Microsoft Word - Exhibit A-R

IN THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT OF

WASHINGTON AT SEATTLE

Case No. 2:22-cv-01081-JLR

Judge James L. Robart

AMENDED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

This Amended Class Action Settlement Agreement (the “Settlement Agreement”) is

entered into by and between Stephen J. Tuttle and Dustin Collman (individually and collectively,

the “Class Representatives” or “Plaintiffs”), on behalf of themselves and the Class Members (as

defined herein) (with the assistance and approval of Class Counsel) and Audiophile Music

Direct, Inc., a Nevada corporation (“Music Direct”), and Mobile Fidelity Sound Lab, Inc., an

Illinois corporation (“MoFi”) (individually and collectively, the “Defendants”). By entering into

this Settlement Agreement, the Settling Parties (as defined herein), including all Class Members,

intend to fully, finally, and forever release, resolve, discharge, and settle the Released Claims (as

defined herein), upon and subject to the terms and conditions of this Settlement Agreement, and

subject to the final approval of the Court.

WHEREAS, the Litigation (as defined herein) was commenced by Plaintiffs,

individually and on behalf of an alleged nationwide class, and is currently pending;

STEPHEN J. TUTTLE, an individual, and

DUSTIN COLLMAN, an individual, on behalf

of themselves and persons similarly situated,

Plaintiffs,

AUDIOPHILE MUSIC DIRECT, INC. d/b/a

MUSIC DIRECT and MOBILE FIDELITY

SOUND LAB, INC. d/b/a MOBILE FIDELITY

and/or MOFI,

Defendants.

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WHEREAS, in the Litigation, Class Representatives allege that Defendants, inter

alia, (i) violated the Washington Consumer Protection / Unfair Business Practices Act, RCW

19.86.020 against Washington state Class Members, (ii) committed acts in breach of contract

against national Class Members, (iii) committed acts of unjust enrichment against national Class

Members, and (iv) violated §§815 ILCS 505/2 and 510/2 of Illinois Consumer Fraud Act against

national Class Members;

WHEREAS, Defendants deny Plaintiffs’ claims, any liability to Class Representatives or

any member of the alleged or proposed Settlement Class (as defined herein), and any

wrongdoing of any kind;

WHEREAS,

Class Representatives and Defendants agree that it is desirable that

the Litigation be settled upon the terms and conditions set forth below to avoid further expense

and uncertain, burdensome, and potentially protracted litigation and resolve all claims that have

been or could have been asserted; and

WHEREAS, the Defendants have produced data to permit Class Counsel to evaluate the

nature and fairness of any settlement terms, and Defendants represent that such data are accurate

and reliable and were produced to enable Class Counsel to evaluate and enter into this Settlement

Agreement;

WHEREAS, the Settling Parties have engaged in arms-length settlement negotiations and

Class Counsel represents that they have otherwise conducted a thorough study and

investigation of the law and facts relating to the claims that have been, or might have been

asserted in the Litigation and have concluded - taking into account the benefits that the Class

Representatives and the Class Members will receive as a result of this Settlement Agreement as

well as the risks and delays of further litigation - that this Settlement Agreement is fair,

Case 2:22-cv-01081-JLR Document 28 Filed 02/02/23 Page 5 of 70

reasonable, adequate, and in the best interests of Class Representatives and the Class; and

WHEREAS, the Settling Parties executed a Settlement Agreement dated January 14,

2023 and Plaintiffs submitted an Unopposed Motion for Preliminary Approval of Class Action

Settlement and Notice Program to the Court on January 15, 2023;

WHEREAS, the Court issued an Order dated January 20, 2023 denying the Unopposed

Motion for Preliminary Approval of Class Action Settlement and Notice Program without

prejudice, listing several issues that must be corrected before the Court could preliminarily

approve the settlement;

WHEREAS, the Settling Parties have modified the January 14, 2023 Settlement

Agreement to address the issues identified by the Court in its January 20, 2023 Order; and

NOW, THEREFORE, intending to be legally bound and acknowledging the sufficiency

of the consideration and undertakings set forth in this Settlement Agreement, the Settling Parties

agree, subject to the approval of the Court and provisions contained in this Settlement

Agreement, that the Litigation and Released Claims against Defendants and any Defendants

Releasees are fully and finally compromised, settled, and released, and that the Litigation

shall be dismissed with prejudice as follows:

1. Conditional Nature of Settlement Agreement. This Settlement Agreement,

including all associated exhibits and attachments, is made for the sole purpose of attempting to

consummate settlement of this Litigation on a Class-wide basis. The Settlement Agreement is

made in compromise of disputed claims. The Settlement Agreement is intended by the Settling

Parties to fully, finally, and forever resolve, discharge, and settle the Released Claims upon and

subject to the terms and conditions set forth in this Settlement Agreement. Because this

Litigation was pled as a class action, this settlement must receive preliminary and final approval

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by the Court. Accordingly, the Settling Parties enter into this Settlement Agreement and

associated settlement (the “Settlement”) on a conditional basis that is subject to the final approval

of the Court.

2. Effect of Disapproval.

In the event the Court does not execute and file an

Order Granting Final Approval of the Settlement (as defined herein), or in the event that such

Order does not become Final (as defined herein) for any reason, this Settlement Agreement shall

be deemed null and void ab initio: it shall be of no force or effect whatsoever; it shall not be

referred to or utilized for any purpose whatsoever; and any negotiations, terms, and entry of the

Settlement Agreement shall remain subject to the provisions of Federal Rule of Evidence 408 and

any similar state laws.

3. Denial of Liability; No Admissions. Defendants deny all of Plaintiffs’ claims as

to liability, damages, penalties, interest, fees, restitution, and all other forms of relief as well as the

allegations asserted in the Litigation. Neither this Settlement Agreement, nor any of its terms

and provisions, nor any of the negotiations connected with it, shall be construed as any

admission or concession by Defendants of any legal violations, any legal requirement, or any

failure to comply with any applicable law. Except as necessary in a proceeding to enforce the

terms of this Settlement Agreement, this Settlement Agreement and its terms and provisions shall

not be used, offered, or received as evidence in any action or proceeding to establish: any

liability or admission on the part of Defendants or any Defendants’ Releasees; any condition

constituting a violation of, or non-compliance with, federal, state, local, or other applicable laws;

or the propriety of class certification in any proceeding or action. The Settling Parties expressly

agree and represent that in the event the Court does not approve the Settlement Agreement or

any appellate court disapproves of the Settlement Agreement in any way that prevents the

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Settlement from becoming Final, no Party will use or attempt to use any conduct or statement of

any other Party in connection with this Settlement Agreement or any effort to seek approval of

the Settlement to affect or prejudice any other Party’s rights in any ensuing litigation.

Defendants have agreed to resolve this Litigation through this Settlement Agreement, but to the

extent this Settlement Agreement is deemed void or the Effective Date does not occur,

Defendants do not waive, but rather expressly reserve, all rights to challenge all such claims and

allegations in the Litigation upon all procedural and factual grounds including, without

limitation, the ability to challenge class action treatment on any grounds or assert any and all

defenses or privileges. Defendants expressly reserve all rights and defenses as to any claims

and do not waive any such rights or defenses in the event that the Settlement Agreement is not

approved for any reason. The Class Representatives and Class Counsel agree that Defendants

and the Defendants’ Releasees retain and reserve these rights and agree not to take a position to

the contrary. Specifically, the Class Representatives and Class Counsel agree not to argue or

present any argument, and hereby waive any argument, that Defendants could not contest

class certification on any grounds if this Litigation were to proceed.

4. Definitions.

As used in all parts of this Settlement Agreement, the following terms have the

meanings specified below:

4.1 “Applicable Period” means the period of time of any retail purchase of a

new and unused Applicable Record (as defined herein) made by the original retail consumer

purchaser from the date of the first purchase order for the same on March 19, 2007 until July 27,

2022.

4.2 “Applicable Record(s)” means all MoFi

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(a) OMR (as defined herein) and One-Step (as defined herein) vinyl

recordings sourced from original analog master tapes and which utilized a DSD (as defined

herein) transfer step in the mastering chain (including those listed on EXHIBIT A, attached

hereto and any others meeting the defined criteria), and

(b) which were purchased new and unused at retail in the United

States by the original retail consumer purchaser during the Applicable Period, and provided that

said purchaser still owns said recordings.

4.3 “Claims Period” means the period ninety (90) days from the Notice

Deadline during which Class Members can submit their Settlement Claim Certification Form and

Proof to the Settlement Administrator. Settlement Claim Certification Forms received after the

Claims Period are untimely and will not be eligible for Settlement Payments.

4.4

“Class Counsel” means Duncan C. Turner, Esq., and the law firm of

Badgley Mullins Turner, PLLC, of

19929 Ballinger Way NE, Suite 200, Seattle, Washington

98155

4.5

“Class Member” means a person who

is a member of the Settlement

Class who does not submit a valid and timely request for exclusion or “opt-out” from the

Settlement Class in accordance with the terms of this Settlement Agreement.

4.6

“Class Notice” or “Notice” means the publication summary notice

(“Summary Notice”), full notice (“Full Notice”), direct postal mailed Full Notice (“Direct

Mailed Full Notice”), and direct emailed Summary Notice (“Emailed Summary Notice”) to

be approved by the Court substantially in the form of

EXHIBITS C

and

attached hereto.

4.7

“Court” means the United States District Court for the Western

District of

Washington at Seattle.

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4.8 “Defendants’ Releasees”

means individually and collectively, MoFi and

Music Direct, and each of or their current and former affiliates (including, but not limited to, any

parents and subsidiaries); each of the foregoing’s predecessors, successors, divisions, joint

ventures, and assigns; and each of any of the foregoing’s past or present directors, officers,

employees, partners, members, principals, agents, underwriters, insurers, co-insurers, re-insurers,

shareholders, attorneys, accountants

or auditors, banks or investment banks, personal or

legal representatives, or associates.

4.9

“DSD” means

the high resolution direct stream digital encoding format.

4.10

“

Effective Date” means the date on which the time to appeal from

entry of the

Order Granting Final Approval of the Settlement

has lapsed with no notice of

appeal having been filed, or if an appeal is filed, the date the

Order Granting Final Approval

of the Settlement

is affirmed, all appeals are dismissed, and no further appeals to, or

discretionary review in any court remains.

4.11

“Final” means the occurrence of the Effective Date.

4.12

“Litigation”

or the “Lawsuit”

means

the

lawsuit captioned

Stephen J. Tuttle, an individual, and Dustin Collman, an individual; on behalf of themselves and

persons similarly situated v. Audiophile Music Direct, Inc. d/b/a Music Direct, and Mobile

Fidelity Sound Lab, Inc. d/b/a Mobile Fidelity and/or Mofi, Case No. 2:22-cv-01081-JLR

(United States District Court for the Western District of Washington at Seattle).

4.13 “MoFi” means Defendant, Mobile Fidelity Sound Lab, Inc., an Illinois

corporation, with its principal place of business at 1811 West Bryn Mawr Avenue, Chicago, Illinois

60660.

4.14 “Music Direct” means Defendant, Audiophile Music Direct, Inc., a Nevada

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corporation, with its principal place of business at 1811 West Bryn Mawr Avenue, Chicago, Illinois

60660.

4.15 “Notice Deadline” means the deadline to commence the print and

internet publication of Summary Notice, mailing of Direct Mailed Full Notice, and

emailing of Emailed Summary Notice, which shall be no later than forty-five (45) days after the

Preliminary Approval Date.

4.16 “Notice Response Deadline” means the date sixty (60) days after the

Notice Deadline for purposes of opt out of the Settlement Class or serving an objection to the

Settlement pursuant to Section 5.4 of the Settlement Agreement.

4.17 “OMR Records” means vinyl record albums produced by MoFi under its

“Original Master Recording” series and bearing the Original Master Recording label.

4.18 “One-Step Records” means vinyl record albums produced by MoFi under

its “Ultradisc One-Step” series and bearing the Ultradisc One-Step label.

4.19 “Order of

Final

Approval” or

“Order

Granting Final

Approval of

Settlement’’ means an order to be entered and filed by the Court following the final approval

hearing entitled “Order Granting Final Approval of Settlement” substantially in the form

attached as EXHIBIT F, attached hereto.

4.20 “Participating Claimant(s)” means each member of the Settlement Class

who properly and timely submits a Qualifying Settlement Claim Certification Form (as defined

herein) in response to the Class Notice.

4.21 “Preliminary Approval Date” means the date on which the Court enters

the Preliminary Approval Order.

4.22 “Preliminary Approval Order” means an order to be executed and filed by

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the Court entitled “Order Granting Preliminary Approval” substantially in the form attached

as EXHIBIT B, attached hereto.

4.23 “Proof of Purchase” means

(a) Documentary evidence of the amount paid by the Class Member

for the retail purchase of an Applicable Record, the date of the purchase, and the entity to which

the Class Member made the payment.

(b) Acceptable Proof of Purchase includes a receipt, credit card

statement, or cancelled check referencing the purchase, or such other documentary evidence

provided by the Class Member and deemed sufficient by the Settlement Administrator after

consulting with Class Counsel and counsel for the Defendants.

directly from either (i) Defendant MoFi’s “mofi.com” website, or (ii) Defendant Music Direct’s

“musicdirect.com” website (individually and collectively referred to as a “Direct Purchase”) the

provision of their name and order number shall suffice as Proof of Purchase.

(d) For Class Members who made a Direct Purchase and who do not

have their order number, the provision of their name, email address used, and approximate date

of purchase, for each listed Applicable Record shall suffice as Proof of Purchase.

(e) The adequacy of Proof of Purchase is to be evaluated under liberal

terms to effect the intent and purpose of the Settlement.

4.24 “Proof of Ownership” means

(a) Documentary evidence that the Class Member submitting a claim

under the Settlement purchased an Applicable Record within the Applicable Period and still

owns and is still in possession of same.

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(b) Acceptable Proof of Ownership, includes, for each Applicable

Record: (i) the catalog number appearing on the spine of the record cover or box; and legible

photos, photocopies, JPEGs, PDFs, or similar copies of both (ii) the individually stamped or

hand-written number from the back cover, and (iii) the front cover of the Applicable Record, or

such other documentary evidence deemed sufficient by the Settlement Administrator.

liberal terms to effect the intent and purpose of the Settlement.

(d) Proof of Purchase and Proof of Ownership are hereinafter

individually and collectively also referred to as “Proof.”

4.25 “Qualifying Settlement Claim Certification Form” means a Settlement

Claim Certification Form (as defined herein) that is completed, properly executed, and timely

returned to the Settlement Administrator by uploading to the Settlement Website (as defined

herein) orby email received or mail postmarked within ninety (90) days from Notice Deadline.

Class Counsel shall be thereafter apprised of any claim that is challenged by Defendants; and, the

Settling Parties, through their counsel, shall meet and confer in good faith in an attempt to

resolve any challenged claim.

4.26 “Released

Claims” means, individually

and collectively,

any

and all

claims which arise out of or are in any way related to Defendants’ marketing, promotion and sale

of the Applicable Records during the Applicable Period (including, without limitation, Unknown

Claims as defined herein), demands, rights, liabilities, and causes of action of every nature and

description whatsoever including, without limitation, statutory, constitutional, contractual, or

common law claims, whether known or unknown, whether or not concealed or hidden, whether

contingent or vested, against Defendants, the Defendants’ Releasees, or any of them, that

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accrued, had accrued, or could have accrued at any time on or prior to the Effective Date for any

type of relief whatsoever including, without limitation, compensatory damages, treble damages,

unpaid costs, penalties, statutory damages, liquidated damages, punitive damages, interest,

attorneys’ fees, litigation costs, restitution, rescission, or equitable relief, based on any and all

claims which are or could have been raised in the Litigation either individually or on a class-

wide basis related to the Applicable Records.

4.27 “Settlement Claim Certification Form” or “Claim Form” means a claim

form substantially in the form attached as EXHIBIT E.

4.28 “Settlement Class” means the collective group of those retail consumers

who purchased Applicable Records within the Applicable Period. Specifically, the Settlement

Class definition, including for purposes of giving notice to the Settlement Class, shall read

substantially as follows:

All original retail consumers in the United States who, from March 19, 2007, through

July 27, 2022 purchased, either directly from a Defendant or other retail merchants, new

and unused Mobile Fidelity Sound Lab, Inc. (“MoFi”) vinyl recordings which were

marketed by Defendants using the series labeling descriptors “Original Master

Recording” and/or “Ultradisc One-Step,” that were sourced from original analog master

tapes and which utilized a direct stream digital transfer step in the mastering chain, and

provided that said purchasers still own said recordings (the “Applicable Records”).

Excluded from the Class are persons who obtained subject Applicable Records from

other sources.

4.29 “Settlement Hearing” or “Fairness Hearing” means a hearing set by

the Court to take place no earlier than ninety (90) days after entry of the Preliminary Approval

Order for the purpose of: (i) determining the fairness, adequacy, and reasonableness of the

Settlement Agreement and associated Settlement pursuant to class action procedures and

requirements; and (ii) entering the Order Granting Final Approval of Settlement. Pursuant to the

Class Action Fairness Act of 2005, 28 U.S.C. § l 715(d), an order giving final approval of a

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proposed settlement may not be issued earlier than ninety (90) days after the dates on which the

appropriate Federal official and the appropriate State official are served with the notice required

under 28 U.S.C. § l 715(b).

4.30 “Settlement Agreement” or “Agreement” means this Agreement and

Release, and all of its attachments and exhibits, which the Settling Parties understand and agree

sets forth all material terms and conditions of the Settlement between them and which is subject

to Court approval. It is understood and agreed that Defendants’ obligations for payment under

this Settlement Agreement are conditioned on the preliminary approval of the Settlement and the

distribution of any funds to any Class Member or Class Counsel is conditioned upon the

occurrence of the Effective Date.

4.31 “Settlement Administrator” means Kroll Settlement Administration, LLC.

4.32 “Settling Parties”

means

Defendants

and

the Class

Representatives on

behalf of themselves and any and all Class Members.

4.33 “Unknown Claims” means any Released Claims which the Class

Representatives or any Class Member do not know or suspect to exist in his, her, or its favor at

the time of the entry of the Order Granting Final Approval of Settlement and which, if known by

him, her, or it might have affected his, her, or its settlement with and release of Defendants and

the Defendants’ Releasees.

The Class Representatives and each Class Member may hereafter

discover facts in addition to or different from those which they now know or believe to be true

with respect to the subject matter of the Released Claims, but the Class Representatives and

each Class Member, upon the Effective Date, shall be deemed to have, and by operation of the

Order Granting Final Approval of Settlement shall have, fully, finally, and forever settled and

released any and all Released Claims, known or unknown, suspected or unsuspected, contingent

Case 2:22-cv-01081-JLR Document 28 Filed 02/02/23 Page 15 of 70

or non-contingent, whether or not concealed or hidden, which then exist, or heretofore have

existed upon any theory of law or equity now existing or coming into existence in the future

including, but not limited to, conduct which is negligent, reckless, intentional, with or without

malice, or a breach of any duty, law, regulation, or rule, without regard to the subsequent

discovery or existence of such different or additional facts. Each of the Class Representatives

and each Class Member expressly waive and relinquish, to the fullest extent permitted by law,

the provisions, rights and benefits of Section 1542 of the California Civil Code, or any similar

provision under federal or state law that purports to limit the scope of a general release. Section

1542 provides: 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. The Class Representatives

acknowledge, and the Class Members shall be deemed by operation of the Order Granting Final

Approval of Settlement to have acknowledged, that the foregoing waivers were separately

bargained for and key elements of the Settlement of which these releases are a part.

5. The Settlement.

5.1

Settlement Payments.

Members of the Settlement Class who submit timely and valid Qualifying

Claim Certification Forms, Proof of Purchase, and Proof of Ownership shall be entitled to

receive Settlement compensation as follows:

(a) Class Members who elect to return their Applicable Record(s) in

their original covers and/or boxes, in complete and undamaged condition except for normal wear

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and tear, shall receive a refund of their actual purchase price (not to exceed 110% of the

manufacturer’s suggested retail list price at the time of purchase (“MSRLP”)), plus tax and

shipping, in the form of a check or electronic payment (e.g., PayPal, Venmo, etc.) (the “Return

Refund). For each Applicable Record purchased online directly from either Defendant MoFi’s

“mofi.com” website, or Defendant Music Direct’s “musicdirect.com” website, the Class

Member’s actual purchase price will be used in calculating the amount of their Return Refund.

For each Applicable Record purchased from retail merchants other than Defendants, the Class

Member’s actual purchase price not to exceed 110% of the MSLRP at time of purchase will be

used in calculating the amount of their Return Refund. A list of MSLRPs by date shall be posted

on the Settlement Website.

(b) Class Members who elect to keep their Applicable Record(s),

shall have the option of receiving, either (i) payment of five percent (5%) of the actual purchase price

(not to exceed 110% of the MSRLP), in the form of a check or electronic payment (e.g., PayPal,

Venmo, etc.) (the “5% Payment”), or (ii) a coupon in the amount of ten percent (10%) of the actual

purchase price (not to exceed 110% of the MSRLP), redeemable for retail purchase use at

Defendant Music Direct’s “musicdirect.com” retail website (the “10% Coupon” or “Coupon”)

(with the Return Refund, 5% Payment, and 10% Coupon being hereinafter individually and

collectively referred to as the “Settlement Payment”).

full value for one or more retail purchases by the Class Member. Each coupon, including any

unused amounts will expire one hundred and eighty (180) days after issuance (the “Redemption

Period”) and shall not be transferable. Coupons may be redeemed in combination on one or more

purchases. Any unused amounts will be placed on account for use during the Redemption Period

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by the Class Member. All MoFi products currently in stock and available for sale shall be

available for Coupon redemption along with any and all other products offered for sale at

“musicdirect.com.”

(d) Class Members shall be entitled to designate their preference of a

Return Refund, 5% Payment, or 10% Coupon Settlement Payment for each individual

Applicable Record on their Claim Form.

(e) For purposes of payment security, all (i) Return Refunds and (ii) 5%

Payments to Class Members will be paid by check mailed to the address designated on the Claim

Form unless an election for an electronic Return Refund and/or 5% Payment, including the

designation of form of electronic payment (e.g., PayPal, Venmo, etc.), is timely made by the Class

Member by filling out the Claim Form on the Settlement Website. Class Members can only make

the electronic Return Refund or electronic 5% Payment election on the Settlement Website. Class

Members must cash their Return Refund and/or 5% Payment checks within one hundred and eighty

(180) days after issuance.

5.2 Preliminary Approval and Court Approval of Notice to the Class.

5.2.1 The Class Representatives and Defendants, through their counsel of

record in the Litigation, shall file this Settlement Agreement with the Court, and Class

Representatives shall move for (and Defendants shall not oppose) preliminary approval of this

Settlement Agreement, conditional certification of the Class, and the form and manner of Class

Notice. Through this submission and a supporting motion, the Class Representatives, through

their counsel of record, will request (and Defendants shall not oppose) that the Court enter the

Preliminary Approval Order thereby scheduling the Fairness Hearing for the purposes of

determining the fairness, adequacy, and reasonableness of the Settlement; and entering the Order

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Granting Final Approval of Settlement.

5.3 Notice to Class Members.

5.3.l.

Following the Court’s entry of the Preliminary Approval Order,

the Settlement Administrator shall provide notice to the Class Members as set forth below

Copies of the proposed Class Notice Summary Notice and Full Notice documents are attached to

this Settlement Agreement as EXHIBITS C and D.

5.3.2. The Notice Program shall commence by the Notice Deadline and

shall include:

(a) Print and internet publication of the Summary Notice in industry

niche magazines;

(b) Internet Summary Notice displayed on (i) Defendant MoFi’s

“mofi.com” retail website and (ii) Defendant Music Direct’s “musicdirect.com” retail website

(collectively, “Defendants’ Websites”);

relevant platforms, sites, newsfeeds and stories; and

(d) Internet display banner advertising; specifically targeted to reach

Class Members.

(e) The print and internet publication in industry niche magazines and

on Defendants’ Websites shall be substantially in the form of the Summary Notice in EXHIBIT C.

(f) The internet, Defendants’ Websites, social media and display

banner advertising notices referenced in this Section 5.3.2

shall also include a hyperlink to the

Settlement Website which shall contain

the Full Notice and Claim Form.

5.3.3 Both Direct Mailed Full Notice and Emailed Summary Notice shall

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be made to approximately 23,000 Class Members who made a Direct Purchase of Applicable

Records during the Applicable Period from Defendants and for whom address and email address

information is available in Defendants’ records or in Defendants’ possession, (individually and

collectively, “Direct Purchasers”). The Direct Mailed Full Notice shall be substantially in the

form of EXHIBIT D and shall also include the EXHIBIT E Claim Form. The direct Emailed

Summary Notice shall be substantially in the form of EXHIBIT C

and shall include a hyperlink

to the Settlement Website which shall contain the

EXHIBIT D

Full Notice and

EXHIBIT

Claim Form

. The Settlement Administrator will send the Direct Purchasers list through the

United States Postal Service’s (“USPS”) National Change of Address (“NCOA”) database to

obtain updated addresses for Class Members who have submitted a change of address with the

USPS in the last 48 months. Direct Mailed Full Notice to Direct Purchasers will be made by First

Class Mail and Emailed Notice will be sent to Direct Purchasers on or before the Notice Deadline.

5.3.4 A dedicated Settlement website (the “Settlement Website”)

administered by the Settlement Administrator shall be established by the Notice Deadline. The

Settlement Website will, among other things, provide links to the Settlement Agreement, the

Class Notice, t he Claim Form, and other relevant documents. In addition, the Settlement

Website will provide for online claim filing, allow Class Members to contact the Settlement

Administrator with any questions or changes of address, and provide notice of important dates.

5.3.5 CAFA Notice. The Settlement Administrator shall send notice of

the proposed class action Settlement to the appropriate Federal official and the appropriate State

official, if any, pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1715, no later

than ten (10) days after the motion for preliminary approval is filed with the Court.

5.3.6 Press Release. The Settlement Administrator shall issue a press

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release concerning the Settlement via PR Newswire’s USA1 distribution network, which

includes thousands of news outlets. The Settlement Administrator will monitor for news

mentions and report the results to the Court upon completion of the Notice Program.

5.3.7 Toll-Free Number. The Settlement Administrator will establish

and administer a toll-free number for the Settlement, which will allow Class Members to call and

obtain information about the Settlement through an interactive voice response system and/or by

being connected to a live agent. The toll-free number will be available twenty-four hours a day,

seven days a week.

5.3.8 The costs of Notice to Class Members and Settlement

Administrator shall be paid by Defendants.

5.4 Claims Processing, Opt-out, Objections; and Motion for Final Approval.

5.4.1 The Settlement Administrator shall process all Claim Forms,

including Proof, submitted by or postmarked by the last day of the Claims Period. For any

Claim Form that is deemed untimely or otherwise deficient, the Settlement Administrator shall

issue a notice of deficiency to the Class Member setting out the reasons for the deficiency within

thirty (30) days of receipt of the Claim Form and provide the Class Member thirty (30) days to

cure the deficiency. Within fifteen (15) days of the close of the Claim Period, the Settlement

Administrator will issue a report to the Settling Parties detailing the Claim Forms received, the

Claim Form deficiencies and cures, as well as a summary of the Participating Claimants’

elections for Settlement Payments. This report will be periodically updated for any cured claims

received by the Settlement Administrator after the Claims Period. The Settling Parties will each

have the right to inspect and verify the Claim Forms, and Proofs prior to the Settlement

Administrator’s approval of such claims, and before Defendants are obligated to make any

Case 2:22-cv-01081-JLR Document 28 Filed 02/02/23 Page 21 of 70

Settlement Payments to the Class Members.

5.4.2 Class Members have the option to participate in this Lawsuit at

their own expense by obtaining their own attorney(s).

Class Members who choose this

option

will be responsible for any attorneys’ fees or costs incurred as a result of their

decision. The Class Notice will advise Class Members of this option.

5.4.3 Class Members (other than Class Representatives) may elect to

“opt-out” of the Settlement and, thus, exclude themselves from the Lawsuit and

Settlement Class. No opt-out request may be made by a group of Class Members or

signed by an actual or purported agent or attorney acting or purporting to act on behalf of

a Class Member. Any opt-out request must be mailed to Class Counsel, be personally

signed by the Class Member opting-out and include the following information: (i) the

name of the Class Member, (ii) the current address of the Class Member, and (iii) the date

signed. Any opt-out request must be mailed to Class Counsel and postmarked no later than

the Notice Response Deadline. Those Class Members who do not opt out of the Settlement

in a manner consistent with the conditions just described will be deemed to have forever

waived their right to opt out of the Settlement Class and this Settlement. Class Members

who do properly opt-out shall have no further role in the Litigation and, for all purposes,

shall be regarded as if they never were a party to this Litigation; thus, they shall not be

entitled to any benefit as a result of this Litigation including, without limitation, any

tolling of any pertinent statute of limitations. If more than ten percent (10%) of eligible

Class Members opt-out of the Settlement, Defendants shall have the option of terminating

the Settlement Agreement at their sole discretion. If Defendants exercises this option, the

Settlement Agreement shall be deemed null and void ab initio.

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5.4.4 Class Members may also object to this Settlement Agreement

by filing a written objection, together with any supporting papers (hereinafter

collectively

referred to as the “Notice of Objection”) with the United States District Court

for the Western District of Washington at Seattle no later than the Notice Response

Deadline. Class Counsel must also be served with copies of the objections, postmarked no

later than the Notice Response Deadline. The Class Notice shall advise Class Members of

this option. Class Counsel shall immediately provide any such objections to Defendants

and, subsequently, the Court in the final approval process. Any Class Member who does not

object to the Settlement in the manner just described shall be deemed to have waived such

objection and shall forever be foreclosed from making any objection to the fairness,

adequacy, or reasonableness of the proposed Settlement or any provision of this Settlement

Agreement.

5.4.5 Prior to the Fairness Hearing and consistent with the rules

established by the Court, the Class Representatives shall move (and Defendants shall not

oppose) the Court for entry of the Order of Final Approval.

Class Representatives and

Defendants, through their counsel shall address any written objections from Class Members in

their submission to the Court for the Fairness Hearing.

Also prior to the Fairness Hearing,

Class Counsel may file a Motion for Fees and Costs, consistent with this Settlement

Agreement. The Class Representatives and Class Counsel shall be responsible for justifying

the agreed upon payments set forth in this Settlement Agreement. The Settling Parties shall

take all reasonable efforts to secure entry of the Order of Final Approval. If the Court

rejects the Settlement, or fails to enter the Order of Final Approval, this Settlement

Agreement shall be void ab initio.

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5.5 Returns and Payments to Participating Claimants

5.5.1 With respect to those Participating Claimants who have not

elected to receive a Return Refund for any Applicable Record identified on their

Qualifying

Settlement Claim Certification Form, the Settlement Administrator shall issue the 5% Payments

and 10% Coupons

within thirty (30) days following the Effective Date.

5.5.2 With respect to Participating Claimants who have elected to

receive a Return Refund for any Applicable Record identified on their

Qualifying Settlement

Claim Certification Form, the Settlement Administrator shall issue and send a pre-paid return

shipping label with tracking number and return instructions to the physical or email address as

designated by the Class Member on the Claim Form within thirty (30) days of and only after the

Effective Date.

5.5.3

Participating Claimants who have elected to receive a Return

Refund must return their Applicable Records identified on their

Qualifying Settlement Claim

Certification Form

pursuant to the return instructions within ninety (90) days from the

issuance of the

pre-paid return shipping label with tracking number (“Return Period”).

5.5.4 Within twenty (20) days of the end of the Return Period, the

Defendants shall provide a report to the Class Counsel and Settlement Administrator detailing

the Applicable Records received within the Return Period, as well as any Records received that

are not Applicable Records or whose condition does not satisfy Section 5.1(a) above (“Return

Refund Report”).

5.5.5 For those Participating Claimants who have no deficiencies in their

return of Applicable Records as set forth in the Return Refund Report, the Settlement

Administrator shall no later than ten (10) days after receipt of the Return Refund Report issue

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payments for Return Refunds, as well as any 5% Payments and 10% Coupons that those

Participating Claimants may have elected for any other (i.e., non-returned) Applicable Record on

their Qualifying Settlement Claim Certification Form.

5.5.6 The Settlement Administrator will review the Return Refund

Report to identify any Participating Claimants who elected a Return Refund on

their

Qualifying

Settlement Claim Certification Form and who either failed to make a return or whose return was

deficient and shall no later than ten (10) days after receipt of the Return Refund Report issue

cure notices to such Claimants. These Claimants shall have forty-five (45) days to cure or

modify their election to receive a 5% Payment or 10% Coupon. Within ten (10) days after the

expiration of the forty-five (45) day cure period, the Settlement Administrator shall issue

payments for Return Refunds, as well as any 5% Payments and 10% Coupons for non-returned

Records, to those Participant Claimants who cured or modified their election during the cure

period.

5.6 Release.

Upon the Effective Date, Class Representatives and each of the Class

Members (for themselves and their respective heirs, executors, administrators, affiliates,

successors, and assigns) shall be deemed to have, and by operation of the Order Granting Final

Approval shall have, fully, finally, and forever released, dismissed with prejudice, relinquished,

and discharged all Released Claims.

5.7 Payment of Costs and Attorneys’ Fees and to the Class Representatives.

5.7.1 Subject to Court approval, Class Counsel shall receive

$290,000 f rom Defendants for all attorneys’ fees and allowable Litigation costs and

expenses. This amount shall be payable within thirty (30) days of the Effective Date and will be

Case 2:22-cv-01081-JLR Document 28 Filed 02/02/23 Page 25 of 70

paid in its entirety by Defendants and will not reduce funds available to pay the Class Members.

Payments made pursuant to this Paragraph shall constitute full satisfaction of any claim for fees

and/or costs and the Class Representatives and Class Counsel, on behalf of themselves and all

Class Members, agree that they shall not seek nor be entitled to any additional attorneys’ fees or

costs under any theory. The Class Representatives and Class Counsel agree that they shall be

responsible for justifying the amount of this cost and fee payment to the Court and submitting the

necessary materials to justify this payment along with the motion for final approval of the

Settlement Agreement. Class Counsel shall provide counsel for Defendants with the pertinent

taxpayer identification number and a Form W-9 for reporting purposes. Other than any

reporting of this fee payment as required by this Settlement Agreement or law, which

Defendants shall make, Class Counsel and the Class Representatives shall alone be responsible

for the reporting and payment of any federal, state, and/or local income or other form of tax on

any payment made pursuant to this Paragraph.

5.7.2 On

behalf

of Plaintiff

Stephen J. Tuttle,

in his personal

capacity only, Class Counsel shall request an incentive payment in the gross amount of $10,000

for Mr. Tuttle to be paid by Defendants. On behalf of Plaintiff Dustin Collman, in his personal

capacity only, Class Counsel shall request an incentive payment in the gross amount of

$10,000 for Mr. Collman to be paid by Defendants. These amounts shall be payable within thirty

(30) days of the Effective Date and will be paid in their entirety by Defendants and will not

reduce funds available to pay the Class Members. This payment shall be compensation and

consideration for Plaintiff Tuttle’s and Plaintiff Collman’s efforts as the Class Representatives

in the Litigation.

5.8 Claims Administration.

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This Settlement shall be administered by the

Settlement Administrator

All fees and costs in payment to the Settlement Administrator shall be borne by the Defendants.

5.9 Termination of Settlement.

In the event that the Settlement Agreement is not approved by the Court;

the Settlement set forth in the Settlement Agreement is terminated, cancelled, declared void, or

fails to become effective in accordance with its terms; the Order Granting Final Approval of

Settlement does not become final; or termination, cancellation, or voiding of the Settlement

Agreement is otherwise provided, no payments shall be made or distributed to anyone in

accordance with the terms of this Settlement Agreement; the Settling Parties will bear their own

costs and fees with regard to the efforts to obtain Court approval; and this Settlement Agreement

shall be deemed null and void with no effect on the Litigation whatsoever. In such event, the

terms and provisions of the Settlement Agreement shall have no further force and effect with

respect to the Settling Parties and shall not be used in this Litigation or in any other proceeding

for any purpose, and any Order Granting Final Approval of Settlement or order entered by the

Court in accordance with the terms of the Settlement Agreement shall be treated as vacated, nunc

pro tunc.

5.10 Miscellaneous Provisions.

5.10.1

The Settling Parties: (i) acknowledge that it is their intent to

consummate this Settlement Agreement and (ii) agree to cooperate to the extent reasonably

necessary to effect and implement all terms and conditions of the Settlement Agreement and

exercise their best efforts to accomplish the foregoing terms and conditions of the Settlement

Agreement.

5.10.2 The Settlement Agreement

compromises

claims

which are

Case 2:22-cv-01081-JLR Document 28 Filed 02/02/23 Page 27 of 70

contested in good faith and it shall not be deemed an admission by any of the Settling Parties as

to the merits of any claim or defense. The Settling Parties agree that the amounts paid in

settlement and the other terms of the Settlement were negotiated in good faith by the Settling

Parties and reflect a settlement that was reached voluntarily after consultation with competent

legal counsel.

5.10.3

Neither the Settlement Agreement, nor any act performed or

document executed pursuant to, or in furtherance of, the Settlement Agreement is, may be

deemed to be, or may be used as an admission of, or evidence of: (i) the validity of any Released

Claim or of any wrongdoing or liability of Defendants, the Defendants’ Releasees, or any of

them; or (ii) any fault or omission of Defendants, the Defendants’ Releasees, or any of

them, in any civil, criminal, or administrative proceeding in any court, administrative agency, or

other tribunal.

5.10.4 All of the exhibits to the Settlement Agreement are material

and integral parts hereof and are fully incorporated herein by this reference.

5.10.5 Except as otherwise provided in this Settlement Agreement, each

party shall bear its own attorneys’ fees and costs. All Class Members will be responsible for

paying any and all income taxes that may be due as a result of their participation in the

Settlement described in this Settlement Agreement.

5.10.6 The Settlement Agreement constitutes the entire agreement

among the Settling Parties hereto and no representations, warranties, or inducements have been

made to any party concerning the Settlement Agreement or its exhibits other than the

representations, warranties, and covenants contained and memorialized in such documents. This

Settlement Agreement supersedes any and all prior oral or written understandings, agreements,

Case 2:22-cv-01081-JLR Document 28 Filed 02/02/23 Page 28 of 70

and arrangements between the Parties with respect to the settlement of the Litigation and the

Released Claims. Except those set forth expressly in this Settlement Agreement, there are no

other agreements, covenants, promises, representations, or arrangements between the Parties

with respect to the settlement of the Litigation and Released Claims. This Settlement Agreement

may be altered, amended, modified, or waived, in whole or in part, only by a writing signed

by all Parties to this Settlement Agreement, and may not be altered, amended, modified, or

waived, in whole or in-part, orally or by an unsigned writing of any kind.

5.10.7 Class Counsel, on behalf of the Class, are expressly authorized

by the Class Representatives to take all appropriate action required or permitted to be taken

by the Class pursuant to the Settlement Agreement to effect its terms, and also are expressly

authorized to enter into any modifications or amendments to the Settlement Agreement on behalf

of the Class which they deem appropriate. Each Party to this Settlement Agreement warrants

that he, she, or it is acting upon his, her, or its independent judgment and/or upon the advice of

his, her, or its own counsel, and is not acting in reliance upon any warranty or representation,

express or implied, of any nature or kind by any other Party, other than the warranties and

representations expressly made in writing in this Settlement Agreement.

5.10.8 Each counsel or other person executing the Settlement

Agreement or any of its exhibits on behalf of any party hereto hereby warrants that such person

has the full authority to do so.

5.10.9 The Settlement Agreement may be executed in one or more

counterparts. All executed counterparts and each of them shall be deemed to be one and the

same instrument.

5.10.10 This Settlement Agreement shall be binding upon, and inure to

Case 2:22-cv-01081-JLR Document 28 Filed 02/02/23 Page 29 of 70

the benefit of, the heirs, administrators, executors, successors, and assigns of the Parties

hereto; but otherwise this Settlement Agreement is not designed to and does not create any

type of third party beneficiaries.

5.10.11

The Court shall retain jurisdiction with respect to implementing

and enforcing the terms of the Settlement Agreement and all parties hereto submit to the

jurisdiction of the Court for purposes of implementing and enforcing the Settlement embodied in

the Settlement Agreement.

5.10.12 The Settlement Agreement and the exhibits hereto shall be

considered

to have

been

negotiated,

executed,

delivered,

and

wholly

performed

in the

State of Washington at Seattle, and the rights and obligations of the parties to the Settlement

Agreement shall be construed and enforced in accordance with, and governed by, the internal

substantive laws of the State of Washington at Seattle without giving effect to that State’s

choice of law principles.

5.10.13 The language of all parts of this Settlement Agreement shall in

all cases be construed as a whole, according to its fair meaning, and not strictly for or

against either party. No party shall be deemed the drafter of this Settlement Agreement. The

parties acknowledge that the terms of the Settlement Agreement are contractual and are the

product of negotiations between the parties and their counsel. Each party and their counsel

cooperated in drafting and preparing the Settlement Agreement. In any construction to be

made of the Settlement Agreement, the Settlement Agreement shall not be construed against

any party. Any canon of contract interpretation to the contrary, under the law of any state,

shall not be applied.

5.10.14 The Class Representatives and Class Counsel shall not directly

Case 2:22-cv-01081-JLR Document 28 Filed 02/02/23 Page 30 of 70

or indirectly cause any aspect of this Lawsuit or the terms of this Settlement Agreement to be

reported to the media or news reporting services, except as may otherwise be agreed to by

Defendants in writing in the form of an agreed-upon written press release. Notwithstanding the

foregoing, Class Counsel shall not be restricted in the use of media in communication with Class

Members whether online, via a website or otherwise, provided that such communication

accurately describe the terms and provisions of this Settlement Agreement applicable to notice

and payment of claims and Defendants’ non-admission of liability.

IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties

hereto have caused the Settlement Agreement to be executed.

Date: February 2, 2023 BADGLEY MULLINS TURNER PLL

By: /s/ Duncan C. Turner

Duncan C. Turner, WSBA No. 20597

Mark A. Trivett, WSBA No. 46375

19929 Ballinger Way NE, Suite 200

Seattle, WA 98155

Telephone: (206) 621-6566

Email: dturner@badgleymullins.com

Attorneys For Plaintiffs

Date: February 2, 2023 JOSEPH J. MADONIA & ASSOCIATES

By: /s/ Joseph J. Madonia

Joseph J. Madonia, (pro hac vice)

5757 North Sheridan, Suite 10A

Chicago, Illinois 60660

Telephone: (312) 953-9000

Email: [email protected]

Attorney For Defendants

Case 2:22-cv-01081-JLR Document 28 Filed 02/02/23 Page 31 of 70

Date: February 2, 2023 CORR CRONIN LLP

By: /s/ Emily J. Harris

Emily J. Harris, WSBA No. 35763

Steven W. Fogg, WSBA No. 23528

Telephone: (206) 625-8600

Email: [email protected]

Local Counsel for Defendants

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