1 SETTLEMENT AGREEMENT Moreno, et al. v. Buena Vista

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SETTLEMENT AGREEMENT

Moreno, et al. v. Buena Vista Catalogue Co.

San Diego County Superior Court

Case No. 37-2019-00039785-CU-BT-CTL

This Settlement Agreement (“Agreement,” the terms of which are sometimes referred to as

the “Settlement”) is entered into by and between Ilene Moreno (“Moreno”), Cheryl James-Ward

(“James-Ward”), LaRay Peterson (“Peterson”), Henry De leon (“De leon”), Anthony Gonzalez

(“Gonzalez”), and Kyle Lanesey (“Lanesey”) (collectively, “Plaintiffs”), on the one hand, on

behalf of themselves and all other individuals who are members of the Class as defined in Section

III below, and defendant Buena Vista Catalogue Co., d/b/a Disney Movie Club (“Disney” or

“Defendant”), on the other hand. Each of the foregoing is a “Party” (collectively, the “Parties”).

I. RECITALS

A. On July 30, 2019, Moreno and James-Ward filed a complaint in the Superior Court

of the State of California, County of San Diego, originally entitled Moreno, et al. v. Disney

Interactive Studios, Inc., Case No. 37-2019-00039785-CU-BT-CTL (the “Action”). (ROA# 1.)

The Action alleges that Defendant enrolled Moreno, James-Ward, and other Class Members in

automatic renewal or continuous service subscriptions without first presenting the consumer with

the automatic renewal or continuous service offer terms in a clear and conspicuous manner;

charged the consumer’s credit card, debit card, or third-party payment account without first

obtaining the consumer’s affirmative consent to an agreement containing clear and conspicuous

disclosure of the automatic renewal or continuous service offer terms; failed to provide the

consumer with an acknowledgment that included clear and conspicuous disclosure of the

automatic renewal or continuous service offer terms, cancellation policy, and information

regarding how to cancel; and solicited payment of money for goods that the consumers did not

order. The Action seeks both monetary and injunctive relief.

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B. On August 15, 2019, plaintiffs Moreno and James-Ward served their first set of

Demands for Inspection (“DFIs”), Special Interrogatories, and Form Interrogatories to Defendant.

Defendant responded to those discovery requests on October 18, 2019.

C. On October 10, 2019, Defendant filed a Demurrer to Plaintiffs’ Complaint (ROA#

17) and a Motion to Strike Portions of Plaintiffs’ Complaint (ROA# 18) on the grounds that

Plaintiffs’ cause of action for violation of the California Automatic Renewal Law (“ARL”) fails

because no private right of action exists under the ARL; Plaintiffs’ California Unfair Competition

Law (“UCL”) and California Consumers Legal Remedies Act (“CLRA”) claims, based on alleged

violations of the ARL, fail because they do not adequately plead that the Disney Movie Club is an

“automatic renewal” or “continuous service” within the meaning of the ARL; Plaintiff James-

Ward’s claim for an alleged solicitation of payment for unordered goods fails because she does not

set forth facts sufficient to state a cause of action; and Plaintiff James-Ward’s class claims should

be stricken because she is not a member of the class she seeks to represent. The Demurrer and

Motion to Strike were set for hearing on February 14, 2020.

D. In November 2019, the Parties agreed to explore the possibility of an early

resolution. To that end, on November 26, 2019, counsel for the Parties attended a mediation in

Los Angeles with Hon. Carl J. West (Ret.), a retired judge of the complex litigation panel of the

Los Angeles County Superior Court. The mediation did not result in a settlement.

E. Defendant served supplemental discovery responses on January 3, 2020 and

February 7, 2020. Defendant produced documents in response to the DFIs on December 19, 2019;

February 10, 2020; February 19, 2020; February 21, 2020; February 27, 2020; and March 12,

2020.

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F. On January 31, 2020, plaintiffs Moreno and James-Ward filed a First Amended

Complaint (“FAC”), which, among other things, added LaRay Peterson as a plaintiff to the

Action. (ROA# 25.)

G. On February 7, 2020, Plaintiffs took the deposition of Sumee Chang, Director of

the Disney Movie Club.

H. On February 14, 2020, plaintiffs Moreno, James-Ward, and Peterson filed a Motion

to Compel Further Responses to Interrogatory Nos. 1 and 2 (ROA# 37-42) and, on February 18,

2020, filed a Motion to Compel Further Response to Demand for Inspection No. 1 and for

Production of Documents (ROA# 31-36). The Motions to Compel were scheduled to be heard on

June 26, 2020.

I. On February 26, 2020, Defendant served its first set of Requests for Production and

Inspection of Documents and Tangible Things, Requests for Admissions, Special Interrogatories,

and Form Interrogatories to plaintiffs Moreno, James-Ward, and Peterson. Responses to those

discovery requests were served on May 29, 2020.

J. On March 3, 2020, Defendant filed a Demurrer to Plaintiffs’ FAC (ROA# 47) and a

Motion to Strike Portions of Plaintiffs’ FAC (ROA# 46) on substantially the same grounds upon

which Defendant demurred and moved to strike Plaintiffs’ initial Complaint, and on the basis that

Defendant’s good faith compliance with the ARL barred recovery of civil penalties. The hearings

on Defendant’s Demurrer and Motion to Strike were scheduled for July 17, 2020.

K. Due to the COVID-19 pandemic, the San Diego Superior Court was closed for

most non-emergency services from March 17, 2020 through May 22, 2020. On May 13, 2020, the

Court vacated the hearing dates that had been assigned for Defendant’s Demurrer and Motion to

Strike and for Plaintiffs’ Motions to Compel. (ROA# 48-51.)

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L. On July 7, 2020, the Parties participated in a full-day mediation before the

Honorable S. James Otero (Ret.), a retired federal district court judge now associated with JAMS.

The Parties were able to reach a settlement on the terms set forth in this Agreement.

M. On July 8, 2020, the Court held a Status Conference at which time the Parties

informed the Court of the Settlement, and the Court scheduled the hearing on plaintiffs’ motion

for preliminary approval for December 4, 2020.

N. This Agreement represents a compromise of disputed claims. Defendant denies

any and all allegations of liability, fault, or wrongdoing and denies that any claims alleged in the

Action are suitable for class certification other than for purposes of this Settlement. The Parties

have entered into the Settlement described herein to fully and finally resolve their disputes.

Therefore, the Parties agree as follows:

II. CONDITIONS PRECEDENT TO EFFECTIVENESS OF SETTLEMENT

A. The Settlement will become final and effective upon the occurrence of all of the

following events:

1. The San Diego County Superior Court (the “Court”) enters an order

preliminarily approving the Settlement and conditionally certifying the Class as defined in Section

III. The date the Court enters an order granting preliminary approval of the Settlement will be

referred to as the “Preliminary Approval Date.”

2. The Court enters an order and judgment granting final approval of the

Settlement. The date the Court enters the judgment will be referred to as the “Judgment Entry

Date.”

3. The Effective Date occurs. The “Effective Date” will be determined as

follows:

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(a) The Effective Date will be the Judgment Entry Date unless a Class

Member, as defined in Section III.A., files a timely objection to the Settlement that is not

withdrawn on or before the Judgment Entry Date.

(b) If a Class Member files a timely objection to the Settlement that is

not withdrawn on or before the Judgment Entry Date, then the Effective Date will be sixty-one

(61) days following the Judgment Entry Date, unless that Class Member files a timely notice of

appeal of the judgment.

(c) If a Class Member who has filed a timely objection to the Settlement

also files a timely notice of appeal of the judgment, then the Effective Date will be the date the

appeal is dismissed or the judgment is affirmed and no longer subject to mandatory or

discretionary appellate review.

B. The Parties and their respective counsel will cooperate with each other and do all

things reasonably necessary to obtain preliminary approval of the Settlement, obtain final approval

of the Settlement, protect and support the Settlement if an appeal is taken or any other form of

judicial review is sought, and otherwise seek to ensure that the Effective Date occurs.

C. Class Counsel will have the right to appeal any award of attorneys’ fees, litigation

expenses, or service payments, but any such appeal, if taken, will not otherwise affect the binding

nature of the Settlement, including the release of claims set forth in Section IX below. In the event

of any such appeal of attorneys’ fees, litigation expenses, or a service payment, the Parties will

cooperate to carry out the other terms of the Settlement that are unaffected by that appeal.

D. If the Effective Date does not occur because the Superior Court or a reviewing

court enters a final order or decision disapproving of the Settlement with prejudice, or if the

Settlement is terminated by agreement of the Parties, or if for other reasons it becomes certain that

the Effective Date cannot occur: (1) this Agreement will be void ab initio and without any further

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force or effect; (2) any conditional certification of the Class pursuant to a preliminary approval

order shall be withdrawn; (3) the Second Amended Complaint and any Answer thereto filed

pursuant to this Agreement shall be stricken or withdrawn; and (4) the Settlement Administrator

will, after deducting any settlement administration expenses incurred as of that date, return any

Settlement funds in its possession to Defendant.

III. CLASS CERTIFICATION

A. Solely for the purpose of effectuating the Settlement, and subject to Court approval,

the Parties stipulate to class certification of the following Class (the members of which are

referred to as the “Class Members”):

All California residents who, between July 30, 2015 and the Preliminary Approval

Date, were enrolled by Disney in the Disney Movie Club. Excluded from the Class

are all employees of Disney, all employees of Plaintiffs’ counsel, and the judicial

officers to whom this case is assigned.

B. Solely for the purpose of effectuating the Settlement, the Parties stipulate to the

filing of a Second Amended Complaint which sets forth the foregoing definition of the Class and

adds De leon, Gonzalez, and Lanesey as additional named plaintiffs and class representatives. As

part of the motion for preliminary approval, the Parties will request that the Court grant leave for

the filing of the Second Amended Complaint (a copy of which will be lodged with the motion).

C. Within five (5) court days after the filing and electronic service of the Second

Amended Complaint, Defendant shall file an Answer without demurring or moving to strike the

Second Amended Complaint. However, if the Settlement is not granted final approval by the

Court, the Parties stipulate and agree that (a) the Second Amended Complaint shall be stricken, (b)

the Answer to the Second Amended Complaint shall be withdrawn, and (c) the Parties will return

to the status quo ante as if no Settlement had been entered into, including placing on the Court’s

calendar hearing dates for Defendant’s Demurrer to the FAC and Motion to Strike Portions of the

FAC and Plaintiffs’ Motions to Compel. Moreover, if the Settlement is not granted final approval

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by the Court, the Parties shall be deemed to have preserved all of their rights or defenses as of the

date of this Agreement, and shall not be deemed to have waived any substantive or procedural

rights of any kind.

D. Solely for the purpose of effectuating the Settlement, and subject to Court approval,

the Parties stipulate that the law firm of Dostart Hannink & Coveney LLP will be appointed as

counsel for the Class (“Class Counsel”).

E. Solely for the purpose of effectuating this Settlement, and subject to Court

approval, the Parties stipulate that Moreno, James-Ward, Peterson, De leon, Gonzalez, and

Lanesey will be appointed as Class Representatives.

F. Subject to Court approval, the Parties agree that CPT Group, Inc. will be the

Settlement Administrator. The Settlement Administrator will be responsible for: disseminating

the Summary Class Notice; establishing and maintaining the Settlement Website; researching and

updating addresses through skip-traces and similar means, if and to the extent necessary; receiving

and validating claims; preparing a declaration regarding its due diligence; mailing settlement

checks to Class Members; and doing such other things as the Parties or the Court may direct in

order to effectuate the Settlement.

G. On statutory notice for the December 4, 2020 scheduled hearing, Plaintiffs shall

submit this Agreement to the Court along with a motion for preliminary approval of class action

settlement, conditional certification of the Class, and approval of class notice (proposed forms for

the emailed Summary Notice, the mailed Summary Notice, the Long Form Notice, and the paper

Claim Form are attached hereto as Exhibits A, B, C, and D, respectively). The preliminary

approval motion will also ask the Court to schedule a fairness hearing on the question of whether

the proposed settlement, including payment of attorneys’ fees, reimbursement of litigation

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expenses, and any class representative service payments, should be finally approved as fair,

reasonable, and adequate as to the Class.

IV. SETTLEMENT CONSIDERATION

A. Monetary Consideration. The monetary consideration to be paid by Defendant is

the principal amount of Two Million Five Hundred Thousand Dollars ($2,500,000.00) (the

“Settlement Amount”). Defendant will pay the entire Settlement Amount to the Settlement

Administrator by wire transfer no later than fourteen (14) days following the Preliminary

Approval Date and receipt of wire-transfer instructions and any other information necessary to

transmit the funds. The Settlement Administrator shall hold said funds in an interest-bearing

account (“Settlement Fund”), to be distributed only as set forth in this Agreement. If the

Settlement is not granted final Court approval for any reason, the entire remaining balance of the

Settlement Fund shall be returned to Defendant. Under no circumstances shall Defendant be

obligated to pay any monetary amount pursuant to this Settlement in excess of the Settlement

Amount.

B. As provided in Sections V, VI, VII, and VIII below, the Settlement Amount will be

used to pay Class Counsel’s attorneys’ fees and litigation expenses (as approved by the Court),

any service payment awarded by the Court to one or more of the Class Representatives, the

expenses of settlement administration (including class notice), and the settlement payments to

Class Members. If any funds are remaining by reason of uncashed settlement checks or otherwise,

the remaining funds will be paid to one or more cy pres recipient(s) mutually proposed by the

Parties and approved by the Court, unless the Court orders otherwise. Provided that the Effective

Date occurs, no portion of the Settlement Amount will revert to Defendant.

C. Injunctive Relief and Change of Business Practices. Defendant has modified its

offer, billing, and/or payment materials in a manner that Defendant believes continues to ensure

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that it is in substantial compliance with California law. Because this Settlement is a compromise

of disputed allegations and claims, Defendant’s agreement to this Section IV.C. is expressly for

the purposes of settlement, is not an admission of wrongdoing, fault, or liability, and is not an

admission or acknowledgement that any of Defendant’s offer, billing, or payment materials

heretofore have not been in compliance with law.

V. ATTORNEYS’ FEES AND LITIGATION EXPENSES

Class Counsel will file a motion for an award of attorneys’ fees of up to thirty-eight

percent (38%) of the Settlement Amount, plus actual litigation expenses not to exceed $100,000

incurred in connection with the Action. Defendant will take no position regarding these requests,

provided the requests made to the Court are consistent with this Section. As soon as practicable

following the Effective Date, the Settlement Administrator will pay to Class Counsel from the

Settlement Amount the attorneys’ fees and litigation expenses awarded by the Court.

VI. SERVICE PAYMENT

Class Counsel will file a motion requesting service payments to Moreno, James-Ward,

Peterson, De leon, Gonzalez, and Lanesey, not to exceed $30,000 in the aggregate. Defendant will

take no position regarding these requests, provided the requests made to the Court are consistent

with this Section. As soon as practicable following the Effective Date, the Settlement

Administrator will pay from the Settlement Amount any service payments awarded by the Court.

VII. SETTLEMENT ADMINISTRATION

A. Defendant has provided a verified interrogatory response concerning the number of

California consumers who were enrolled in the Disney Movie Club from July 30, 2015 through

December 31, 2019. Defendant has also provided to Plaintiffs’ counsel additional information

concerning the approximate number of California consumers who were enrolled in the Disney

Movie Club from January 1, 2020 through July 7, 2020. Defendant agrees to provide Plaintiffs’

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counsel with verified information concerning the number of California consumers who enroll in

the Disney Movie Club from July 7, 2020 to December 4, 2020 (the reserved date for the hearing

on the Motion for Preliminary Approval) on a periodic basis as such data becomes available.

B. Defendant has provided an interrogatory response concerning the Disney Movie

Club revenue derived from California consumers from July 30, 2015 through December 31, 2019.

Defendant has also provided to Plaintiffs’ counsel additional information concerning the

approximate Disney Movie Club revenue derived from California consumers from January 1,

2020 through July 7, 2020. Defendant agrees to provide Plaintiffs’ counsel with verified

information concerning the Disney Movie Club revenue derived from California Consumers from

July 7, 2020 to December 4, 2020 (the reserved date for the hearing on the Motion for Preliminary

Approval) on a periodic basis as such data becomes available.

C. Within fourteen (14) days after the Preliminary Approval Date, Defendant shall

produce to Plaintiffs’ counsel and the Settlement Administrator data file(s) reflecting transaction

information for all Class Members with respect to transactions that occurred from July 30, 2015 to

and including the Preliminary Approval Date (the “Database”). The transaction information shall

include the consumer’s name, billing address, mailing address, telephone number (if available),

and email address (if available). Defendant will provide the Settlement Administrator and Class

Counsel with any other documents or data in its possession, custody, or control reasonably

necessary to validate claims. The Database and any other documents or data provided pursuant to

this paragraph shall be designated as “Highly Confidential” and shall be used only for purposes of

class notice and settlement administration.

D. No later than thirty-five (35) days following the Preliminary Approval Date, the

Settlement Administrator will email the Court-approved Summary Class Notice to the last-known

email address of each Class Member, as reflected in the Database. The date on which the email

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notice is disseminated to Class Members is referred to as the “Notice Date.” The emailed

Summary Class Notice will include a link to the Settlement Website (discussed below) or other

suitable methodology to enable an email recipient to submit a Claim electronically. For

individuals with respect to whom the Database does not contain an email address (if any), the

Settlement Administrator will send a copy of the Summary Class Notice to the individual’s last-

known mailing address, to the extent that information is available in the Database, via first class

U.S. Mail, postage pre-paid. Prior to such mailing, the Settlement Administrator will run the

Class Members’ last-known addresses through the U.S. Postal Service’s National Change of

Address (“NCOA”) database and update the Database as appropriate. If any emailed Summary

Class Notice documents are “bounced back” as undeliverable so as to indicate that the email

address is not valid, then within fourteen (14) days after the Notice Date, the Settlement

Administrator will mail a copy of the Summary Class Notice to the person’s last-known mailing

address, to the extent that information is available in the Class List, as updated by the NCOA

database. Class Counsel is authorized to direct the Settlement Administrator to undertake

additional steps to disseminate the Summary Class Notice.

E. For a period of twenty-one (21) days following the Notice Date, if any mailed

Summary Class Notice is returned to the Settlement Administrator as undeliverable, the

Settlement Administrator will perform a skip-trace and/or other customary address search in an

attempt to locate a valid address, and if a new address is obtained, will re-mail the Summary Class

Notice to that address.

F. No later than the Notice Date, the Settlement Administrator will establish a

Settlement Website on which it will make available the Second Amended Complaint, the

Settlement Agreement, the order granting preliminary approval of the Settlement, the Summary

Class Notice, the Long Form Class Notice, the Claim Form (in a format that may be printed), and

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any other materials agreed to by the Parties. The Settlement Website will include a mechanism by

which individuals whose name and contact information appear in the Database and who receive an

emailed Summary Class Notice or a mailed Summary Class Notice may submit a Claim

electronically via the Settlement Website.

G. If any individual who does not appear in the Database contacts the Settlement

Administrator to request a claim form, the Settlement Administrator will provide that person with

a paper Claim Form substantially in the form of Exhibit D.

H. The date that is forty-five (45) days after the Notice Date shall be referred to as the

“Claim/Exclusion/Objection Deadline.”

I. In order to receive a share of the Settlement Amount, Class Members must file a

timely Claim, either electronically via the Settlement Website or a paper Claim Form, and that

Claim must be validated by the Settlement Administrator.

1. Completed Claims that are timely submitted electronically through the

Settlement Website by individuals to whom the emailed or mailed Summary Class Notice was

sent will be deemed valid.

2. Completed Claims that are submitted in the form of a paper Claim Form

will be deemed valid if the claimant’s name, and the claimant’s mailing address and/or email

address, match information in the Class List. The paper Claim Form must be completed and

signed by the claimant.

J. To be timely, the Claim must be returned to the Settlement Administrator no later

than forty-five (45) days following the Notice Date. If the Claim is returned via the Settlement

Website, the date of return will be the date of submission through the Settlement Website. If the

Claim is returned by U.S. Mail, the date of return will be the date of postmark. If the Claim is

returned by personal delivery or email, the date of return will be the date the Claim is received by

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the Settlement Administrator. Class Counsel in their discretion may direct the Settlement

Administrator to treat as timely a Claim received by the Settlement Administrator after the

Claim/Objection/Exclusion Deadline.

K. If the Settlement Administrator disallows a Claim based on a deficiency that can be

cured (such as the failure to sign the Claim Form), the Settlement Administrator may either waive

the deficiency or notify the claimant by postcard of the reason for the disallowance and invite the

claimant to cure the deficiency. The Settlement Administrator will consider any additional

information or corrective action by the claimant so long as the additional information or corrective

action is submitted within twenty-one (21) days after the mailing of the notice of deficiency.

Class Counsel shall be kept apprised of the volume and nature of deficient claims and allowed to

communicate with Class Members as they deem appropriate in an effort to cure such deficiencies.

L. In the event multiple or conflicting claims are submitted with respect to the same

name or transaction, then subject to any order the Court may make, the Settlement Administrator

shall have authority to resolve the issue as between the claimants.

M. Unless otherwise ordered by the Court, the Settlement Administrator’s decision

regarding the validity of any Claim will be final and not subject to review or appeal.

N. Any Class Member who wishes to be excluded from the Settlement must complete

and return a request for exclusion via U.S. Mail, email, or personal delivery, and that request for

exclusion must be validated by the Settlement Administrator as provided in this section. The

request for exclusion must be in writing, must list the Class Member’s name, mailing address, and

telephone number, along with the statement “I wish to be excluded from the Moreno v. Buena

Vista Catalogue Co. Settlement.” To be timely, the request for exclusion must be returned to the

Settlement Administrator no later than the Claim/Exclusion/Objection Deadline. If the request for

exclusion is returned by U.S. Mail, the date of return will be the date of the postmark. If the

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request for exclusion is returned by personal delivery or email, the date of return will be the date

the request for exclusion is received by the Settlement Administrator. Those Class Members who

submit timely requests for exclusion will be referred to as Excluded Class Members. Excluded

Class Members will not receive any consideration under the Settlement and will not be bound by

any provision of the Settlement. Requests for exclusion shall be sent by regular mail, electronic

mail, or hand-delivery to the Settlement Administrator, as follows: CPT Group, 50 Corporate

Park, Irvine, California 92606; email: ___________________________.

O. Any Class Member who wishes to object to the Settlement may do so either orally

or in writing. To object to the Settlement in writing, a Class Member must file a written objection

with the Court and serve copies of the objection on Class Counsel, Defendant’s counsel, and the

Settlement Administrator, no later than the Claim/Exclusion/Objection Deadline. The written

objection must set forth the name of the lawsuit (Moreno v. Buena Vista Catalogue Co., Case No.

37-2019-00039785-CU-BT-CTL), the Class Member’s name, address, and telephone number, and

the following statement: “I declare under penalty of perjury that, to the best of my knowledge, I

was enrolled in the Disney Movie Club between July 30, 2015 and [Preliminary Approval Date],

and I wish to object to the Settlement.” The written objection must also state the factual and legal

basis for the objection. Any written objection must be filed with the Court and served by mail as

follows: (1) to the Settlement Administrator, at CPT Group, 50 Corporate Park, Irvine, California

92606; (2) to Defendant’s counsel, Amy P. Lally, Sidley Austin LLP, 1999 Avenue of the Stars,

17th Floor, Los Angeles, California 90067; and (3) to Class Counsel, Zach P. Dostart, Dostart

Hannink & Coveney LLP, 4180 La Jolla Village Drive, Suite 530, La Jolla, California 92037. The

Settlement Administrator will promptly compare the information submitted by the objector against

the Database and advise Class Counsel and Defendant’s counsel whether it appears that the

objector is in fact a Class Member. Class Counsel and Defendant will respond to any written

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objections, as appropriate, either in briefs filed in advance of the final approval hearing or at the

final approval hearing. Alternatively, any Class Member may present an objection to the Court

orally at the final approval hearing.

P. Class Members who submit timely Claims that are validated by the Settlement

Administrator are referred to as the “Participating Class Members.” Only Participating Class

Members will receive settlement payments under the Settlement, in accordance with Section VIII,

below.

Q. No later than fifteen (15) court days following the Claim/Exclusion/Objection

Deadline, the Settlement Administrator will make available to Class Counsel and Defendant’s

counsel a written report listing the name and contact information of each Participating Class

Member, each Excluded Class Member, and any Class Member who has objected to the

Settlement.

VIII. SETTLEMENT PAYMENTS

A. Each Participating Class Member will receive a pro-rata portion of the Net

Settlement Amount. The “Net Settlement Amount” is the Settlement Amount (plus any accrued

interest thereon) reduced by any sums awarded by the Court for attorneys’ fees, litigation

expenses, service payments, and all expenses of settlement administration (including expenses

previously incurred and the Settlement Administrator’s good faith estimate of future expenses to

be incurred). The pro-rata share of each Participating Class Member shall be computed by

dividing the Net Settlement Amount by the number of Participating Class Members. There will be

no cap on the settlement payment that a Class Member may receive.

B. As soon as practicable after the Effective Date, the Settlement Administrator will

mail to each Participating Class Member a check representing that person’s settlement payment.

The Settlement Administrator will indicate on the check stub that the Participating Class Member

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should consult his or her tax advisor regarding the tax consequences of the settlement payment. In

the event any check is returned to the Settlement Administrator as undeliverable, the Settlement

Administrator will attempt to contact the Participating Class Member by telephone or perform a

skip trace to attempt to locate a current address and re-mail the check. Any check that is not

cashed within one hundred and twenty (120) days of its mailing by the Settlement Administrator

will be void. Any portion of the Settlement Amount, including any accrued interest, that remains

unpaid at the end of one hundred and forty-five (145) days will be paid to a cy pres recipient

mutually proposed by the Parties and approved by the Court, unless the Court orders otherwise.

IX. RELEASE OF CLAIMS

A. Following the Effective Date and provided that Disney has paid the full Settlement

Amount, Moreno, James-Ward, Peterson, De leon, Gonzalez, Lanesey, and all Class Members

who have not timely requested exclusion from the Settlement, as well as their respective spouses,

heirs, assigns, executors, administrators, successors, and agents (collectively, the “Releasing

Parties”), shall be deemed to release, resolve, relinquish, and discharge each and all of the

Released Parties from each of the Released Claims (as defined below). For purposes of this

paragraph, “Released Parties” means Buena Vista Catalogue Co., d/b/a Disney Movie Club, and

any of its past, present, and future parents, subsidiaries, affiliated companies, and corporations,

and any of its past, present, and future officers, directors, managers, employees, general partners,

limited partners, principals, insurers, reinsurers, shareholders, attorneys, advisors, representatives,

or assigns. For purposes of this paragraph, “Released Claims” means any and all claims, causes of

action, suits, obligations, debts, demands, agreements, promises, liabilities, damages, losses,

controversies, costs, expenses and attorneys’ fees of any nature whatsoever, whether based on any

law (including federal law, state law, common law, contract, rule, or regulation) or equity, whether

known or unknown, suspected or unsuspected, asserted or unasserted, foreseen or unforeseen,

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actual or contingent, liquidated or unliquidated, punitive or compensatory, monetary or non-

monetary, that have been pled in the Action, or that could have been pled in the action, that arise

out of or relate to the causes of action, allegations, practices, or conduct at issue in the in the

Complaint, First Amended Complaint, or Second Amended Complaint. Each of the Released

Parties shall be third-party beneficiaries to this Agreement and entitled to enforce its terms.

B. For the purpose of implementing a full and complete release and discharge between

the named plaintiffs and Defendant, Moreno, James-Ward, Peterson, De leon, Gonzalez, and

Lanesey expressly acknowledge that their respective releases provided in this Agreement are

intended to include in their effect, without limitation, any and all claims, complaints, charges, or

suits, including those claims, complaints, charges, or suits which they do not know or suspect to

exist in their favor at the time of execution hereof, which if known or suspected, could materially

affect their decision to execute this Agreement. This Agreement contemplates the extinguishment

of any such claims, complaints, charges, or suits and therefore all rights under any law of any state

or territory of the United States or other jurisdiction, or principle of common law. It is further

understood and agreed that this release by Moreno, James-Ward, Peterson, De leon, Gonzalez, and

Lanesey is entered into with the provisions of California Civil Code section 1542 (or any analogue

of or counterpart to section 1542 under any state or federal law) specifically in mind, the

provisions of which section are hereby expressly waived. This section reads as follows:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE

CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO

EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE

RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE

MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR

OR RELEASED PARTY.

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By executing this Agreement, Moreno, James-Ward, Peterson, De leon, Gonzalez, and

Lanesey acknowledge that they have been specifically advised by their counsel of the

consequences of the above waiver, as well as with respect to this Agreement generally.

X. MISCELLANEOUS

A. The Settlement represents a compromise of disputed claims, which Defendant

denies with respect to all allegations of liability, fault, or wrongdoing. Nothing in this Agreement

constitutes an admission by any Party as to the validity of any claim or defense asserted in the

action as to the merits or the propriety of class certification of any claims, other than for purposes

of settlement.

B. This Agreement may be modified only by a writing signed by the Parties.

C. This Agreement, including its exhibits, constitutes the entire agreement between

the Parties concerning the subject matter hereof. This Agreement and exhibits will be construed as

a whole, and with reference to one another, according to their fair meaning and intent. The Parties

agree that the rule of construction that ambiguities in agreements must be construed against the

drafting party will not apply in interpreting this Agreement or its exhibits.

D. The invalidity or unenforceability of any of the provisions contained in this

Agreement shall not render invalid or unenforceable any of the other provisions of this

Agreement. If any provision of this Agreement or the application thereof to any person,

organization or circumstance shall to any extent be held by a court of competent jurisdiction to be

invalid, void or unenforceable, the remainder of the provisions of this Agreement or the

application thereof to any person, organization or circumstance shall remain in full force and

effect and shall in no way be affected, impaired or invalidated.

E. The Parties represent and warrant that they have not assigned or transferred in any

manner, including by way of subrogation or operation of law or otherwise, any claims, suits,

19

actions, causes of action, demands, liabilities, duties, obligations, rights, damages, benefits, costs,

awards, loss of service, expenses and/or compensation released by such party herein.

F. Each Party hereto hereby covenants and agrees not to bring any claim, action, suit,

or proceeding against any other Party hereto, directly or indirectly relating in any way to the

matters settled and released hereby, and each Party further covenants and agrees that this

Agreement is a bar to any such claim, action, suit or proceeding.

G. The Parties hereby agree to do such things and to execute such other and further

documents, writings and/or instruments as may be necessary or convenient to the performance of

this Agreement and/or to assure that its intent, purposes, and/or objects shall be fully and

completely carried out.

H. The Parties have been represented by independent counsel of their own choice, and

the settlement and releases referred to herein are an arm’s length transaction.

I. Each of the Parties has investigated the facts pertaining to this Agreement as each

deems necessary. The Parties understand that the facts with respect to which this Agreement is

entered into may hereafter turn out to be other than or different from the facts in that connection

now known or believed by them to be true, and each accepts and assumes the risk of the facts

turning out to be different and agree that this Agreement shall be and remain in all respects

effective and not subject to termination or rescission by virtue of any such difference in facts.

J. The Parties acknowledge and agree that no representation or promise not expressly

set forth in this Agreement has been made by any other party or by any of its agents, servants,

employees, representatives, attorneys, or insurers. The Parties further acknowledge and agree that

they have been represented throughout the dispute and in all the negotiations which preceded the

execution of this Agreement by counsel of their own free choice. Each person signing this

Agreement represents that he or she has carefully read the Agreement, has had the opportunity to

20

consult with independent legal counsel with respect to the advisability of making the settlement

provided for herein and of executing this Agreement and all other matters contained herein, and

understands the Agreement, and is freely and voluntarily signing it and warrants his or her

authority to sign the Agreement.

K. No waiver of any provision of this Agreement shall constitute a waiver of any other

provision, nor shall such waiver constitute a continuing waiver.

L. The Parties and their respective counsel agree that they will not issue any press

release or make any statements or comments to media regarding the settlement of this action. If

contacted by media or press, the Parties shall respond to the effect that the action has been settled,

and/or “no comment.”

M. Neither Plaintiffs nor Defendant shall make any disparaging remarks or statements

towards the other.

N. Each individual signing this Agreement warrants that he or she has the authority to

sign the Agreement on behalf of the Party for which he or she signs. Buena Vista Catalogue Co.,

d/b/a Disney Movie Club warrants that it has obtained all necessary authorizations under its

organizational documents and under law to make this Agreement binding on it.

O. The Parties agree that this Agreement, and any and all disputes that arise from or in

any way relate to this Agreement, will be governed and interpreted and enforced in accordance

with the laws of the State of California, but without regard to its law concerning conflict of laws.

P. This Agreement may be executed in counterparts.

Q. Except as otherwise specifically provided for herein, each Party will bear its own

attorneys’ fees, costs and expenses in relation to the Action.

21

R. The Superior Court of the State of California, County of San Diego, will retain

continuing jurisdiction to interpret and enforce this Agreement pursuant to Code of Civil

Procedure section 664.6.

IN WITNESS WHEREOF, the Parties accept and agree to this Agreement and hereby

execute it voluntarily and with a full understanding of its consequences.

Dated: ____________________________________

ILENE MORENO

Dated: ____________________________________

CHERYL JAMES-WARD

Dated: ____________________________________

LARAY PETERSON

Dated: ____________________________________

HENRY DE LEON

Dated: ____________________________________

ANTHONY GONZALEZ

Dated: ____________________________________

KYLE LANESEY





21

R. The Superior Court of the State of California, County of San Diego, will retain

continuing jurisdiction to interpret and enforce this Agreement pursuant to Code of Civil

Procedure section 664.6.

IN WITNESS WHEREOF, the Parties accept and agree to this Agreement and hereby

execute it voluntarily and with a full understanding of its consequences.

Dated: ____________________________________

ILENE MORENO

Dated: ____________________________________

CHERYL JAMES-WARD

Dated: ____________________________________

LARAY PETERSON

Dated: ____________________________________

HENRY DE LEON

Dated: ____________________________________

ANTHONY GONZALEZ

Dated: ____________________________________

KYLE LANESEY





21

R. The Superior Court of the State of California, County of San Diego, will retain

continuing jurisdiction to interpret and enforce this Agreement pursuant to Code of Civil

Procedure section 664.6.

IN WITNESS WHEREOF, the Parties accept and agree to this Agreement and hereby

execute it voluntarily and with a full understanding of its consequences.

Dated: ____________________________________

ILENE MORENO

Dated: ____________________________________

CHERYL JAMES-WARD

Dated: ____________________________________

LARAY PETERSON

Dated: ____________________________________

HENRY DE LEON

Dated: ____________________________________

ANTHONY GONZALEZ

Dated: ____________________________________

KYLE LANESEY





21

R. The Superior Court of the State of California, County of San Diego, will retain

continuing jurisdiction to interpret and enforce this Agreement pursuant to Code of Civil

Procedure section 664.6.

IN WITNESS WHEREOF, the Parties accept and agree to this Agreement and hereby

execute it voluntarily and with a full understanding of its consequences.

Dated: ____________________________________

ILENE MORENO

Dated: ____________________________________

CHERYL JAMES-WARD

Dated: ____________________________________

LARAY PETERSON

Dated: ____________________________________

HENRY DE LEON

Dated: ____________________________________

ANTHONY GONZALEZ

Dated: ____________________________________

KYLE LANESEY





21

R. The Superior Court of the State of California, County of San Diego, will retain

continuing jurisdiction to interpret and enforce this Agreement pursuant to Code of Civil

Procedure section 664.6.

IN WITNESS WHEREOF, the Parties accept and agree to this Agreement and hereby

execute it voluntarily and with a full understanding of its consequences.

Dated: ____________________________________

ILENE MORENO

Dated: ____________________________________

CHERYL JAMES-WARD

Dated: ____________________________________

LARAY PETERSON

Dated: ____________________________________

HENRY DE LEON

Dated: ____________________________________

ANTHONY GONZALEZ

Dated: ____________________________________

KYLE LANESEY





21

R. The Superior Court of the State of California, County of San Diego, will retain

continuing jurisdiction to interpret and enforce this Agreement pursuant to Code of Civil

Procedure section 664.6.

IN WITNESS WHEREOF, the Parties accept and agree to this Agreement and hereby

execute it voluntarily and with a full understanding of its consequences.

Dated: ____________________________________

ILENE MORENO

Dated: ____________________________________

CHERYL JAMES-WARD

Dated: ____________________________________

LARAY PETERSON

Dated: ____________________________________

HENRY DE LEON

Dated: ____________________________________

ANTHONY GONZALEZ

Dated: ____________________________________

KYLE LANESEY





22

Dated:

APPROVED AS TO FORM:

Dated: _________, 2020

BUENA VISTA CATALOGUE CO.,

d/b/a Disney Movie Club

____________________________________

Name:

Title:

DOSTART HANNINK & COVENEY LLP

____________________________________

ZACH P. DOSTART

Attorneys fo Plainr tiffs

SIDLEY AUSTIN LLP

____________________________________

AMY P. LALLY

Attorneys for Defendant









22

Dated: BUENA VISTA CATALOGUE CO.,

d/b/a Disney Movie Club

____________________________________

Name:

Title:

APPROVED AS TO FORM:

Dated: _________, 2020 DOSTART HANNINK & COVENEY LLP

____________________________________

ZACH P. DOSTART

Attorneys for Plaintiffs

Dated: _________, 2020 SIDLEY AUSTIN LLP

____________________________________

AMY P. LALLY

Attorneys for Defendant

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October 13