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UNITED
STATES
DISTRICT
COURT
DISTRICT
OF
MASSACHUSETTS
WANDA
ESTRADA, WALTER
ESTRADA,
JONATHAN
ESTRADA,
ANd
NATALIE
ESTRADA,
individually
and
on behalf
of all
other
persons
similarly
situated,
Plaintiffs,
Civil
Action No.
12-cv-30020-FDS
PROGRESSIVE
DIRECT
INSURANCE
COMPANY,
Defendant.
STIPULATION
OF
SETTLEMENT
This Stipulation
of
Settlement
("Agreement"
or
"Stipulation")
is
made
by and
between
the Plaintiffs Wanda
Estrada,
Walter
Estrada, Jonathan
Estrada,
and
Natalie Estrada
("Named
Plaintiffs"),
individually
and on behalf
of all other
persons
similarly situated
("Plaintiffs"),
and
Defendant
Progressive
Direct
Insurance
Company
("Defendant"
or "Progressive"
(as
defined
below)), by and through
their
respective
counsel.
RECITALS
WHEREAS,
Plaintiffs
filed
a
purported
Class
Action Complaint, which
is
now
pending
in
the
United States
District
Court
for
the
District
of Massachusetts,
Boston
Division
(the
)
)
)
)
)
)
)
)
)
)
)
)
)
)
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o'Court"),
now
entitled
V/anda Estrada, Walter
Estrada, Jonathan Estrada, and
Natalie Estrada,
individually and
on
behalf of all
other
persons
similarly
situated vs.
Progressive Direct Insurance
Company,
Civil Action
No. 3:12-CV-30020-FDS
(the
"Action")
which, through this Settlement,
will be accepted as
a
certified class
action, but
for
settlement
purposes
only,
on behalf
of the
Settlement
Class;
and
WHEREAS,
Plaintiffs
allege they were
Progressive
insureds for
purposes
of
personal
injury
protection ("PIP")
coverage
under
a Progressive
auto
insurance
policy
that
was
purchased
by
Wanda
Estrada via
Progressive's
Massachusetts direct sales
website
("Massachusetts
website");
and
WHEREAS,
the
Action alleges
that,
as
a
result
of
Ms. Estrada's answering
"yes"
to
a
question
on
the
Massachusetts
website that
asked whether all
members
of
her household were
covered
by health
insurance
(the
"health
insurance
question"),
the
Massachusetts
website
automatically
recommended that
she
purchase
an auto insurance
policy
that contained
an
$8,000
PIP
deductible
instead of a
$0.00
PIP deductible,
which
she
did;and
WHEREAS,
the
Action
alleges that
the Named
Plaintiffs
were
involved in
an auto
accident,
sought
PIP
benefits
under
Ms.
Estrada's Progressive
auto
insurance
policy,
and
were
denied
PIP benefits due to the
$8,000
PIP
deductible
on the
policy;
and
WHEREAS,
the
Action alleges
that the
Massachusetts website did
not
contain
sufficient
information
and
disclosures
regarding PIP coverage and the operation
of
the
PIP deductible,
and
that
the operation
of
the
Massachusetts
website
constituted unfair
or
deceptive acts or
practices
in the conduct
of
trade
or commerce,
in violation
of Massachusetts
General
Laws,
chapter
934;
and
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WHEREAS,
Progressive
has
defended and
intends
to vigorously
contest
each and
every
claim
in
the
Action,
denies
all
material allegations of the
Action,
as
to which
Progressive
asserts
it
has
numerous
merits
and class defenses, and
further
maintains that
it
has
consistently
acted
in
accordance
with
governing
laws
at all times;
and
WHEREAS,
Plaintiffs' Counsel
has
been
provided
with sufficient
discovery
to evaluate
the
legal
and
factual merits of the claim
and defenses at
issue
in
the
Action; and
WHEREAS,
the
Parties have
engaged
in intensive, arms-length settlement negotiations
and a
mediation
with
Eric Green, an experienced class
action
mediator,
and
U.S.
Magistrate
Judge
Bowler
over
a
period
of
months;
and
WHEREAS,
during
the
mediation and
settlement
negotiations,
the
parties
agreed on the
material terms of this Settlement
Agreement; and
WHEREAS,
Plaintiffs, through
counsel, believe that the claims asserted
in
the
Action
have substantial merit, examined
the
benefits
to be
obtained
under
the terms
of
the Settlement,
considered the
risks associated
with the
continued
prosecution
and
possible
appeal of this
complex
and
time-consuming
litigation
and
the
likelihood of
success
on the
merits of
the
Action,
and believe that,
in consideration
of allthe
circumstances,
the Settlement embodied
in
this
Agreement
is
fair,
reasonable, adequate and
in the best interests of the Settlement Class
Members; and
WHEREAS,
Progressive,
while
denying
wrongdoing
of
any
kind
whatsoever, and
without
admiuing
liability, nevertheless agreed
to
enter
into
this
Agreement
to avoid
further
expense,
inconvenience and
the
distraction
of
burdensome and
protracted
litigation,
andto
be
completely
free
of
any
further
controversy
with
respect to the claims
which
were asserted
or
could
have been asserted
in,
or
relate in
any
way
whatsoever to, the
Action;
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NOW, THEREFORE,
subject
to
Court approval as
required in
this
Agreement and
applicable
law
and
rules, the Parties agree
as
follows:
I.
DEFINITIONS
In
addition
to the
foregoing, the
following
terms shall
have
the
meanings
set forth
below:
1.
"Agreement"
or'oStipulation"
means this Stipulation
of
Settlement,
including
all
exhibits
thereto.
2.
The
"Action"
means
Wanda Estrada,
et
al. v. Progressive
Direct
Insurance
Company,
l2-CV-30020
FDS
pending
in the United
States
District Court for the District of
Massachsuetts.
3. "Claimant"
means a
Settlement Class
Member not on
the
Progressive
List of
individuals
in
the
Settlement
Class.
4.
"Claim
Period" means
the
period
commencing
on
the
InitialNotice
Date
and
continuing until
thirty
(30)
calendar days after the entry
of
Final
Judgment.
5.
"Settlement
Administrator"
means
Rust
Consulting,
201
South
Lyndale,
Faribault, MN
55021.
The
Settlement
Administrator
shall
be
approved
by
the Court
in
the
Preliminary
Approval
Order.
6.
"Class
Counsel"
means: Connor, Morneau & Olin, LLP,273 State Street,
Springfield,
MA
0l
103 and
Alekman DiTusa,
LLC,
I
550
Main
Street,
Springfield, MA
0l
103
7.
"Class
Notice"
means
the
Short Form
Notice, substantially
in
the
form attached
hereto
as
Exhibit l;
Long
Form
Notice substantially in the form attached
hereto
as
Exhibit
4, and
Reminder Postcard
Notice
substantially
in
the
form
attached
hereto
as
Exhibit
3, subject to
changes agreed
to
by the
Parties for
accuracy,
formatting,
or
clarity.
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8.
"Class
Period" means the
period
commencing
May l,
2008
through
the
date of
preliminary
approval of
the
settlement
by
the Court.
9.
"Court"
means
the
United
States
District
Court
for
the
District of
Massachusetts,
Boston
Division.
10.
"Direct
Mail" Claim
Form
shall
mean the Claim
Form
substantially
in
the
form
attached
as Exhibit
2
to
this Agreement,
subject
to changes agreed to
by the Parties
for
accuracy,
formatting,
or
clarity.
1
1.
"Effective
Date" means
that
date defined
in Section
XII
of this Agreement.
12.
"Final
Judgment"
orooFinal
Approval Order" means
the
Court's
Final Approval
Order
and
Final
Judgment, that
finally approves the
Settlement and dismisses the
Action with
prejudice,
which
shall be substantially
in
the
form
attached
as
S[iþ l
to
this
Agreement,
subject
to changes agreed to
by the
Parties
for
accuracy,
formatting,
or clarity.
13.
ooFinal
Approval Hearing"
or "Fairness
Hearing"
means
the
final
settlement
approval
hearing at which the Court
shall determine
whether
to
grant
final approval of
this
Settlement
Agreement
and
consider
any objections to the Settlement
Agreement.
14.
"Household
Member" means
anyone
living
in
a
Named
Insured's
household
who
is related
to the
Named
Insured by blood,
mariage,
or
adoption.
This includes wards, step-
children
or foster children,
15.
"Initial
Notice Date"
means
the
date
upon
which
the
Class
Notice
is
first
mailed
to Settlement
Class
Members
pursuant
to
this
Agreement,
as
further described below.
16.
ooNamed
Insured"
means
the
fìrst
person
in whose
name
the
insurance
policy
is
issued.
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17.
"Named
Plaintiffs" means
Wanda Estrada, Walter Estrada, Jonathan
Estrada, and
Natalie
Estrada.
18.
"Parties"
means
the Settlement
Class
Members,
including
the
Named
Plaintiffs,
and
Progressive.
19.
"Person"
means
any
natural
person,
individual, corporation, association,
partnership,
trust, or any
other
type
of legal
entity.
20.
"Preliminary
Approval
Order" means the
order
that
preliminarily
approves the
Settlement,
which shall be substantially
in the
form attached as
þ[þ| f
to
this
Agreement,
subject
to
changes agreed
to by the Parties
for
accuracy,
formatting,
or
clarity.
21.
ooProgressive"
means
Progressive Direct lnsurance Company.
22.
o'Release"
means
those
Releases set forth
in
Section
XV.
23.
"Released
Claims" means and includes any
and
all
known and Unknown
Claims
(as
defined below),
rights, demands,
actions,
claims,
causes of
action, allegations, or
suits of
whatever
kind or nature, whether
in
contract,
tort or
in
equity,
debts, liens,
liabilities,
agreements, interest,
costs, expenses,
attorneys'
fees,
losses
or
damages
(whether actual,
consequential,
treble,
statutory
andlor
punitive
or exemplary
or
other)
of
or by
a
Settlement
Class
Member arising
from
or
related
to
Progressive's Massachusetts
website's
PIP content,
Progressive's
offbring, explanation
of,
sale,
or application
of
PIP
deductibles,
or Progressive's
payment
or
denial
of
PIP
benefits,
including, but
not limited
to:
breach of contract; any unfair
or
deceptive trade
practices,
unfair claims
settlement
practices,
or unfair insurance
practices;
conversion;
premium
overcharges;
fraud;
constructive
fraud; misrepresentation;
deception;
consumer
fraud; interference
with
contract
or business expectations;
injunctive relief,
declaratory
judgment;
unfair
competition;
unjust enrichment;
deceptive
practices;
unfair business
practices;
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breach
of
fiduciary
duty;
breach of
the
implied
covenant
of
good
faith;
mental or emotional
distress and/or common
law
or
statutory bad
faith.
24.
ooReleased
Persons"
means:
a.
the company defined
as
"Progressive"
in
paragraph
21 above;
b. all of
the
past
and
present
offlrcers,
directors,
employees,
agents,
attorneys,
stockholders, divisions,
subsidiaries, and
parents
of
"Progressive";
and
c. all ofthe
successors,
assigns,
and legal
representatives
ofany ofthe
entities
or
persons
listed in
subparagraph a
or
b.
25.
'oRequest
for
Exclusion"
means
a
valid
request
from
a
member
of
the Settlement
Class to be
excluded
from
the Settlement
Class.
26.
"Settlement"
means the terms and conditions of this
Agreement
reached
by
the
Parties, including
all attached
Exhibits.
27.
"Settlement
Class"
means
the
class
defined
in
Section
II
below.
28.
"Settlement
Class
Members" means Persons who fall within the
Settlement
Class
during
the
Class
Period.
29.
"Settlement
Class
Payment"
means the
payment
of
$1,875
to
Settlement
Class
Members who submit
a timely
and
valid
Claim Form.
30.
"Settlement
Website"
means
the website
created
by the Settlement
Administrator
that
will contain the most recent
filed
Complaint,
the Court's Order
granting
Preliminary
Approval, the Short
Form
Notice and Long
Form
Notice. The
Settlement
Website
will
also
identify key
deadlines
(e.g.,
the
Claim
Form
deadline, the
Request
for
Exclusion
Deadline,
Objection
Deadline, the
date
of
Final
ApprovalHearing),
instruct Settlement
Class
Members on
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how to submit Claim
Forms or Request
for Exclusion, or How
to
Object.
The
Settlement
website
shall also
include
a "Frequently
Asked
Questions"
section.
31
.
"Subject
Policy"
will
mean
a
non-commercial Massachusetts automobile
insurance
policy
that was
initially
purchased
from
Progressive
over
its website
during the
period
from
May 1,2008 through
April27,2010,rcgarding
which
policy
the applicant answeredooyes"
to
the
health insurance
question
on the website,
and
which
policy
contained
an
$8,000
PIP
deductible.
The Subject Policies will
include all
renewals
of
an
initial
Subject
Policy
that
(a)
continue to
contain
an
$8,000
PIP deductible and
(b)
were issued
without
change to the
deductible.
32.
"Unknown
Claims"
means claims arising out of
facts
found
hereafter
to
be
other
than
or
different
from the facts
now
believed
to
be
true,
relating to
any
matter
covered by this
Agreement, as to any
of
the
Released Claims, as
specifically defined
above,
so
that
each
Settlement Class
Member shall be deemed to
have
expressly
waived any and all Unknown
Claims relating to any
matter covered
by this Agreement
to
the
full
extent
permitted
by
law,
and
to the
full
extent
of claim preclusion
and
res
judicata
protections.
II.
THE
SETTLEMENT
CLASS
33.
The
"Settlement
Class"
means
(a)
all Named Insureds under a Subject
Policy
and
(b)
all
Household Members
and all
other
individuals
eligible
for coverage
under
a
Subject
Policy,
who
(i)
were involved
in an
automobile
accident
for which
the Subject
Policy
potentially
provided
PIP
coverage,
(ii)
submitted a
PIP
claim
to Progressive for
PIP
coverage
as a
result
of
the accident, and
(iii)
had that
PIP
claim
wholly
denied
due to
the
$8,000
PIP
deductible
during
the Class
Period.
Excluded
from
the
Class
are:
all
present
or
former
officers and/or directors
of
Progressive,
Class
Counsel
and their
resident relatives,
Progressive's counsel
of
record
and their
resident relatives,
and
the Judge
in
this
case
and
his resident relatives.
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ilI.
PRELIMINARYCLASSCERTIFICATION
34.
Within ten
(10)
calendar
days
following
execution
of this
Agreement, the
Parties
shall
submit
this
Agreement
to the
Court
and
jointly
request
the Court
to
enter
a Preliminary
Approval Order,
which
shall be
substantially
in
the
form
set forth
in
E¡biþjll,
subject to
changes
agreed to
by
the
parties
for
accuracy,
formatting,
or
clarity
35.
For
purposes
of this
Settlement only, the
Parties stipulate
and
agree
to the
certification
of
the Settlement
Class and that:
(i)
the Settlement
Class
meets
the
requirements of
Federal
Rule
of
Civil Procedure
23(a) and
(bX3); (ii)
the
proposed
notice is
the
best
and
most
practicable
under the circumstances, and satisfies
the
requirements
of
Rule
23
and
Due
Process;
and
(iii)
the terms of
the Settlement
are
fair and
reasonable.
For
purposes
of
the
Settlement,
the
Named
Plaintiffs
are agreed upon
as
suitable Class
Representatives.
36.
Preliminary certification
of
the
Settlement Class and appointment of
the
Settlement Class
Representatives
and
Class
Counsel by the
Court
shall
be
binding only
with
respect to the
Settlement
of the
Action.
In the event this
Agreement
is
terminated
pursuant
to
its
terms, or
a
Final
Judgment
for
any
reason does
not occur, the
certification
of
the Settlement
Class shall
be
nullified,
and
the
Action
shall
proceed
as
though the Settlement Class
had
never
been certified,
without
prejudice
to the
Court's
consideration,
on the merits,
of
any
properly
submitted
Motion
for Class
Certification.
The Named
Plaintiffs
and Class Counsel
agree
that
neither
this
Agreement, nor any
pleading
or other
paper
related in
any
way.to
this
Agreement,
nor
any
act or communication
in
the course
of
negotiating, implementing or seeking
approval
of
this
Agreement, shall be deemed an
admission by the Named
Plaintiffs or Class
Counsel
of
any
matter
related
in
any
manner
thereto,
or
by Progressive, that certification
of
any class
is
appropriate
in
this
litigation
or
any other
litigation,
or otherwise shall
preclude
Progressive
from
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opposing or asserting
any argument
it
may have
with
respect to certifrcation
of a class
in
this
or
any
other
matter.
37.
Upon
the
Preliminary
Approval of this
Settlement
by the Court,
as
evidenced
by
entry of
the
Preliminary
Approval
Order, allproceedings
in
the
Action
shall
be
stayed until
further
order
of
the
Court,
except
such
proceedings
as
may be
necessary either to
implement
the
Settlement or to
comply with or effectuate
the
terms
of this
Agreement. Additionally,
any other
litigation
against
Progressive
that
includes claims that
fall within
the
scope of
this
Agreement
shall be stayed
or enjoined
by
the Court.
IV.
NOTICE,
COSTS
OF
NOTICE,
AND
ADMINISTRATION
OF
SETTLEMENT
38.
The
Settlement
Administrator
shall disseminate the
Class Notices, Claim
Forms;
receive Claim
Forms and
Requests for Exclusion; and
perform
other
obligations, as set
forth
herein, beginning
immediately upon entry
of
the
Preliminary
Approval
Order and
throughout
the
duration of the Claim
Period.
Defendant shall
bear
the
costs associated
with
retaining
the
Settlement
Administrator,
disseminating
the Class
Notices,
and administering
the
claim
process
as set
forth
in this Agreement, except
for
costs associated
with
the Reminder
Postcard,
which
will be
paid
for by
Plaintiffs'
Counsel.
39.
Progressive certifies
it
will, to
the best
of its ability,
identify through
a
search of
its business
records
all
Settlement
Class
Members
(and
their last known address) and
will
share
that
list
of
Settlement Class
Members
(the
"Progressive
List")
with
Class
Counsel and the
Settlement
Administrator
within forty-five
(45)
days of
the entry
of
the
Preliminary Approval
Order. Progressive represents
that, based on
a
prior
search
of business
records,
it
believes
that
there
are 4,279
Settlement
Class Members.
An individual
not on the
Progressive
List
may
only
become a Settlement
Class
Member by submitting
a timely
and valid Claim
Form and supporting
information
in a
timely
manner establishing
that
the
claimant
qualifies
as a
member
of the
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Settlement Class. The
Parties
agree that the
Progressive
List will remain
confidential
in
accordance
with
paragraphT3,
and
is
only to be used
for
purposes
of
effectuating this
Settlement.
40. Notice of
the
pendency
of the Action and of the
Settlement shall
be made
by the
Class Notice, which will be sent by the Settlement
Administrator
in
accordance
with
the
following
procedure.
41.
Within seventy
(70)
days
of
the entry
of
the
Preliminary Approval
Order, the
Settlement
Administrator shall send the Short
Form
Class
Notice
in
the
form
attached
hereto
as
Exhibit
1
("Short
Form
Notice"
or "Settlement
Notice"),
a
claim
form
in the
form
attached
hereto
as
þ'[þ
("Direct
Mail Claim
Form"),
and
a
pre-addressed postage
pre-paid
return
envelope
directly to
Settlement
Class Members via direct
using the
last known
addresses
according to
Progressive's
records. Any
Short Form
Notices and Direct Mail Claim
Forms
returned to the Settlement
Administrator with
a
forwarding
address shall be
re-mailed
by the
Settlement
Administrator within fourteen
(14)
business
days
following
receipt
of the
returned
mail.
42.
If
any
Short Form Notice and
Direct
Mail Claim
Form is returned
to the
Settlement
Administrator without a forwarding address, the
Settlement
Administrator
shall
use
the National Change of
Address Database to search
for
the correct
addresses, and shall
promptly
re-mail
the
Short Form
Notice
and Direct Mail Claim
Form
to
any
newly-found
addresses.
43.
The Settlement
Administrator
shall
send a
second
notice
to all
Settlement
Class
Members who have not
filed a
claim
form in the form
of
a reminder
postcard
in the form
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attached
hereto as
sþiþj ]
("Reminder
Postcard") 2l days before the
FinalApproval
Hearing.
Plaintiffs'
Counsel
will
pay
for
the
administration costs
related to
the
Reminder
Postcard
notice.
44.
The
Settlement
Administrator
will
establish the Settlement Website
which
shall
be
www.masspipclaims.com or
www.MApipclairns.com or
something similar but shall not
include
the
word
"Progressive"
in the
URL.
The Settlement Website will contain
The Settlement
Agreement, the Court's
Order
granting
Preliminary Approval, the
Short
Form Notice,
and
the
Long
Form
Class
Notice
attached
hereto as
EbiÞi -4.
The
Settlement
Website
will
also
identify
key
deadlines
(e.g.,
the
claim
submission deadline, the
request
for
exclusion deadline, objection
deadline,
the date
of
the
Final Approval Hearing), instruct
Settlement
Class
Members on
how
to
submit
a
claim
form
or
request
for
exclusion, and
how
to object.
The Settlement Website shall
also
include a
"Frequently
Asked
Questions"
section. A
PDF version
of a
claim form, in the
form
of
Exhibit
5
Claim
Form") attached
hereto,
will be available
on the Settlement Website.
The
Settlement
Website
will
also
include
instructions
for
complying
with
the
claim submission
process.
Settlement Class
Members shall
be
given
the
option to
complete
and
submit
a claim
form
online,
in the
form
of
Exhibit
6
("Online
Claim
Form")
attached
hereto,
on the Settlement
Website.
45.
The Settlement
Administrator will
establish
a toll-free
telephone support
line that
will
provide
Settlement
Class
Members
with
general
information about the
litigation
and
which
will contain
responses to frequently asked
questions
about
the
action and claim
procedure.
46.
Unless
expressly
indicated otherwise
in
this Stipulation,
Progressive
shall
pay
all
costs
of notice
and claims
administration,
including costs associated with
identifying Settlement
Class
Members
and
providing
notice
of
the
pendency
of the
Action
and of
the Settlement
embodied
herein
to
the
Settlement
Class
Members
in
accordance
with
the terms of the Court's
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Preliminary Approval
Order. Costs
of
administration
(including,
but
not limited to,
printing
and
mailing
the Short
Form
Notice, address
updating
costs and costs to
re-mail the Short
Form
Notice, printing
and
distributing
Payments
to
Settlement Class Members
and
all
postage
relating
to
the
foregoing) will be
paid
by
Progressive
from its own
funds.
V.
CLAIMS
PROCEDURE
47.
Settlement
Class
Members
will lose
their
designation as
such if
they
timely
submit a
written
request
for
exclusion
from
the
Settlement Class
postmarked
no
later
than
30
calendar days before the
Final Approval
Hearing,
in
the
manner
set forth below
in Paragraph 68.
48.
Settlement Class Members may submit the
Direct
Claim Form
or the PDF
Claim
Form to the Settlement
Administrator
by mail.
Settlement
Class
Members may also
submit claims online
through the
Settlement
Website using the
Online Claim
Form.
If a
Settlement
Class Member choses
to
submit
a Direct Mail Claim
Form or
a
PDF Claim
Form,
in
order
to
potentially qualify
to
receive
a
Settlement
Class
Payment, the Settlement
Class
Member
must
submit the completed
and signed
Direct Mail Claim
Form
or
PDF Claim
Form
to the
Settlement
Administrator by mail,
postmarked
not
later than the
end
of
the
Claim
Period.
The
Settlement
Administrator
shall establish, as of the
date of the initial
mailing of
the Short Form
Notice,
a
dedicated
P.O.
Box
to
be
used
for
submission
of
Direct
Claim
Forms and PDF
Claim
Forms. If
a Settlement
Class
Member
choses
to submit an Online Claim
Form using the
Settlement Website,
the
Settlement
Class
Member
must
submit
the completed and electronically
signed Online Claim
Form to the Settlement
Administrator
over the Settlement V/ebsite
no later
than
the
end
of the Claim
Period.
49. If the
Settlement
Administrator deems that
a
Direct
Mail Claim Form, PDF Claim
Form, or Online Claim
Form
submitted
by
a
Settlement
Class
Member
on
the
Progressive
List
is
materially
incomplete
or deficient
(a
"Deficient
Claim"), the
Settlement
Administrator will
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promptly notify
the
Settlement Class
Member and specify
any
additional
or
corrective
information that must
be submitted.
If
the
Settlement Administrator
receives a Direct
Claim
Form,
PDF Claim Form, Online Claim Form,
or other assertion
of
a
claim submitted by
an
individual
not
on the
Progressive
List
(a
"Non-Listed
Claim"),
the Settlement
Administrator
will
promptly
notify
the
Claimant that
he
or
she
may
only
become
a
Settlement
Class
Member
by
establishing that the
Claimant
falls
within
the
definition
of
the
Settlement Class.
The
notifications
shall be by first class
or
email unless
the Settlement
Class
Member
or
other
claimant
specifies another
mode
of
notification. The Settlement Administrator
will
contemporaneously
provide
Class
Counsel
and
Progressive
with
(a)
copies
of
the
notifications
and
(b)
copies of the
submitted claim
forms or other assertions
of
a
claim
by
a Claimant. Such
individuals
shall
have 2l
days
from the date the
notification
is
mailed
to
submit the
requested
information.
If
a
timely
response
to the
notifìcation is not received by the Settlement
Administrator, the claim
will be denied and the
Claimant so-notified
by the Settlement
Administrator.
If
a timely
response
to the
notification
is received, the Settlement
Administrator
shall
promptly provide the information
received
from
the
Claimant to
Class
Counsel
and
Progressive.
50.
The
Settlement
Administrator
shall
prepare
a
declaration attesting to compliance
with
the
Class
Notice
requirements
in this Agreement. Such declaration
shall
be
provided
to
the
Parties, and filed with the Court
by
Plaintiffs'
Counsel
no
later
than
fourteen
(la)
calendar
days
prior
to
the Final
Approval
Hearing.
VL
PAYMENT AMOUNT
51.
The Settlement
Class
Payments
set
forth in this Section shall
be
the
only
payments
to
which any
Settlement
Class
Member
will
be entitled.
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52.
Each
Settlement
Class
Member that
submits
a timely and valid Direct Mail Claim
Form, PDF Claim
Form,
or Online Claim
Form
shall receive
a
Settlement
Class
Payment
of
$1,875,00
(One
Thousand
Eight
Hundred Seventy-Five Dollars).
53.
Settlement
Class
Payments shall
be made
no later
than 60
days
after
the
Effective
Date or 60 days after the Settlement
Class Member
submitted
his
or
her
claim,
whichever
is
later.
Settlement Class
Payment checks shall, unless
otherwise
directed
in writing, be made
payable
to
the Settlement
Class Member.
If
it
is determined
a
Settlement
Class Member is deceased or
incapacitated or otherwise
unavailable, the check shall,
unless
otherwise
mutually
directed,
be
made
payable
to
the
duly
authorized legal representative
of
that
party.
Each Settlement
Class
Member,
or
his
or
her legal representative,
must
supply
a
valid Tax ldentification Number
(TIN)
or Social Security
Account Number when submitting
a
claim or otherwise
prior
to
receiving
a
Settlement
Class
Payment.
VII. CLAIM CHALLENGE
PROCEDURE
54. If
Progressive objects to
the
payment
of a
claim,
Progressive
willpromptly
inform
Class
Counsel
of
the
basis
for
its
objection
and
the evidence on
which
it
relies,
and
the
following
procedure
shall be
followed:
a.
If
Class Counsel
agrees
with
Progressive that the
claim
should be denied,
the Settlement
Administrator
shall
be
so
informed,
and the Settlement
Administrator
shall
send
to
the
claimant
(with
copies
to
Class
Counsel
and
Progressive)
a
notice
advising
that the
claim
will
not be
paid,
supplying the
evidence and
reason(s)
for that decision, and advising the
claimant of
his
or
her
right to apply
to the
Court
for
relief. A claimant may challenge that
decision by filing in Court and
serving
an application for
payment
within
30 days
of
receipt
of
such
notice.
On
such
an application, the
burden
of
proving
that
the claim should
be
paid
shall
be
on the
claimant.
The
claim
shall
be
paid
or disallowed as
provided
by the Court.
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b. If
Class Counsel
disagrees
with
Progressive that the claim should
be
denied, then
the
claim
shall
be
paid
unless, within
l5
days of
receipt
of
Class
Counselos
position,
Progressive
files
with
the
Court and serves upon the claimant and
Class Counsel
an
application
with
the
Court
to disallow
the Claim.
On such
an application, the
burden
of
proving
that a
Deficient Claim should be denied
shall
be
on Progressive; the burden
of
proving
that
a Non-
Listed Claim should
be
paid
shall be on the
claimant.
The
Claim shall
be
paid
or
disallowed as
provided
by
the
Court.
55.
Claims to which
Progressive
does
not object
shall
be
paid
by the
Settlement
Administrator.
Progressive shall
have
the
right to review
any
Direct
Claim Form,
Claim
Form,
or Online Claim
Form before
payment
of
that
claim
is
made.
VNI. COMMUNICATIONS
WITH THB
CLASS
56.
The
Long Form Class
Notice
shall
list
Class
Counsel's
address and
telephone
number.
Communications relating to the
Action
or this Settlement
with
Persons receiving
Class
Notices
and Settlement
Class Members shall
be
handled through
Class
Counsel, and/or the
Settlement
Administrator,
as
necessary.
57. Nothing
in
this
Agreement shall be construed
to
prevent
Progressive, its
employees, attorneys,
agents
or representatives
from
communicating
with
Settlement
Class
Members in
the
normal course
of its
business operations,
from
submitting
notices
or
other
documents
relating
to
this
Agreement
directly to
Settlement
Class
Members,
and/or
from
continuing to adjust and resolve
pending
or
future
claims, even
if
they otherwise fall within
the
scope
of
this
Agreement, before this Agreement
is finally
approved.
IX.
CLASS COUNSEL'S
FEES AND EXPENSES, AND CLASS REPRESENTATIVE
INCENTIVE
AWARDS
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58. The Parties recognize
that
Class Counselare
entitled
to an
award
of
attorneys'
fees and expenses
for the work
performed
and
the results obtained
in
the
Action. Class
Counsel
will
seek
Court approval
for an award
of
attorneys' fees and expenses
not
to exceed
$2,000,000
no
later
than
fourteen
(
l4)
calendar
days
before the
Final
Approval
Hearing.
For
purposes
of
determining
an
award
of
reasonable attorneys'
fees
and expenses, the
Parties
agree
that
the total
monetary value
of
the
settlement to the Settlement Class
Members is
at
least
$8,023,125,
plus
attorneys'
fees
and costs.
Progressive
will not object
to, oppose
or undermine
and
will
pay
an
award
of
attorneys'
fees
and
expenses approved by the
Court up
to
$2,000,000.
The attorneys'
fees and
expenses awarded by the
Court
shall be
in addition to
the Settlement
Class
Payment
amounts
paid
to Settlement
Class
Members
pursuant
to
this
Agreement,
and
shall
be
paid
by
Progressive within 30 calendar days
of
the
Effective
Date, as
deflrned
in
Section
XII below,
to
the
law
firm
of Connor,
Morneau
& Olin,
LLP, which
law firm shall be solely responsible
for further
distribution
of
any
award
of attorneys'
fees
and
expenses made
by the Court.
59.
The Parties
recognize
that
Named
Plaintiffs
are entitled to
Incentive
Awards for
the
risk
and
effort
undertaken in prosecuting
this
Action.
No
later than fourteen
(14)
calendar
days
before the Final
Approval Hearing,
Plaintiffs
will
seek an
Incentive Award in the amount of
$2,500
for
each
Named
Plaintiff, in addition
to
their
Settlement
Payment.
Payments of any
Incentive Awards
under
this
provision
shall
be
made from
the
award
of attorneys'
fees
and
expenses
and
shall
be
paid
to
the
Named
Plaintiffs within
seven
(7)
calendar days of the
Plaintiffs'
Counsel's
receipt of
payment
of
attorneys'
fees
and
expenses. Progressive shall
not
be
responsible for
payment
of
any Incentive Awards.
X.
CONDITIONS OF SETTLEMENT
AND
EFFECT OF DISAPPROVAL,
CANCELLATION
OR
TERMINATION OF AGREEMENT
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60.
The Named
Plaintiffs,
Settlement
Class
Members,
and
Progressive
consent
to the
entry
of a
Final
Judgment
substantially
in
the
form
attached
as
Exhibit 8 without
material
alteration.
6l .
If
the Court disapproves
this
Agreement
or
fails
to
rule,
or
if
the Court
enters the
Final
Judgment but
it is reversed or
vacated
on appeal, this
Agreement
shall
be null and void and
of
no force
and effect.
If the Court
materially modifìes any
provision
of the Agreement or
proposed
Final
Judgment, or
if
either
is materially modified
on appeal or
remanded to the Court
for
modification, or
if
any of the terms
of
this
Agreement is impaired in any materialway, then
Progressive shall have the
option of terminating this
Agreement
and
withdrawing
its
consent
to
the entry
of
the
FinalJudgment,
in
which case this
Agreement
shall be nulland void and of no
force
and
effect. Progressive shall
have the right
to
determine, in its discretion, materiality
in
connection
with the above
provisions,
except that
such
determination shall
be
made
in
good
faith
and
in
compliance
with
prevailing
law
regarding the
standards
for
determining
materiality.
Progressive shall have
fifteen
(15)
days
from
the event that triggers
its
option to
inform
Class
Counsel
that
it
is
exercising
its
option of terminating
this Agreement.
62.
If
the Court does
not finally approve the Settlement as described
herein,
all
obligations
of
Progressive
under
this Agreement terminate, including but not limited to
any
obligation to
pay
attorneys'
fees.
Additionally,
the
Parties
agree
that neither
this
Agreement, nor
any
pleading
or
other
paper
related
in
any
way
to this Agreement,
nor
any
act
or
communication
in
the course
of
negotiating, implementing
or
seeking approval
of
this
Agreement,
shallbe
deemed an
admission by Progressive that certification of
a
class
is
appropriate
in this or any
other
litigation, or
otherwise
shallpreclude
Progressive
from
opposing or asserting any argument
it
may have
with
respect to certification
of a
class
in
this
Action.
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63.
In
the
event
the
number
of
Settlement
Class
Members
who
elect
to
opt out
exceeds
10%o, Progressive
in
its sole discretion
may
elect to terminate
this Agreement on the
ground
that the
exclusion
of
Settlement
Class
Members
at that
level
threatens to
frustrate
Progressive's essential
purpose
in
entering
into this Agreement.
Progressive's election to
terminate
under
this
paragraph
shall be
made not later than ten
(10)
days
after
the end of the opt-
out
period
set forth
in
paragraph
68
below by notifying Class
Counsel
in writing
of
its
election.
XI. FINAL
APPROVAL
OF
SETTLEMENT
64. Class
Counsel
will
flrle
a
motion seeking
the
Court's final approval of the
Settlement
at
a
Final Approval
Hearing
to
be
held
at
a
date
and
location
that
will
be stated
in
the
Preliminary Approval
Order,
and
stated
in the Long
Form
Class
Notice. The Parties
will
request
that the
Final Approval Hearing be
held
at
the earliest
date
that the
Court
is
available to
hear
the
matter that is at least one hundred twenty
(120)
days after the
Preliminary
Approval
Order.
Class Counsel shall
request
the Court
to enter a Final
Judgment
substantially
in
the
form
of the
Final Order
and Judgment
Approving Settlement and
Dismissing Action
with
Prejudice
attached
hereto
as
ESjþj _ ,
approving
the Settlement
without
material
alteration,
and
directing
the
Parties
and their counselto
comply with and
consummate the terms
of
this
Agreement.
XII.
EFFECTIVE DATE
65.
The
"Effective
Date" of
this
Agreement shall
be
the first date after which all the
following events and conditions
have been met
or occurred:
a. All
Parties
have
executed this
Agreement;
and
b.
The
Court
has,
by
entry
of
the
Preliminary Approval
Order,
preliminarily
approved this
Agreement, the
Settlement
set
forth
herein,
and
the
method
for
providing
notice to
the Settlement Class;
and
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c.
The Court
has
entered the
Final
Judgment,
finally
approving
this
Agreement,
without material alteration
from
the
form
attached
hereto
as
s[þ Q,
and releasing
the
Released
Persons from
the
Released
Claims
and dismissing
with
prejudice,
and
without
leave
to amend, the
Action
and
all
claims asserted therein, except
reserving
claims as to those
Settlement
Class
Members
who timely
request
exclusion;
and
d.
In
the event
there is
an
objection
to entry of
the
Final
Judgment,
or
intervention to contest same,
(i)
the
expiration
(without
the
filing
or
noticing
of an
appeal)
of
the
time to appealfrom
the
FinalJudgment;or
(ii)
the entry
of
a
hnal
dismissalorder
of
any
and all
appeals
from
the
Final
Judgment;
or
(iii)
affirmance on appeal
of
the
Final
Judgment
without
material alteration; or
(iv)
if
a
ruling
or decision is entered by an appellate court
affirming
the
Final
Judgment,
the time to
petition
for
reconsideration
or
further
appeal
of that
ruling
or
decision
has expired; or
(v)
if
a
petition
for
reconsideration
or further appeal of
that appellate
ruling
or
decision
is
filed,
the
petition
has been denied or dismissed or,
if
granted,
has resulted in
affirmance
of
the
Final
Judgment
without
material
alteration.
66.
If
any
of
the events or
conditions
described
above are
not met or do
not
occur, this
entire
Agreement
shall become
null
and
void,
except Progressive shall
have
the
option at
its
sole
discretion to agree
in
writing
to waive the event or condition and
proceed
with
this Settlement,
in
which
case
the
Effective Date shall
be deemed
to
have occurred on
the
date
of
said written
agreement,
or
a
date otherwise specified
in
said written
agreement.
67.
Notwithstanding the
foregoing,
an appeal or
motion for
discretionary
review
pertaining
solely to the
Class
Representative award, or
the
award
of attorneys'
fees
and costs
to
Class Counsel, shall
not in
any
way delay the
Effective
Date, except
with respect
to
those
appealed
items.
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XUI.
OBJECTIONS
AND
REQUBSTS
FOR
EXCLUSION
68.
Settlement
Class
Members
who
wish to
exclude themselves
from
the
Settlement
Class
must submit
a
written
request
for
exclusion,
postmarked
not
later
than
30 days
before
the
Final
Approval Hearing, which
shall be sent to the Settlement
Administrator at
the address
provided
in
the
Long Form Class Notice. Written
requests for exclusion
must
be signed
by the
Settlement
Class Member
and
include the Settlement
Class Member's name, address, and
telephone
number,
and
expressly
state
the
desire
to
be
excluded
from
the Settlement
Class. No
Settlement
Class
Member
may
effect
an exclusion
of
a
class of individuals
or
represent such
a
class.
69.
The
Settlement
Administrator
shall
promptly
log
each
request for
exclusion
that
it
receives and
provide
copies ofthe
log
and
all such requests
for
exclusion to
Progressive
and
Class
Counsel.
70.
Prior
to
the
Final Approval
Hearing,
Class
Counsel
and
Progressive's Counsel
shall exchange
a
complete
list
of
alltimely
and
valid requests for exclusion
received by
the
Settlement
Administrator
as
of
that
date and
fïle
such
list
of
names
with
the
Court.
Such persons
will
not
be
entitled
to
receive
any
relief
under
this Agreement
and will
not
be
bound
by
any
release
contained
herein
71.
Settlement Class
Members
who
do
not file
a timely
request
for
exclusion may
file
a
notice
of
intent
to object to the
Settlement, or
to
intervene in the Action for the
purpose
of
contesting the
Settlement.
The
written notice of
intent
to object
and/or intervene
must:
(a) be
fìled
with
the
Clerk of the Court
not later than 30 days
before the
date set for the
Final Approval
Hearing as
stated
in
the
Short
Form Notice;
(b)
contain the
information required by the
Preliminary Approval
Order
and
Long Form Class
Notice, including the
reasons for
the
objection,
whether the objector
plans
to appear at
the
Fairness Hearing, and
any
legal
support
or
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evidence supporting the
objection;
and
(c)
be sent by first-class mail,
postmarked
not later
than
30
days
before
the
date set
for
the
Final Approval Hearing,
to
For
the
Class:
For
Progressive
Jeffrey
Morneau
Connor,
Morneau
& Olin,
LLP
73 State Street,
Suite
310
Springfield, MA
01103
A. Hugh Scott
Choate,
Hall
& Stewart
LLP
Two International Place
Boston,
MA
02110
Any
Settlement
Class
Member who
does
not
timely
object
or
intervene waives the
right
to do
so
in
the
future,
and shall
be
forever
barred
from
intervening or making any objection to
the
Settlement or
Final
Judgment.
XIV. CONFIDENTIALITY
OFPROPRIETARY
INFORMATION
72. Progressive
asserts
that the
following
constitutes
highly
confidential
and
proprietary
business information of
Progressive
(the
"Proprietary
Information"):
(a)
the names,
addresses,
policy
numbers,
and
other
data
concerning
Settlement
Class
Members
compiled
by
Progressive
and/or the Settlement
Administrator
in
effectuating the Settlement; and
(b)
the
electronic
data
processing
and
other record keeping procedures
and
materials
to
be
utilized
by
Progressive
and/or the
Settlement
Administrator
in identifying
the Settlement
Class
Members
and
effectuating
Progressive's other obligations under this
Agreement
and/or the Settlement.
The
confidentiality
of all
Proprietary Information
provided
to Class
Counsel by
Progressive
shall
be
protected
from
disclosure
by Class
Counsel and/or other
attorneys
for
the
Named
Plaintiffs
in
this Action to
any
persons
other than
those
described
in Paragraph
73
below.
73.
No
persons other than Progressive, Progressive's counsel,
Class
Counsel,
the
Settlement
Administrator, and clerical/administrative
personnel
employed by any of the
foregoing, and
such other
persons
as the Court
may
order, after hearing on
notice
to all counsel
of
record, shall
be allowed
access
to any Proprietary
Information.
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74. Within
90 days
after the
Effective
Date, Class Counsel shall upon
request
return
to
Progressive or destroy
all
Proprietary Information they
have received, other than
the
list of
Settlement
Class
Members
provided
by
Progressive
to
Class Counsel
in
connection
with
this
Agreement.
Upon
request, Class Counsel shall
deliver a
letter
to
Progressive
certifying their
compliance
with
this Paragraph.
The
parties
agree that neither Class Counsel,
nor
anyone
employed with,
retained
by,
or otherwise
associated
with
Class
Counsel, shall
use
any of this
Proprietary Information in any
other
litigation
or
proceeding,
current or
future,
unless
independently obtained
through
discovery or other
procedures
in such other litigation.
75.
Class
Counsel
and the
Named
Plaintifß
shall
not
make any
statements
to the
media,
orally
or in
writing,
about the
Action, or this Agreement, other than statements
which
are
fully
consistent
with
this
Settlement
and
the
Class
Notice,
except
in
a
bona fide court
proceeding
relating to
the subject matter
of
the
Action.
XV.
DISMISSAL
OF ACTION
AND
RBLBASES
76.
Upon the Court's
Final Approval of this Agreement and
the
Settlement
set forth
herein, the
Final
Judgment shall
be entered
providing for
the dismissal,
with
prejudice
and
without
leave
to
amend,
of
the
Action, and
the
Release
by
the
Settlement
Class
Members,
including the
Named
Plaintiffs,
and
including
their
past,
present
or
future agents,
legal
representatives,
trustees,
parents,
estates,
heirs,
executors
and
administrators,
of
all
Released
Claims
against
the
Released
Persons.
77.
As
of
the
Effective
Date, by operation of
the
entry of the
Final
Judgment,
each
Settlement
Class Member, including the
Named
Plaintiffs,
and
including
their
past, present
or
future agents,
legal representatives, trustees,
parents,
estates,
heirs,
executors
and
administrators,
shall
be deemed to
have fully
released,
waived, relinquished
and discharged, to the
fullest
extent
possible
by
law, the Released
Persons from
the
Released
Claims.
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78. The
Settlement
Class
Members,
including
the
Named
Plaintiffs,
and
including
their
past,
present
or
future
agents,
legal representatives,
trustees,
parents,
estates,
heirs,
executors
and
administrators,
expressly
agree
as
of
the
Effective
Date
that
they, acting
individually
or together, shall
not
and
shall
not
seek
to
institute, maintain,
prosecute,
sue, assert
or cooperate
in
any
action
or
proceedings
against
any
of
the
Released Persons
for any of the
Released Claims.
79.
Notwithstanding
the
Court's entry of the Final Judgment, the Court
shall retain
ongoing
jurisdiction
over
this
Action
for
purposes
of enforcing
and
interpreting
this
Agreement,
including
entering such orders and
injunctions to
prevent any
collateral litigation
that may
be
filed by
Settlement Class
Members,
if necessary.
XVI.
DENIAL OF LIABILITY
80. If
it
were
not for
this
Settlement,
Progressive
would
have vigorously contested
each
and every
claim in the
Action.
Progressive maintains
that
it has
consistently
acted
in
accordance
with
governing
laws at
alltimes.
Progressive
vigorously
denies all the material
allegations
set
forth
in the
Action.
Progressive
nonetheless has
concluded that
it
is
in
its
best
interest that the
Action
be settled on the
terms and conditions set
forth
in
this
Agreement.
Progressive
reached
this
conclusion
after considering the
factual
and
legal issues in the
Action,
the substantial benefits
of
a
final
resolution
of
the Action,
the
expense
that
would be
necessary
to
defend the
Action
through
trial and
any
appeals
that might
be
taken, the benefrts of disposing
of
protracted
and
complex
litigation,
and
the desire
of
Progressive
to
conduct
its
business
unhampered by the
distractions
of
continued
litigation,
and the Settlement
of this matter by
Progressive,
and
any
steps
taken
in
accordance
therewith, shall not be used in any
way
as
precedent
in
any
pending
or
future
actions
including
any actions against
any
of
the
Released
Persons.
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81.
As
a
result
of the
foregoing,
the
Released
Persons
enter
into
this
Agreement
without in
any
way acknowledging
any
fault, liability, or wrongdoing
of
any
kind.
Neither this
Agreement,
nor
any
of its
terms
or
provisions,
nor
any
of
the
negotiations or
proceedings
connected
with
it,
shall be construed as an admission
or concession by the Released
Persons
of
the
truth
of
any
of
the
allegations
made
in
the
Action,
or
of
any
liability,
fault, or wrongdoing
of
any
kind whatsoever on the
part
of the
Released Persons.
82.
To the extent
permitted
by
law, neither this Agreement, nor any
of its
terms or
provisions,
nor
any
of
the
negotiations or
proceedings
connected
with it,
shall
be utilized
or
offered
as
evidence or received
in
evidence
in
any
pending or
future
civil,
criminal, or
administrative action
or
proceeding,
for
any
purpose
including to establish any
liability
or
admission
by
the
Released
Persons,
except in any
proceedings
brought
to
enforce the
Agreement
or otherwise
with
the
written consent of Progressive.
83.
Neither this Agreement,
nor
any
pleading
or other
paper
related in
any
way
to
this
Agreement, nor any
act or communication
in
the course
of negotiating, implementing
or
seeking
approval
of
this
Agreement,
shallbe
deemed an
admission
by
Progressive
that
certification of
a
class
or subclass
is
appropriate
in
any other
litigation,
or
otherwise
shall
preclude
Progressive
from
opposing or asserting
any argument
it
may
have with respect
to certiflrcation
of
any
class(es) or
subclass(es) in
any
proceeding.
XVII.
DECEASED
CLASS
MEMBERS
84.
Claims
may
be
submitted
by
any
attorney
or interested
person
on
behalf of
a
deceased Settlement Class
Member's
estate.
Before distributing any funds,
Progressive
may
request
that the
Court
approve
the
party
submitting such a claim as the
proper party
to
receive
distribution
of
funds. In
addition,
if
and when
necessary,
Progressive may
request
that
estates
deemed entitled to
benefrts under
this Agreement
be
reopened
before such
benefits will be
paid.
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XVIII. INCAPACITATED SETTLEMENT
CLASS
MEMBERS
85.
Claims
may be submitted by any attorney
or
interested
person
on behalf
of an
incapacitated Settlement
Class Member.
Before
distributing
any
funds, Progressive may
request
that the
Court approve the
party
submitting
such
a
claim
as the
proper
party
to
receive
distribution
of
funds.
XIX.
TAX OBLIGATIONS
86. Tax obligations
which may arise by
virtue
of the Settlement
Class
Payments made
pursuant
to this Agreement,
if
any, are
solely
the
responsibility of
the
Persons who
receive
such
Settlement Class Payments,
and are
not the
responsibility
of
Progressive.
The
Parties
to this
Agreement do
not in
any
way express
any
belief
or
opinion
regarding the existence
of such
tax
obligations
and do not undertake to
provide
any advice
to
any
Settlement
Class
Member
regarding any
tax obligations
which may
arise
by virtue
of
any Settlement
Class
Payments
made
pursuant
to
this Agreement.
XX.
MISCELLANEOUSPROVISIONS
87
.
This
Agreement shall not
be
construed
to affect
or
limit
the
rights
of
Settlement
Class
Members against
third
parties
unrelated to
Progressive. In
particular,
nothing in
this
Agreement shall
be
construed
to affect
in
any
way,
or
require
the
forfeiture
or compromise
of,
any
personal
injury
claims
against
third
parties.
Nothing
in
this
Agreement shall be construed to
affect in any way the other existing
policy
rights
of
Settlement
Class
Members
or
Progressive
concerning
any other aspect
of
their
insurance
agreements unrelated
to the
present
controversy.
88.
The Parties hereto
and
their
undersigned counsel
agree
to
undertake
their
best
efforts and
mutually
cooperate
to effectuate this
Agreement
and the
terms
of
the
Settlement
set
forth herein, including taking all
steps and efforts contemplated by this
Agreement,
and any
other
steps
and efforts which
may become
necessary
by
order
of
the Court or
otherwise.
The Parties
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hereto and their undersigned
counsel
further agree to
defend this
Agreement against objections
made to
final
approval
of the Settlement
or in
any
appealof the
FinalJudgment
or collateral
attack on the
Agreement
or
FinalJudgment.
89.
Neither
the
Parties
nor their counsel shall
make any defamatory
statement
concerning
any
Party
with
regard
to
this case,
the
underlying
facts
or the
terms of this
Agreement. Class Counsel,
Progressive, and
Progressive's Counsel
may
provide
factual
information
about
this
Action,
this
Agreement, the
Notice,
and the
Direct Mail Claim
Form, PDF
Claim Form,
and Online Claim
Form,
and other
Settlement
documents that
have
been
approved
by the
Court.
The
Parties or
their
counsel may
also
make any
public
statements about
this
Action, the
Settlement
or
its
effect that
are
required by
statute,
regulation, or
court
mandate.
This Paragraph is not to be construed
as a
waiver
by
any
Party
of
any
claim for
defamation,
libel,
slander, or other
cause
of
action arising
independently of this Agreement.
The
Parties further
agree
that information
regarding
Settlement Class
Member names,and
addresses,
other than
Named Plaintiffs, shall
remain confidential and
may
not be
disclosed
to
any other
person,
except
as necessary
to
administer
the terms
of this
Agreement.
90. The
undersigned
counsel
represent
that
they are
fully
authorized
to
execute
and
enter
into
the
terms and conditions
of this
Agreement
on behalf of
their
respective clients.
91. Except as
otherwise
provided
by written agreement,
this Agreement and
its
Exhibits
contain the
entire
agreement between the
Parties
hereto,
and
supersede any
prior
agreements
or understandings
between them.
All
terms
of
this
Agreement
are
contractual
and
not mere
recitals.
The terms
of this Agreement are and
shall
be
binding
upon
each
of the
Parties
hereto, their agents,
attorneys,
employees, successors and
assigns, and upon
all
other
Persons
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claiming
any interest in the subject
matter hereof
through any of the
Parties hereto, including any
Settlement
Class Member.
92. This
Agreement
may
be
amended or
modified only by
a
written
instrument signed
by counsel
for
all
Parties hereto. Amendments and
modifìcations
may be
made without
additional
notice
to the
Settlement
Class Members
unless
such notice is required by
the
Court.
93.
The
exhibits to
this Agreement
are
an
integral
part
of
the Settlement
and are
hereby incorporated
and
made a
par|
of this
Agreement.
94.
None
of
the
Parties
shall
be
considered to
be
the drafter of this Agreement or any
provision
hereoffor
the purpose
ofany
statute, case
law
or rule
ofinterpretation
or construction
that
would
or might cause any
provision
to
be construed against
the drafter.
95.
To
the extent
permitted
by
law,
this
Agreement may be
pleaded
as a
fulland
complete defense to, and
may
be used
as the basis
for an
injunction
against,
any
action, suit or
other
proceeding
which
may be instituted,
prosecuted
or attempted in breach of
this
Agreement.
96. Progressive,
the
Named
Plaintiffs, and each
Settlement
Class Member inevocably
submit
to the exclusive
jurisdiction
of
the
Court
for
any suit, action, proceeding or dispute
arising
out
of
or
relating
to
this
Agreement or the
applicability of this
Agreement
and
exhibits,
but
for
no other
purpose.
97. This
Agreement shall
be
deemed
to have been
executed upon
the
last
date
of
execution by all
the
undersigned counsel.
[Remainder
of
this
page
intentionally left blank.]
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98.
This
AgLeernent
rnay
be
çxecuted
in
counterparts,
each
of rvhich shall constitute
an
oliginal.
Electlonic
signatures
transrnitted by facsinrile transmission
or
entail shall
be deemed
to
have
the sarne
effect
as
oligirral
signatures.
By
the
Plaintiffs,
WANDA
ESTRADA
By
the
Defeuclant,
PRO GRES SIVE DIITECT INSURANCE
COMPANY
Darecl:
{f-¡b'}$-
By:
Title
WALTER
ESTRADA
Datecl:
Dated:
q*1Ú-l'r
CHOATE,
HALL
&
STEWART,
LLP
JONA