Santini v. Wells Fargo Bank

Filing 53

ORDER [*AS MODIFED BY THE COURT*] AND JUDGMENT GRANTING PLAINTIFF'S MOTIONS FOR: (1) FINAL APPROVAL OF CLASS ACTION SETTLEMENT; (2) APPROVAL OF ATTORNEYS' FEES AND COSTS AND CALSS REPRESENTATIVE'S SERVICE PAYMENT AWARD re 51 Uno pposed MOTION for Final Approval of Class Action Settlement filed by Lindsay Santini, 50 MOTION for Attorney Fees and Costs and Class Representative's Service Payment Award filed by Lindsay Santini; FINAL JUDGMENT. Signed by Judge Yvonne Gonzalez Rogers on 9/13/2017. (Attachments: # 1 Exhibit: Settlement Agreement)(fs, COURT STAFF) (Filed on 9/13/2017)

EXHIBIT 1

This Class Action Settlement Agreement and Release (hereinafter

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“Settlement” or “Agreement”) is made and entered into by and between Plaintiff

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Lindsay Santini (hereinafter, “Plaintiff” or “Class Representative”), individually and

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on behalf of the settlement class, and Defendant Wells Fargo Bank, N.A., (hereinafter

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“Defendant” or “Wells Fargo”) (collectively, “the Parties”) and subject to the approval

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of the Court.

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1.

On April 15, 2016, Plaintiff Lindsay Santini filed a Class Action Complaint in the

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United States District Court for the Northern District of California, which initiated

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Case No. 16-cv-01992-YGR (the “Action”). The Action is brought on behalf of all

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current and former employees who worked as Phone Banker 1’s and/or Phone

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Banker 2’s (collectively “Phone Bankers”) for Wells Fargo in the State of

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California during the period commencing from April 15, 2012, to the present. The

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Action alleges that Wells Fargo failed to pay for all wages earned, including

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overtime, failed to provide compliant meal periods and rest breaks, failed to timely

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pay all wages owed upon termination, failed to furnish accurate wage statements,

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and violated California Business & Professions Code Section 17200 et seq.

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2.

As part of the settlement of this Action and for purposes of this settlement only,

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Plaintiff will file a First Amended Complaint in the Action alleging a cause of

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action for violation of the Fair Labor Standards Act (“FLSA”) on behalf of the

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Class Members for unpaid wages, including unpaid overtime, liquidated damages

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and other available remedies. Otherwise, the First Amended Complaint will be

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identical to the Complaint. If this Agreement does not become final for any reason,

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the Parties’ willingness to stipulate to the filing of a First Amended Complaint

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shall have no bearing on, and will not be admissible in connection with, these

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issues in this case or any subsequent proceeding. The Parties and their counsel will

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not offer or make reference to this provisional stipulation for purposes of

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CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

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settlement in any subsequent proceeding in this Action or in any other action. If

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the Payment Date does not occur for any reason, Plaintiff will dismiss the FLSA

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claim.

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3.

On January 24, 2017, the Parties participated in a day-long mediation before

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Jeffrey A. Ross, a well-regarded mediator who has mediated many wage and hour

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class actions.

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4.

Prior to the January 24, 2017 mediation, the Parties engaged in written discovery

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and engaged in an informal exchange of information. Defendant provided

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Plaintiff with documentation regarding its policies regarding timekeeping,

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overtime, meal periods and rest breaks, provided data compilations regarding the

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putative class members, and provided Plaintiff with an opportunity to assess the

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login process that Phone Bankers engage in before fielding customer calls.

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Furthermore, counsel for the Parties conferred extensively concerning this

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information, the merits of the Parties’ claims and/or defenses, and other issues

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relevant to reaching a settlement.

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5.

The Parties were able to reach a settlement in the days following the January 24,
2017, mediation.

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6.

Plaintiff and her counsel have conducted sufficient discovery (formal and informal)

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and analysis to evaluate the strengths and weaknesses of her respective claims and

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Wells Fargo’s defenses and to recommend this Settlement to the Class Members

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and the Court.

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-2CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

TERMS OF SETTLEMENT

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NOW, THEREFORE, in consideration of the mutual covenants, promises and warranties

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set forth herein, the Parties agree, subject to the Court’s approval, as follows:

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7.

Definitions of Certain Settlement Terms:

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a.

The word “Person” shall have the meaning set forth in Government Code
Section 17.

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b.

The “Settlement Class” consists of those individuals who, according to

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Wells Fargo’s personnel and payroll records, are or were employed by

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Wells Fargo in California as Phone Bankers at any time from April 15,

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2012, through April 15, 2017 (this period shall be referred to as the “Class

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Period”).

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i.

The Settlement Class shall exclude any individual who has a pending

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civil complaint or administrative complaint that contains allegations

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that are also contained in this Action or who, to Wells Fargo’s

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knowledge, has retained counsel to represent him or her in

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connection with any wage-and-hour related claims and/or any

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individual who has previously signed an individual release that

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encompasses all claims contained in this Action.

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ii.

The Opt-In Class shall include all Class Members who cash their

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under 29 U.S.C. § 216(b) and expressly releasing in writing any and

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settlement checks, consenting to join this Action as a party plaintiff

all claims under the Fair Labor Standards Act of 1938, as amended,
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raised as a part of the Action, shall be settled and compromised as between the

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Settlement Class and each Participating Class Member, and Defendant, subject to

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the terms and conditions set forth in this Agreement and the approval of the United

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States District Court for the Northern District of California.

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9.

Settlement Date: The Settlement embodied in this Agreement shall become

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effective upon execution by all Parties, Class Counsel, counsel for Defendant, and

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final approval from the Court, following notice to the Class Members and a formal

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fairness hearing and entry of a final judgment by the Court in accordance with the
terms herein.

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10.

Settlement Amount.

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a.

In consideration for this Settlement and a release by the Settlement Class

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and each Participating Class Member, as provided herein, Defendant has

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agreed to pay Six Hundred and Eighty-Five Thousand Dollars

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($685,000.00) (the “Gross Settlement Amount”) plus the employer’s share

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of any payroll taxes related to the settlement payments. In no event shall the

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amount paid by Defendant exceed the Gross Settlement Amount (plus the

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employer’s share of any payroll taxes), and in no event shall any part of the

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Gross Settlement Amount revert to the Defendant.

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b.

The “Net Settlement Amount” is defined as the Gross Settlement Amount,

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less all of the following: (1) all costs of settlement administration, estimated

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at $25,000; (2) attorneys’ fees of up to $171,250 (the maximum amount of

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Class Counsel’s fee application, pursuant to Paragraph 15, below); (3) Class

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Counsel’s reasonable out-of-pocket costs (not to exceed $20,000), pursuant

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to Paragraph 15, below; and (4) the Class Representative service payment

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award, pursuant to Paragraph 14, below, not to exceed the sum of $5,000.

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Defendant provided Plaintiff for purposes of mediation the number of Class

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Members based on Defendant’s records and files as of September 30, 2016.

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Due to the passage of time since September 30, 2016, there will be

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additional Class Members. Should the class size increase by more than 10

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percent from the 2,061 Class Members identified by Wells Fargo as of

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September 30, 2016, the Net Settlement Amount shall be increased by the

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same percentage above 10 percent (i.e. if the class size were to increase by

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11 percent, Wells Fargo would increase the Net Settlement Amount by one

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percent).

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11.

Settlement Formula and Distribution: Subject to the conditions of this Agreement,

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Participating Class Members shall be entitled to a share (the “Settlement Share”)

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of the Net Settlement Amount. The Net Settlement Amount is to be divided among

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all Participating Class Members, based on their pro-rata percentage of workweeks

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(determined by dividing the number of weeks worked by the Participating Class

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Member as a Phone Banker in California during the Class Period, by the total

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number of weeks worked by all Participating Class Members as a Phone Banker in

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California during the Class Period), such that the Participating Class Members shall

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receive a dollar amount calculated by multiplying his or her percentage by the Net

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Settlement Amount.

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12.

Reference to Wells Fargo’s Records: The number of weeks worked by

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Period will be determined by reference to Wells Fargo’s records. Wells Fargo’s

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Participating Class Members as Phone Bankers in California during the Class

records shall be presumptively correct for determining who the Class Members are
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(including which Phone Bankers are excluded under Paragraph 7.b. above), and the

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number of weeks worked by the Class Member as a Phone Banker in California

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during the Class Period.

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13.

Allocation of Settlement Payments:

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a. One-half (1/2) of all Settlement Share payments to Participating Class

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Members shall be considered wages and shall be subject to the withholding of

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all applicable local, state and federal taxes. Participating Class Members will

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receive from the Administrator a W-2 for the payment and taxes that will be

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withheld at the rate required by law. As to all Settlement Share payments that

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shall be considered wages, Defendant (via the Administrator) will pay all

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amounts required by law to be paid by the employer to any federal, state or

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local tax authority.

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b. One-half (1/2) of all Settlement Share payments to Participating Class

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Members shall be considered non-wages for the settlement of interest claims

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and statutory and civil penalty claims. Participating Class Members will also

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receive from the Administrator an IRS Form 1099 for these payments, in

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accordance with IRS requirements, and will be responsible for correctly

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characterizing this compensation for tax purposes and to pay any taxes owing.

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14.

Service Payment Award to Class Representative: Subject to the approval of the

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Representative as a service payment award for her time and efforts as Class

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Representative and taking the risk of paying the costs of Defendant in the event of

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an unsuccessful outcome, as well as for her assistance to her counsel in prosecuting

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Court, Defendant will pay Five Thousand Dollars ($5,000) to the Class

this Action on behalf of the absent class members. This service payment award is
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in addition to her right to participate in the claims process. This service payment

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award shall be paid from the Gross Settlement Amount. In addition, the Class

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Representative will execute a general release of all known and unknown claims,

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substantially in the form attached hereto as Exhibit “A,” in exchange for her

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service payment award.

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a.

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The Class Representative will receive an IRS Form 1099 for the service

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payment award and will be responsible for correctly characterizing this

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compensation for tax purposes and to pay any taxes owing.

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b.

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The Class Representative hereby indemnifies and holds Defendant harmless

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for and against any action or liability of Class Representative, including but

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not limited to any costs and/or legal fees incurred by Defendant if any tax

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authority should dispute the characterization of this compensation.

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c.

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The Class Representative shall not be entitled to the payment set forth in the

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paragraph above unless she provides to the Administrator a Social Security

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number or tax identification number.

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15.

Attorneys’ Fees and Costs

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a.

Class Counsel shall submit an application for an award of attorneys’ fees not

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to exceed One Hundred and Seventy-One Thousand, Two Hundred and

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Fifty Dollars ($171,250), which is one-quarter (1/4) of the Gross Settlement

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Amount. The amount not to exceed $171,250 will cover all work performed

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to date and all work to be performed in connection with the approval by the

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Court of this Agreement and the final conclusion of this Action. Defendant

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-8CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

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agrees not to oppose any fee application that is not in excess of the amount

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specified in this Paragraph.

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b.

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Class Counsel shall submit an application for reimbursement of costs and

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expenses in an amount not to exceed Twenty Thousand Dollars ($20,000).

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The amount not to exceed $20,000 will cover all costs and expenses

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incurred to date or to be incurred. This amount shall come from the Gross

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Settlement Amount. Defendant agrees not to oppose any cost and expense

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application that is not in excess of the amount specified in this Paragraph.

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16.

Payment Date: Defendant shall pay to Administrator all amounts awarded and

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approved by the Court, for payment to the Settlement Class, the service payment

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award, and attorneys’ fees and costs on the “Payment Date,” which shall be the

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latest of the following occurrences:

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a.

Thirty (30) calendar days following the entry of a Judgment finally

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approving this Settlement, provided no objection is made to this Settlement

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prior to or at the hearing for final approval of this Settlement.

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b.

If an objection to this Settlement is made before or at the hearing for final

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approval of this Settlement, then seventy-five (75) days after the notice of

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entry of a Judgment is served, provided that no appeal is filed.

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c.

If an appeal has been taken or sought, fourteen (14) days after the date the

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appellate court with no possibility of subsequent appeal or other judicial

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review, or the date the appeal(s) or other judicial review are finally

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Judgment finally approving this Settlement is finally affirmed by an

dismissed with no possibility of subsequent appeal or other judicial review.
-9CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

d.

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Within five (5) calendar days of the receipt of all amounts awarded and

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approved by the Court, as specified in this paragraph, the Administrator

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shall pay the payments to the Participating Class Members, the service

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payment award, and attorneys’ fees and costs accordingly.

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17.

No Further Payments: Defendant shall have no obligation to pay or provide any

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further consideration to any Class Member by reason of this Agreement or because

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of the foregoing payments, including but not limited to contributions to any 401(k)

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or other retirement or employee benefit plan, vacation or sick pay, etc. Any

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payments made pursuant to this Agreement will not trigger any obligation of

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Defendant to make any withholding for 401(k) contributions or to make any

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contributions to any 401(k) or similar such plan.

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18.

Certification for Settlement Purposes Only: As part of this Agreement, the Parties

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stipulate to the certification of the Settlement Class for purposes of this Settlement

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only. If this Agreement does not become final for any reason, the Parties’

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willingness to stipulate to class certification as part of this Settlement shall have no

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bearing on, and will not be admissible in connection with, the issue of whether any

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class should be certified in these cases or in any subsequent proceeding. The

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Parties and their counsel will not offer or make reference to this provisional

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stipulation to class certification for purposes of this Settlement in any subsequent

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proceeding in this Action (except for purposes of having this Agreement approved

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by the Court) or in any other action.

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19.

Parties’ Contentions: In entering into this Agreement, Defendant denies any

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Complaint and First Amended Complaint, and further denies that this Action is

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liability or wrongdoing of any kind associated with the claims alleged in Plaintiff’s

appropriate for class treatment. Defendant contends, among other things, that it
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has complied with the California Labor Code and the Business and Professions

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Code at all times. In entering into this Agreement, Plaintiff believes that she has

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filed a meritorious action and that class certification is appropriate.

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20.

Settlement Fair, Reasonable, and Adequate: Plaintiff and her counsel are of the

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opinion that the terms set forth in this Agreement are fair, reasonable, and adequate

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and this Agreement is in the best interest of the class in light of all known facts and

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circumstances, including the risk of significant delay, defenses asserted by

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Defendant, and numerous potential appellate issues. Defendant and its counsel

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also agree that this Agreement is fair and in the best interests of the Settlement

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Class and each Class Member.

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THE SETTLEMENT ADMINISTRATOR

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21.

Selection of Administrator: Subject to the Court’s approval, Rust Consulting shall
be retained as the Administrator.

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22.

Class List: Within twenty-one (21) calendar days of the date the Court enters an

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order granting Plaintiff’s Motion for Preliminary Approval (the “Preliminary

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Approval Date”), Defendant shall provide to the Administrator a listing

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containing, for each and every member of the Settlement Class, the following

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information: (1) name, (2) last known address, (3) number of weeks worked by

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each individual as a Phone Banker in California during the Class Period; and (4)

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Social Security number.

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23.

Administrator’s Duties: The Administrator’s duties will include preparing,

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printing, and mailing the Notice of Settlement to Class Members; conducting any
necessary verifications of Class Member Social Security numbers; conducting a
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National Change of Address search on all Class Members before the initial Notice

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of Settlement mailing; conducting skip tracing on any Notice of Settlement

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returned by the U.S. Postal Service as non-deliverable, as needed, and re-mailing

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the Notice of Settlement to the Class Member’s new address; reviewing and

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processing Requests for Exclusion (as defined in Paragraph 29 below); handling

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disputes made by Class Members; providing the Parties with periodic status reports

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about the delivery of Notice of Settlement and receipt of Requests for Exclusion;

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calculating Settlement Shares; issuing the checks to effectuate the payments due

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under the Settlement; issuing the tax reports required under this Settlement; and
otherwise administering the Settlement pursuant to this Agreement.

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24.

Qualified Settlement Fund: The Parties agree that the settlement funds will be

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Agreement and the orders of the Court. The Parties agree that the settlement fund

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(1) shall be established pursuant to an order of the Court prior to the receipt of any

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monies from Defendant; (2) that it shall be established to resolve and satisfy the

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contested Claims that have resulted, or may result, from the matters that are the

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subject of this Action and that are released by this Settlement; and (3) that the fund

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or account that is established and its assets are segregated and shall be segregated

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(within a separately established fund or account) from the assets of Defendant and

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all related other persons. The Administrator shall be responsible for establishing,

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administering and otherwise operating the settlement fund, including the

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preparation and filing of federal, state, and local tax returns. The Administrator

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shall also be responsible for preparing and issuing all checks to the Participating

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Class Members, Plaintiff, Class Counsel, the employer’s share of any payroll taxes

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and all checks for claims administration costs and expenses that are approved by

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the Court and any other payments included in this Agreement and approved by the

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placed in an account held by the Administrator to effectuate the terms of this

Court.
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25.

Administrator’s Findings: The Administrator shall report, in summary or narrative

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form, the substance of its findings and, in that regard, the Administrator’s approval

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of claims shall be considered presumptively correct and binding on the Parties,

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unless the Court rules otherwise. The Administrator shall be granted reasonable

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access to Wells Fargo’s records to perform its duties. All disputes relating to the

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Administrator’s ability and need to perform its duties shall be referred to the Court,

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if necessary, which will have continuing jurisdiction over the terms and conditions

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of this Agreement. The Administrator submits to the jurisdiction of the Court in

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connection with its appointment as Administrator.

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26.

Administrator’s Reports: The Administrator shall provide weekly reports to

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counsel concerning receipt of Class Members’ requests for exclusion and returned

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mail.

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ADMINISTRATION OF SETTLEMENT

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27.

Notice of Settlement: Within thirty-five (35) days of the Preliminary Approval

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Date, the Notice of Settlement, in the form attached hereto as Exhibit “B”, and

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approved by the Court, shall be sent by the Administrator to each Class Member.

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The Notice of Settlement shall be sent by first class mail to each Class Member’s

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current or last known address on file at Defendant, following an updated review of

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the National Change of Address Registry by the Administrator.

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a.

Returned Notices: All Notice of Settlement mailing packets returned from

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Administrator to locate the Class Members through reasonable and

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customary skip tracing efforts used in the administration of such

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this mailing with forwarding addresses affixed thereto will be utilized by the

settlements.
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It will be presumed that if an envelope has not been returned within thirty

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(30) days of the mailing that the Class Member received the notice.

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b.

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The Administrator shall provide the Court, at least five (5) days prior to the

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final fairness hearing, a declaration of due diligence and proof of mailing

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with regard to the mailing of the Notice of Settlement, and all attempts to

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locate Class Members. Class Counsel shall be responsible for working with

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the Administrator to timely file the declaration of due diligence.

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28.

Administrator’s Responsibility for Payment: The Administrator is responsible for

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having the payments to each Participating Class Member issued, calculating and

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withholding all required state and federal taxes, and performing the tax reporting

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on such payments. Upon completion of its review, the Administrator shall provide

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the Parties with a report listing the amount of payments made to each Participating

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Class Member. This report will not contain names or identifying information of

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Participating Class Members. Settlement checks will be valid for ninety (90) days.

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At the end of that 90-day period, settlement checks will be void. The amounts of

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any voided settlement checks shall be distributed to the Unclaimed Property Fund

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of the State of California Controller’s Office.

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back of the check, the following language, which shall be the opt-in consent

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required by the Fair Labor Standards Act: “By endorsing this check, I consent to

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join the Class in Lindsay Santini v. Wells Fargo Bank, N.A., elect to participate in

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the Settlement and agree to release all of my claims that are covered by the

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Settlement, including under FLSA and state law.” Any Participating Class

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Member who cashes the check will be considered to have “opted-in” to the

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All settlement checks issued to Participating Class Members shall contain, on the

settlement of the FLSA claims and will become an FLSA Participating Class
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Member, such that in addition to waiving their state law claims, they will have also

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waived any claims available under the FLSA. If a Participating Class Member

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attempts to alter this language on the back of the check, any such alterations will be

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null and void and have no legal effect. The release language will be effective and

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controlling.

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29.

Exclusions: The Notice of Settlement shall describe the process for Class

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Members to submit a request for exclusion (i.e., “opt-out”) (“Request for

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Exclusion”) from this Settlement. Class Members who submit a Request for

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Exclusion cannot object to the Settlement, cannot be Participating Class Members,

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and are not eligible for a Settlement Share unless they revoke their Request for

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Exclusion in writing prior to the Final Fairness Hearing.

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a.

Any Class Member who does not validly submit a Request for Exclusion

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within forty-five (45) days of the date the Notice of Settlement is sent to the

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Settlement Class shall be bound by the terms of this Agreement and the

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class release, even if he/she files an objection to the Settlement.

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b.

No Class Member will be permitted to pursue a claim released by this

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Settlement on the grounds that a Request for Exclusion was submitted

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timely and lost, destroyed, misplaced or otherwise not received by the

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Administrator unless the Class Member has adequate proof that the Request

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for Exclusion was mailed timely certified and return receipt requested or has

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equivalent proof of timely delivery.

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30.

Objections to the Settlement:

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a.

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Class Members who do not submit a timely Request for Exclusion shall be

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permitted to object to the Settlement before final approval. To object, a

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Class Member must file a timely written objection with the Court.

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b.

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Any written objections shall state each specific objection and any legal and

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factual support for each objection. The objection must also state the Class

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Member’s full name, address, and the dates of his/her employment at

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Defendant. To be valid and effective, any objections to approval of the

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Settlement must be filed with the Court no later than forty-five (45) days

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after the Administrator mails the Notices of Settlement to the Settlement

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Class.

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c.

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If the Court rejects the Class Member’s objection, the Class Member will
still be bound by the terms of this Agreement including the release.

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31.

Handling of Disputes: Class Member disputes may arise from the following

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information: (1) job positions held during the Class Period; (2) the time periods in

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which various job positions were held during the Class Period; and/or (3) the

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number of weeks worked as a Phone Banker in California during the Class Period.

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a.

If a Class Member disputes the accuracy of Well Fargo’s records or

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Defendant contends a claim is invalid, counsel for the Parties will make a

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good faith effort to resolve the disagreement. If the dispute is not thereby

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resolved, it will be referred to the Administrator, who will talk to such

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persons and representatives from Defendant telephonically, and issue a

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non-appealable, final decision as to the total amount due, if any, to the Class

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Member.

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b.

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The submission of any dispute to the Administrator must be made within

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forty-five (45) days after the Notices of Settlement are sent to the Class

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Members.

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RELEASE OF CLAIMS BY THE SETTLEMENT CLASS

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32.

Release of Claims: Upon the Settlement Date, and except as to such rights or

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fully releases and discharges Defendant, its present, former, and future parents,

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subsidiaries, affiliates, predecessors, successors and assigns, and each of their

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respective past and present members, shareholders, directors, officers, employees,

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agents, servants, registered representatives, insurers and attorneys (collectively

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hereafter, the “Released Parties”) from any and all claims, debts, liabilities,

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demands, obligations, guarantees, actions, or causes of action of whatever kind or

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nature, whether known or unknown, from April 15, 2012, through April 15, 2017,

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that were or could have been alleged based on the claims, facts and/or allegations

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contained in Plaintiff’s Complaint and/or First Amended Complaint (hereinafter,

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the “Released Claims”), including those arising out of or related to all claims

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based on failure to pay minimum wages, failure to pay overtime wages, failure to

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provide meal periods, failure to provide rest periods, failure to pay meal period

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and/or rest period premium compensation, waiting time penalties for failure to pay

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all wages due upon termination of employment, failure to provide accurate wage

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statements, and violation of California Business & Professions Code Section 17200

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et seq. including all claims of any kind for minimum wages, regular wages,

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claims as may be created by this Agreement, each Participating Class Member

overtime wages, premium pay, liquidated damages, statutory penalties, civil
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penalties, restitution, interest, injunctive relief, punitive damages, other damages,

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costs, expenses and attorneys’ fees arising from the alleged violation of any

3

provision of common law or statutory law which were or could have been raised as

4

part of Plaintiff’s claims including but not limited to claims under California Labor

5

Code Sections 201, 202, 203, 204, 210, 226, 226.3, 226.7, 510, 512, 558, 1194,

6

1194.2, 1197, 1197.1, 1198, and 2698, et seq., and all provisions of the California

7

Industrial Welfare Commission Wage Orders that provide the same or similar

8

protection(s). As set forth in Paragraph 28 above, FLSA Participating Class

9

Members will also expressly release in writing any and all claims under the Fair

10

Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 201, et seq., that are or

11

could be based on or related to the same matters alleged in the Complaint and/or

12

First Amended Complaint.

13
14

a.

In order to achieve a full and complete release of the Released Parties, the

15

Class Representative and each Participating Class Member acknowledges

16

that the release in Paragraph 32 immediately above is also intended to

17

include in its effect all such Released Claims whether or not the Class

18

Representative and each Participating Class Member knows or suspects

19

them to exist.

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21

b.

With respect to the Released Claims, Plaintiff and Class Members may

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23

those they now know or currently believe to be true with respect to the

24

claims and causes of action in this case which are the subject matter of the

25

Released Claims. Regardless, the discovery of new facts or legal arguments

26

shall in no way limit the scope or definition of the Released Claims and by

27

virtue of this Agreement, Plaintiff and the Class Members shall be deemed

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hereafter discover facts or legal arguments in addition to or different from

to have, and by operation of the final judgment approved by the Court shall
-18CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

1

have, fully, finally, and forever settled and released all of the Released

2

Claims as defined above.

3
4

33.

Subsequent Actions: If any Class Member initiates a new lawsuit against

5

Defendant based on any claim released under this Agreement, and the Court

6

invalidates the release, any recovery by the Class Member shall be offset by the

7

amount, if any, paid to the Class Member in connection with this Settlement. The

8

language in this Paragraph shall be included in the Notice of Settlement.

9
DUTIES OF THE PARTIES PRIOR TO PRELIMINARY APPROVAL

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11
12

34.

The Parties shall promptly submit this Agreement to the United States District

13

Court for the Northern District of California in support of the motion for

14

preliminary approval and determination by the Court as to its fairness, adequacy,

15

and reasonableness. The Parties shall also apply to the Court for the entry of a

16

preliminary order substantially in the form attached hereto as Exhibit “C.” Class

17

Counsel shall submit the preliminary approval papers to Wells Fargo’s Counsel for

18

their review prior to the filing of such papers with the Court.

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DUTIES OF THE PARTIES FOR FINAL COURT APPROVAL

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21
22

35.

In advance of the final approval hearing of the Settlement provided for in this

23

Agreement, the Parties will jointly submit a proposed final judgment. Class

24

Counsel shall submit the final approval papers to Wells Fargo’s Counsel for their

25

review prior to the filing of such papers with the Court.

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-19CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

VOIDING THE AGREEMENT

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2
3

36.

If the Court disapproves of or refuses to enforce any of the material conditions set

4

forth in this Settlement, this Settlement shall, at the option of Defendant, be void,

5

and of no further force and effect and shall not be used or admissible in any

6

subsequent proceeding. Defendant may exercise its option to void this

7

Settlement as provided in this paragraph by giving notice, in writing, to Class

8

Counsel and to the Court within two (2) weeks of the entry of the Court’s order

9

disapproving or refusing to enforce any of the material conditions of the
Settlement.

10
11
12

37.

Defendant shall have the right, in its sole discretion, to rescind this Agreement if

13

more than five percent (5%) of the Settlement Class “opts-out” of the Class by

14

submitting a valid and timely Request for Exclusion. Defendant may exercise its

15

option to void this Settlement as provided in this paragraph by giving notice, in

16

writing, to Class Counsel and to the Court at any time prior to final approval of the

17

settlement by the Court, but not later than two (2) weeks after receiving notice that

18

the number of “opt-outs” exceeds five percent (5%). If the right to void is

19

exercised in accordance with the terms of this paragraph, all portions of the

20

Settlement shall be null and void and any order or judgment entered by the Court in

21

furtherance of this Agreement shall not apply.

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23

38.

If the conditions of the Settlement set forth herein are not satisfied, or if Defendant

24
25

not occur, or, if one or more of the material terms of the Agreement is not approved

26

or is materially modified or reversed, with the exception of the Court’s reduction of

27

the amounts of Attorneys’ Fees and Costs, Class Representative’s Service Payment

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voids the Settlement under Paragraph 36 or 37 above, or if the Payment Date does

Award, or Administrator’s fee, then this Agreement shall be cancelled, terminated,
-20CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

1

and shall have no force or effect, unless the Parties agree otherwise. If the

2

Settlement is not finally approved, or if this Settlement is terminated, revoked or

3

cancelled pursuant to its terms, the Parties to this Settlement shall be deemed to

4

have reverted to their respective status as of the date and time immediately prior to

5

the execution of this Agreement.

6
PARTIES’ AUTHORITY

7
8
9

39.

The signatories hereby represent that they are fully authorized to enter into this
Agreement and bind the Parties hereto to the terms and conditions hereof.

10
11

MUTUAL FULL COOPERATION

12
13
14

40.

The Parties shall fully cooperate with each other to accomplish the terms of this

15

Agreement, including execution of such documents and to take such other action as

16

may reasonably be necessary to implement the terms of this Agreement and to

17

secure the Court’s final approval of this Agreement.

18
NO PRIOR ASSIGNMENTS

19
20
21

41.

The Class Representative hereto represents, covenants, and warrants that she has

22

not directly or indirectly assigned, transferred, encumbered, or purported to assign,

23

transfer, or encumber to any person or entity any portion of any liability, claim,

24

demand, action, cause of action, or rights herein released and discharged except as

25

set forth herein.

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-21CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

NO ADMISSION

1
2
3

42.

Nothing contained herein, including the consummation of this Agreement, is to be

4

construed or deemed an admission of liability, culpability, negligence, or

5

wrongdoing on the part of Defendant. Each of the Parties hereto has entered into

6

this Agreement with the intention to avoid further disputes and litigation settled

7

herein with the attendant inconvenience, expenses, and uncertainties. This

8

Agreement is a settlement document and shall, pursuant to Federal Rule of

9

Evidence 408 and California Evidence Code Section 1152, be inadmissible in

10

evidence in any proceeding, except an action or proceeding to approve, interpret, or

11

enforce this Agreement.

12
TAXES

13
14
15

43.

Neither Class Counsel nor counsel for Defendant intend anything contained herein

16

to constitute legal advice regarding the taxability of any amount paid hereunder,

17

nor shall it be relied upon as such. The tax issues for each Class Member may be

18

unique, and each Class Member is advised to obtain tax advice from his or her own

19

tax advisor with respect to any payments resulting from this Settlement Agreement.

20
21

44.

It shall be the responsibility of the Administrator or its designee to timely and

22
23

Members all applicable federal, state and local income and employment taxes and

24

to prepare and deliver the necessary tax documentation for signature by all

25

necessary Parties and, thereafter, to cause the appropriate deposits of withholding

26

taxes and informational and other tax return filing to occur. It shall be the

27

responsibility of the Administrator to pursue tax refunds on any uncashed checks,

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373018

properly withhold from individual Settlement Shares payable to Participating Class

and to remit such payments accordingly. Payments to Participating Class Members
-22CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

1

and to Class Counsel pursuant to this Stipulation shall be reported on IRS Forms

2

W-2 or 1099, and provided by the Administrator to the respective Class Members,

3

Class Counsel and all applicable governmental authorities as required by law.

4
NOTICES

5
6
7

45.

Unless otherwise specifically provided herein, all notices, demands or other

8

communications given hereunder shall be in writing and shall be deemed to have

9

been duly given as of the third business day after mailing by United States certified
mail with return receipt requested, addressed as follows:

10
11
12

To Plaintiff and Settlement Class:

13

Peg Reali, Esq.
Maggie Realin, Esq.
The Markham Law Firm
750 B Street, Suite 1950
San Diego, California 92101

14
15
16
17

To Defendant’s Counsel:

18

Glenn L. Briggs, Esq.
Theresa Kading, Esq.
Sarah Mohammadi, Esq.
Kading Briggs LLP
100 Spectrum Center Drive, Suite 800
Irvine, California 92618

19
20
21
22
23

CONSTRUCTION

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25
26
27

46.

The terms and conditions of this Agreement are the result of lengthy, intensive
arms-length negotiations between the Parties, and this Agreement shall not be

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-23CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

1

construed in favor of or against any party by reason of the extent to which any

2

party or his, her, or its counsel participated in its drafting.

3
CAPTIONS AND INTERPRETATIONS

4
5
6

47.

Paragraph titles or captions contained herein are inserted as a matter of

7

convenience and for reference, and in no way define, limit, extend, or describe the

8

scope of this Agreement or any provision hereof. Each term of this Agreement is

9

contractual and not merely a recital.

10
MODIFICATION

11
12
13

48.

This Agreement may not be changed, altered, or modified, except in writing and

14

signed by the Parties hereto. This Agreement may not be discharged except by

15

performance in accordance with its terms or by a writing signed by the Parties

16

hereto.

17
INTEGRATION CLAUSE

18
19
20

49.

This Agreement contains the entire agreement between the Parties relating to the

21

Settlement and transaction contemplated hereby, and all prior or contemporaneous

22

agreements, understandings, representations, and statements, whether oral or

23

written and whether by a party or such party’s legal counsel, are merged herein.

24

No rights hereunder may be waived except in writing.

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26
27
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-24CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

BINDING ON ASSIGNS

1
2
3

50.

This Agreement shall be binding upon and inure to the benefit of the Parties hereto

4

and their respective spouses, heirs, trustees, and executors, administrators,

5

successors, and assigns, including Defendant and the Released Parties.

6
CLASS MEMBER SIGNATORIES

7
8
9

51.

Because the members of the class are so numerous, it is impossible or impractical

10

to have each member of the class execute this Agreement. The Notice of

11

Settlement, Exhibit “B” hereto, and other forms of notice described herein will

12

advise all Class Members of the binding nature of the release and such shall have

13

the same force and effect, to the extent permitted by law, as if this Agreement were

14

executed by each Class Member.

15
CORPORATE SIGNATORIES

16
17
18

52.

Any person executing this Agreement or any such related document on behalf of a

19

corporate signatory hereby warrants and promises for the benefit of all Parties

20

hereto that such person has been duly authorized by such corporation to execute

21

this Agreement or any such related document.

22
COUNTERPARTS

23
24
25

53.

This Agreement may be executed in counterparts, and when each Party has signed

26
27

original, and, when taken together with other signed counterparts, shall constitute

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373018

and delivered at least one such counterpart, each counterpart shall be deemed an

one Agreement, which shall be binding upon and effective as to all Parties as set
-25CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

1

forth herein. Copies and facsimile transmissions of signatures shall be considered

2

the same as an original signature.

3
PUBLIC COMMENT

4
5
6

54.

The Parties and their counsel will not, unless required by law, issue any press

7

releases or have any communications to the press concerning this litigation, or the

8

terms of this Agreement, one another and/or the business practices of Defendant.

9

The Class Representative may only respond to inquiries about this lawsuit or the

10

Agreement from Class Members, and only until final approval of this Agreement.

11

Otherwise, the Class Representative shall not discuss this lawsuit or this

12

Agreement except to say that the matter has been resolved. Class Counsel shall not

13

include in any mass mailing, website, or other public communication, a reference

14

to this litigation, this Agreement, one another and/or the business practices of

15

Defendant; except that this provision shall not apply to or otherwise limit

16

communications with Class Members up to the date of Final Approval of this

17

Agreement, so long as the subject matter of such communications is limited to this

18

Action and Settlement. Nothing in this provision shall affect the ability of Class

19

Counsel or the Administrator to carry out their duties consistent with and as

20

required by any other provision herein.

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-26CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE