Estrada v. Progressive Settlement Agreement (1)

8/20/2019 Estrada v. Progressive Settlement Agreement (1)

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UNITED

STATES

DISTRICT

COURT

DISTRICT

OF

MASSACHUSETTS

WANDA

ESTRADA, WALTER

ESTRADA,

JONATHAN

ESTRADA,

ANd

NATALIE

ESTRADA,

individually

and

on behalf

of all

other

persons

similarly

situated,

Plaintiffs,

Civil

Action No.

12-cv-30020-FDS

PROGRESSIVE

DIRECT

INSURANCE

COMPANY,

Defendant.

STIPULATION

OF

SETTLEMENT

This Stipulation

of

Settlement

("Agreement"

or

"Stipulation")

is

made

by and

between

the Plaintiffs Wanda

Estrada,

Walter

Estrada, Jonathan

Estrada,

and

Natalie Estrada

("Named

Plaintiffs"),

individually

and on behalf

of all other

persons

similarly situated

("Plaintiffs"),

and

Defendant

Progressive

Direct

Insurance

Company

("Defendant"

or "Progressive"

(as

defined

below)), by and through

their

respective

counsel.

RECITALS

WHEREAS,

Plaintiffs

filed

a

purported

Class

Action Complaint, which

is

now

pending

in

the

United States

District

Court

for

the

District

of Massachusetts,

Boston

Division

(the

)

)

)

)

)

)

)

)

)

)

)

)

)

)

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o'Court"),

now

entitled

V/anda Estrada, Walter

Estrada, Jonathan Estrada, and

Natalie Estrada,

individually and

on

behalf of all

other

persons

similarly

situated vs.

Progressive Direct Insurance

Company,

Civil Action

No. 3:12-CV-30020-FDS

(the

"Action")

which, through this Settlement,

will be accepted as

a

certified class

action, but

for

settlement

purposes

only,

on behalf

of the

Settlement

Class;

and

WHEREAS,

Plaintiffs

allege they were

Progressive

insureds for

purposes

of

personal

injury

protection ("PIP")

coverage

under

a Progressive

auto

insurance

policy

that

was

purchased

by

Wanda

Estrada via

Progressive's

Massachusetts direct sales

website

("Massachusetts

website");

and

WHEREAS,

the

Action alleges

that,

as

a

result

of

Ms. Estrada's answering

"yes"

to

a

question

on

the

Massachusetts

website that

asked whether all

members

of

her household were

covered

by health

insurance

(the

"health

insurance

question"),

the

Massachusetts

website

automatically

recommended that

she

purchase

an auto insurance

policy

that contained

an

$8,000

PIP

deductible

instead of a

$0.00

PIP deductible,

which

she

did;and

WHEREAS,

the

Action

alleges that

the Named

Plaintiffs

were

involved in

an auto

accident,

sought

PIP

benefits

under

Ms.

Estrada's Progressive

auto

insurance

policy,

and

were

denied

PIP benefits due to the

$8,000

PIP

deductible

on the

policy;

and

WHEREAS,

the

Action alleges

that the

Massachusetts website did

not

contain

sufficient

information

and

disclosures

regarding PIP coverage and the operation

of

the

PIP deductible,

and

that

the operation

of

the

Massachusetts

website

constituted unfair

or

deceptive acts or

practices

in the conduct

of

trade

or commerce,

in violation

of Massachusetts

General

Laws,

chapter

934;

and

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WHEREAS,

Progressive

has

defended and

intends

to vigorously

contest

each and

every

claim

in

the

Action,

denies

all

material allegations of the

Action,

as

to which

Progressive

asserts

it

has

numerous

merits

and class defenses, and

further

maintains that

it

has

consistently

acted

in

accordance

with

governing

laws

at all times;

and

WHEREAS,

Plaintiffs' Counsel

has

been

provided

with sufficient

discovery

to evaluate

the

legal

and

factual merits of the claim

and defenses at

issue

in

the

Action; and

WHEREAS,

the

Parties have

engaged

in intensive, arms-length settlement negotiations

and a

mediation

with

Eric Green, an experienced class

action

mediator,

and

U.S.

Magistrate

Judge

Bowler

over

a

period

of

months;

and

WHEREAS,

during

the

mediation and

settlement

negotiations,

the

parties

agreed on the

material terms of this Settlement

Agreement; and

WHEREAS,

Plaintiffs, through

counsel, believe that the claims asserted

in

the

Action

have substantial merit, examined

the

benefits

to be

obtained

under

the terms

of

the Settlement,

considered the

risks associated

with the

continued

prosecution

and

possible

appeal of this

complex

and

time-consuming

litigation

and

the

likelihood of

success

on the

merits of

the

Action,

and believe that,

in consideration

of allthe

circumstances,

the Settlement embodied

in

this

Agreement

is

fair,

reasonable, adequate and

in the best interests of the Settlement Class

Members; and

WHEREAS,

Progressive,

while

denying

wrongdoing

of

any

kind

whatsoever, and

without

admiuing

liability, nevertheless agreed

to

enter

into

this

Agreement

to avoid

further

expense,

inconvenience and

the

distraction

of

burdensome and

protracted

litigation,

andto

be

completely

free

of

any

further

controversy

with

respect to the claims

which

were asserted

or

could

have been asserted

in,

or

relate in

any

way

whatsoever to, the

Action;

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NOW, THEREFORE,

subject

to

Court approval as

required in

this

Agreement and

applicable

law

and

rules, the Parties agree

as

follows:

I.

DEFINITIONS

In

addition

to the

foregoing, the

following

terms shall

have

the

meanings

set forth

below:

1.

"Agreement"

or'oStipulation"

means this Stipulation

of

Settlement,

including

all

exhibits

thereto.

2.

The

"Action"

means

Wanda Estrada,

et

al. v. Progressive

Direct

Insurance

Company,

l2-CV-30020

FDS

pending

in the United

States

District Court for the District of

Massachsuetts.

3. "Claimant"

means a

Settlement Class

Member not on

the

Progressive

List of

individuals

in

the

Settlement

Class.

4.

"Claim

Period" means

the

period

commencing

on

the

InitialNotice

Date

and

continuing until

thirty

(30)

calendar days after the entry

of

Final

Judgment.

5.

"Settlement

Administrator"

means

Rust

Consulting,

201

South

Lyndale,

Faribault, MN

55021.

The

Settlement

Administrator

shall

be

approved

by

the Court

in

the

Preliminary

Approval

Order.

6.

"Class

Counsel"

means: Connor, Morneau & Olin, LLP,273 State Street,

Springfield,

MA

0l

103 and

Alekman DiTusa,

LLC,

I

550

Main

Street,

Springfield, MA

0l

103

7.

"Class

Notice"

means

the

Short Form

Notice, substantially

in

the

form attached

hereto

as

Exhibit l;

Long

Form

Notice substantially in the form attached

hereto

as

Exhibit

4, and

Reminder Postcard

Notice

substantially

in

the

form

attached

hereto

as

Exhibit

3, subject to

changes agreed

to

by the

Parties for

accuracy,

formatting,

or

clarity.

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8.

"Class

Period" means the

period

commencing

May l,

2008

through

the

date of

preliminary

approval of

the

settlement

by

the Court.

9.

"Court"

means

the

United

States

District

Court

for

the

District of

Massachusetts,

Boston

Division.

10.

"Direct

Mail" Claim

Form

shall

mean the Claim

Form

substantially

in

the

form

attached

as Exhibit

2

to

this Agreement,

subject

to changes agreed to

by the Parties

for

accuracy,

formatting,

or

clarity.

1

1.

"Effective

Date" means

that

date defined

in Section

XII

of this Agreement.

12.

"Final

Judgment"

orooFinal

Approval Order" means

the

Court's

Final Approval

Order

and

Final

Judgment, that

finally approves the

Settlement and dismisses the

Action with

prejudice,

which

shall be substantially

in

the

form

attached

as

S[iþ l

to

this

Agreement,

subject

to changes agreed to

by the

Parties

for

accuracy,

formatting,

or clarity.

13.

ooFinal

Approval Hearing"

or "Fairness

Hearing"

means

the

final

settlement

approval

hearing at which the Court

shall determine

whether

to

grant

final approval of

this

Settlement

Agreement

and

consider

any objections to the Settlement

Agreement.

14.

"Household

Member" means

anyone

living

in

a

Named

Insured's

household

who

is related

to the

Named

Insured by blood,

mariage,

or

adoption.

This includes wards, step-

children

or foster children,

15.

"Initial

Notice Date"

means

the

date

upon

which

the

Class

Notice

is

first

mailed

to Settlement

Class

Members

pursuant

to

this

Agreement,

as

further described below.

16.

ooNamed

Insured"

means

the

fìrst

person

in whose

name

the

insurance

policy

is

issued.

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17.

"Named

Plaintiffs" means

Wanda Estrada, Walter Estrada, Jonathan

Estrada, and

Natalie

Estrada.

18.

"Parties"

means

the Settlement

Class

Members,

including

the

Named

Plaintiffs,

and

Progressive.

19.

"Person"

means

any

natural

person,

individual, corporation, association,

partnership,

trust, or any

other

type

of legal

entity.

20.

"Preliminary

Approval

Order" means the

order

that

preliminarily

approves the

Settlement,

which shall be substantially

in the

form attached as

þ[þ| f

to

this

Agreement,

subject

to

changes agreed

to by the Parties

for

accuracy,

formatting,

or

clarity.

21.

ooProgressive"

means

Progressive Direct lnsurance Company.

22.

o'Release"

means

those

Releases set forth

in

Section

XV.

23.

"Released

Claims" means and includes any

and

all

known and Unknown

Claims

(as

defined below),

rights, demands,

actions,

claims,

causes of

action, allegations, or

suits of

whatever

kind or nature, whether

in

contract,

tort or

in

equity,

debts, liens,

liabilities,

agreements, interest,

costs, expenses,

attorneys'

fees,

losses

or

damages

(whether actual,

consequential,

treble,

statutory

andlor

punitive

or exemplary

or

other)

of

or by

a

Settlement

Class

Member arising

from

or

related

to

Progressive's Massachusetts

website's

PIP content,

Progressive's

offbring, explanation

of,

sale,

or application

of

PIP

deductibles,

or Progressive's

payment

or

denial

of

PIP

benefits,

including, but

not limited

to:

breach of contract; any unfair

or

deceptive trade

practices,

unfair claims

settlement

practices,

or unfair insurance

practices;

conversion;

premium

overcharges;

fraud;

constructive

fraud; misrepresentation;

deception;

consumer

fraud; interference

with

contract

or business expectations;

injunctive relief,

declaratory

judgment;

unfair

competition;

unjust enrichment;

deceptive

practices;

unfair business

practices;

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breach

of

fiduciary

duty;

breach of

the

implied

covenant

of

good

faith;

mental or emotional

distress and/or common

law

or

statutory bad

faith.

24.

ooReleased

Persons"

means:

a.

the company defined

as

"Progressive"

in

paragraph

21 above;

b. all of

the

past

and

present

offlrcers,

directors,

employees,

agents,

attorneys,

stockholders, divisions,

subsidiaries, and

parents

of

"Progressive";

and

c. all ofthe

successors,

assigns,

and legal

representatives

ofany ofthe

entities

or

persons

listed in

subparagraph a

or

b.

25.

'oRequest

for

Exclusion"

means

a

valid

request

from

a

member

of

the Settlement

Class to be

excluded

from

the Settlement

Class.

26.

"Settlement"

means the terms and conditions of this

Agreement

reached

by

the

Parties, including

all attached

Exhibits.

27.

"Settlement

Class"

means

the

class

defined

in

Section

II

below.

28.

"Settlement

Class

Members" means Persons who fall within the

Settlement

Class

during

the

Class

Period.

29.

"Settlement

Class

Payment"

means the

payment

of

$1,875

to

Settlement

Class

Members who submit

a timely

and

valid

Claim Form.

30.

"Settlement

Website"

means

the website

created

by the Settlement

Administrator

that

will contain the most recent

filed

Complaint,

the Court's Order

granting

Preliminary

Approval, the Short

Form

Notice and Long

Form

Notice. The

Settlement

Website

will

also

identify key

deadlines

(e.g.,

the

Claim

Form

deadline, the

Request

for

Exclusion

Deadline,

Objection

Deadline, the

date

of

Final

ApprovalHearing),

instruct Settlement

Class

Members on

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how to submit Claim

Forms or Request

for Exclusion, or How

to

Object.

The

Settlement

website

shall also

include

a "Frequently

Asked

Questions"

section.

31

.

"Subject

Policy"

will

mean

a

non-commercial Massachusetts automobile

insurance

policy

that was

initially

purchased

from

Progressive

over

its website

during the

period

from

May 1,2008 through

April27,2010,rcgarding

which

policy

the applicant answeredooyes"

to

the

health insurance

question

on the website,

and

which

policy

contained

an

$8,000

PIP

deductible.

The Subject Policies will

include all

renewals

of

an

initial

Subject

Policy

that

(a)

continue to

contain

an

$8,000

PIP deductible and

(b)

were issued

without

change to the

deductible.

32.

"Unknown

Claims"

means claims arising out of

facts

found

hereafter

to

be

other

than

or

different

from the facts

now

believed

to

be

true,

relating to

any

matter

covered by this

Agreement, as to any

of

the

Released Claims, as

specifically defined

above,

so

that

each

Settlement Class

Member shall be deemed to

have

expressly

waived any and all Unknown

Claims relating to any

matter covered

by this Agreement

to

the

full

extent

permitted

by

law,

and

to the

full

extent

of claim preclusion

and

res

judicata

protections.

II.

THE

SETTLEMENT

CLASS

33.

The

"Settlement

Class"

means

(a)

all Named Insureds under a Subject

Policy

and

(b)

all

Household Members

and all

other

individuals

eligible

for coverage

under

a

Subject

Policy,

who

(i)

were involved

in an

automobile

accident

for which

the Subject

Policy

potentially

provided

PIP

coverage,

(ii)

submitted a

PIP

claim

to Progressive for

PIP

coverage

as a

result

of

the accident, and

(iii)

had that

PIP

claim

wholly

denied

due to

the

$8,000

PIP

deductible

during

the Class

Period.

Excluded

from

the

Class

are:

all

present

or

former

officers and/or directors

of

Progressive,

Class

Counsel

and their

resident relatives,

Progressive's counsel

of

record

and their

resident relatives,

and

the Judge

in

this

case

and

his resident relatives.

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ilI.

PRELIMINARYCLASSCERTIFICATION

34.

Within ten

(10)

calendar

days

following

execution

of this

Agreement, the

Parties

shall

submit

this

Agreement

to the

Court

and

jointly

request

the Court

to

enter

a Preliminary

Approval Order,

which

shall be

substantially

in

the

form

set forth

in

E¡biþjll,

subject to

changes

agreed to

by

the

parties

for

accuracy,

formatting,

or

clarity

35.

For

purposes

of this

Settlement only, the

Parties stipulate

and

agree

to the

certification

of

the Settlement

Class and that:

(i)

the Settlement

Class

meets

the

requirements of

Federal

Rule

of

Civil Procedure

23(a) and

(bX3); (ii)

the

proposed

notice is

the

best

and

most

practicable

under the circumstances, and satisfies

the

requirements

of

Rule

23

and

Due

Process;

and

(iii)

the terms of

the Settlement

are

fair and

reasonable.

For

purposes

of

the

Settlement,

the

Named

Plaintiffs

are agreed upon

as

suitable Class

Representatives.

36.

Preliminary certification

of

the

Settlement Class and appointment of

the

Settlement Class

Representatives

and

Class

Counsel by the

Court

shall

be

binding only

with

respect to the

Settlement

of the

Action.

In the event this

Agreement

is

terminated

pursuant

to

its

terms, or

a

Final

Judgment

for

any

reason does

not occur, the

certification

of

the Settlement

Class shall

be

nullified,

and

the

Action

shall

proceed

as

though the Settlement Class

had

never

been certified,

without

prejudice

to the

Court's

consideration,

on the merits,

of

any

properly

submitted

Motion

for Class

Certification.

The Named

Plaintiffs

and Class Counsel

agree

that

neither

this

Agreement, nor any

pleading

or other

paper

related in

any

way.to

this

Agreement,

nor

any

act or communication

in

the course

of

negotiating, implementing or seeking

approval

of

this

Agreement, shall be deemed an

admission by the Named

Plaintiffs or Class

Counsel

of

any

matter

related

in

any

manner

thereto,

or

by Progressive, that certification

of

any class

is

appropriate

in

this

litigation

or

any other

litigation,

or otherwise shall

preclude

Progressive

from

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opposing or asserting

any argument

it

may have

with

respect to certifrcation

of a class

in

this

or

any

other

matter.

37.

Upon

the

Preliminary

Approval of this

Settlement

by the Court,

as

evidenced

by

entry of

the

Preliminary

Approval

Order, allproceedings

in

the

Action

shall

be

stayed until

further

order

of

the

Court,

except

such

proceedings

as

may be

necessary either to

implement

the

Settlement or to

comply with or effectuate

the

terms

of this

Agreement. Additionally,

any other

litigation

against

Progressive

that

includes claims that

fall within

the

scope of

this

Agreement

shall be stayed

or enjoined

by

the Court.

IV.

NOTICE,

COSTS

OF

NOTICE,

AND

ADMINISTRATION

OF

SETTLEMENT

38.

The

Settlement

Administrator

shall disseminate the

Class Notices, Claim

Forms;

receive Claim

Forms and

Requests for Exclusion; and

perform

other

obligations, as set

forth

herein, beginning

immediately upon entry

of

the

Preliminary

Approval

Order and

throughout

the

duration of the Claim

Period.

Defendant shall

bear

the

costs associated

with

retaining

the

Settlement

Administrator,

disseminating

the Class

Notices,

and administering

the

claim

process

as set

forth

in this Agreement, except

for

costs associated

with

the Reminder

Postcard,

which

will be

paid

for by

Plaintiffs'

Counsel.

39.

Progressive certifies

it

will, to

the best

of its ability,

identify through

a

search of

its business

records

all

Settlement

Class

Members

(and

their last known address) and

will

share

that

list

of

Settlement Class

Members

(the

"Progressive

List")

with

Class

Counsel and the

Settlement

Administrator

within forty-five

(45)

days of

the entry

of

the

Preliminary Approval

Order. Progressive represents

that, based on

a

prior

search

of business

records,

it

believes

that

there

are 4,279

Settlement

Class Members.

An individual

not on the

Progressive

List

may

only

become a Settlement

Class

Member by submitting

a timely

and valid Claim

Form and supporting

information

in a

timely

manner establishing

that

the

claimant

qualifies

as a

member

of the

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Settlement Class. The

Parties

agree that the

Progressive

List will remain

confidential

in

accordance

with

paragraphT3,

and

is

only to be used

for

purposes

of

effectuating this

Settlement.

40. Notice of

the

pendency

of the Action and of the

Settlement shall

be made

by the

Class Notice, which will be sent by the Settlement

Administrator

in

accordance

with

the

following

procedure.

41.

Within seventy

(70)

days

of

the entry

of

the


Order, the

Settlement

Administrator shall send the Short

Form

Class

Notice

in

the

form

attached

hereto

as

Exhibit

1

("Short

Form

Notice"

or "Settlement

Notice"),

a

claim

form

in the

form

attached

hereto

as

þ'[þ

("Direct

Mail Claim

Form"),

and

a

pre-addressed postage

pre-paid

return

envelope

directly to

Settlement

Class Members via direct

mail

using the

last known

addresses

according to

Progressive's

records. Any

Short Form

Notices and Direct Mail Claim

Forms

returned to the Settlement

Administrator with

a

forwarding

address shall be

re-mailed

by the

Settlement

Administrator within fourteen

(14)

business

days

following

receipt

of the

returned

mail.

42.

If

any

Short Form Notice and

Direct

Mail Claim

Form is returned

to the

Settlement

Administrator without a forwarding address, the

Settlement

Administrator

shall

use

the National Change of

Address Database to search

for

the correct

mail

addresses, and shall

promptly

re-mail

the

Short Form

Notice

and Direct Mail Claim

Form

to

any

newly-found

addresses.

43.

The Settlement

Administrator

shall

send a

second

notice

to all

Settlement

Class

Members who have not

filed a

claim

form in the form

of

a reminder

postcard

in the form

1t


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65

attached

hereto as

sþiþj ]

("Reminder

Postcard") 2l days before the

FinalApproval

Hearing.

Plaintiffs'

Counsel

will

pay

for

the

administration costs

related to

the

Reminder

Postcard

notice.

44.

The

Settlement

Administrator

will

establish the Settlement Website

which

shall

be

www.masspipclaims.com or

www.MApipclairns.com or

something similar but shall not

include

the

word

"Progressive"

in the

URL.

The Settlement Website will contain

The Settlement

Agreement, the Court's

Order

granting

Preliminary Approval, the

Short

Form Notice,

and

the

Long

Form

Class

Notice

attached

hereto as

EbiÞi -4.

The

Settlement

Website

will

also

identify

key

deadlines

(e.g.,

the

claim

submission deadline, the

request

for

exclusion deadline, objection

deadline,

the date

of

the

Final Approval Hearing), instruct

Settlement

Class

Members on

how

to

submit

a

claim

form

or

request

for

exclusion, and

how

to object.

The Settlement Website shall

also

include a

"Frequently

Asked

Questions"

section. A

PDF version

of a

claim form, in the

form

of

Exhibit

5

("PDF

Claim

Form") attached

hereto,

will be available

on the Settlement Website.

The

Settlement

Website

will

also

include

instructions

for

complying

with

the

claim submission

process.

Settlement Class

Members shall

be

given

the

option to

complete

and

submit

a claim

form

online,

in the

form

of

Exhibit

6

("Online

Claim

Form")

attached

hereto,

on the Settlement

Website.

45.

The Settlement

Administrator will

establish

a toll-free

telephone support

line that

will

provide

Settlement

Class

Members

with

general

information about the

litigation

and

which

will contain

responses to frequently asked

questions

about

the

action and claim

procedure.

46.

Unless

expressly

indicated otherwise

in

this Stipulation,

Progressive

shall

pay

all

costs

of notice

and claims

administration,

including costs associated with

identifying Settlement

Class

Members

and

providing

notice

of

the

pendency

of the

Action

and of

the Settlement

embodied

herein

to

the

Settlement

Class

Members

in

accordance

with

the terms of the Court's

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Order. Costs

of

administration

(including,

but

not limited to,

printing

and

mailing

the Short

Form

Notice, address

updating

costs and costs to

re-mail the Short

Form

Notice, printing

and

distributing

Payments

to

Settlement Class Members

and

all

postage

relating

to

the

foregoing) will be

paid

by

Progressive

from its own

funds.

V.

CLAIMS

PROCEDURE

47.

Settlement

Class

Members

will lose

their

designation as

such if

they

timely

submit a

written

request

for

exclusion

from

the

Settlement Class

postmarked

no

later

than

30

calendar days before the

Final Approval

Hearing,

in

the

manner

set forth below

in Paragraph 68.

48.

Settlement Class Members may submit the

Direct

Mail

Claim Form

or the PDF

Claim

Form to the Settlement

Administrator

by mail.

Settlement

Class

Members may also

submit claims online

through the

Settlement

Website using the

Online Claim

Form.

If a

Settlement

Class Member choses

to

submit

a Direct Mail Claim

Form or

a

PDF Claim

Form,

in

order

to

potentially qualify

to

receive

a

Settlement

Class

Payment, the Settlement

Class

Member

must

submit the completed

and signed

Direct Mail Claim

Form

or

PDF Claim

Form

to the

Settlement

Administrator by mail,

postmarked

not

later than the

end

of

the

Claim

Period.

The

Settlement

Administrator

shall establish, as of the

date of the initial

mailing of

the Short Form

Notice,

a

dedicated

P.O.

Box

to

be

used

for

submission

of

Direct

Mail

Claim

Forms and PDF

Claim

Forms. If

a Settlement

Class

Member

choses

to submit an Online Claim

Form using the

Settlement Website,

the

Settlement

Class

Member

must

submit

the completed and electronically

signed Online Claim

Form to the Settlement

Administrator

over the Settlement V/ebsite

no later

than

the

end

of the Claim

Period.

49. If the

Settlement

Administrator deems that

a

Direct

Mail Claim Form, PDF Claim

Form, or Online Claim

Form

submitted

by

a

Settlement

Class

Member

on

the

Progressive

List

is

materially

incomplete

or deficient

(a

"Deficient

Claim"), the

Settlement

Administrator will

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14/65


Document 1-80-1- Filed

09/2711-5 Page L4 of 65

promptly notify

the

Settlement Class

Member and specify

any

additional

or

corrective

information that must

be submitted.

If

the

Settlement Administrator

receives a Direct

Mail

Claim

Form,

PDF Claim Form, Online Claim Form,

or other assertion

of

a

claim submitted by

an

individual

not

on the

Progressive

List

(a

"Non-Listed

Claim"),

the Settlement

Administrator

will

promptly

notify

the

Claimant that

he

or

she

may

only

become

a

Settlement

Class

Member

by

establishing that the

Claimant

falls

within

the

definition

of

the

Settlement Class.

The

notifications

shall be by first class

mail

or

email unless

the Settlement

Class

Member

or

other

claimant

specifies another

mode

of

notification. The Settlement Administrator

will

contemporaneously

provide

Class

Counsel

and

Progressive

with

(a)

copies

of

the

notifications

and

(b)

copies of the

submitted claim

forms or other assertions

of

a

claim

by

a Claimant. Such

individuals

shall

have 2l

days

from the date the

notification

is

mailed

to

submit the

requested

information.

If

a

timely

response

to the

notifìcation is not received by the Settlement

Administrator, the claim

will be denied and the

Claimant so-notified

by the Settlement

Administrator.

If

a timely

response

to the

notification

is received, the Settlement

Administrator

shall

promptly provide the information

received

from

the

Claimant to

Class

Counsel

and

Progressive.

50.

The

Settlement

Administrator

shall

prepare

a

declaration attesting to compliance

with

the

Class

Notice

requirements

in this Agreement. Such declaration

shall

be

provided

to

the

Parties, and filed with the Court

by

Plaintiffs'

Counsel

no

later

than

fourteen

(la)

calendar

days

prior

to

the Final

Approval

Hearing.

VL

PAYMENT AMOUNT

51.

The Settlement

Class

Payments

set

forth in this Section shall

be

the

only

payments

to

which any

Settlement

Class

Member

will

be entitled.

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15

of 65

52.

Each

Settlement

Class

Member that

submits

a timely and valid Direct Mail Claim

Form, PDF Claim

Form,

or Online Claim

Form

shall receive

a

Settlement

Class

Payment

of

$1,875,00

(One

Thousand

Eight

Hundred Seventy-Five Dollars).

53.

Settlement

Class

Payments shall

be made

no later

than 60

days

after

the

Effective

Date or 60 days after the Settlement

Class Member

submitted

his

or

her

claim,

whichever

is

later.

Settlement Class

Payment checks shall, unless

otherwise

directed

in writing, be made

payable

to

the Settlement

Class Member.

If

it

is determined

a

Settlement

Class Member is deceased or

incapacitated or otherwise

unavailable, the check shall,

unless

otherwise

mutually

directed,

be

made

payable

to

the

duly

authorized legal representative

of

that

party.

Each Settlement

Class

Member,

or

his

or

her legal representative,

must

supply

a

valid Tax ldentification Number

(TIN)

or Social Security

Account Number when submitting

a

claim or otherwise

prior

to

receiving

a

Settlement

Class

Payment.

VII. CLAIM CHALLENGE

PROCEDURE

54. If

Progressive objects to

the

payment

of a

claim,

Progressive

willpromptly

inform

Class

Counsel

of

the

basis

for

its

objection

and

the evidence on

which

it

relies,

and

the

following

procedure

shall be

followed:

a.

If

Class Counsel

agrees

with

Progressive that the

claim

should be denied,

the Settlement

Administrator

shall

be

so

informed,

and the Settlement

Administrator

shall

send

to

the

claimant

(with

copies

to

Class

Counsel

and

Progressive)

a

notice

advising

that the

claim

will

not be

paid,

supplying the

evidence and

reason(s)

for that decision, and advising the

claimant of

his

or

her

right to apply

to the

Court

for

relief. A claimant may challenge that

decision by filing in Court and

serving

an application for

payment

within

30 days

of

receipt

of

such

notice.

On

such

an application, the

burden

of

proving

that

the claim should

be

paid

shall

be

on the

claimant.

The

claim

shall

be

paid

or disallowed as

provided

by the Court.

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65

b. If

Class Counsel

disagrees

with

Progressive that the claim should

be

denied, then

the

claim

shall

be

paid

unless, within

l5

days of

receipt

of

Class

Counselos

position,

Progressive

files

with

the

Court and serves upon the claimant and

Class Counsel

an

application

with

the

Court

to disallow

the Claim.

On such

an application, the

burden

of

proving

that a

Deficient Claim should be denied

shall

be

on Progressive; the burden

of

proving

that

a Non-

Listed Claim should

be

paid

shall be on the

claimant.

The

Claim shall

be

paid

or

disallowed as

provided

by

the

Court.

55.

Claims to which

Progressive

does

not object

shall

be

paid

by the

Settlement

Administrator.

Progressive shall

have

the

right to review

any

Direct

Mail

Claim Form,

PDF

Claim

Form,

or Online Claim

Form before

payment

of

that

claim

is

made.

VNI. COMMUNICATIONS

WITH THB

CLASS

56.

The

Long Form Class

Notice

shall

list

Class

Counsel's

address and

telephone

number.

Communications relating to the

Action

or this Settlement

with

Persons receiving

Class

Notices

and Settlement

Class Members shall

be

handled through

Class

Counsel, and/or the

Settlement

Administrator,

as

necessary.

57. Nothing

in

this

Agreement shall be construed

to

prevent

Progressive, its

employees, attorneys,

agents

or representatives

from

communicating

with

Settlement

Class

Members in

the

normal course

of its

business operations,

from

submitting

notices

or

other

documents

relating

to

this

Agreement

directly to

Settlement

Class

Members,

and/or

from

continuing to adjust and resolve

pending

or

future

claims, even

if

they otherwise fall within

the

scope

of

this

Agreement, before this Agreement

is finally

approved.

IX.

CLASS COUNSEL'S

FEES AND EXPENSES, AND CLASS REPRESENTATIVE

INCENTIVE

AWARDS

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Page l-7 of

65

58. The Parties recognize

that

Class Counselare

entitled

to an

award

of

attorneys'

fees and expenses

for the work

performed

and

the results obtained

in

the

Action. Class

Counsel

will

seek

Court approval

for an award

of

attorneys' fees and expenses

not

to exceed

$2,000,000

no

later

than

fourteen

(

l4)

calendar

days

before the

Final

Approval

Hearing.

For

purposes

of

determining

an

award

of

reasonable attorneys'

fees

and expenses, the

Parties

agree

that

the total

monetary value

of

the

settlement to the Settlement Class

Members is

at

least

$8,023,125,

plus

attorneys'

fees

and costs.

Progressive

will not object

to, oppose

or undermine

and

will

pay

an

award

of

attorneys'

fees

and

expenses approved by the

Court up

to

$2,000,000.

The attorneys'

fees and

expenses awarded by the

Court

shall be

in addition to

the Settlement

Class

Payment

amounts

paid

to Settlement

Class

Members

pursuant

to

this

Agreement,

and

shall

be

paid

by

Progressive within 30 calendar days

of

the

Effective

Date, as

deflrned

in

Section

XII below,

to

the

law

firm

of Connor,

Morneau

& Olin,

LLP, which

law firm shall be solely responsible

for further

distribution

of

any

award

of attorneys'

fees

and

expenses made

by the Court.

59.

The Parties

recognize

that

Named

Plaintiffs

are entitled to

Incentive

Awards for

the

risk

and

effort

undertaken in prosecuting

this

Action.

No

later than fourteen

(14)

calendar

days

before the Final

Approval Hearing,

Plaintiffs

will

seek an

Incentive Award in the amount of

$2,500

for

each

Named

Plaintiff, in addition

to

their

Settlement

Payment.

Payments of any

Incentive Awards

under

this

provision

shall

be

made from

the

award

of attorneys'

fees

and

expenses

and

shall

be

paid

to

the

Named

Plaintiffs within

seven

(7)

calendar days of the

Plaintiffs'

Counsel's

receipt of

payment

of

attorneys'

fees

and

expenses. Progressive shall

not

be

responsible for

payment

of

any Incentive Awards.

X.

CONDITIONS OF SETTLEMENT

AND

EFFECT OF DISAPPROVAL,

CANCELLATION

OR

TERMINATION OF AGREEMENT

t7


18/65


Document 1-80-L Filed O9l27lL5 Page 18 of

65

60.

The Named

Plaintiffs,

Settlement

Class

Members,

and

Progressive

consent

to the

entry

of a

Final

Judgment

substantially

in

the

form

attached

as

Exhibit 8 without

material

alteration.

6l .

If

the Court disapproves

this

Agreement

or

fails

to

rule,

or

if

the Court

enters the

Final

Judgment but

it is reversed or

vacated

on appeal, this

Agreement

shall

be null and void and

of

no force

and effect.

If the Court

materially modifìes any

provision

of the Agreement or

proposed

Final

Judgment, or

if

either

is materially modified

on appeal or

remanded to the Court

for

modification, or

if

any of the terms

of

this

Agreement is impaired in any materialway, then

Progressive shall have the

option of terminating this

Agreement

and

withdrawing

its

consent

to

the entry

of

the

FinalJudgment,

in

which case this

Agreement

shall be nulland void and of no

force

and

effect. Progressive shall

have the right

to

determine, in its discretion, materiality

in

connection

with the above

provisions,

except that

such

determination shall

be

made

in

good

faith

and

in

compliance

with

prevailing

law

regarding the

standards

for

determining

materiality.

Progressive shall have

fifteen

(15)

days

from

the event that triggers

its

option to

inform

Class

Counsel

that

it

is

exercising

its

option of terminating

this Agreement.

62.

If

the Court does

not finally approve the Settlement as described

herein,

all

obligations

of

Progressive

under

this Agreement terminate, including but not limited to

any

obligation to

pay

attorneys'

fees.

Additionally,

the

Parties

agree

that neither

this

Agreement, nor

any

pleading

or

other

paper

related

in

any

way

to this Agreement,

nor

any

act

or

communication

in

the course

of

negotiating, implementing

or

seeking approval

of

this

Agreement,

shallbe

deemed an

admission by Progressive that certification of

a

class

is

appropriate

in this or any

other

litigation, or

otherwise

shallpreclude

Progressive

from

opposing or asserting any argument

it

may have

with

respect to certification

of a

class

in

this

Action.

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Case

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Document

L80-1- Filed O9l27lI5 Page L9 of 65

63.

In

the

event

the

number

of

Settlement

Class

Members

who

elect

to

opt out

exceeds

10%o, Progressive

in

its sole discretion

may

elect to terminate

this Agreement on the

ground

that the

exclusion

of

Settlement

Class

Members

at that

level

threatens to

frustrate

Progressive's essential

purpose

in

entering

into this Agreement.

Progressive's election to

terminate

under

this

paragraph

shall be

made not later than ten

(10)

days

after

the end of the opt-

out

period

set forth

in

paragraph

68

below by notifying Class

Counsel

in writing

of

its

election.

XI. FINAL

APPROVAL

OF

SETTLEMENT

64. Class

Counsel

will

flrle

a

motion seeking

the

Court's final approval of the

Settlement

at

a

Final Approval

Hearing

to

be

held

at

a

date

and

location

that

will

be stated

in

the


Order,

and

stated

in the Long

Form

Class

Notice. The Parties

will

request

that the

Final Approval Hearing be

held

at

the earliest

date

that the

Court

is

available to

hear

the

matter that is at least one hundred twenty

(120)

days after the

Preliminary

Approval

Order.

Class Counsel shall

request

the Court

to enter a Final

Judgment

substantially

in

the

form

of the

Final Order

and Judgment

Approving Settlement and

Dismissing Action

with

Prejudice

attached

hereto

as

ESjþj _ ,

approving

the Settlement

without

material

alteration,

and

directing

the

Parties

and their counselto

comply with and

consummate the terms

of

this

Agreement.

XII.

EFFECTIVE DATE

65.

The

"Effective

Date" of

this

Agreement shall

be

the first date after which all the

following events and conditions

have been met

or occurred:

a. All

Parties

have

executed this

Agreement;

and

b.

The

Court

has,

by

entry

of

the


Order,

preliminarily

approved this

Agreement, the

Settlement

set

forth

herein,

and

the

method

for

providing

notice to

the Settlement Class;

and

19


20/65

Case

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Document L80-L Filed O9l27lLS Page 20 of 65

c.

The Court

has

entered the

Final

Judgment,

finally

approving

this

Agreement,

without material alteration

from

the

form

attached

hereto

as

s[þ Q,

and releasing

the

Released

Persons from

the

Released

Claims

and dismissing

with

prejudice,

and

without

leave

to amend, the

Action

and

all

claims asserted therein, except

reserving

claims as to those

Settlement

Class

Members

who timely

request

exclusion;

and

d.

In

the event

there is

an

objection

to entry of

the

Final

Judgment,

or

intervention to contest same,

(i)

the

expiration

(without

the

filing

or

noticing

of an

appeal)

of

the

time to appealfrom

the

FinalJudgment;or

(ii)

the entry

of

a

hnal

dismissalorder

of

any

and all

appeals

from

the

Final

Judgment;

or

(iii)

affirmance on appeal

of

the

Final

Judgment

without

material alteration; or

(iv)

if

a

ruling

or decision is entered by an appellate court

affirming

the

Final

Judgment,

the time to

petition

for

reconsideration

or

further

appeal

of that

ruling

or

decision

has expired; or

(v)

if

a

petition

for

reconsideration

or further appeal of

that appellate

ruling

or

decision

is

filed,

the

petition

has been denied or dismissed or,

if

granted,

has resulted in

affirmance

of

the

Final

Judgment

without

material

alteration.

66.

If

any

of

the events or

conditions

described

above are

not met or do

not

occur, this

entire

Agreement

shall become

null

and

void,

except Progressive shall

have

the

option at

its

sole

discretion to agree

in

writing

to waive the event or condition and

proceed

with

this Settlement,

in

which

case

the

Effective Date shall

be deemed

to

have occurred on

the

date

of

said written

agreement,

or

a

date otherwise specified

in

said written

agreement.

67.

Notwithstanding the

foregoing,

an appeal or

motion for

discretionary

review

pertaining

solely to the

Class

Representative award, or

the

award

of attorneys'

fees

and costs

to

Class Counsel, shall

not in

any

way delay the

Effective

Date, except

with respect

to

those

appealed

items.

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65

XUI.

OBJECTIONS

AND

REQUBSTS

FOR

EXCLUSION

68.

Settlement

Class

Members

who

wish to

exclude themselves

from

the

Settlement

Class

must submit

a

written

request

for

exclusion,

postmarked

not

later

than

30 days

before

the

Final

Approval Hearing, which

shall be sent to the Settlement

Administrator at

the address

provided

in

the

Long Form Class Notice. Written

requests for exclusion

must

be signed

by the

Settlement

Class Member

and

include the Settlement

Class Member's name, address, and

telephone

number,

and

expressly

state

the

desire

to

be

excluded

from

the Settlement

Class. No

Settlement

Class

Member

may

effect

an exclusion

of

a

class of individuals

or

represent such

a

class.

69.

The

Settlement

Administrator

shall

promptly

log

each

request for

exclusion

that

it

receives and

provide

copies ofthe

log

and

all such requests

for

exclusion to

Progressive

and

Class

Counsel.

70.

Prior

to

the

Final Approval

Hearing,

Class

Counsel

and

Progressive's Counsel

shall exchange

a

complete

list

of

alltimely

and

valid requests for exclusion

received by

the

Settlement

Administrator

as

of

that

date and

fïle

such

list

of

names

with

the

Court.

Such persons

will

not

be

entitled

to

receive

any

relief

under

this Agreement

and will

not

be

bound

by

any

release

contained

herein

71.

Settlement Class

Members

who

do

not file

a timely

request

for

exclusion may

file

a

notice

of

intent

to object to the

Settlement, or

to

intervene in the Action for the

purpose

of

contesting the

Settlement.

The

written notice of

intent

to object

and/or intervene

must:

(a) be

fìled

with

the

Clerk of the Court

not later than 30 days

before the

date set for the

Final Approval

Hearing as

stated

in

the

Short

Form Notice;

(b)

contain the

information required by the


Order

and

Long Form Class

Notice, including the

reasons for

the

objection,

whether the objector

plans

to appear at

the

Fairness Hearing, and

any

legal

support

or

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evidence supporting the

objection;

and

(c)

be sent by first-class mail,

postmarked

not later

than

30

days

before

the

date set

for

the

Final Approval Hearing,

to

For

the

Class:

For

Progressive

Jeffrey

Morneau

Connor,

Morneau

& Olin,

LLP

73 State Street,

Suite

310

Springfield, MA

01103

A. Hugh Scott

Choate,

Hall

& Stewart

LLP

Two International Place

Boston,

MA

02110

Any

Settlement

Class

Member who

does

not

timely

object

or

intervene waives the

right

to do

so

in

the

future,

and shall

be

forever

barred

from

intervening or making any objection to

the

Settlement or

Final

Judgment.

XIV. CONFIDENTIALITY

OFPROPRIETARY

INFORMATION

72. Progressive

asserts

that the

following

constitutes

highly

confidential

and

proprietary

business information of

Progressive

(the

"Proprietary

Information"):

(a)

the names,

addresses,

policy

numbers,

and

other

data

concerning

Settlement

Class

Members

compiled

by

Progressive

and/or the Settlement

Administrator

in

effectuating the Settlement; and

(b)

the

electronic

data

processing

and

other record keeping procedures

and

materials

to

be

utilized

by

Progressive

and/or the

Settlement

Administrator

in identifying

the Settlement

Class

Members

and

effectuating

Progressive's other obligations under this

Agreement

and/or the Settlement.

The

confidentiality

of all

Proprietary Information

provided

to Class

Counsel by

Progressive

shall

be

protected

from

disclosure

by Class

Counsel and/or other

attorneys

for

the

Named

Plaintiffs

in

this Action to

any

persons

other than

those

described

in Paragraph

73

below.

73.

No

persons other than Progressive, Progressive's counsel,

Class

Counsel,

the

Settlement

Administrator, and clerical/administrative

personnel

employed by any of the

foregoing, and

such other

persons

as the Court

may

order, after hearing on

notice

to all counsel

of

record, shall

be allowed

access

to any Proprietary

Information.

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74. Within

90 days

after the

Effective

Date, Class Counsel shall upon

request

return

to

Progressive or destroy

all

Proprietary Information they

have received, other than

the

list of

Settlement

Class

Members

provided

by

Progressive

to

Class Counsel

in

connection

with

this

Agreement.

Upon

request, Class Counsel shall

deliver a

letter

to

Progressive

certifying their

compliance

with

this Paragraph.

The

parties

agree that neither Class Counsel,

nor

anyone

employed with,

retained

by,

or otherwise

associated

with

Class

Counsel, shall

use

any of this

Proprietary Information in any

other

litigation

or

proceeding,

current or

future,

unless

independently obtained

through

discovery or other

procedures

in such other litigation.

75.

Class

Counsel

and the

Named

Plaintifß

shall

not

make any

statements

to the

media,

orally

or in

writing,

about the

Action, or this Agreement, other than statements

which

are

fully

consistent

with

this

Settlement

and

the

Class

Notice,

except

in

a

bona fide court

proceeding

relating to

the subject matter

of

the

Action.

XV.

DISMISSAL

OF ACTION

AND

RBLBASES

76.

Upon the Court's

Final Approval of this Agreement and

the

Settlement

set forth

herein, the

Final

Judgment shall

be entered

providing for

the dismissal,

with

prejudice

and

without

leave

to

amend,

of

the

Action, and

the

Release

by

the

Settlement

Class

Members,

including the

Named

Plaintiffs,

and

including

their

past,

present

or

future agents,

legal

representatives,

trustees,

parents,

estates,

heirs,

executors

and

administrators,

of

all

Released

Claims

against

the

Released

Persons.

77.

As

of

the

Effective

Date, by operation of

the

entry of the

Final

Judgment,

each

Settlement

Class Member, including the

Named

Plaintiffs,

and

including

their

past, present

or

future agents,

legal representatives, trustees,

parents,

estates,

heirs,

executors

and

administrators,

shall

be deemed to

have fully

released,

waived, relinquished

and discharged, to the

fullest

extent

possible

by

law, the Released

Persons from

the

Released

Claims.

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78. The

Settlement

Class

Members,

including

the

Named

Plaintiffs,

and

including

their

past,

present

or

future

agents,

legal representatives,

trustees,

parents,

estates,

heirs,

executors

and

administrators,

expressly

agree

as

of

the

Effective

Date

that

they, acting

individually

or together, shall

not

and

shall

not

seek

to

institute, maintain,

prosecute,

sue, assert

or cooperate

in

any

action

or

proceedings

against

any

of

the

Released Persons

for any of the

Released Claims.

79.

Notwithstanding

the

Court's entry of the Final Judgment, the Court

shall retain

ongoing

jurisdiction

over

this

Action

for

purposes

of enforcing

and

interpreting

this

Agreement,

including

entering such orders and

injunctions to

prevent any

collateral litigation

that may

be

filed by

Settlement Class

Members,

if necessary.

XVI.

DENIAL OF LIABILITY

80. If

it

were

not for

this

Settlement,

Progressive

would

have vigorously contested

each

and every

claim in the

Action.

Progressive maintains

that

it has

consistently

acted

in

accordance

with

governing

laws at

alltimes.

Progressive

vigorously

denies all the material

allegations

set

forth

in the

Action.

Progressive

nonetheless has

concluded that

it

is

in

its

best

interest that the

Action

be settled on the

terms and conditions set

forth

in

this

Agreement.

Progressive

reached

this

conclusion

after considering the

factual

and

legal issues in the

Action,

the substantial benefits

of

a

final

resolution

of

the Action,

the

expense

that

would be

necessary

to

defend the

Action

through

trial and

any

appeals

that might

be

taken, the benefrts of disposing

of

protracted

and

complex

litigation,

and

the desire

of

Progressive

to

conduct

its

business

unhampered by the

distractions

of

continued

litigation,

and the Settlement

of this matter by

Progressive,

and

any

steps

taken

in

accordance

therewith, shall not be used in any

way

as

precedent

in

any

pending

or

future

actions

including

any actions against

any

of

the

Released

Persons.

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81.

As

a

result

of the

foregoing,

the

Released

Persons

enter

into

this

Agreement

without in

any

way acknowledging

any

fault, liability, or wrongdoing

of

any

kind.

Neither this

Agreement,

nor

any

of its

terms

or

provisions,

nor

any

of

the

negotiations or

proceedings

connected

with

it,

shall be construed as an admission

or concession by the Released

Persons

of

the

truth

of

any

of

the

allegations

made

in

the

Action,

or

of

any

liability,

fault, or wrongdoing

of

any

kind whatsoever on the

part

of the

Released Persons.

82.

To the extent

permitted

by

law, neither this Agreement, nor any

of its

terms or

provisions,

nor

any

of

the

negotiations or

proceedings

connected

with it,

shall

be utilized

or

offered

as

evidence or received

in

evidence

in

any

pending or

future

civil,

criminal, or

administrative action

or

proceeding,

for

any

purpose

including to establish any

liability

or

admission

by

the

Released

Persons,

except in any

proceedings

brought

to

enforce the

Agreement

or otherwise

with

the

written consent of Progressive.

83.

Neither this Agreement,

nor

any

pleading

or other

paper

related in

any

way

to

this

Agreement, nor any

act or communication

in

the course

of negotiating, implementing

or

seeking

approval

of

this

Agreement,

shallbe

deemed an

admission

by

Progressive

that

certification of

a

class

or subclass

is

appropriate

in

any other

litigation,

or

otherwise

shall

preclude

Progressive

from

opposing or asserting

any argument

it

may

have with respect

to certiflrcation

of

any

class(es) or

subclass(es) in

any

proceeding.

XVII.

DECEASED

CLASS

MEMBERS

84.

Claims

may

be

submitted

by

any

attorney

or interested

person

on

behalf of

a

deceased Settlement Class

Member's

estate.

Before distributing any funds,

Progressive

may

request

that the

Court

approve

the

party

submitting such a claim as the

proper party

to

receive

distribution

of

funds. In

addition,

if

and when

necessary,

Progressive may

request

that

estates

deemed entitled to

benefrts under

this Agreement

be

reopened

before such

benefits will be

paid.

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XVIII. INCAPACITATED SETTLEMENT

CLASS

MEMBERS

85.

Claims

may be submitted by any attorney

or

interested

person

on behalf

of an

incapacitated Settlement

Class Member.

Before

distributing

any

funds, Progressive may

request

that the

Court approve the

party

submitting

such

a

claim

as the

proper

party

to

receive

distribution

of

funds.

XIX.

TAX OBLIGATIONS

86. Tax obligations

which may arise by

virtue

of the Settlement

Class

Payments made

pursuant

to this Agreement,

if

any, are

solely

the

responsibility of

the

Persons who

receive

such

Settlement Class Payments,

and are

not the

responsibility

of

Progressive.

The

Parties

to this

Agreement do

not in

any

way express

any

belief

or

opinion

regarding the existence

of such

tax

obligations

and do not undertake to

provide

any advice

to

any

Settlement

Class

Member

regarding any

tax obligations

which may

arise

by virtue

of

any Settlement

Class

Payments

made

pursuant

to

this Agreement.

XX.

MISCELLANEOUSPROVISIONS

87

.

This

Agreement shall not

be

construed

to affect

or

limit

the

rights

of

Settlement

Class

Members against

third

parties

unrelated to

Progressive. In

particular,

nothing in

this

Agreement shall

be

construed

to affect

in

any

way,

or

require

the

forfeiture

or compromise

of,

any

personal

injury

claims

against

third

parties.

Nothing

in

this

Agreement shall be construed to

affect in any way the other existing

policy

rights

of

Settlement

Class

Members

or

Progressive

concerning

any other aspect

of

their

insurance

agreements unrelated

to the

present

controversy.

88.

The Parties hereto

and

their

undersigned counsel

agree

to

undertake

their

best

efforts and

mutually

cooperate

to effectuate this

Agreement

and the

terms

of

the

Settlement

set

forth herein, including taking all

steps and efforts contemplated by this

Agreement,

and any

other

steps

and efforts which

may become

necessary

by

order

of

the Court or

otherwise.

The Parties

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hereto and their undersigned

counsel

further agree to

defend this

Agreement against objections

made to

final

approval

of the Settlement

or in

any

appealof the

FinalJudgment

or collateral

attack on the

Agreement

or

FinalJudgment.

89.

Neither

the

Parties

nor their counsel shall

make any defamatory

statement

concerning

any

Party

with

regard

to

this case,

the

underlying

facts

or the

terms of this

Agreement. Class Counsel,

Progressive, and

Progressive's Counsel

may

provide

factual

information

about

this

Action,

this

Agreement, the

Notice,

and the

Direct Mail Claim

Form, PDF

Claim Form,

and Online Claim

Form,

and other

Settlement

documents that

have

been

approved

by the

Court.

The

Parties or

their

counsel may

also

make any

public

statements about

this

Action, the

Settlement

or

its

effect that

are

required by

statute,

regulation, or

court

mandate.

This Paragraph is not to be construed

as a

waiver

by

any

Party

of

any

claim for

defamation,

libel,

slander, or other

cause

of

action arising

independently of this Agreement.

The

Parties further

agree

that information

regarding

Settlement Class

Member names,and

addresses,

other than

Named Plaintiffs, shall

remain confidential and

may

not be

disclosed

to

any other

person,

except

as necessary

to

administer

the terms

of this

Agreement.

90. The

undersigned

counsel

represent

that

they are

fully

authorized

to

execute

and

enter

into

the

terms and conditions

of this

Agreement

on behalf of

their

respective clients.

91. Except as

otherwise

provided

by written agreement,

this Agreement and

its

Exhibits

contain the

entire

agreement between the

Parties

hereto,

and

supersede any

prior

agreements

or understandings

between them.

All

terms

of

this

Agreement

are

contractual

and

not mere

recitals.

The terms

of this Agreement are and

shall

be

binding

upon

each

of the

Parties

hereto, their agents,

attorneys,

employees, successors and

assigns, and upon

all

other

Persons

27


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claiming

any interest in the subject

matter hereof

through any of the

Parties hereto, including any

Settlement

Class Member.

92. This

Agreement

may

be

amended or

modified only by

a

written

instrument signed

by counsel

for

all

Parties hereto. Amendments and

modifìcations

may be

made without

additional

notice

to the

Settlement

Class Members

unless

such notice is required by

the

Court.

93.

The

exhibits to

this Agreement

are

an

integral

part

of

the Settlement

and are

hereby incorporated

and

made a

par|

of this

Agreement.

94.

None

of

the

Parties

shall

be

considered to

be

the drafter of this Agreement or any

provision

hereoffor

the purpose

ofany

statute, case

law

or rule

ofinterpretation

or construction

that

would

or might cause any

provision

to

be construed against

the drafter.

95.

To

the extent

permitted

by

law,

this

Agreement may be

pleaded

as a

fulland

complete defense to, and

may

be used

as the basis

for an

injunction

against,

any

action, suit or

other

proceeding

which

may be instituted,

prosecuted

or attempted in breach of

this

Agreement.

96. Progressive,

the

Named

Plaintiffs, and each

Settlement

Class Member inevocably

submit

to the exclusive

jurisdiction

of

the

Court

for

any suit, action, proceeding or dispute

arising

out

of

or

relating

to

this

Agreement or the

applicability of this

Agreement

and

exhibits,

but

for

no other

purpose.

97. This

Agreement shall

be

deemed

to have been

executed upon

the

last

date

of

execution by all

the

undersigned counsel.

[Remainder

of

this

page

intentionally left blank.]

28


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98.

This

AgLeernent

rnay

be

çxecuted

in

counterparts,

each

of rvhich shall constitute

an

oliginal.

Electlonic

signatures

transrnitted by facsinrile transmission

or

entail shall

be deemed

to

have

the sarne

effect

as

oligirral

signatures.

By

the

Plaintiffs,

WANDA

ESTRADA

By

the

Defeuclant,

PRO GRES SIVE DIITECT INSURANCE

COMPANY

Darecl:

{f-¡b'}$-

By:

Title

WALTER

ESTRADA

Datecl:

Dated:

q*1Ú-l'r

CHOATE,

HALL

&

STEWART,

LLP

JONA

Documents

Estrada v. Progressive Settlement Agreement (1)