (for example,
13 excluding claims with a date after the effective date of the injunctive relief). GCG
14 provided a unique identification number for each of the 1,000 claims, and
15 information was provided by at least one Defendant for all 1,000 claims. By
16 necessity, because of the nature in which their respective data is recorded, each of
17 the Defendants provided GCG with data for the 1,000 claim audit in a different
18 format.
19 GCG reviewed and attempted to validate any and all of the categories
20 claimed by the claimant on the claim form rather than following the hierarchy of
21 categorical validation for a given claim as outlined in the Settlement Agreement
22 (whereby a claim will be paid for the highest award for which it is eligible).
23 1. Employment Claims
24 Four hundred twenty-two (422) of the 1,000 claims in the audit claimed a
25 denial of employment. For each of these, GCG searched each Defendant’s data
26 files to confirm the existence of an employment inquiry “flag” and then reviewed
27 the data as directed by each Defendant to determine whether the employment
28 claims were valid. For the employment claims for which one of the Defendants had
SUPPLEMENTAL REPORT –
877975.3 -2- CASE NO. 05-CV-1070 (MLGX)
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1 the claimant on its respective list of employment inquiry flags, GCG thereafter
2 confirmed that the date of the employment inquiry occurred after the bankruptcy
3 discharge date. Where GCG confirmed an inquiry after the discharge date, those
4 claims were validated.
5 Essentially, for any claimant who had a post-bankruptcy employment flag –
6 no matter how many years after discharge and without respect to the date identified
7 by the claimant – their employment claim was validated. Despite this permissive
8 criteria, more than one-third of the employment claims were invalidated.
9 Nonetheless, for the remaining two-thirds of the employment claims, GCG is taking
10 a second look. One Defendant’s results for valid employment claims was
11 significantly higher than the other two Defendants. When GCG examined the
12 overlapping validated employment claims among the three Defendants, the number
13 of overlapping validations between each set of two Defendants was less than half
14 the total for the anomalous Defendant. Therefore, that Defendant is re-examining
15 the methods by which it reported employment inquiries. After this re-review, either
16 the number of invalid claims will increase even more as the anomalous Defendant’s
17 claims fall more in line with the other two Defendants or will remain the same if the
18 review of the Defendant’s data confirms its accuracy or does not provide any basis
19 to dispute it. Thus, at a minimum, over a third of the initially valid employment
20 claims in the audit have been invalidated, and that number could increase.
21 2. Mortgage/Housing Claims
22 For claims related to mortgage/housing and other credit, GCG reviewed the
23 archive data provided by the Defendants with the class lists and looked for
24 qualifying tradelines and a hard inquiry in the archive files going backward at least
25 one, if not two, years.1 GCG then examined the archived individual credit files
26 maintained by each Defendant to determine whether the inquiry in question from
1
27 Each Defendant provided one archive in each year, and the months of the archives
provided were staggered to include as much information as possible from all three
28 Defendants.
SUPPLEMENTAL REPORT –
877975.3 -3- CASE NO. 05-CV-1070 (MLGX)
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1 their claim form fell within the relevant time period under the agreement, allowing
2 a seven-month window on either side to be inclusive of claims that may fall just
3 before or after the date of the archived credit file within the requisite months
4 (“within six (6) months of the date indicated by the Actual Damage Award
5 Claimant on the Claim Form,” Agreement § 7.7(c)(i)).
6 For example, if Claimant A was solely provided by Experian and Claimant A
7 claimed a Mortgage/Housing denial in January 2006, GCG was looking for a hard
8 inquiry sometime between July 2005 and July 2006 (six months on either side of
9 the claimed date). Because Experian provided reports as of June of each year, and
10 each of the Defendant’s reports provided inquiries for a two-year period, Experian’s
11 2006 report would include inquiries for June 2004 through June 2006. Therefore,
12 Experian’s reports for 2006, 2007, or 2008 could possibly contain a qualifying hard
13 inquiry for Claimant A. Furthermore, in order to review any of those files, a hard
14 inquiry flag was required to exist in either Experian's 2006, 2007, or 2008 initial
15 data. Finally, in order for Claimant A’s claim to be validated, there must exist a
16 hard inquiry on the credit report(s) with the appropriate Kind of Business
17 Classification (“KOB”) and/or type code within the seven‐month window claimed
18 by this Claimant (e.g., prior or subsequent to sometime between July 2005 and July
19 2006).
20 The coding for the mortgage or housing claims is much less definitive than
21 the Employment inquiries. GCG was advised by Counsel for the Defendants that a
22 complete list of relevant or validating Mortgage/Housing KOBs/codes does not
23 exist. Further, GCG was advised that there would be certain inquiries for which
24 Defendants would not be able to identify the inquiry as a certain Mortgage/Housing
25 inquiry versus some other type of credit inquiry. As a result, each Defendant
26 provided separate direction with respect to the identification of the KOBs/codes
27 which validate or possibly validate a given claim within their respective data.
28 There remain a small number of KOBs/codes which may validate
SUPPLEMENTAL REPORT –
877975.3 -4- CASE NO. 05-CV-1070 (MLGX)
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1 Mortgage/Housing and/or Other Credit claims that two of the Defendants are
2 continuing to research.
3 Where a hard inquiry flag was present for the claimant within the requisite
4 timeframe, GCG reviewed the specific inquiry coding from each Defendant’s credit
5 file, looking for an industry code or KOB that would indicate a Mortgage or
6 Housing rental inquiry. If there was a “hit,” GCG confirmed that the inquiry and
7 the date claimed by the claimant fell within the time period required by the
8 Settlement. GCG looked at the inquiries in all three Defendants’ credit files to see
9 if they could validate the claim.
10 Though there are a few codes still being investigated by two Defendants, at
11 this time more than 25% of the total of eight hundred ninety-nine (899) “initially
12 valid” mortgage/housing claims are in fact invalid and another 17% are only
13 “possibly valid” because of indeterminate coding. There is also some doubt as to
14 the validity of even some of the apparently validated claims, because only 57% of
15 those were validated by all three Defendants, which is somewhat surprising given
16 the pervasive use of the tri-merge reports (i.e., credit reports from all three major
17 Credit Reporting Agencies) in connection with mortgage applications.
18 3. Other Credit Claims
19 GCG engaged in a similar review procedure for the Other Credit claims as
20 the Mortgage/Housing claims. GCG examined the claims to see if they matched
21 credit inquiry codes in the credit files of Defendants. Where a hard inquiry flag
22 was present for the claimant within the requisite timeframe, GCG reviewed the
23 specific inquiry coding from each Defendant’s credit file, looking for an industry
24 code or KOB that would indicate an Other Credit inquiry. If there was a “hit,”
25 GCG confirmed that the inquiry and the date claimed by the claimant fell within the
26 time period required by the Settlement. Only one Defendant’s validating inquiry
27 was required to validate an Other Credit claim.
28 Eight hundred sixty-six (866) of the 1,000 “initially valid” claims in the audit
SUPPLEMENTAL REPORT –
877975.3 -5- CASE NO. 05-CV-1070 (MLGX)
Case 8:05-cv-01070-DOC-MLG Document 667 Filed 05/07/10 Page 7 of 11

1 claimed Other Credit. Of those, more than 22% were invalid, and another 6% were
2 only “possibly valid” because of indeterminate coding.
3 C. Actual Damage Award Claimants And Next Steps
4 The 1,000 claim audit of “initially valid” claims demonstrates that there are a
5 significant number of damage award claimants who do not meet the criteria for any
6 of the three categories of actual damage awards. Settling Plaintiffs believe the only
7 viable option in proceeding with Settlement Administration and the validation of
8 the 495,699 actual damage claims is to request more information from the claimants
9 to validate their claims. In order to practically serve the best interests of the Class
10 and to avoid depleting the Settlement fund on the validation of claims, a second
11 round of Notice is needed to reach out to the actual damage claimants and obtain
12 more information from them. See, e.g., Manual for Complex Litigation (Fourth) §
13 21.66 (2004) (“it may be appropriate to require substantiation of the claims (e.g.,
14 through invoices, confirmations, or brokers records)”); Tarlecki v. Bebe Stores,
15 Inc., 2009 U.S. Dist. LEXIS 40774, at *12 (N.D. Cal. May 13, 2009)
16 (acknowledging that parties could undertake a further round of claim notices before
17 settlement proceeds); In re Shell Oil Refinery, 136 F.R.D. 588, 591 (E.D. La. 1991)
18 (court established two-step claims process that included first step of gathering
19 preliminary information about claimants’ identities and general nature of each
20 claim and second proof of claims process of gathering detailed information about
21 each claim).
22 Though there are still a few claims that are being re-reviewed and a few
23 codes are still being interpreted by two of the Defendants (which additional
24 information will be given to GCG), the audit has already demonstrated that a
25 substantial number of the actual damage claims are clearly or potentially invalid.
26 Even in the broadest, most easily validated category of Other Credit, more than
27 one-fifth of the “initially valid” claims are invalid. If GCG were to pay out all the
28 claims according to what is stated on the actual damage claim forms, they would be
SUPPLEMENTAL REPORT –
877975.3 -6- CASE NO. 05-CV-1070 (MLGX)
Case 8:05-cv-01070-DOC-MLG Document 667 Filed 05/07/10 Page 8 of 11

1 paying out millions of dollars in invalid claims at a huge cost to the Class. As an
2 example, of the 495,699 actual damage claimants, there were 57,040 “initially
3 valid” employment claims (with some claimants selecting employment and one or
4 more other categories). Projecting from the 1,000 claim audit that showed 34% of
5 those “initially valid” employment claims were actually invalid, that would mean
6 19,393 “initially valid” employment claims were invalid. The Settlement provides
7 for employment claims to be paid out at the highest level. Even if pro rated down,
8 payment of the initially invalid employment claims and the projected invalid
9 employment claims would result in potentially millions of dollars being paid out for
10 invalid employment claims. Such a result is not tenable for the Class.
11 Examining all of the actual damage claims on an individual basis following a
12 similar procedure as the audit is also not feasible. The audit of 1,000 claims has
13 taken place from December 2009 through early May 2010 and involved
14 approximately 1900 hours of work by GCG, at a cost of $140,526. The cost of
15 providing the data to GCG was borne by Defendants, who only committed to turn
16 over the files for the 1,000 claims in the audit. Even five months later, there are
17 still codes that are being determined by two of the Defendants at the request of
18 GCG. If GCG had to undertake the same detailed level of analysis of seven-year
19 time periods for all three Defendant for the almost half a million actual damage
20 claims, it would take years and would be cost-prohibitive.
21 After the almost-complete analysis by GCG, approximately 34% of the
22 employment claims are invalid, 25% of the mortgage/housing claims are invalid,
23 and 22% of the Other Credit category are invalid. The parties believe that the
24 continuing analysis will, if anything, increase the number of invalid claims.
25 Projecting these same percentages onto the 345,268 “initially valid” actual damage
26 claims for illustrative purposes only, a similar pattern of validations would result in
27 more than 19,000 invalid employment claims (out of a total of 57,040), more than
28 45,000 invalid mortgage/housing claims (and more than 30,000 claims only
SUPPLEMENTAL REPORT –
877975.3 -7- CASE NO. 05-CV-1070 (MLGX)
Case 8:05-cv-01070-DOC-MLG Document 667 Filed 05/07/10 Page 9 of 11

1 “possibly valid” out of a total of 181,389), and more than 69,000 invalid other
2 credit claims (and more than 18,000 only “possibly valid” claims out of a total of
3 310,546 other credit claims). If half of the “possibly valid” claims were validated,
4 it would result in over 61,000 invalid mortgage claims and over 78,000 invalid
5 other credit claims. Absent consideration of claim overlap, more than 158,000 total
6 “initially valid” claims would actually be invalid, an unacceptably high number.
7 When added to the number of claims invalidated as a result of the initial review
8 (150,431), there would be more than 308,431 invalid claims, or 62.2% of the total
9 Actual Damage Award claims. Thus, more than half of the actual damage claims
10 would be invalid.
11 Even if the effect of claim overlap evidenced by the 1,000 claim audit holds
12 true for the remaining “initially valid” claims, the audit reflects that 13.7% of the
13 “initially valid” Actual Damage Award claims are not valid in any category. Again,
14 assuming that one half of the “possibly valid” claims are in fact invalid (another
15 11.5%), and including the 150,431 claims that were invalidated as part of the initial
16 review process, this would still mean that 47.9% of the Actual Damage Award
17 claims would be invalid – still far too many.
18 Though the 1,000 claim audit is still ongoing, Settling Plaintiffs believe the
19 actual damage claims cannot be validated without further scrutiny. Moreover, it
20 would be cost-prohibitive for the Settlement Administrator to conduct a detailed
21 analysis of the almost half a million actual damage claims in a similar manner as
22 the audit. Therefore, Settling Plaintiffs believe it is necessary to allow claimants to
23 provide additional documentation to try to prove their claims. If they cannot or do
24 not submit such documentation, these claimants will have their claims converted to
25 a Convenience Award, pursuant to the Agreement § 7.7(c)(v), with a notification
26 accompanying their claim payment that informs them that their claim was
27 inconsistent with the data in their credit file.
28
SUPPLEMENTAL REPORT –
877975.3 -8- CASE NO. 05-CV-1070 (MLGX)
Case 8:05-cv-01070-DOC-MLG Document 667 Filed 05/07/10 Page 10 of 11

1
Dated: May 7, 2010 Respectfully submitted,
2
CADDELL & CHAPMAN
3
By: /s/ Michael A. Caddell
4 Michael A. Caddell
5 Michael A. Caddell (State Bar No. 249469)
(mac@caddellchapman.com)
6 Cynthia B. Chapman (State Bar No. 164471)
(cbc@caddellchapman.com)
7 George Y. Niño (State Bar No. 146623)
(gyn@caddellchapman.com)
8 1331 Lamar, Suite 1070
Houston, TX 77010
9 Telephone: (713) 751-0400
Facsimile: (713) 751-0906
10
Michael W. Sobol (State Bar No. 194857)
11 (msobol@lchb.com)
Allison S. Elgart (State Bar No. 241901)
12 (aelgart@lchb.com)
LIEFF, CABRASER, HEIMANN & BERNSTEIN,
13 LLP
275 Battery Street, 29th Floor
14 San Francisco, CA 94111-3339
Telephone: (415) 956-1000
15 Facsimile: (415) 956-1008
16 Stuart T. Rossman (BBO No. 430640)
(srossman@nclc.org)
17 Charles M. Delbaum (BBO No. 543225)
(cdelbaum@nclc.org)
18 NATIONAL CONSUMER LAW CENTER
7 Winthrop Square, 4th Floor
19 Boston, MA 02110
Telephone: (617) 542-8010
20 Facsimile: (617) 542-8028
21 Leonard A. Bennett (VSB No. 37523)
(lenbennett@cavtel.net)
22 Matthew Erausquin (VSB No. 65434)
(matt@clalegal.com)
23 CONSUMER LITIGATION ASSOCIATES, P.C.
12515 Warwick Boulevard, Suite 201
24 Newport News, Virginia 23606
Telephone: (757) 930 3660
25 Facsimile: (757) 930-3662
26
27
28
SUPPLEMENTAL REPORT –
877975.3 -9- CASE NO. 05-CV-1070 (MLGX)
Case 8:05-cv-01070-DOC-MLG Document 667 Filed 05/07/10 Page 11 of 11

1 Mitchell A. Toups (TSB No. 20151600)


(matoups@wgttlaw.com)
2 WELLER, GREEN, TOUPS & TERRELL, L.L.P.
Bank of America Tower
3 2615 Calder St., Suite 400
Beaumont Texas 77702
4 Telephone: (409) 838-0101
Facsimile: (409) 832-8577
5
Attorneys for Settling Plaintiffs and 23(b)(3)
6 Settlement Class
7
Lee A. Sherman (State Bar No. 172198)
8 CALLAHAN, THOMPSON, SHERMAN &
CAUDILL
9 111 Fashion Lane
Tustin, CA 92780
10 Telephone: (714) 730-5700
Facsimile: (714) 730-1642
11
Attorneys for the Acosta/Pike Plaintiffs and 23(b)(3)
12 Settlement Class
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
SUPPLEMENTAL REPORT –
877975.3 - 10 - CASE NO. 05-CV-1070 (MLGX)
Case 8:05-cv-01070-DOC-MLG Document 651 Filed 04/01/10 Page 1 of 2

1
BOIES, SCHILLER & FLEXNER LLP
2 David Boies (admitted pro hac vice)
333 Main Street
3 Armonk, NY 10504 NOTE: CHANGES MADE BY THE COURT
Telephone: 914.749.8200
4 Facsimile: 914.749.8300
Email: dboies@bsfllp.com
5
George F. Carpinello (admitted pro hac
6 vice)
Adam R. Shaw (admitted pro hac vice)
7 10 North Pearl Street
Albany, NY 12207
8 Telephone: 518.434.0600
Facsimile: 518.434.0665
9 Email: gcarpinello@bsfllp.com
ashaw@bsfllp.com
10
David L. Zifkin (SBN 232845)
11 3907 Ocean Front Walk
Marina Del Rey, California 90292
12 Telephone: 310.408.5462
Facsimile: 310.578-6020
13 Email: dzifkin@bsfllp.com
14

15 Attorneys for Plaintiffs Robert Radcliffe, Chester Carter, Maria Falcon, Clifton C.
Seale, III, Arnold E. Lovell, and all others similarly situated.
16

17 UNITED STATES DISTRICT COURT


CENTRAL DISTRICT OF CALIFORNIA
18

19
TERRI N. WHITE, et al., CASE NO. SA 05-CV-1070 DOC
20 (MLGx) (Lead Case)
Plaintiffs, Assigned to the Hon. David O. Carter
21
v. ORDER ON JOINT
22 STIPULATION ESTABLISHING
EXPERIAN INFORMATION
23 SOLUTIONS, INC., et al., NEW DATE FOR STATUS
CONFERENCE AND HEARING
24 Defendants.
REGARDING ETHICAL
25 and Related actions. ISSUES
26

27

28
Case 8:05-cv-01070-DOC-MLG Document 651 Filed 04/01/10 Page 2 of 2

1 Before the Court is the parties’ Joint Stipulation Establishing New Date For
2
Status Conference And Hearing Regarding Ethical Issues. For good cause showing,
3
this Court hereby orders and adjudges as follows:
4

5 A status conference and a hearing regarding the ethical issues shall be set for
6
Friday, May 14, 2010, at 4:30 p.m.
7

8
IT IS SO ORDERED.

10

11 Dated: April 1, 2010 ___________________________


12 Hon. David O. Carter
United States District Court Judge
13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1
Case 8:05-cv-01070-DOC-MLG Document 650 Filed 03/26/10 Page 1 of 9

1 Michael W. Sobol (State Bar No. 194857)


(msobol@lchb.com)
2 Allison S. Elgart (State Bar No. 241901)
(aelgart@lchb.com)
3 LIEFF, CABRASER, HEIMANN &
BERNSTEIN, LLP
4 275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
5 Telephone: (415) 956-1000
Facsimile: (415) 956-1008
6
Michael A. Caddell (State Bar No. 249469)
7 (mac@caddellchapman.com)
Cynthia B. Chapman (State Bar No. 164471)
8 (cbc@caddellchapman.com)
George Y. Niño (State Bar No. 146623)
9 (gyn@caddellchapman.com)
CADDELL & CHAPMAN
10 1331 Lamar St., Suite 1070
Houston, TX 77010
11 Telephone: (713) 751-0400
Facsimile: (713) 751-0906
12
Attorneys for Settling Plaintiffs and 23(b)(3)
13 Settlement Class
14 UNITED STATES DISTRICT COURT
15 CENTRAL DISTRICT OF CALIFORNIA
16 (SOUTHERN DIVISION)
17
TERRI N. WHITE, et al., Case No. 05-CV-1070 DOC (MLGx)
18 (Lead Case)
Plaintiffs,
19 INTERIM REPORT
v.
20 Date: May 24, 2010
EXPERIAN INFORMATION Time: 8:30 a.m.
21 SOLUTIONS, INC., The Honorable David O. Carter
22 Defendant.
23
and Related Cases:
24
05-cv-01073-DOC (MLGx)
25 05-cv-7821-DOC (MLGx)
06-cv-0392-DOC (MLGx)
26 05-cv-1172-DOC(MLGx)
06-cv-5060-DOC (MLGx)
27
28

861732.8 INTERIM REPORT - CASE NO. 05-CV-1070 (MLGX)


Case 8:05-cv-01070-DOC-MLG Document 650 Filed 03/26/10 Page 2 of 9

1 TABLE OF CONTENTS
2
Page
3
4 A. Settlement Claims Administration.............................................. 1
B. Audit of 1,000 Actual Damage Award Claims .......................... 2
5 C. Actual Damage Award Claimants and Next Steps..................... 5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-i- INTERIM REPORT - CASE NO. 05-CV-1070 (MLGX)
861732.8
Case 8:05-cv-01070-DOC-MLG Document 650 Filed 03/26/10 Page 3 of 9

1 Settling Plaintiffs Jose Hernandez, Bertram Robison, Kathryn Pike, and


2 Robert Randall hereby submit an Interim Report regarding the 23(b)(3) Settlement
3 (“Settlement”), pursuant to the Court’s January 11, 2010 Minute Order. The
4 Interim Report outlines the Settlement Administrator’s ongoing review of claims,
5 the “audit” of 1,000 actual damage award claims provided for by the Settlement,
6 and the status of the review for each type of claim.
7 A. Settlement Claims Administration
8 The Settlement Administrator has performed an initial review of timely
9 claims submitted as part of the Settlement.
10 From this initial review, the Settlement Administrator preliminarily
11 determined that some claimants did not meet the requirements to be considered for
12 an Actual Damage or Convenience Award. The reasons they do not meet the
13 requirements vary and include failure to provide a signature on the claim form,
14 failure to provide a date of alleged harm, or failure to postmark the claim form by
15 the deadline. The Settlement Administrator expects that the parties will instruct at a
16 later date that these claimants be notified that their claims have been rejected, but
17 no claims have been determined with finality to be invalid or denied.
18 The Settlement Administrator determined that 249,110 claimants chose a
19 Convenience Award or did not select an option. These claimants are entitled to
20 receive Convenience Awards, but it is anticipated that the number of people in this
21 category may increase significantly based on the apparent invalidity of many Actual
22 Damage Award claims, as set forth below.
23 There were 495,699 claimants who selected the Actual Damage Award
24 option. Some of these claimants will qualify for Actual Damage Awards, while
25 some claims appear to fail to conform to the claim requirements and may require
26 additional information or may have to be converted into Convenience Awards.
27 While the Settlement Administrator is continuing its review, it is clear that with
28 respect to many actual award claims there is information that is inconsistent with

861732.8 -1- INTERIM REPORT - CASE NO. 05-CV-1070 (MLGX)


Case 8:05-cv-01070-DOC-MLG Document 650 Filed 03/26/10 Page 4 of 9

1 the nature of the claim being made.


2 The settling parties are taking all necessary steps to properly validate claims
3 and distribute the Settlement Fund in a fair and efficient manner to those Class
4 members for whom it is reasonably likely that they have suffered an actual harm or
5 injury based on the claims made. However, an estimate of the final amounts of the
6 actual damage awards cannot be made at this time.
7 B. Audit of 1,000 Actual Damage Award Claims
8 In light of apparent discrepancies between some of the actual damage claims
9 filed and the initial data provided from the Defendants, the Settlement
10 Administrator has exercised its discretion, pursuant to the Settlement Agreement
11 and Release (“Agreement”), to require Defendants to produce the archived credit
12 files of 1,000 Actual Damage Award claimants to confirm the validity of such
13 claims. Agreement § 7.7(c)(ii). The Defendants have borne the cost of providing
14 such information from their archived files for this limited initial review. Id.
15 Depending upon the utility of the audit of the credit files of the 1,000 representative
16 claimants, the Settlement Administrator may request further information from the
17 Defendants with respect to all actual damage award claimants. Settlement
18 Agreement § 7.7(c)(ii). Alternatively, further information or documentation may be
19 requested from claimants who the Settlement Administrator concludes may not
20 have a valid claim.
21 With respect to the review of the 1,000 archived credit files from each
22 Defendant, the Settlement Administrator has obtained electronic access to the files
23 of two of the three Defendants at locations designated by Defendants. The
24 Settlement Administrator sent two separate teams to those locations to gather the
25 inquiry information necessary to conduct a review of those files according to the
26 different types of actual damage claims. The data was organized by year for all
27 claims. The third Defendant shipped copies of the credit files in hard copy form (as
28 they were unable to provide them to the Settlement Administrator in an electronic

861732.8 -2- INTERIM REPORT - CASE NO. 05-CV-1070 (MLGX)


Case 8:05-cv-01070-DOC-MLG Document 650 Filed 03/26/10 Page 5 of 9

1 format) to the Settlement Administrator at its business address in Seattle,


2 Washington. Those hard copy credit files were organized by year. The files for the
3 third Defendant contain more than 100,000 pages in hard copy.
4 First, the Settlement Administrator is reviewing the Employment claims.
5 After determining which claimants had an employment inquiry “flag” in the initial
6 data from Defendants, the Administrator is looking at the original inquiry data or
7 the files of the Defendants in which the claimants had a flag. If there is a “hit”
8 (meaning the inquiry was within the time period specified in the Agreement), the
9 Settlement Administrator will look at the date of the employment inquiry to
10 confirm that it occurred after the bankruptcy discharge date. If so, the “hit” is
11 confirmed and the claim is valid. For the claimants who did not get a “hit” with the
12 first Defendant that displayed an employment inquiry flag in their files, the
13 Settlement Administrator is looking to see whether they had employment inquiry
14 flags in the credit files of the second Defendant. Again, the dates of any additional
15 “hits” are compared to the dates of bankruptcy discharge to confirm the
16 employment inquiries occurred after the bankruptcy. Finally, the Settlement
17 Administrator is checking all of the remaining unvalidated employment claims
18 against the credit files of the third Defendant. If there are any “hits” after the
19 bankruptcy discharge date, those claims are validated.
20 There were 422 of the 1,000 claimants who claimed a denial of employment.
21 The Administrator is currently finalizing the review of those claims now, but
22 preliminary results indicate that there are a substantial number of employment
23 claims that are not validated by the review of the archived credit files. The ultimate
24 findings as to those and the other categories of actual damage claims will inform
25 the next steps the parties to the Settlement will propose to the Court.
26 For claims related to mortgage/housing and other credit, the Settlement
27 Administrator first reviewed the archive data provided by the Defendants with the
28 class lists to determine for each claimant whether there was a qualifying tradeline

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Case 8:05-cv-01070-DOC-MLG Document 650 Filed 03/26/10 Page 6 of 9

1 and a hard inquiry. The Settlement Administrator looked for qualifying tradelines
2 and a hard inquiry in the archive files going backward and forward at least one, if
3 not two, years.1 The Settlement Administrator is then examining the archived
4 individual credit files maintained by each Defendant to determine whether the
5 inquiry in question from their claim form fell within the relevant time period under
6 the agreement. The Settlement Administrator is looking at the seven months before
7 and after each claimed mortgage inquiry to be inclusive of all possible claims,
8 including ones that may fall just before or after the date of the archived credit file
9 within the requisite months.
10 The Settlement Administrator is currently in the process of reviewing the
11 claims of mortgage or housing denials or harm from the 1,000 actual damage
12 claims for the audit. The coding for the mortgage or housing claims is much more
13 complicated than the employment inquiries. The Settlement Administrator is first
14 looking at the Defendants’ files to see whether there is a qualifying tradeline and
15 hard inquiry for each claimant. The Administrator is then confirming coding from
16 the Defendants’ credit files that could indicate a mortgage or rental inquiry and will
17 match those codes with the individual credit files for the claimants. If there is a
18 “hit,” the Settlement Administrator will then check the date given on the claim form
19 to see if the inquiry falls within the time period required by the Settlement. The
20 Settlement Administrator is looking at the seven months before and after each
21 claimed mortgage inquiry to be inclusive of all possible claims, including ones that
22 may fall just before or after the date of the archived credit file within the month.
23 The Settlement Administrator will look at the inquiries in all three Defendants’
24 credit files to see if they can validate the claim.
25 For any claimants whose employment or mortgage claims could not be
26 validated or who only claimed they had been harmed with respect to a credit card,
1
27 Each Defendant provided one archive in each year, and the months of the archives
provided were staggered to include as much information as possible from all three
28 Defendants.

861732.8 -4- INTERIM REPORT - CASE NO. 05-CV-1070 (MLGX)


Case 8:05-cv-01070-DOC-MLG Document 650 Filed 03/26/10 Page 7 of 9

1 auto loan, or other credit applied for, the Settlement Administrator will examine
2 their claims to see if they match credit inquiry codes in the credit files of the
3 Defendants. Again, the Settlement Administrator is working with Defendants to
4 understand the industry codes that would correspond with a credit inquiry.
5 C. Actual Damage Award Claimants and Next Steps
6 The audit of the 1,000 claims is ongoing. The preliminary indications are
7 that the audit will demonstrate that a substantial number of the actual damage
8 claims are questionable and clearly or potentially invalid. Once the review is
9 complete, which Garden City estimates will occur by the end of April 2010, the
10 Settling Plaintiffs will provide a complete report and ask the Court for approval of a
11 process for going forward – but they will make a final determination of what other
12 steps, if any, they believe should be implemented only after the audit is complete.
13 Conclusion
14 The parties and Settlement Administrator are taking all necessary steps to
15 properly validate claims but the process is an extremely time-intensive one. The
16 Settlement Administrator is constantly consulting with the parties in an effort to
17 have the information required to validate all claims. At this time, the parties cannot
18 make a definite determination but they may decide it is necessary to allow certain
19 claimants to submit further documentation to help evaluate their claims. The
20 parties will update the Court before the proposed May 24, 2010 status conference
21 upon the completion of the 1,000 claim audit, but in no event later than May 7,
22 2010.
23
24
25
26
27
28

861732.8 -5- INTERIM REPORT - CASE NO. 05-CV-1070 (MLGX)


Case 8:05-cv-01070-DOC-MLG Document 650 Filed 03/26/10 Page 8 of 9

1
Dated: March 26, 2010 Respectfully submitted,
2
LIEFF, CABRASER, HEIMANN
3 & BERNSTEIN, LLP
4
5 By: /s/ Michael W. Sobol
Michael W. Sobol
6
Michael W. Sobol (State Bar No. 194857)
7 (msobol@lchb.com)
Allison S. Elgart (State Bar No. 241901)
8 (aelgart@lchb.com)
275 Battery Street, 29th Floor
9 San Francisco, CA 94111-3339
Telephone: (415) 956-1000
10 Facsimile: (415) 956-1008
11 Stuart T. Rossman (BBO No. 430640)
(srossman@nclc.org)
12 Charles M. Delbaum (BBO No. 543225)
(cdelbaum@nclc.org)
13 NATIONAL CONSUMER LAW CENTER
7 Winthrop Square, 4th Floor
14 Boston, MA 02110
Telephone: (617) 542-8010
15 Facsimile: (617) 542-8028
16 Michael A. Caddell (State Bar No. 249469)
(mac@caddellchapman.com)
17 Cynthia B. Chapman (State Bar No. 164471)
(cbc@caddellchapman.com)
18 George Y. Niño (State Bar No. 146623)
(gyn@caddellchapman.com)
19 CADDELL & CHAPMAN
1331 Lamar, Suite 1070
20 Houston, TX 77010
Telephone: (713) 751-0400
21 Facsimile: (713) 751-0906
22 Leonard A. Bennett (VSB No. 37523)
(lenbennett@cavtel.net)
23 Matthew Erausquin (VSB No. 65434)
(matt@clalegal.com)
24 CONSUMER LITIGATION ASSOCIATES, P.C.
12515 Warwick Boulevard, Suite 201
25 Newport News, Virginia 23606
Telephone: (757) 930 3660
26 Facsimile: (757) 930-3662
27
28

861732.8 -6- INTERIM REPORT - CASE NO. 05-CV-1070 (MLGX)


Case 8:05-cv-01070-DOC-MLG Document 650 Filed 03/26/10 Page 9 of 9

1 Mitchell A. Toups (TSB No. 20151600)


(matoups@wgttlaw.com)
2 WELLER, GREEN, TOUPS & TERRELL, L.L.P.
Bank of America Tower
3 2615 Calder St., Suite 400
Beaumont Texas 77702
4 Telephone: (409) 838-0101
Facsimile: (409) 832-8577
5
Attorneys for Settling Plaintiffs and 23(b)(3)
6 Settlement Class
7
Lee A. Sherman (State Bar No. 172198)
8 CALLAHAN, THOMPSON, SHERMAN &
CAUDILL
9 111 Fashion Lane
Tustin, CA 92780
10 Telephone: (714) 730-5700
Facsimile: (714) 730-1642
11
Attorneys for the Acosta/Pike Plaintiffs and 23(b)(3)
12 Settlement Class
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

861732.8 -7- INTERIM REPORT - CASE NO. 05-CV-1070 (MLGX)


Case 8:05-cv-01070-DOC-MLG Document 638 Filed 01/11/2010 Page 1 of 1

UNITED STATES DISTRICT COURT


CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. SACV05-1070-DOC(MLGx) Date January 11, 2010

Title TERRI N. WHITE, ET.AL., -V- EXPERIAN INFORMATION SOLUTIONS INC.

Present: The Honorable David O. Carter, U.S. District Judge


Lori Anderson Debbie Gale N/A
Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:


Michael Sobol Daniel McLoon
Charles M. Delbaum Thomas Malcolm
Charles Juntikka Michael Morgan
Daniel Wolf Stephen Newman
Stuart T. Rossman Craig Bertschi
Michael Caddell Julia Strickland
Lee Sherman A. Steven Clay
Allison Elgart Katherine Winn
Adam Shaw J. Paul Moorhead
George Carpinello J. Garrett Kendrick
David Zifkin Brian C. Frontino
Cindy D. Hanson

Proceedings: 1)FINAL FAIRNESS HEARING; 2)MOTION BY DEFENDANTS TO STRIKE MASS AND


NON-COMPLIANT OPT-OUTS; 3)MOTION BY PLAINTIFFS FOR ATTORNEYS’ FEES
FOR INJUNCTIVE RELIEF SETTLEMENT; 4)MOTION BY PLAINTIFFS FOR
ATTORNEYS’ FEES FOR MONETARY RELIEF SETTLEMENT

Cause is called and counsel make their appearances. Parties address the Court with progress on settlement.

The Court orders an interim report to be filed on or before March 26, 2010. The parties will also submit a
briefing schedule. The Court sets a further hearing on these matters for April 20, 2010, at 8:00 a.m.
: 38

Initials of Preparer lma

CV-90 (12/02) CIVIL MINUTES - GENERAL Page 1 of 1


Case 8:05-cv-01070-DOC-MLG Document 478 Filed 09/21/2009 Page 1 of 2

UNITED STATES DISTRICT COURT


CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. SACV 05-1070 DOC (MLGx) Date: September 21, 2009

Title: WHITE ET AL.V. EXPERIAN INFORMATION SYSTEMS, INC.

DOCKET ENTRY
[I hereby certify that this document was served by first class mail or Government messenger service, postage prepaid, to all counsel (or parties) at their
respective most recent address of record in this action on this date.]
Date:____________ Deputy Clerk: ___________________________________

PRESENT:
THE HONORABLE DAVID O. CARTER, JUDGE

Kristee Hopkins Not Present


Courtroom Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:

NONE PRESENT NONE PRESENT

PROCEEDING (IN CHAMBERS): GRANTING SETTLING PLAINTIFFS’ AND DEFENDANTS’


JOINT EX PARTE APPLICATION TO AMEND THE COURT’S
MAY 7, 2009 ORDER AND EXTENDING FINAL APPROVAL
HEARING AND RELATED DATES

Before the Court is Settling Plaintiffs’ and Defendants’ Joint Ex Parte Application to
Amend the Court’s May 7, 2009 Order (1) Granting Preliminary Approval to Proposed Calss Action
Settlement; (2) Conditionally Certifying Settlement Class; (3) Approving Class Notice; (4) Appointing
Class Counsel; and (5) Scheduling Final Approval Hearing and Related Dates.

Settling Plaintiffs and Defendants have requested an extension of the Final Approval
Hearing and related dates because there has been an unavoidable delay by the Settlement Administrator
in compiling a single class list. The May 7, 2009 Order by this Court set August 31, 2009 as the date
by with Mail Notice should be sent to each identified 23(b)(3) Settlement Class Member, and the
parties now estimate that they will not be able to send the Mail Notice until September 28, 2009.
Therefore, they request that all dates following the Mail Notice date also be pushed back.

MINUTES FORM 11 DOC Initials of Deputy Clerk kh


CIVIL - GEN Page 1 of 2
Case 8:05-cv-01070-DOC-MLG Document 478 Filed 09/21/2009 Page 2 of 2

The White Plaintiffs object only to the date of December 14, 2009 for the Final Fairness
Hearing, for which they cannot be available.

The Court grants the Ex Parte Application to amend the Final Fairness Hearing and
Related Dates but, as the parties were not able to stipulate to dates acceptable to all, modifies the
proposed dates. It is hereby ORDERED as follows:

1. The Settlement Administrator shall cause the Mail Notice to be sent to each
identified 23(b)(3) Settlement Class Member by September 28, 2009, and shall
establish an Internet web site no later than five days prior to the mailing of the
Mail Notice. Between September 28, 2009 and October 28, 2009, the Settlement
Administrator shall cause the Publication Notice to be published.

2. The deadline for a class member to submit a claim, opt out, or object to the
Settlement shall be November 30, 2009.

3. All responses to objections shall be filed by January 4, 2010.

4. Any counsel for plaintiffs who wish to apply for an award of fees and costs for
efforts made in connection with the Injunctive Relief Settlement must do so on or
before December 21, 2009.

4. A Final Fairness Hearing shall be set for January 11, 2010 at 8:30 a.m.

The Clerk shall serve this minute order on all parties to the action.

MINUTES FORM 11 DOC Initials of Deputy Clerk kh


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1 Michael W. Sobol (State Bar No. 194857)


(msobol@lchb.com)
2 Allison Elgart (State Bar No. 241901)
(aelgart@lchb.com)
3 LIEFF, CABRASER, HEIMANN &
BERNSTEIN, LLP th
4 275 Battery Street, 30 Floor
San Francisco, CA 94111-3339
5 Telephone: (415) 956-1000
Facsimile: (415) 956-1008
6
Michael A. Caddell (State Bar No. 249469)
7 (mac@caddelchapman.com)
Cynthia B. Chapman (State Bar No. 164471)
8 (cbc@caddellchapman.com)
George Y. Niño (State Bar No. 146623)
9 (gyn@caddellchapman.com)
CADDELL & CHAPMAN
10 1331 Lamar, Suite 1070
Houston, TX 77010
11 Telephone: (713) 751-0400
Facsimile: (713) 751-0906
12
ATTORNEYS FOR PLAINTIFFS
13
Additional counsel and parties listed on
14 signature pages
15
UNITED STATES DISTRICT COURT
16
CENTRAL DISTRICT OF CALIFORNIA
17
SOUTHERN DIVISION
18
19
20 TERRI N. WHITE, et al., Case No. 05-cv-1070 DOC (MLGx)
(Lead Case)
21 Plaintiffs,
AND RELATED CASES
22 v. 05-cv-1073, 05-cv-7821, 06-cv-3924,
05-cv-1172, 06-cv-5060
23 EXPERIAN INFORMATION
SOLUTIONS, INC., SETTLEMENT AGREEMENT
24 AND RELEASE
Defendant.
25 JUDGE: DAVID O. CARTER

26 and RELATED CASES


27
28
SETTLEMENT AGREEMENT AND
809477.3
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1 SETTLEMENT AGREEMENT AND RELEASE


2 This Settlement Agreement and Release (“Settlement Agreement”) is made
3 and entered into by and between (1) Plaintiffs, individually and as representatives
4 of the 23(b)(3) Settlement Class as defined below; (2) Equifax Information Services
5 LLC (“Equifax”); (3) Experian Information Solutions, Inc. (“Experian”); and (4)
6 TransUnion LLC (“TransUnion”). Equifax, Experian and TransUnion are
7 collectively referred to as the “Defendants.” Plaintiffs and Defendants are
8 collectively referred to herein as the “Parties.” This Settlement Agreement is
9 intended by the Parties to fully, finally, and forever resolve, discharge, and settle all
10 released rights and claims, to the extent set forth below, subject to the terms and
11 conditions set forth herein.
12 RECITALS
13 A. WHEREAS, on or about October 3, 2005, plaintiff Jose Hernandez
14 filed an action against Defendants in the United States District Court for the
15 Northern District of California, in which he asserted claims on behalf of a putative
16 nationwide class of consumers relating to each of Defendants’ procedures for
17 reporting pre-bankruptcy debts of consumers who have obtained discharges through
18 Chapter 7 bankruptcy proceedings;
19 B. WHEREAS, on or about November 2, 2005, plaintiff Terri N. White
20 filed separate actions1 against each of the Defendants in this District, in which she
21 asserted claims on behalf of a putative nationwide class of consumers relating to
22 each of Defendant’s procedures for reporting and reinvestigating pre-bankruptcy
23 debts of consumers who have obtained discharges through Chapter 7 bankruptcy
24 proceedings;
25
1
The original named plaintiffs in the action against Equifax were Terri N.
26 White, Robert Radcliffe, Chester Carter, and Milagros Gabrillo. The original
named plaintiffs in the action against Experian were Terri N. White, Robert
27 Radcliffe, Chester Carter, and Arnold E. Lovell, Jr. The original named plaintiffs
in the action against TransUnion were Terri N. White, Robert Radcliffe, Chester
28 Carter, and Maria Falcon.
SETTLEMENT AGREEMENT AND
809477.3 1 RELEASE

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1 C. WHEREAS, on or about August 11, 2006, plaintiff Jose Hernandez


2 and the White plaintiffs filed three separate Second Amended Consolidated Class
3 Action Complaints2, one against each Defendant (“Second Amended Complaints”),
4 in which they assert claims for (i) willful and/or negligent violation of Section
5 1681e(b) of the FCRA, and its CCRAA counterpart, California Civil Code Section
6 1785.14(b), for failure to maintain reasonable procedures to assure maximum
7 possible accuracy; (ii) willful and/or negligent violation of Section 1681i of the
8 FCRA and its California counterpart, Cal. Civ. Code Section 1785.16, for failure to
9 reasonably investigate consumer disputes regarding the status of the discharged
10 accounts; and (iii) violation of California’s Unfair Competition law, Bus. & Prof.
11 Code section 17200, et seq.;
12 D. WHEREAS, in or around September 2006, Defendants answered the
13 various Second Amended Complaints, denying the allegations therein, denying that
14 the actions are suitable for certification pursuant to Federal Rule of Civil Procedure
15 23, asserting affirmative defenses that Defendants contend are meritorious
16 notwithstanding their willingness to enter into this Settlement Agreement;
17 E. WHEREAS, plaintiff Jose L. Acosta, Jr., filed an action against
18 TransUnion in California Superior Court on or around May 12, 2003, and later filed
19 a new action against TransUnion in federal court on August 14, 2006 joined by
20 plaintiffs Robert Randall and Bertram Robison,3 and plaintiff Kathryn Pike filed an
21 action in California Superior Court against Equifax on or around October 14, 2005,
22 in which they also assert claims on behalf of a putative California class of
23 consumers relating to TransUnion’s or Equifax’s procedures for reporting pre-
24
25
2
26 The Second Amended Complaints added two new plaintiffs: Clifton C.
Seale, III, and Alex K. Gidi. On October 19, 2007, plaintiffs Terri N. White,
27 Alex K. Gidi, and Milagros Gabrillo were dismissed by court order.
3
Plaintiff Acosta has since been dismissed from the federal court action and
28 has dismissed his state court action.
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1 bankruptcy debts of consumers who have obtained discharges through Chapter 7


2 bankruptcy proceedings;
3 F. WHEREAS, all of these cases have been either filed, transferred, or
4 removed such that they are before the Honorable Judge David O. Carter in the
5 Central District of California under the following case numbers: Terri N. White, et
6 al. v. Experian Information Solutions, Inc., Case No. cv 05-01070 (Lead Case
7 number); Terri N. White, et al. v. Equifax Information Services LLC, Case No. cv
8 05-7821; Terri N. White, et al. v. TransUnion LLC, cv 05-1073; Jose Hernandez v.
9 Equifax Information Services, LLC, et al., Case No. cv 06-3924; Jose L. Acosta et
10 al., v. TransUnion LLC, et al., Case No. cv 06-5060; and Kathryn L. Pike v. Equifax
11 Information Services, LLC, Case No. cv 05-1172 (collectively, the “Litigation”);
12 G. WHEREAS, Plaintiffs in the various cases have undertaken substantial
13 investigation and formal discovery in the Litigation (including review of tens of
14 thousands of pages of documents, retention and consultation of numerous experts in
15 the fields of credit reporting and consumer bankruptcies, interviews with numerous
16 consumers, review of thousands of consumer credit reports, creation and review of
17 several credit scoring analyses, creation and review of several accuracy analyses,
18 and about 50 depositions in support of the prosecution of the Litigation and
19 settlement negotiations relating thereto;
20 H. WHEREAS, the Parties have vigorously litigated these matters, which
21 included four rounds of briefing concerning class certification;
22 I. WHEREAS, on or about August 15, 2007, the Court urged the Parties
23 to proceed to mediation and, since then, the Parties have conducted arms-length,
24 contentious, lengthy, and complicated negotiations (with the participation of
25 Defendants’ insurance carriers) that have included at least six in-person mediation
26 sessions with the Honorable Lourdes Baird (Ret.), four in-person mediation
27 sessions with mediator Randall Wulff, and several additional sessions involving
28 counsel for the Parties;
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1 J. WHEREAS, on or about April 3, 2008, the parties to the Litigation


2 entered into the Injunctive Relief Settlement Agreement in which Defendants
3 agreed to retroactively update the credit files of 23(b)(2) Settlement Class members
4 to reflect the discharge of certain categories of pre-bankruptcy civil judgments and
5 tradelines. Defendants also agreed to adopt new procedures for the update of
6 certain pre-bankruptcy civil judgments and tradelines when a public record entry of
7 the bankruptcy has been added to the consumer’s file. On August 19, 2008, the
8 Court approved these new procedures, found them to be reasonable under the
9 FCRA, and entered an Approval Order Regarding Settlement and Release regarding
10 the injunctive relief pursuant to the Injunctive Relief Settlement Agreement
11 (Docket No. 290, as filed in Lead Case White v. Experian, No. 05-cv-1070-DOC);
12 K. WHEREAS, on January 26, 2009, counsel for the parties to the
13 Litigation appeared for a hearing on Plaintiffs’ Motion for Class Certification and,
14 prior to the scheduled hearing, the Court issued a tentative ruling denying
15 Plaintiffs’ Motion for Class Certification pursuant to Fed. R. Civ. P. 23(b)(3) and
16 directed the Parties to make a final attempt to settle the Litigation;
17 L. WHEREAS, on January 29, 2009, counsel for the parties to the
18 Litigation, Defendants, and Defendants’ insurance carriers participated in an
19 additional mediation session before mediator Randall Wulff, but did not reach an
20 agreement;
21 M. WHEREAS, the Court ordered a further mediation with Mr. Wulff at
22 the courthouse on February 5, 2009, and counsel for the parties to the Litigation,
23 Defendants, and Defendants’ insurance carriers appeared therefore, at the
24 conclusion of which a settlement was reported to the Court as between plaintiffs
25 and Equifax and Experian without objection from any party to the Litigation or
26 their counsel, and thereafter on February 18, 2009, TransUnion reported to the
27 Court it had also reached a settlement on the same terms;
28
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1 N. WHEREAS, this Settlement Agreement was reached only after each


2 Defendant’s respective insurance carriers agreed to fund such Defendant’s required
3 payments under this Settlement Agreement, subject to such Defendant’s exhaustion
4 of any remaining self-insured retention.
5 O. WHEREAS, this Settlement Agreement was reached with the efforts
6 of mediator Randall Wulff;
7 P. WHEREAS, the Parties are willing to enter into this Settlement
8 Agreement to settle the claims of the 23(b)(3) Settlement Class because of, among
9 other reasons, the attendant expense, risks, difficulties, delays, and uncertainties of
10 continued litigation;
11 Q. WHEREAS, Plaintiffs and Proposed 23(b)(3) Settlement Class
12 Counsel believe that this Settlement Agreement provides fair, reasonable, and
13 adequate relief to the 23(b)(3) Settlement Class, and is in the best interests of the
14 23(b)(3) Settlement Class as a whole;
15 R. WHEREAS, Defendants deny all claims asserted against them in the
16 Litigation, deny that class certification would be appropriate if the cases are
17 litigated rather than settled, deny all allegations of wrongdoing and liability, and
18 deny that anyone was harmed by the conduct alleged, but nevertheless desire to
19 settle Plaintiffs’ monetary claims on the terms and conditions set forth in this
20 Settlement Agreement solely for the purpose of avoiding the burden, expense, risk
21 and uncertainty of continuing the proceedings on those issues in the Litigation, and
22 for the purpose of putting to rest the controversies engendered;
23 NOW THEREFORE, IT IS AGREED, by and among the Parties, without
24 (a) any admission or concession on the part of Plaintiffs of the lack of merit of the
25 Litigation whatsoever, or (b) any admission or concession of liability or
26 wrongdoing or the lack of merit of any defense whatsoever by Defendants, that the
27 Litigation and all claims of the 23(b)(3) Settlement Class for monetary damages be
28
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1 settled, compromised, and dismissed on the merits and with prejudice as to


2 Defendants on the terms set forth below, subject to the approval of the Court.
3 The recitals stated above are true and accurate and are hereby made a part of
4 the Settlement Agreement.
5 I. DEFINITIONS
6 As used in this Settlement Agreement, the terms defined below shall have the
7 meanings assigned to them when capitalized in the same fashion as in this Part I,
8 and any other terms that relate to the credit reporting industry shall have the
9 customary meaning accorded to those terms in the credit reporting industry.
10 1.1 “Bankruptcy Date” means the month during which—according to an
11 entry in the public records section as reflected in the applicable
12 Defendant’s computer systems—a Consumer filed a bankruptcy
13 petition that later led to a public record in the Consumer’s File of the
14 entry of a discharge order pursuant to Chapter 7 of the United States
15 Bankruptcy Code. The “Bankruptcy Date” may be reflected as the
16 “date filed” in the public records section of a Consumer’s File.
17 1.2 “Claimant” means a proposed 23(b)(3) Settlement Class Member who
18 properly registers or submits a claim pursuant to Subsection 5.1a.
19 1.3 “Closed Account” means that an account is reporting with a zero
20 balance and has a narrative or other code indicating that the account
21 was closed by a consumer or creditor in a month that predates the
22 Bankruptcy Date.
23 1.4 “Consumer” means a natural person residing in the United States of
24 America or its territories whose File in a Defendant’s computer
25 systems includes, or at any time from March 15, 2002 to the present
26 (or for residents of the State of California in the case of Defendant
27 TransUnion, from May 12, 2001 to the present) included, a public
28 record entry reporting an order of discharge pursuant to Chapter 7 of
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1 the United States Bankruptcy Code, as determined from the


2 Defendant’s current Files and/or archived files as retrieved on an
3 annual basis.
4 1.5 “Court” means the United States District Court for the Central District
5 of California.
6 1.6 “Date of Initial Delinquency” means the first month during which a
7 derogatory event is reported for a tradeline, as shown in the applicable
8 Defendant’s records. Based upon differences in reporting methods,
9 each Defendant may, at its option, use such dates as the Purge Date,
10 Date of First Delinquency or Date of Last Activity to determine the
11 Date of Initial Delinquency for purposes of compliance with this
12 Settlement Agreement.
13 1.7 “Defendants” mean Equifax, Experian, and TransUnion.
14 1.8 “Effective Date” is the date on which this Court’s entry of the Final
15 Approval Order and this Court’s orders regarding Monetary Relief
16 Fees and Injunctive Relief Fees have all become final because either (i)
17 no appeal of the Final Approval Order or the Court’s orders referenced
18 above have been filed and the time provided in the applicable rules of
19 procedure within which an appeal may be filed has lapsed, or (ii) if one
20 or more timely appeals have been filed, all such appeals are finally
21 resolved, with no possibility of further appellate review, resulting in
22 final judicial approval of this Settlement. For purposes of this
23 definition, the term “appeal” includes writ proceedings.
24 1.9 “Equifax” means Equifax Information Services LLC.
25 1.10 “Equifax’s Counsel” means Kilpatrick Stockton LLP.
26 1.11 “Experian” means Experian Information Solutions, Inc.
27 1.12 “Experian’s Counsel” means Jones Day.
28
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1 1.13 “FCRA” means the federal Fair Credit Reporting Act,


2 15 U.S.C. § 1681, et seq.
3 1.14 “FCRA State Equivalents” means any statute or regulation of any state,
4 U.S. territory, the District of Columbia, or Puerto Rico, that has the
5 purpose or effect of regulating the collection or reporting of consumer
6 credit information (including, without limitation, California’s
7 Consumer Credit Reporting Agencies Act (“CCRAA”), Civil Code
8 Sections 1785.1-1785.44, and New York’s Fair Credit Reporting Act,
9 General Business Law Section 380-380-u).
10 1.15 “Fee and Expense Award” means the attorneys’ fees and expenses
11 applied for by 23(b)(3) Settlement Class Counsel relating to this
12 Settlement Agreement and approved by the Court.
13 1.16 “File” means a “file,” as defined in 15 U.S.C. § 1681a(g), in a
14 Defendant’s computer system.
15 1.17 “Final Approval” means the approval of the Settlement Agreement by
16 the Court at or after the Final Approval Hearing, and entry on the
17 Court’s docket of the Final Approval Order.
18 1.18 “Final Approval Order” means a final order and judgment entered by
19 the Court giving Final Approval of the Settlement Agreement and
20 dismissing with prejudice Plaintiffs’ claims for monetary relief that is
21 in a form mutually agreeable to the Parties, and entering a judgment
22 according to the terms set forth in this Settlement Agreement.
23 1.19 “Final Approval Hearing” or “Final Fairness Hearing” means the
24 hearing at which the Court will consider and finally decide whether to
25 approve this Settlement, enter the Judgment, and make such other
26 rulings as are contemplated by this Settlement. The Final Approval
27 Hearing shall not be scheduled for a date less than 90 days following
28 CAFA Notice as set forth in Section 4.5.
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1 1.20 “Injunctive Relief Fee Agreement” means a separate settlement


2 agreement addressing the payment of 23(b)(2) Settlement Class
3 Counsel’s fees in connection with the Injunctive Relief Settlement.
4 1.21 “Injunctive Relief Fees” means the attorneys fees and expenses,
5 including fees for expert witnesses, incurred by 23(b)(2) Settlement
6 Class Counsel and to be awarded in connection with their efforts in
7 achieving the Injunctive Relief Settlement.
8 1.22 “Injunctive Relief Settlement” means the Settlement Agreement and
9 Release filed with the Court in this action on April 3, 2008, pursuant to
10 which on August 19, 2008, the Court entered an Approval Order
11 Regarding Settlement Agreement and Release (Docket No. 290, as
12 filed in Lead Case White v. Experian, No. 05-cv-1070-DOC).
13 1.23 “Mail Notice” means the notice (in a form substantially similar to that
14 attached hereto as Exhibit A and approved by the Court) that will be
15 mailed to proposed 23(b)(3) Settlement Class Members pursuant to the
16 Notice Plan.
17 1.24 “Monetary Relief Fees” means the attorneys’ fees and expenses,
18 including fees for expert witnesses, incurred by Proposed 23(b)(3)
19 Settlement Class Counsel in prosecuting and settling the Litigation, but
20 excluding the Injunctive Relief Fees, as defined in Section 1.24.
21 1.25 “Named Plaintiffs” or “Plaintiffs” means the settling plaintiffs,
22 specifically, Jose Hernandez, Robert Randall, Bertram Robison, and
23 Kathryn Pike.
24 1.26 “Notice Plan” means the plan for disseminating notice to 23(b)(3)
25 Settlement Class Members as described in Section 4.3 hereof.
26 1.27 “Parties” means Plaintiffs, Equifax, Experian, and TransUnion.
27
28
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1 1.28 “Post-bankruptcy Credit Report” means a credit report, as defined in


2 15 U.S.C. § 1681a(d), that is issued by a Defendant in or after the
3 Bankruptcy Date.
4 1.29 “Post-bankruptcy Employment Inquiry” means an entry in a
5 Consumer’s File that contains a record of a Defendant’s publication of
6 the Consumer’s Post-bankruptcy Credit Report to a subscriber who has
7 certified an employment eligibility purpose and/or caused the
8 Defendant to mail to the consumer a notice made pursuant to 15 U.S.C.
9 §1681k.
10 1.30 “Post-bankruptcy Hard Inquiry” means an entry in a Consumer’s File
11 that contains a record of a Defendant’s publication of the Consumer’s
12 Post-bankruptcy Credit Report to a lender or other prospective creditor
13 for purposes of evaluating a loan or other credit application that was
14 initiated by the Consumer.
15 1.31 “Pre-bankruptcy Civil Judgment” means a public record judgment that
16 a Defendant reported in a Consumer’s File with either a month filed or
17 a month of judgment (or both) that predates or is equal to the
18 Bankruptcy Date in such File.
19 1.32 “Pre-bankruptcy Collection Account” means an account identified by a
20 Defendant as reflecting the collection activity of a third party
21 collection agency or debt buyer on behalf of the original creditor that is
22 reported with a Date of Initial Delinquency, a date referred to
23 collection, or an date opened month that predates or is equal to the
24 Bankruptcy Date.
25 1.33 “Pre-bankruptcy Installment or Mortgage Loan” means an installment
26 or mortgage loan that a Defendant reported in a Consumer’s File with a
27 date opened month that predates or is equal to the Bankruptcy Date in
28 such File.
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1 1.34 “Pre-bankruptcy Revolving Account” means a revolving account, open


2 account, or line of credit that a Defendant reported in a Consumer’s
3 File with a date opened month that predates or is equal to the
4 Bankruptcy Date in such File.
5 1.35 “Preliminary Approval” means the preliminary approval of the
6 Settlement Agreement by the Court, conditional certification of the
7 23(b)(3) Settlement Class, and approval of the method and content of
8 notice to the 23(b)(3) Settlement Class.
9 1.36 “Proposed 23(b)(3) Settlement Class Counsel” or “23(b)(3) Settlement
10 Class Counsel” means Leonard A. Bennett, Esq., Consumer Litigation
11 Associates, P.C.; Mitchell A. Toups, Esq., Weller, Green, Toups &
12 Terrell, L.L.P.; Michael Caddell, Esq., Caddell & Chapman; Michael
13 W. Sobol, Esq., Lieff Cabraser Heimann & Bernstein; Charles
14 Delbaum and Stuart T. Rossman, National Consumer Law Center; and
15 Lee A. Sherman, Esq., Callahan, McCune & Willis, APLC.
16 1.37 “Publication Notice” means the notice (in a form substantially similar
17 to that attached hereto as Exhibit B and approved by the Court) to the
18 proposed 23(b)(3) Settlement Class under the Notice Plan that will be
19 published.
20 1.38 “Released Claims” means and includes any and all duties, obligations,
21 demands, claims, actions, causes of action, suits, damages, rights or
22 liabilities of any nature and description whatsoever, whether arising
23 under local, state or federal law, whether by Constitution, statute
24 (including, but not limited to, the FCRA and FCRA State Equivalents),
25 tort, contract, common law or equity or otherwise, whether known or
26 unknown, concealed or hidden, suspected or unsuspected, anticipated
27 or unanticipated, asserted or unasserted, foreseen or unforeseen, actual
28 or contingent, liquidated or unliquidated, fixed or contingent, that have
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1 been or could have been asserted in the Litigation based upon the
2 Defendants’ furnishing of consumer reports that contained or were
3 alleged to contain false or misleading reporting of debts, accounts,
4 judgments, or public records, or other obligations, that had been
5 discharged in bankruptcy or their alleged failure to have properly
6 reinvestigated such inaccuracies, by Plaintiffs or the 23(b)(3)
7 Settlement Class Members or any of their respective heirs, spouses,
8 executors, administrators, partners, attorneys, predecessors, successors,
9 assigns, agents and/or representatives, and/or anyone acting or
10 purporting to act on their behalf. Released Claims include, but are not
11 limited to, all claimed or unclaimed compensatory damages, damages
12 for emotional distress, statutory damages, consequential damages,
13 incidental damages, treble damages, punitive and exemplary damages,
14 as well as all claims for equitable, declaratory or injunctive relief under
15 any federal or state statute or common law or other theory that was
16 alleged or could have been alleged based on the facts forming the basis
17 for the Litigation, including but not limited to any and all claims under
18 deceptive or unfair practices statutes, or any other statute, regulation or
19 judicial interpretation. Released Claims further include interest, costs
20 and fees arising out of any of the claims asserted or that could have
21 been asserted in the Litigation. Notwithstanding the foregoing,
22 nothing in this Settlement Agreement shall be deemed a release of the
23 Parties’ respective rights and obligations under this Settlement
24 Agreement.
25 1.39 “Released Parties” means and refers to: (a) Equifax and its present,
26 former and future officers, directors, partners, employees, agents,
27 attorneys, servants, heirs, administrators, executors, members, member
28 entities, shareholders, predecessors, successors, affiliates (including,
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1 without limitation, CSC Credit Services, Inc.), subsidiaries, parents,


2 representatives, trustees, principals, insurers, vendors and assigns,
3 individually, jointly and severally; (b) Experian and its present, former
4 and future officers, directors, partners, employees, agents, attorneys,
5 servants, heirs, administrators, executors, members, member entities,
6 shareholders, predecessors, successors, affiliates, subsidiaries, parents,
7 representatives, trustees, principals, insurers, vendors and assigns,
8 individually, jointly and severally; and (c) TransUnion and its present,
9 former and future officers, directors, partners, employees, agents,
10 attorneys, servants, heirs, administrators, executors, members, member
11 entities, shareholders, predecessors, successors, affiliates, subsidiaries,
12 parents, representatives, trustees, principals, insurers, vendors and
13 assigns, individually, jointly and severally.
14 1.40 “Settlement” means the agreement between Plaintiffs, on behalf of
15 themselves and as proposed representatives of the 23(b)(3) Settlement
16 Class, and Equifax, Experian, and TransUnion, to settle and
17 compromise all of Plaintiffs’ and the 23(b)(3) Settlement Class’ claims
18 in the Litigation for monetary damages, including without limitation
19 statutory and punitive damages (and all issues relating thereto), fully,
20 finally and forever, as memorialized in this Settlement Agreement and
21 the accompanying documents attached hereto.
22 1.41 “Settlement Administrator” shall mean the administrator for the
23 Settlement Agreement that Proposed 23(b)(3) Settlement Class
24 Counsel will identify and propose as described in Section 3.2.
25 1.42 “Settlement Agreement” means this Settlement Agreement and
26 Release.
27 1.43 “Settlement Fund” means the amount paid pursuant to Section 7.1
28 herein.
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1 1.44 “Settlement Web site” means the Internet Web site established by the
2 Settlement Administrator for purposes of facilitating notice to, and
3 communicating with, the 23(b)(3) Settlement Class.
4 1.45 “TransUnion” means TransUnion LLC.
5 1.46 “TransUnion’s Counsel” means Stroock & Stroock & Lavan LLP.
6 1.47 “23(b)(2) Settlement Class” means the same as defined in Section 2.32
7 in the Approval Order Regarding Settlement Agreement and Release
8 entered by the Court in the Litigation on August 19, 2008.
9 1.48 “23(b)(3) Settlement Class” or “23(b)(3) Settlement Class Member”
10 shall mean and refer to all Consumers who have received an order of
11 discharge pursuant to Chapter 7 of the United States Bankruptcy Code
12 and who, any time between and including March 15, 2002 and the
13 present (or, for California residents in the case of TransUnion, any
14 time between and including May 12, 2001 and the present), have been
15 the subject of a Post-bankruptcy Credit Report issued by a Defendant
16 in which one or more of the following appeared:
17 a. A Pre-bankruptcy Civil Judgment that was reported as
18 outstanding (i.e., it was not reported as vacated, satisfied, paid,
19 settled or discharged in bankruptcy) and without information
20 sufficient to establish that it was, in fact, excluded from the
21 bankruptcy discharge;
22 b. A Pre-bankruptcy Installment or Mortgage Loan that was
23 reported as delinquent or with a derogatory notation (other than
24 “discharged in bankruptcy,” “included in bankruptcy” or similar
25 description) and without information sufficient to establish that
26 it was, in fact, excluded from the bankruptcy discharge;
27 c. A Pre-bankruptcy Revolving Account that was reported as
28 delinquent or with a derogatory notation (other than “discharged
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1 in bankruptcy,” “included in bankruptcy” or similar description)


2 and without information sufficient to establish that it was, in
3 fact, excluded from the bankruptcy discharge; and/or
4 d. A Pre-bankruptcy Collection Account that remained in
5 collection after the Bankruptcy Date.
6 Provided, however, that “23(b)(3) Settlement Class” and “23(b)(3)
7 Settlement Class Member” shall exclude: (i) all persons who timely
8 and validly request exclusion from the Class; (ii) all Consumers who
9 would qualify for membership in the “23(b)(3) Settlement Class”
10 based solely on a Post-bankruptcy Credit Report for which the
11 Consumer has released all claims as to the issuing Defendant; (iii)
12 Defendants’ officers, directors, and employees; (iv) Defendants’
13 attorneys; (v) Plaintiffs’ attorneys; and (vi) Judge David O. Carter and
14 the members of his immediate family.
15 II. NO ADMISSION OF LIABILITY OR ELEMENTS OF CLASS
16 CERTIFICATION
17 2.1 Defendants’ Denial Of Wrongdoing Or Liability
18 Defendants have asserted and continue to assert many defenses to this
19 Litigation and have expressly denied and continue to deny any fault, wrongdoing or
20 liability whatsoever arising out of the conduct alleged in the Litigation. Defendants
21 expressly deny any fault, wrongdoing or liability whatsoever, as well as the validity
22 of each of the claims and prayers for relief asserted in the Litigation. The Parties
23 expressly acknowledge and agree that neither the fact of, nor any provision
24 contained in, this Settlement Agreement nor any of the implementing documents or
25 actions taken under them, shall constitute or be construed as any admission of the
26 validity of any claim, any status, or any fact alleged in the Litigation or any fault,
27 wrongdoing, violation of law, or liability of any kind on the part of Defendants, or
28 any admission by Defendants of any claim or allegation made in any action or
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1 proceeding against Defendants. Defendants have denied and continue to deny each
2 and all of the claims and allegations in the Litigation. Neither this Settlement
3 Agreement nor any document referred to herein, nor any action taken to carry out
4 this Settlement Agreement and/or the Settlement, or their willingness to enter into
5 this Settlement Agreement, nor any or all negotiations, communications, and
6 discussions associated with them are, or may be construed as, or may be used in
7 any proceeding as, an admission by or against any or all Defendants of any fault,
8 wrongdoing or liability whatsoever, or any infirmity of any defenses asserted by
9 any or all Defendants
10 2.2 No Admission by Defendants of Elements of Class Certification
11 Defendants deny that a class should be certified other than for purposes of
12 this Settlement and reserve their rights to contest any litigation class motion.
13 Defendants contend that this Litigation could not be certified as a class action under
14 Federal Rule of Civil Procedure 23(b)(3) and, indeed, this Court has issued a
15 written tentative ruling denying certification of a litigation class that had been
16 proposed by Plaintiffs. Nothing in this Settlement Agreement shall be construed as
17 an admission by any Defendant that this Litigation or any similar case is amenable
18 to class certification for trial purposes. Furthermore, nothing in this Settlement
19 Agreement shall prevent any Defendant from opposing class certification or
20 seeking de-certification of the conditionally certified 23(b)(3) Settlement Class if
21 Final Approval of this Settlement is not obtained, or not upheld on appeal,
22 including review by the United States Supreme Court.
23 III. MOTION FOR PRELIMINARY APPROVAL
24 3.1 On or before April 24, 2009, Proposed 23(b)(3) Settlement Class
25 Counsel shall file this Settlement Agreement with the Court together
26 with a motion for Preliminary Approval that seeks entry of an order
27 that would, for settlement purposes only:
28
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1 a. certify a conditional settlement class under Federal Rule of Civil


2 Procedure 23 composed of the 23(b)(3) Settlement Class
3 Members as described in Section 1.49,
4 b. preliminarily approve the proposed Settlement Agreement,
5 c. approve the proposed Notices to the 23(b)(3) Settlement Class in
6 forms substantially similar to those attached hereto as Exhibits
7 A-C,
8 d. appoint 23(b)(3) Settlement Class Counsel, and
9 e. appoint the Settlement Administrator.
10 3.2 Three (3) business days before the hearing for Preliminary Approval
11 Proposed 23(b)(3) Settlement Class Counsel shall identify and propose
12 to Defendants a Settlement Administrator.
13 IV. NOTICE PLAN
14 4.1 Preparation and Production of List of Identified Class Members from
15 Defendants’ Archive Files
16 a. On or before July 31, 2009, each Defendant shall provide the
17 Settlement Administrator with a list of identified 23(b)(3)
18 Settlement Class Members prepared pursuant to the procedures
19 set forth in this Section in an electronically accessible format.
20 In generating these lists, each Defendant shall use commercially
21 reasonable procedures to search a selection of their archive files
22 to identify each Consumer who, based on the information
23 appearing in those archive files, appears to satisfy all of the
24 following conditions:
25 (i) The Consumer was the subject of a credit report issued by
26 such Defendant after the Chapter 7 discharge and on or
27 after March 15, 2002 (or, for California residents in the
28 case of TransUnion, after May 12, 2001); and
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1 (ii) The Consumer has at least one tradeline in one of the


2 following categories:
3 (A) A Pre-bankruptcy Civil Judgment that does not
4 appear with an indicator that it was vacated, satisfied,
5 paid, settled, included in bankruptcy, or any of the
6 following: (1) a judgment obtained by a governmental
7 child support agency or taxing authority; or (2) a tax lien,
8 whether or not reduced to judgment;
9 (B) A Pre-bankruptcy Installment or Mortgage Loan
10 that does not appear with an account status reflecting a
11 Chapter 7 bankruptcy and that does not appear with a
12 Metro 2 account code type (or such other Defendant-
13 specific or Metro 1 coding equivalent) of 12 (Education),
14 50 (Family Support), 65, 66, 67, 68, 69, 70, 71
15 (Government Fine), 72, 73, 74, 75, 93 (Child Support), 94
16 (Spouse Support per Metro 1) or 95 (Attorney Fees); an
17 indication that the property was voluntarily surrendered or
18 was subject to a deed in lieu of foreclosure; or an
19 indication that the account is a Closed Account;
20 (C) A Pre-bankruptcy Revolving Account that does not
21 appear with an account status reflecting a Chapter 7
22 bankruptcy and that does not appear with an indicator that
23 it was reported with a Metro 2 account code type (or such
24 other Defendant-specific or Metro 1 coding equivalent) of
25 12 (Education), 50 (Family Support), 65, 66, 67, 68, 69,
26 70, 71 (Government Fine), 72, 73, 74, 75, 93 (Child
27 Support), 94 (Spouse Support per Metro 1) or 95
28 (Attorney Fees); a code indicating that the Consumer was
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1 an “authorized user” on the account; or an indication that


2 the account is a Closed Account; or
3 (D) A Pre-bankruptcy Collection Account that does not
4 appear with an account status reflecting a Chapter 7
5 bankruptcy and that does not appear with a Metro 2
6 account code type (or such other Defendant-specific or
7 Metro 1 coding equivalent) of 12 (Education), 50 (Family
8 Support), 65, 66, 67, 68, 69, 70, 71 (Government Fine),
9 72, 73, 74, 75, 93 (Child Support), 94 (Spouse Support
10 per Metro 1) or 95 (Attorney Fees) or an indication that
11 the account is a Closed Account.
12 b. The Parties agree that, in conducting the searches contemplated
13 under Subsection 4.1a, it shall be sufficient for each Defendant
14 to search only both of the following:
15 (i) an archive file created in the month immediately preceding
16 the month each Defendant implemented Section 4.1 of the
17 Injunctive Relief Settlement; and
18 (ii) one (1) set of its archive files for each twelve-month period
19 between March 15, 2002 through September 31, 2008,
20 with such searches to be conducted on a staggered
21 schedule under which Experian will search its archive files
22 for the month of June, Equifax will search its archive files
23 for October, and TransUnion will search its archive files
24 for February. It is not a violation of this provision if a
25 Defendant, due to a legitimate business need, uses
26 archives from the month immediately preceding or
27 immediately following the above-identified months.
28
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1 c. Each Defendant shall use commercially reasonable methods to


2 remove from its list of identified class members any repetitious
3 or duplicative listing of any particular Consumer. No Defendant
4 shall be required to make any attempt whatsoever to determine
5 whether any particular Consumer who appears on its list also
6 appears on any other Defendant’s list. Nor shall Defendants
7 have any obligation to merge Defendants’ respective lists into a
8 single, combined list of identified class members.
9 d. On or before July 31, 2009, each Defendant shall forward to the
10 Settlement Administrator a list of Consumers who have been
11 identified using the procedures described in this Section,
12 excluding any Consumers who have released any claims against
13 that Defendant as a result of prior litigation or otherwise. With
14 respect to each Consumer, the list shall include the following
15 information:
16 (i) the Consumer’s name, last known address (to the extent
17 such information is reasonably available in that
18 Defendant’s current database), social security number, and
19 date of birth;
20 (ii) The date of the Consumer’s Chapter 7 discharge order as
21 reflected in the public records section of the Consumer’s
22 File;
23 (iii) Whether or not (i.e., “yes” or “no”) — with respect to each
24 annual archive that the Defendant reviews pursuant to
25 Subsections 4.1a, b — a Post-bankruptcy Hard Inquiry
26 appears on the Consumer’s File, and the date of the
27 archival period in which it so appears, together with any of
28 the following:
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1 (A) A Pre-bankruptcy Civil Judgment that satisfies the


2 criteria set forth in Subsection 4.1a(ii)(A);
3 (B) A Pre-bankruptcy Installment or Mortgage Loan
4 that satisfies the criteria set forth in Subsection
5 4.1a(ii)(B);
6 (C) A Pre-bankruptcy Revolving Account that satisfies
7 the criteria set forth in Subsection 4.1a(ii)(C); or
8 (D) A Pre-bankruptcy Collection Account that satisfies
9 the criteria set forth in Subsection 4.1a(ii)(D).
10 (iv) Whether or not (i.e., “yes” or “no”) — with respect to the
11 most recent archive file that the Defendant created prior to
12 that Defendant’s implementation of the Retroactive Scrub
13 pursuant to Subsection 3.1 of the Approval Order
14 Regarding Settlement Agreement and Release entered on
15 August 19, 2008 — a Post-bankruptcy Hard Inquiry
16 appears in that archive, and the date or the month of the
17 date such Post-bankruptcy Hard Inquiry so appeared,
18 together with any of the following:
19 (A) A Pre-bankruptcy Civil Judgment that satisfies the
20 criteria set forth in Subsection 4.1a(ii)(A);
21 (B) A Pre-bankruptcy Installment or Mortgage Loan
22 that satisfies the criteria set forth in Subsection
23 4.1a(ii)(B);
24 (C) A Pre-bankruptcy Revolving Account that satisfies
25 the criteria set forth in Subsection 4.1a(ii)(C); or
26 (D) A Pre-bankruptcy Collection Account that satisfies
27 the criteria set forth in Subsection 4.1a(ii)(D).
28
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1 (v) Whether or not (i.e., “yes” or “no”) — with respect to


2 inquiries made within 2 years of the date that each
3 respective Defendant performs the searches pursuant to
4 Subsections 4.1a, b — a Post-bankruptcy Employment
5 Inquiry appears on the Consumer’s File.
6 4.2 Preparation of a Combined List of Identified 23(b)(3) Settlement Class
7 Members
8 The Settlement Administrator shall merge Defendants’ respective lists as
9 described above in Subsection 4.1c into a single, combined list of identified 23(b)(3)
10 Settlement Class Members (the “Class List”). The Settlement Administrator will
11 use commercially reasonable measures to remove any duplication of Consumers
12 appearing on more than one Defendants’ list and to resolve any conflicts relating to
13 a Consumer’s address by using the National Change of Address process as licensed
14 by the U.S. Postal Service.
15 4.3 Notice to Proposed 23(b)(3) Settlement Class by the Settlement
16 Administrator
17 a. For purposes of providing Court-approved class notices and
18 establishing that the best practicable notice has been given, the
19 provision of class notice will be accomplished in accordance
20 with the provisions of this Section 4.3.
21 b. Mail Notice: On or before August 31, 2009, the Settlement
22 Administrator shall cause the Mail Notice (in a form
23 substantially similar to that attached hereto as Exhibit A) to be
24 sent via U.S. mail, postage prepaid requesting either forwarding
25 service or change service to each Settlement Class Member
26 identified on the Class List. The Mail Notice shall be sent to the
27 last known address reflected in the Class List. For up to forty-
28 five days (45) days following the mailing of the Mail Notice, the
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1 Settlement Administrator will re-mail the Mail Notice via


2 standard U.S. Mail, postage prepaid, to updated addresses of
3 23(b)(3) Settlement Class Members to the extent that it received
4 address change notifications from the U.S. Postal Service. Not
5 later than seven (7) days before the Final Fairness hearing, the
6 Settlement Administrator shall cause proof of the mailing of the
7 Mail Notice to be filed with the Court. Neither the Parties nor
8 the Settlement Administrator shall have any further obligation to
9 send notice of the Settlement to 23(b)(3) Settlement Class
10 Members.
11 c. Internet Notice: The Settlement Administrator shall establish an
12 internet web site containing information about the Settlement.
13 The Settlement Website will be accessible no later than five (5)
14 days prior to the mailing of the Mail Notice described above.
15 The Settlement Website will set forth the following information:
16 (i) the full text of the Settlement Agreement; (ii) a Long-Form
17 Notice (in a form substantially similar to that attached hereto as
18 Exhibit C and approved by the Court); (iii) the Preliminary
19 Approval Order and other relevant orders of the Court; and (iv)
20 contact information for 23(b)(3) Settlement Class Counsel and
21 the Settlement Administrator. Nationwide access to the
22 Settlement Website will be ensured via the following methods:
23 (i) the Settlement Website will be registered with Google so that
24 appropriate queries on Google will yield a link to the Settlement
25 Website; and (ii) the Mail Notice and Publication Notice will
26 reference the Settlement Website. Not later than seven (7) days
27 before the Final Fairness hearing, the Settlement Administrator
28
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1 shall cause proof of the establishment and maintenance of the


2 Settlement Website to be filed with the Court.
3 d. The Mail Notice shall include a tear-away, postage pre-paid,
4 pre-addressed (to the Settlement Claims Administrator) Claim
5 Form, and shall bear a stamped claim number unique for each
6 recipient which shall state that each 23(b)(3) Settlement Class
7 Member must return the Claim Form to be eligible for benefits
8 available under the Settlement and shall provide “check box”
9 options for the 23(b)(3) Settlement Class Member to make his or
10 her election, in substantially the following form:
11
BANKRUPTCY CREDIT REPORTING CLASS ACTION CLAIM FORM
12
In order to obtain an award from the Settlement, you must select ONE AND
13 ONLY ONE of the options below and return this Claim Form by U.S. mail,
postmarked on or before October 15, 2009.
14
 Option 1: I cannot make the certification required for Option 2, but I wish to
15 receive a Convenience Award which is estimated to be about $20, depending on
how many people choose this Option. I believe that there have been one or more
16 errors in my credit reports regarding debt discharged in bankruptcy.
17  Option 2: I hereby CERTIFY that I believe I have been damaged by an error in
my credit reports regarding debt discharged in bankruptcy with respect to one or
18 more of the following transactions (check as many as apply) and wish to receive an
Actual Damage Award, which is estimated to range from $150 to $750, depending
19 on the transaction involved and on how many people choose this option.
20 Month/Year
 A denial of employment I applied for
21  A mortgage loan or housing rental I sought
 A credit card, auto loan or other credit applied for
22
IMPORTANT: you must provide an approximate date (month and year) of the
23 transaction so that your claim can be verified. If you do not do so, your claim will
be rejected.
24
NOTE: if you do not choose either of these options or you do not return this form
25 postmarked by October 15, 2009, you will get nothing from the Settlement and—
unless you exercise your right to opt-out of the settlement as detailed in the
26 accompanying Class Notice—you will lose your right to damages based on the
practices that are the subject of the Settlement.
27
I hereby affirm that the foregoing is true and correct to the best of my knowledge.
28
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1
[Signature]
2
e. Publication Notice: Between August 31, 2009 and September
3
30, 2009, the Settlement Administrator shall cause the
4
Publication Notice (in a form substantially similar to that
5
attached hereto as Exhibit B and approved by the Court) to be
6
published one time in a nationally distributed newspaper or
7
magazine. Not later than seven (7) days before the Final
8
Fairness hearing, the Settlement Administrator shall cause proof
9
of the publication of the Publication Notice to be filed with the
10
Court.
11
f. Telephone Assistance Program: The Settlement Administrator
12
will establish a toll-free telephone number, which will be staffed
13
by the Settlement Administrator, to answer questions from
14
23(b)(3) Settlement Class Members. The toll-free number will
15
provide access to live support, a voice response unit (“VRU”) or
16
a combination of live support and VRU. Not later than seven
17
(7) days before the Final Fairness hearing, the Settlement
18
Administrator will cause proof of the establishment and
19
maintenance of the Telephone Assistance Program to be filed
20
with the Court.
21
4.4 Expenses of Notice and Administration
22
a. All notice, claims and other administration costs, excluding the
23
costs associated with CAFA Notice as described in Section 4.5,
24
shall be invoiced by the Settlement Administrator and paid
25
promptly from the Settlement Fund.
26
b. Within thirty (30) days after the Effective Date, the Settlement
27
Administrator will provide to the 23(b)(3) Settlement Class
28
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1 Counsel and Defendants a detailed statement of the costs that


2 will be incurred in generating and disbursing checks to
3 Claimants. Within sixty (60) days of the Effective Date and
4 subject to Defendants’ and 23(b)(3) Settlement Class Counsel’s
5 approval, the Settlement Administrator shall retain this amount
6 from the Settlement Fund to pay for such costs. Any disputes
7 relating to this Subsection shall be brought to the Court for
8 resolution.
9 c. The total expenses associated with notice, claims, and
10 administration shall not increase the amount paid by Defendants
11 as part of the Settlement under any circumstances. All payments
12 shall come from the Settlement Fund.
13 4.5 Notice Under Class Action Fairness Act of 2005 (“CAFA Notice”)
14 Defendants will send CAFA Notice to the appropriate federal and state
15 officials identified in 28 U.S.C. § 1715(a), not later than ten (10) days after this
16 Settlement Agreement is filed with the Court. Defendants shall bear equal shares of
17 the costs of this CAFA Notice.
18 V. PROCEDURES FOR SUBMISSION OF CLAIMS, OPT-OUTS, AND
19 OBJECTIONS
20 5.1 Claims Administration
21 a. Claims Procedure
22 23(b)(3) Settlement Class Members may submit claims by no later than
23 October 15, 2009, by either (1) registering for a claim on the Settlement Website; or
24 (2) returning via U.S. mail the registration form that was attached to the Mail
25 Notice to the Settlement Administrator provided they do not opt-out. Such
26 registration shall be permitted commencing on the first day on which notice is
27 disseminated and concluding on October 15, 2009. The electronic registration form
28 shall be simplified, requiring only the 23(b)(3) Settlement Class Member’s name,
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1 current postal address, current telephone number, and last four digits of the class
2 member’s Social Security number. The 23(b)(3) Settlement Class shall also be
3 required to select one of the monetary relief options identified in the Mail Notice.
4 Registrations submitted by U.S. mail shall contain the same information contained
5 in the electronic registration form and the 23(b)(3) Settlement Class Member’s
6 signature and shall be mailed to a separate, dedicated post office box established by
7 the Settlement Administrator exclusively for the purpose of receiving such
8 registrations as provided herein.
9 b. Deceased Claimants
10 Claims may be filed by deceased Claimants through representatives of their
11 estate if appropriate documentation is provided. Any claims paid to a deceased
12 Claimant shall be made payable to the estate of the deceased Claimant.
13 c. Determining Adequacy of Claims
14 Registration forms, whether submitted electronically via the Settlement
15 Website or by U.S. Mail, that do not meet the requirements as set forth in this
16 Settlement Agreement and in the registration form instructions shall be rejected.
17 This shall include but is not limited to any failure to provide accurate information,
18 any failure to make the required representations and attestations concerning
19 membership in the 23(b)(3) Settlement Class, and any failure to sign a registration
20 form submitted by U.S. Mail.
21 The Settlement Administrator shall have the authority to determine whether
22 registration by any 23(b)(3) Settlement Class Member is complete and timely. The
23 Settlement Administrator’s determinations in this regard shall be final and non-
24 appealable. Any 23(b)(3) Settlement Class Member whose claim is rejected shall
25 be barred from receiving any payment from the Settlement Fund, but shall in all
26 other respects be bound by the terms of this Settlement Agreement and by the Final
27 Approval Order entered in the Litigation, unless such 23(b)(3) Settlement Class
28 Member has submitted a timely request to opt out pursuant to Subsection 5.2a.
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1 The Settlement Administrator shall notify, in a timely fashion, any claimant


2 whose claim form has been rejected, setting forth the reasons therefor. The
3 Settlement Administrator shall timely provide copies of all rejection notices to
4 Proposed 23(b)(3) Settlement Class Counsel and to Defendants.
5 d. No Liability for Determinations Relating to Adequacy of Claims
6 No person shall have any claim against Defendants, Plaintiffs, the 23(b)(3)
7 Settlement Class, 23(b)(3) Settlement Class Counsel, Defendants’ Counsel, or the
8 Settlement Administrator based on any eligibility determinations made in
9 accordance with this Settlement Agreement.
10 e. Confidentiality
11 The Settlement Administrator (and any person retained by the Settlement
12 Administrator) shall sign a confidentiality agreement in a form agreed to by
13 Defendants’ counsel and Proposed 23(b)(3) Settlement Class Counsel. The
14 confidentiality agreement will provide that the Settlement Administrator shall treat
15 as confidential the names, addresses and other identifying information concerning
16 23(b)(3) Settlement Class Members. The confidentiality agreement will further
17 provide that the Settlement Administrator shall use such information only for
18 purposes of fulfilling its duties and responsibility as provided for under this
19 Settlement Agreement.
20 5.2 Opt-Out
21 a. Opt-Out Procedure for Proposed 23(b)(3) Class Settlement Class
22 Member
23 A proposed 23(b)(3) Settlement Class Member may request to be excluded
24 from the 23(b)(3) Settlement Class by sending a written request for exclusion to
25 “Exclusion Requests - White Settlement Administrator.” The 23(b)(3) Settlement
26 Class Member’s opt-out request must contain the class member’s original signature,
27 current postal address and telephone number, and the last four digits of the class
28 member’s Social Security number, and a specific statement that the proposed
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1 23(b)(3) Settlement Class Member wants to be excluded from the 23(b)(3)


2 Settlement Class. Opt-outs must be postmarked no later than October 15, 2009. In
3 no event shall persons who purport to opt out of the 23(b)(3) Settlement Class as a
4 group, aggregate, or class involving more than one claimant be considered valid
5 opt-outs. Requests for exclusion that do not comply with any of the foregoing
6 requirements are invalid.
7 b. List of Opt Outs
8 No later than seven (7) business days after the deadline for submission of
9 requests for exclusion or opt-out, the Settlement Administrator shall provide to
10 Proposed 23(b)(3) Settlement Class Counsel and Defendants a complete list of all
11 persons who have properly opted-out of the Settlement together with copies of the
12 opt-out requests.
13 5.3 Objections from Proposed 23(b)(3) Settlement Class Members
14 a. Any proposed 23(b)(3) Settlement Class Member who does not
15 opt out, but who instead wishes to object to the Settlement or
16 any other matters as described in the Notice s, may do so by
17 filing with the Court a notice of their intention to object (which
18 shall set forth each objection and the basis therefore and
19 containing the objecting 23(b)(3) Class Member’s signed
20 verification of membership in the Settlement Class), with any
21 papers in support of their position, and serve copies of all such
22 papers upon 23(b)(3) Class Counsel and Defendants’ Counsel.
23 Objections must be filed and served no later than October 15,
24 2009. Finally, the written objection must indicate whether the
25 class member and/or his lawyer(s) intends to appear at the Final
26 Fairness Hearing. Any lawyer who intends to appear at the
27 Final Fairness Hearing must enter a written Notice of
28 Appearance of Counsel with the Clerk of the Court no later than
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1 the date set by the Court in its order preliminarily approving this
2 Settlement Agreement.
3 b. All responses to Objections submitted pursuant to Section 5.3a
4 shall be filed by October 30, 2009.
5 VI. FINAL FAIRNESS HEARING AND FINAL APPROVAL
6 6.1 Final Fairness Hearing
7 The Court will hold the Final Fairness Hearing to consider approval of the
8 Settlement of the Litigation as provided for herein on November 9, 2009. On or
9 before October 19, 2009, Proposed 23(b)(3) Settlement Class Counsel shall file a
10 motion for entry of the Final Approval Order. The Parties agree that the Final
11 Approval Order constitutes a dismissal of this Litigation with prejudice.
12 6.2 Final Approval
13 All of the affirmative relief contemplated by this Settlement Agreement is
14 expressly contingent upon the Settlement Agreement receiving the Court’s Final
15 Approval.
16 VII. SETTLEMENT FUND
17 7.1 Creation of and Deposit Into Settlement Fund
18 a. Within ten (10) days following Preliminary Approval, if by that
19 date the Injunctive Relief Fee Agreement has been signed by the
20 Parties to this Agreement, the Parties will petition the Court for
21 approval to deposit the Settlement Fund with the Registry of the
22 Court, pursuant to Fed. R. Civ. P. 67. By the later of (1) seven
23 (7) days thereafter or (2), June 15, 2009, each Defendant shall
24 cause to be deposited into the Registry of the Court an amount
25 equal to fifteen million dollars ($15,000,000.00). The
26 Defendants’ payments are several, and not joint.
27 b. Until such time as the Settlement Fund shall be used or
28 disbursed as provided in this Settlement Agreement and as
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1 approved by the Court, the Settlement Fund shall be held in the


2 Registry of the Court and invested in accordance with 28 U.S.C.
3 § 2041.
4 7.2 Settlement Fund Tax Status
5 a. The Parties agree to treat the Settlement Fund as being at all
6 times a “qualified settlement fund” within the meaning of Treas.
7 Reg. § 1.468B-1. In addition, the Settlement Administrator shall
8 timely make such elections as necessary or advisable to carry
9 out the provisions of this Subsection, including the “relation-
10 back election” (as defined in Treas. Reg. § 1.468B-1) back to
11 the earliest permitted date. Such elections shall be made in
12 compliance with the procedures and requirements contained in
13 such regulations. It shall be the responsibility of the Settlement
14 Administrator to timely and properly prepare and deliver the
15 necessary documentation for signature by all necessary parties,
16 and thereafter to cause the appropriate filing to occur.
17 b. For the purpose of Treasury Regulation § 1.468B of the Internal
18 Revenue Code of 1986, as amended, and the regulations
19 promulgated thereunder, the “administrator” shall be the
20 Settlement Administrator. The Settlement Administrator shall
21 timely and properly file all informational and other tax returns
22 necessary or advisable with respect to the Settlement Fund
23 (including, without limitation, the returns described in Treas.
24 Reg. § 1.468B-2(k)). Such returns (as well as the election
25 described in Subsection 7.2a above) shall be consistent with this
26 Subsection and in all events shall reflect that all Taxes
27 (including any estimated Taxes, interest or penalties) on the
28
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1 income earned by the Settlement Fund shall be paid out of the


2 Settlement Fund as provided in Subsection 7.2c hereof.
3 c. All (a) Taxes (including any estimated Taxes, interest or
4 penalties) arising with respect to the income earned by the
5 Settlement Fund, including any Taxes or tax detriments that may
6 be imposed upon the Released Parties with respect to any
7 income earned by the Settlement Fund for any period during
8 which the Settlement Fund does not qualify as a “qualified
9 settlement fund” for federal or state income tax purposes
10 (“Taxes”), and (b) expenses and costs incurred in connection
11 with the operation and implementation of this Subsection
12 (including, without limitation, expenses of tax attorneys and/or
13 accountants and mailing and distribution costs and expenses
14 relating to filing (or failing to file) the returns described in
15 Subsection 7.2b (“Tax Expenses”), shall be paid out of the
16 Settlement Fund; in no event shall the Released Parties have any
17 responsibility for or liability with respect to the Taxes or the Tax
18 Expenses. The Settlement Administrator shall indemnify and
19 hold the Released Parties harmless for Taxes and Tax Expenses
20 (including, without limitation, Taxes payable by reason of any
21 such indemnification). Further, Taxes and Tax Expenses shall
22 be timely paid by the Settlement Administrator out of the
23 Settlement Fund without prior order from the Court, and the
24 Escrow Agent shall be obligated (notwithstanding anything
25 herein to the contrary) to withhold from distribution any funds
26 necessary to pay such amounts, including the establishment of
27 adequate reserves for any Taxes and Tax Expenses (as well as
28 any amounts that may be required to be withheld under Treas.
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1 Reg. § 1.468B-2(l)); the Released Parties are not responsible


2 therefor nor shall they have any liability with respect thereto.
3 The Parties hereto agree to cooperate with the Settlement
4 Administrator, each other, and their tax attorneys and
5 accountants to the extent reasonably necessary to carry out the
6 provisions of this Section.
7 7.3 Monetary Relief Fees
8 a. On or before October 19, 2009, Proposed 23(b)(3) Settlement
9 Class Counsel shall file an application or applications to the
10 Court for reimbursement of Monetary Relief Fees from the
11 Settlement Fund. The application or applications shall be
12 noticed to be heard at the Final Fairness Hearing.
13 b. The application or applications for Monetary Relief Fees, and
14 any and all matters related thereto, shall not be considered part
15 of the Settlement Agreement, and shall be considered by the
16 Court separately from the Court’s consideration of the fairness,
17 reasonableness and adequacy of the Settlement. Plaintiffs and
18 Proposed 23(b)(3) Settlement Class Counsel agree that this
19 Settlement Agreement is not conditional on the Court’s approval
20 of Monetary Relief Fees or Injunctive Relief Fees in the
21 requested amount or in any amount whatsoever. The Court’s
22 ruling on the application or applications for such fees shall not
23 operate to terminate or cancel the Settlement.
24 c. Except as provided under the Injunctive Relief Fee Agreement,
25 Defendants shall have no responsibility for, or any liability with
26 respect to, the payment of attorneys’ fees and expenses to
27 23(b)(3) Settlement Class Counsel, and the sole source of any
28 award of Monetary Relief Fees shall be the Settlement Fund.
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1 That amount includes not only the payment of all attorneys’


2 fees, costs, and expenses to 23(b)(3) Settlement Class Counsel,
3 but also payment for all attorneys and other persons working
4 under the direction of 23(b)(3) Settlement Class Counsel in the
5 Litigation.
6 7.4 Letter of Credit or Other Suitable Form of Security
7 Monetary Relief Fees, in the amount approved by the Court, shall be paid
8 pursuant to Section 7.6(b) provided that the Defendants receive a Letter of Credit or
9 other form of security suitable to them, in form and substance and from an issuer
10 satisfactory to them. The Letter of Credit or other form of security must ensure the
11 repayment to Defendants and Defendants’ insurers, in proportion to their
12 contributions to the Settlement Fund, of any sums paid to 23(b)(3) Settlement Class
13 Counsel, including interest at the 60-day Treasury Bill Rate at the time of the Letter
14 of Credit, if any appeal is timely filed and the settlement approval, the award of
15 attorneys fees and costs, or both, is reversed on appeal. If security is not honored
16 when presented or the issuer fails to perform in accordance with its terms, 23(b)(3)
17 Settlement Class Counsel is immediately jointly and severally obligated to repay to
18 Defendants and Defendants’ insurers, in proportion to their contributions to the
19 Settlement Fund any sums paid to 23(b)(3) Settlement Class Counsel, including
20 interest as set forth above, without recourse to the Letter of Credit or other form of
21 security. If no Letter of Credit or other suitable form of security is obtained, the
22 Attorneys’ fees and expenses will be paid through distribution from the 23(b)(3)
23 Settlement Class Settlement Fund by the Settlement Administrator within ten (10)
24 days of the Effective Date.
25 7.5 Incentive Awards to the Named Plaintiffs
26 a. On or before October 19, 2009, Proposed 23(b)(3) Settlement
27 Class Counsel shall file an application or applications to the
28 Court for an incentive award, to each of the Named Plaintiffs
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1 serving as class representatives in support of the Settlement, and


2 each such award not to exceed $5,000.00.
3 b. Incentive Awards and the other benefits provided by this
4 Settlement will be the only compensation the Plaintiffs will
5 receive for their participation in this Litigation, and will be paid
6 in consideration of their full and complete release of all claims
7 relating to the claims brought in this Litigation.
8 7.6 Use and Disbursement of Settlement Fund
9 The Settlement Fund shall be used only in the manner and for the purposes
10 provided for in this Section or in Subsection 7.2c. No portion of the Settlement
11 Fund shall be disbursed except as expressly provided for herein:
12 a. After Preliminary Approval, the Parties shall jointly petition the
13 Court to pay the Settlement Administrator for the costs of notice
14 and related administrative expenses incurred with respect to
15 effecting the Notice Plan as provided in Section 4.3;
16 b. Within ten (10) days of the entry of order granting Final
17 Approval of the Settlement, the Parties shall jointly petition the
18 Court to pay from the Settlement Fund the Monetary Relief Fees
19 as approved by the Court to 23(b)(3) Settlement Class Counsel
20 as provided in Section 7.3 to the extent that 23(b)(3) Settlement
21 Class Counsel has fulfilled the letter of credit or security
22 obligations set forth in Section 7.4
23 c. Within ten (10) days of the Effective Date, the Parties shall
24 jointly petition the Court to pay from the Settlement Fund the
25 Incentive Awards to the Named Plaintiffs as provided in Section
26 7.5; and
27 d. Within ten (10) days of the Effective Date, the Parties shall
28 jointly petition the Court to pay the funds remaining in the
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1 Registry of the Court (after payments of amounts pursuant to


2 Sections 7.6(b) and (c)) to the Settlement Administrator in trust
3 for distribution to the Claimants. Within ninety (90) days
4 following the Effective Date, all money remaining in the
5 Settlement Fund may be paid to Claimants, including any and all
6 reasonable and necessary expenses for the administration of
7 such payments (e.g., costs associated with generating and
8 mailing checks to Claimants) pursuant to the Distribution Plan
9 set forth in Section 7.5.
10 7.7 Distribution Plan
11 a. Each of the 23(b)(3) Settlement Class Members who return to
12 the Settlement Administrator a properly completed Claim Form
13 postmarked on or before October 15, 2009, shall be entitled to
14 receive an award from the Settlement Fund, as provided herein.
15 b. Convenience Awards. The Settlement Administrator shall pay
16 each 23(b)(3) Settlement Class Member who elected to receive a
17 Convenience Award (or “Option 1”) on his or her Claim Form,
18 or who made more than one election for more than one type of
19 monetary award, (“Convenience Award Claimant”) as provided
20 herein:
21 (i) The Settlement Administrator shall determine the amount
22 available to pay the total of all Convenience Awards
23 (herein, the “Available Convenience Award Funds”) by
24 subtracting from the total amount that Defendants paid
25 into the Settlement Fund the sum of all (i) Administrative
26 and Notice Costs; (ii) Incentive Awards paid to Plaintiffs
27 (iii) amounts paid for Monetary Relief Fees; and (iv)
28 estimated amounts to be paid for Actual Damage Awards,
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1 which shall be calculated by the Settlement Administrator


2 by identifying the highest award to which each Actual
3 Damage Award Claimant may be entitled, multiplying the
4 total number of such claims in each category, and totaling
5 the results for all categories, but in no event shall the
6 Available Convenience Award Funds be less than $10
7 Million.
8 (ii) The Settlement Administrator shall pay each Convenience
9 Award Claimant an equal pro rata share of the Available
10 Convenience Award Funds (i.e., the amount of such equal,
11 pro rata share shall be determined by dividing the total
12 amount of Available Convenience Award Funds by the
13 total number of Convenience Award Claimants), via check
14 sent via U.S. mail to the last and best known address of the
15 Convenience Award Claimant.
16 (iii) The Convenience Awards will be distributed within ninety
17 (90) days of the Effective Date of the settlement, and any
18 unclaimed or uncashed Convenience Awards will expire
19 after ninety (90) days from issuance and the amounts
20 thereof added to the amounts available for payment of the
21 Predetermined Actual Damage Awards.
22 c. Actual Damage Awards. The Settlement Administrator shall
23 pay each 23(b)(3) Settlement Class Member who elected to
24 receive an Actual Damage Award (or “Option 2”) on his or her
25 Claim Form (“Actual Damage Award Claimant”) as provided
26 herein:
27 (i) The Settlement Administrator shall review each Claim for
28 an Actual Damage Award and will determine: whether
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1 the Defendants’ records as provided pursuant to Section


2 4.1 hereof indicate that a Post-bankruptcy Hard Inquiry
3 appears in the Actual Damage Award Claimant’s File
4 within six (6) months of the date indicated by the Actual
5 Damage Award Claimant on the Claim Form, or whether
6 the Defendants’ records as provided pursuant to Section
7 4.1 hereof indicate that a Post-bankruptcy Employment
8 Inquiry appears in the Actual Damage Award Claimant’s
9 File. The Settlement Administrator shall accept all Actual
10 Damage Award Claims which meet these criteria, unless
11 the Settlement Administrator has a basis for believing that
12 any Actual Damage Award Claim is fraudulent or
13 otherwise invalid, in which case the Settlement
14 Administrator should withhold payment of such claims
15 and advise the Court accordingly.
16 (ii) Prior to payment of the Actual Damage Award Claims, the
17 Settlement Administrator shall review one thousand
18 (1,000) Actual Damage Award Claims, including, if the
19 Settlement Administrator deems it appropriate, an
20 examination of information appearing in the archived
21 credit files for the Actual Damage Award Claimants in
22 question, to confirm the validity of such claims. The
23 Defendants shall bear the cost of providing such
24 information from its archived credit files, if any, for this
25 limited initial review; provided, however, that this review
26 shall be submitted to each Defendant as a single batch
27 request. If the Settlement Administrator deems it
28 necessary to conduct further review of Actual Damage
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1 Award Claims, the costs of doing so will be borne by the


2 Settlement Fund and subject to Court approval.
3 (iii) The Settlement Administrator shall pay all accepted
4 Actual Damage Award Claims via check sent via U.S.
5 mail to the last and best known address of the Actual
6 Damage Award Claimant according to the following
7 schedule:
8
9 Type Amount of Award
10 1. Employment If the Actual Damage Claimant’s File, as
11 provided to the Settlement Administrator
12 pursuant to Section 4.1, shows a Post-
13 bankruptcy Employment Inquiry made which
14 is consistent with an employment inquiry, or if
15 there is no other evidence of the lack of such
16 an employment inquiry, then the award shall
17 be $750.
18
19 2. Mortgage/Housing If the Actual Damage Award Claimant’s File
20 shows a Hard Inquiry made on a date within
21 six (6) months of the date provided by the
22 Actual Damage Award Claimant which is
23 consistent with mortgage loan, landlord or
24 other housing inquiry, then the award shall be
25 $500.
26
27
28
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1
Type Amount of Award
2
3. Other Credit Inquires If the Actual Damage Award Claimant’s File
3
shows a Post-bankruptcy Hard Inquiry within
4
six (6) months of the date provided by the
5
Actual Damage Award Claimant, and such
6
Claimant has not opted for an Employment or
7
a Mortgage/Housing award, then the award
8
shall be $150.
9
(iv) The Settlement Administrator shall pay to the Actual
10
Damage Award Claimant the highest award for which he
11
or she is eligible. Awards hereunder shall not be
12
cumulative. The applicable award for each category will
13
be increased or decreased, pro rata, to reflect (i) the
14
number of valid claims in each category of Actual
15
Damage Awards, and (ii) the funds available for
16
distribution to the Actual Damage Award Claimants,
17
including the addition of any unclaimed or uncashed
18
Convenience Awards as set forth in Section 7.7b.
19
(v) If the Settlement Administrator determines that a Actual
20
Damage Award Claimant is ineligible for a Actual
21
Damage Award, then such Actual Damage Award
22
Claimant’s claim shall be converted into a Convenience
23
Award Claim.
24
7.8 Capped Fund
25
Except for the costs of CAFA Notice pursuant to section 4.5 hereof, all of the
26
following must be paid from the $15,000,000.00 (fifteen million dollars) paid into
27
the Settlement Fund by each Defendant: (i) notice and administration costs,
28
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1 including without limitation the costs incurred by each Defendant in providing any
2 additional information requested by Plaintiffs and/or 23(b)(3) Settlement Class
3 Counsel, which shall be reimbursed promptly to each Defendant from the
4 Settlement Fund; (ii) payments to the Claimants; and (iii) payments to 23(b)(3)
5 Settlement Class Counsel for Monetary Relief Fees. The Parties and their
6 respective counsel agree that under no circumstances will each Defendant pay or
7 cause to be paid more than $15,000,000.00 (fifteen million dollars) pursuant to this
8 Settlement.
9 VIII. RELEASE OF CLAIMS
10 8.1 Release of All Claims
11 Upon the Effective Date, Plaintiffs and each member of the 23(b)(3)
12 Settlement Class who has not opted out and his or her respective spouses, heirs,
13 executors, administrators, representatives, agents, attorneys, partners, successors,
14 predecessors and assigns and all those acting or purporting to act on their behalf
15 acknowledge full satisfaction of, and shall be conclusively deemed to have fully,
16 finally and forever settled, released and discharged the Released Parties of and from
17 all Released Claims. Subject to the Court’s approval, all 23(b)(3) Settlement Class
18 Members shall be bound by this Settlement Agreement and all of their Released
19 Claims shall be dismissed with prejudice and released as against the Released
20 Parties, even if they never received actual notice of the Settlement prior to the
21 hearing on final approval of the Settlement.
22 8.2 Waiver of California Civil Code Section 1542
23 Plaintiffs, for themselves and for each 23(b)(3) Settlement Class Member,
24 acknowledge that they are aware that they may hereafter discover facts in addition
25 to or different from those that they or 23(b)(3) Settlement Class Counsel now
26 knows or believes to be true with respect to the subject matter of these releases, but
27 it is their intention to, and they do hereby, upon the Effective Date of this
28 Settlement Agreement, fully, finally and forever settle and release any and all
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1 Released Claims, without regard to the subsequent discovery or existence of such


2 different or additional facts. Plaintiffs, for themselves and for each 23(b)(3)
3 Settlement Class Member, waives any and all rights and benefits afforded by
4 California Civil Code Section 1542, which provides as follows:
5 A GENERAL RELEASE DOES NOT EXTEND TO
6 CLAIMS WHICH THE CREDITOR DOES NOT KNOW
7 OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
8 THE TIME OF EXECUTING THE RELEASE, WHICH
9 IF KNOWN BY HIM OR HER MUST HAVE
10 MATERIALLY AFFECTED HIS OR HER
11 SETTLEMENT WITH THE DEBTOR.
12 Plaintiffs, each 23(b)(3) Settlement Class Member and 23(b)(3) Settlement
13 Class Counsel understand and acknowledge the significance of this waiver of
14 California Civil Code Section 1542 and/or of any other applicable federal or state
15 law relating to limitations on releases.
16 IX. TERMINATION AND SUSPENSION
17 9.1 Rights to Terminate Agreement
18 Defendants’ willingness to settle this Litigation on a class-action basis and to
19 agree to the certification of a conditional 23(b)(3) Settlement Class is dependent
20 upon achieving finality in this Litigation, the desire to avoid the expense of this and
21 other litigation, and the ability and willingness of each Defendant’s insurers to fund
22 the Settlement Fund. Consequently, each Defendant shall have the unilateral and
23 unfettered right to individually terminate this Settlement Agreement, declare it null
24 and void, and have no further obligations under this Settlement Agreement to the
25 Plaintiffs, 23(b)(3) Settlement Class Members, or Proposed 23(b)(3) Settlement
26 Class Counsel if any of the following conditions subsequently occurs:
27 a. The Court fails to grant Preliminary Approval;
28
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1 b. More than 1,000 individuals request exclusion from the


2 Settlement pursuant to Section 5.2;
3 c. The Court fails to enter the Final Approval Order that is
4 mutually acceptable to the parties;
5 d. Such Defendant's insurer or insurers refuse to or otherwise fail
6 to fund in full the Settlement Fund as provided in Subsection
7 7.1, subject to the Defendant’s exhaustion of its self-insured
8 retention, and such Defendant gives notice of its termination of
9 this Settlement Agreement within ten (10) days after the date for
10 funding the Settlement Fund as provided in Subsection 7.1;
11 e. The Court does not enter an order approving Injunctive Relief
12 Fees in an amount equal to or less than the amount set forth in
13 the Injunctive Relief Fee Agreement; and
14 f. The Effective Date does not occur for any reason, including the
15 entry of an order by any court that would require either material
16 modification or termination of the Settlement.
17 9.2 Agreement Among Defendants is Not Required
18 In determining whether to exercise its right to terminate this Settlement
19 Agreement pursuant to the circumstances described in Subsection 9.1, each
20 Defendant may act independently and agreement among Defendants to terminate is
21 not required. The Settlement Agreement shall remain in full force and effect as to
22 any settling Defendant who does not want to terminate pursuant to this Section, and
23 the termination of the Settlement Agreement by one or more other Defendants shall
24 not increase any non-settling Defendant’s obligations under any provision in this
25 Settlement Agreement.
26 9.3 Plaintiffs’ Right To Terminate This Settlement Agreement
27 Plaintiffs shall have the unilateral and unfettered right to terminate this
28 Settlement Agreement, declare it null and void, and have no further obligations
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1 under this Settlement Agreement to any of the Defendants in the event that any two
2 of the three Defendants exercises their right to terminate this Settlement Agreement
3 pursuant to Section 9.1 hereof, and Plaintiffs exercise their termination right within
4 thirty (30) days of the second Defendant’s exercise of its termination right.
5 9.4 Plaintiffs’ Right To Seek Modification Of This Settlement Agreement
6 Plaintiffs shall have the unilateral and unfettered right to seek from the Court
7 a modification of this Settlement Agreement in the event that: (a) one of the three
8 Defendants exercises its right to terminate this Settlement Agreement pursuant to
9 Section 9.1 hereof; or (b) prior to the dissemination of class notice, one or more of
10 the Defendant’s class lists provided to the Settlement Administrator pursuant to
11 Section 4.1 hereof exceeds twelve million (12,000,000) class members. Plaintiffs’
12 right to seek such modification extends to, but is not limited to, the amount and
13 manner of payments of Convenience Awards or Actual Damage Awards, the
14 manner and method of notice to the Class, and the general administration of the
15 Settlement, but shall expressly exclude any modification to the scope of the releases
16 provided herein or any modification to the amounts paid by Defendants as provided
17 herein.
18 9.5 The failure of any Court to approve the Monetary Relief Fees or the
19 Injunctive Relief Fees in the requested amounts or any amounts whatsoever, shall
20 not be grounds for Named Plaintiffs or Proposed 23(b)(3) Settlement Class Counsel
21 to terminate this Settlement Agreement.
22 9.6 Effect of Termination on This or Future Litigation
23 If this Settlement Agreement is terminated and only as to those Parties to the
24 extent the Settlement Agreement has been terminated as to them:
25 a. the class-certification portions of the Settlement Agreement
26 shall have no further force and effect and shall not be offered in
27 evidence or used in the Litigation or any other proceeding;
28
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1 b. counsel for the Parties shall seek to have any Court orders,
2 filings, or other entries in the Court’s file that result from this
3 Settlement Agreement set aside, withdrawn, and stricken from
4 the record;
5 c. the Settlement Agreement and all negotiations, proceedings, and
6 documents prepared, and statements made in connection with
7 either of them, shall be without prejudice to any party and shall
8 not be deemed or construed to be an admission or confession by
9 any Party of any fact, matter, or proposition of law; and
10 d. the Parties shall stand in the same procedural position as if the
11 Settlement Agreement had not been negotiated, made, or filed
12 with the Court.
13 9.7 Effect of Termination on Monies Paid by Defendants Pursuant to
14 Settlement Agreement
15 If this Settlement Agreement is terminated and only as to those Defendants to
16 the extent that the Settlement Agreement is terminated as to some of them: The
17 Settlement Fund, including interest earned, less Taxes, Tax Expenses, and notice,
18 claims, and other administration costs (including fees, costs, and other expenses of
19 the Court Registry) that have been properly disbursed pursuant to this Settlement
20 Agreement, shall be returned to such Defendant(s) and such Defendant’s insurers in
21 equal proportions to their contributions into the Settlement Fund.
22 X. PUBLIC STATEMENTS
23 10.1 The Parties will negotiate and agree upon the language that may be
24 used in press releases and other forms of public statements concerning the
25 Settlement that would be issued prior to entry by the Court of the Final Approval
26 Order.
27 The Parties and/or their counsel shall make no statements to any third party
28 regarding the Settlement prior to entry by the Court of the Final Approval Order,
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1 without the reasonable consent of the other Parties or his, her or its counsel, unless
2 such statements are reasonably necessary in effecting the terms of this Settlement
3 Agreement, or are required by law, including, without limitation, any disclosure
4 obligations imposed on Defendants by federal or state securities or tax laws.
5 Subsequent to the entry by the Court of a Final Approval Order, no party shall
6 make any public statements concerning this Settlement or this Litigation that
7 contains disparaging language of any of the Parties or their counsel.
8 10.2 Proposed 23(b)(3) Settlement Class Counsel and all Defendants’
9 Counsel agree that all extra-judicial statements in regard to the Settlement will
10 comport with Rule 5-120 of the California Rules of Professional Conduct.
11 Proposed 23(b)(3) Settlement Class Counsel may communicate with Claimants,
12 23(b)(3) or 23(b)(2) Settlement Class Members, clients, or potential clients.
13 XI. MISCELLANEOUS PROVISIONS
14 11.1 Admissibility of Settlement Agreement
15 This Settlement Agreement shall not be offered or be admissible in evidence
16 in any action or proceeding except (1) the hearings necessary to obtain and
17 implement Court approval of this Settlement; or (2) any hearing to enforce the
18 terms of this Settlement Agreement or any related order by the Court.
19 11.2 Successors and Assigns
20 The terms of this Settlement Agreement shall apply to and bind the Parties as
21 well as their heirs, successors and assigns.
22 11.3 Communications Relating to Settlement Agreement
23 All notices or other formal communications under this Settlement Agreement
24 shall be in writing and sent by mail to counsel for the party to whom the notice is
25 directed at the following addresses:
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27
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1 Equifax:
2 Craig E. Bertschi, Esq.
Cindy Hanson, Esq.
3 KILPATRICK STOCKTON LLP
1100 Peachtree Street, Suite 2800
4 Atlanta, GA 30309-4530

5 Experian:
Daniel J. McLoon, Esq.
6 Michael G. Morgan, Esq.
JONES DAY
7 555 South Flower Street
Fiftieth Floor
8 Los Angeles, CA 90071-2300
9 TransUnion:
10 Julia B. Strickland, Esq.
Stephen J. Newman, Esq.
11 STROOCK & STROOCK & LAVAN LLP
2029 Century Park East, Suite 1800
12 Los Angeles, CA 90067

13 Plaintiffs:
Michael W. Sobol, Esq.
14 LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 30th Fl.
15 San Francisco, California 94111
16 Michael Caddell, Esq.
CADDELL & CHAPMAN
17 1331 Lamar, Suite 1070
Houston, TX 77010
18
Lee A. Sherman, Esq.
19 CALLAHAN, MCCUNNE & WILLIS, APLC
111 Fashion Lane
20 Tustin, California 92780-3397
21
Any Party may, by written notice to all the other Parties, change its designated
22
recipient(s) or notice address provided above.
23
11.4 Defendants’ Communications with Consumers in the Ordinary Course
24
of Business
25
Defendants reserve the right to continue communicating with their customers
26
and Consumers, including 23(b)(3) Settlement Class Members, in the ordinary
27
course of business. To the extent Consumers initiate communications regarding
28
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1 this Settlement Agreement, Defendants may confirm the fact of a settlement and
2 refer inquiries to the Settlement Administrator. Nothing herein is intended to
3 prohibit Defendants from communicating with Consumers regarding disputes
4 relating to tradelines and the reporting of Chapter 7 bankruptcies.
5 11.5 Efforts to Support Settlement
6 The Parties and their counsel agree to cooperate fully in seeking Court
7 approval for this Settlement Agreement and to use their best efforts to effect the
8 consummation of the Settlement and to protect the Settlement Agreement by
9 applying for appropriate orders enjoining others from initiating or prosecuting any
10 action arising out of or related to facts or claims alleged in the Litigation, if so
11 required.
12 11.6 Procedures for Disputes Between Parties Relating to the Settlement
13 Agreement
14 To the extent any disputes or issues arise with respect to documenting or
15 effecting the Settlement Agreement, the Parties agree to use their best efforts to
16 informally resolve any such disputes or issues; but in the event any such dispute or
17 issue cannot be resolved informally, to bring any such dispute or issue to the Court
18 for resolution.
19 11.7 Entire and Voluntary Agreement
20 The Parties intend the Settlement Agreement to be a final and complete
21 resolution of all disputes between them, except for those disputes relating to the
22 Injunctive Relief Fee Agreement and except as further specifically provided for
23 herein. The Parties agree that the terms of the Settlement Agreement were
24 negotiated at arm’s length and in good faith and were reached voluntarily after
25 consultation with competent legal counsel. This Settlement Agreement contains the
26 entire agreement and understanding concerning the subject matter between the
27 Parties, excluding those subjects that relate to the Injunctive Relief Fee Agreement,
28 and supersedes all prior negotiations and proposals, whether written or oral. No
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1 other party or any agent or attorney of any other party has made any promise,
2 representation or warranty whatsoever not contained in this Settlement Agreement
3 and the other documents referred to in this Settlement Agreement to induce them to
4 execute the same. The Parties represent that they have not executed this instrument
5 or the other documents in reliance on any promise, representation or warranty not
6 contained in this Settlement Agreement and the other documents referred to in this
7 Settlement Agreement.
8 11.8 Headings for Convenience Only
9 The headings in this Settlement Agreement are for the convenience of the
10 reader only and shall not affect the meaning or interpretation of this Settlement
11 Agreement.
12 11.9 Settlement Agreement Controls
13 All of the exhibits attached hereto are hereby incorporated by reference as
14 though fully set forth. To the extent that there is any conflict between the terms of
15 this Settlement Agreement and the exhibits attached hereto, this Settlement
16 Agreement shall control.
17 11.10 Amendments
18 The Settlement Agreement may be amended or modified only by a written
19 instrument signed by Defendants and 23(b)(3) Settlement Class Counsel, or their
20 respective successors-in-interest.
21 11.11 Authorization of Counsel
22 a. Proposed 23(b)(3) Settlement Class Counsel, on behalf of the
23 23(b)(3) Settlement Class, are expressly authorized by Plaintiffs
24 to take all appropriate action required or permitted to be taken
25 by the 23(b)(3) Settlement Class pursuant to the Settlement
26 Agreement to effectuate its terms, and also are expressly
27 authorized to enter into any modifications or amendments to the
28
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1 Settlement Agreement on behalf of the 23(b)(3) Settlement


2 Class which they deem necessary or appropriate.
3 b. Each attorney executing the Settlement Agreement on behalf of
4 any Party hereto hereby warrants that such attorney has the full
5 authority to do so.
6 11.12 Confidentiality
7 All agreements made and Orders entered during the course of the Litigation
8 relating to the confidentiality of information shall survive this Settlement
9 Agreement.
10 11.13 Court’s Jurisdiction
11 The Court shall retain jurisdiction with respect to implementation and
12 enforcement of the terms of the Settlement Agreement.
13 11.14 Construction
14 Each of the Parties has cooperated in the drafting and preparation of this
15 Settlement Agreement. Hence, in any construction to be made of this Settlement
16 Agreement, the same shall not be construed against any of the Parties. Before
17 declaring any provision of this Settlement Agreement invalid, a court should first
18 attempt to construe the provision valid to the fullest extent possible consistent with
19 applicable precedent so as to find all provisions of this Settlement Agreement valid
20 and enforceable.
21 11.15 No Claims Arising from this Settlement Agreement
22 No person shall have any claim against any Defendant, Defendant’s Counsel,
23 or 23(b)(3) Settlement Class Counsel based on distribution of benefits made
24 substantially in accordance with this Settlement Agreement or any Settlement
25 Agreement related order(s) of the Court.
26 11.16 Applicable Law
27 This Settlement Agreement shall, in all respects, be interpreted, construed
28 and governed by and under the laws of the United States of America. To the extent
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1 Dated: April __, 2009 PLAINTIFF KATHRYN PIKE


2
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