{SSBLS Main Documents/7523/001/00573745‐1 } 1

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

EDWARD SLAYMAN, DENNIS 

McHENRY and JEREMY BRINKER, 

individually and on behalf of all others 

similarly situated, 

 Plaintiffs, 

 v. 

FEDEX GROUND PACKAGE SYSTEM, 

INC., 

 Defendant. 

JON LEIGHTER and DAVID SPICER, 

individually and on behalf of all others 

similarly situated, 

 Plaintiffs, 

 v. 

FEDEX GROUND PACKAGE SYSTEM, 

INC., and FEDEX GROUND PACKAGE 

SYSTEM, INC. d/b/a FEDEX HOME 

DELIVERY, INC., 

 Defendants. 

TIMOTHY BERG, individually and on 

behalf of all others similarly situated, 

 Plaintiffs, 

 v. 

FEDEX GROUND PACKAGE SYSTEM, 

INC., 

 Defendant. 

Case No. 3:05-cv-01127-HZ 

Case No. 3:07-cv-0818-HZ 

Case No. 3:14-cv-01663-HZ 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 1 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 2

CLASS ACTION SETTLEMENT AGREEMENT 

This Class Action Settlement Agreement (with the exhibits attached hereto, collectively 

referred to herein as this or the “Agreement” or “Settlement Agreement”) is made and entered 

into as of this 26th day of February, 2016, between Edward Slayman, Dennis McHenry, Jeremy 

Brinker, Jon Leighter, David Spicer, and Timothy Berg (collectively, the “Plaintiffs”), on behalf 

of themselves and the Class, as defined below, and Defendant FedEx Ground Package System, 

Inc. (“FXG”) (collectively, the “Parties”), to settle, fully and finally, all of the Released Claims 

(as defined below). This Agreement is made in consideration of the following facts: 

A. Certain disputes and differences have arisen between the Parties concerning 

FXG’s classification of Class Members as independent contractors instead of employees. 

Plaintiffs allege that, based upon this employment classification, they and the members of the 

Class were, among other things, unlawfully deprived of the benefits of the Oregon labor and 

employment laws and were not paid all wages due. 

B. There are currently three related cases pending in this district before the Court: 

Slayman v. FedEx Ground Package Sys., Inc., 3:05-cv-01127-HZ (“Slayman”), filed July 20, 

2005; Leighter v. FedEx Ground Package Sys., Inc., 3:07-cv-00818-HZ (“Leighter”), filed June 

1, 2007; and Berg v. FedEx Ground Package Sys., Inc., 3:14-cv-01663-HZ “(Berg”), filed 

October 20, 2014. Collectively, Slayman, Leighter, and Berg, will be referred to herein as the 

Litigation. 

C. After each of the complaints in Slayman and Leighter was filed, the cases were 

transferred to the Northern District of Indiana as part of multi-district litigation proceedings 

under the caption In re FedEx Ground Package Sys., Inc. Employment Practices Litig., 3:05-md00527 (the “MDL Proceeding”). The Third Amended Complaint in Slayman alleged the 

following causes of action: (1) illegal deductions from wages under ORS 652.610; (2) fraud; (3) 

rescission of the Operating Agreement; and (4) declaratory relief. The Complaint in Leighter

alleged the following causes of action: (1) illegal deductions from wages under ORS 652.610; (2) 

rescission; (3) declaratory relief; (4) injunctive relief; (5) failure to pay overtime in violation of 

ORS 653.261; and (6) penalty wages under ORS 652.140. In the MDL proceeding, the district 

court certified classes for the claims under ORS chapters 652 and 653 in Slayman and Leighter. 

Plaintiffs then moved for summary judgment on employment status. In an opinion issued on 

December 13, 2010, the MDL district court denied the motions, but sua sponte granted summary 

judgment to FXG on the certified claims. Following remand to the district court in Oregon, the 

parties cross-moved for summary judgment on the Plaintiffs’ rescission claims in both cases. The 

district court granted FXG’s motion and denied plaintiffs’ motion as moot. Final judgments were 

entered in both cases on May 25, 2012, and plaintiffs appealed. 

D. On August 27, 2014, the U.S. Court of Appeals for the Ninth Circuit reversed the 

MDL court’s summary judgment decision, and issued an opinion finding that the members of the 

Slayman and Leighter classes were employees as a matter of Oregon law, and ordered that the 

cases be remanded with instructions to the trial court to enter summary judgment in favor of the 

class on the question of employment status. Slayman v. FedEx Ground Package Sys., Inc., 765 

F.3d 1033 (9th Cir. 2014). 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 2 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 3

E. On October 20, 2014, the first complaint in Berg was filed. The Second Amended 

Complaint, filed on February 17, 2016, alleged the following claims: (1) illegal deductions from 

wages under ORS 652.615; (2) penalty wages under ORS 652.140 and 652.150; and (3) failure to 

pay overtime in violation of ORS 653.261. 

F. The Parties, through counsel and with the assistance of a mediator, have engaged 

in arm’s-length settlement negotiations. All Parties in the Litigation have agreed to settle the 

Litigation. 

G. The Parties understand, acknowledge, and agree that this Agreement constitutes 

the compromise of all the disputed claims at issue in the Litigation and that it is the desire and 

intention of each of the Parties to effect a final and complete resolution of the Litigation and of 

the Released Claims of the Plaintiffs and Class Members, including all costs and attorneys’ fees 

incurred. 

H. Plaintiffs and Class Counsel: (1) have examined and considered the benefits to be 

provided to Class Members under the settlement provided for in this Agreement (the 

“Settlement”); (2) have considered the laws of Oregon and the claims that have been and could 

be asserted relating to the classification of Class Members as independent contractors; and (3) 

believe the Settlement to be fair, reasonable, and adequate, and in the best interest of the Class, 

taking into account the benefits provided to Class Members through the terms of the Settlement, 

the decisions rendered in the Litigation, the risks of litigation, and the length of time that would 

be required to complete the Litigation and any appeals. 

I. The Parties further acknowledge that this Settlement is a compromise of disputed 

claims and that FXG is not in any way admitting liability by entering into this Settlement. FXG 

has at all times disputed, and continues to dispute, the allegations in the Litigation, denies that it 

has committed any violation of law, misconduct, wrongdoing, or any other actionable conduct, 

denies that it misclassified Plaintiffs and the Class Members, and denies any liability for any of 

the claims that have or could have been raised in the Litigation regarding the classification of the 

Plaintiffs and Class Members as independent contractors, but believes that the Settlement as 

provided in this Agreement will avoid the substantial expense and disruption of continued 

litigation. 

J. The Parties believe that the Settlement is fair, reasonable and adequate. The 

Settlement was arrived at through arm’s-length negotiations, taking into account all relevant 

factors, and will materially benefit Class Members. The Parties recognize the uncertainty, risk, 

expense, and delay attendant to continuing the Litigation through trial and any appeal. 

Accordingly, the Parties desire to fully, finally, and forever settle, compromise, and discharge all 

disputes and claims arising from or relating to the Litigation. 

Therefore, in consideration of the promises and agreements contained herein, the Parties 

agree and covenant as follows: 

 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 3 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 4

I. DEFINITIONS

As used in this Agreement, the following definitions (in addition to those set forth 

elsewhere herein) shall apply: 

A. “Administration Expenses” means reasonable fees and expenses incurred by the 

Settlement Administrator for: (1) preparation and mailing of the Settlement Notice and Forms, 

follow-up mailings, and reminder mailings; (2) preparation and mailing of the notice required by 

the Class Action Fairness Act, 28 U.S.C. §1715; (3) establishment of a website to provide notice 

to Class Members regarding the Settlement and for other purposes set forth herein; (4) receipt 

and evaluation of exclusion requests from Berg Class Members; (5) receipt and evaluation of 

Forms submitted by Class Members for payment under this Settlement; (6) processing objections 

to the Settlement; (7) establishment and maintenance of the Class Settlement Fund, which is 

intended to be a “qualified settlement fund” under Internal Revenue Code § 468B and Treasury 

Regulation § 1.468B-1, as described in Section III.A below; (8) preparing and filing federal 

income tax returns for the Class Settlement Fund, as well as any other tax filings the Class 

Settlement Fund must make under federal, state, or local law; (9) paying and depositing the 

federal taxes owed by the Class Settlement Fund under Treasury Regulation § 1.468B-2, as well 

as any state or local taxes owed by the Class Settlement Fund; (10) preparing, filing, and issuing 

all necessary tax reporting forms for the Class Settlement Fund, including IRS Forms 1099 

and/or W-2 regarding the distribution of payments to Class Members, Class Counsel, and 

Plaintiffs; (11) providing FXG with copies of all tax reporting and filings made for the Class 

Settlement Fund, including copies of the checks and IRS Forms 1099 or W-2 issued to Class 

Members, Class Counsel, and Plaintiffs, and any other documentation to show that the tax 

reporting and filings were timely transmitted to the Claimants and the applicable taxing 

authorities; (12) mailing of settlement payments to Eligible Class Members who timely submit 

Valid Claims; (13) mailing, or transfer by wire, of payment(s) for attorneys’ fees and costs to 

Class Counsel; (14) mailing of service awards to Plaintiffs; and (15) performance of any other 

actions specified in this Agreement or mutually requested by the Parties in writing. 

B. “Claim Form” means the proposed form attached hereto as Exhibit E, to be 

approved by the Court and submitted, in accordance with Section III of this Agreement, to the 

Settlement Administrator by Class Members who wish to receive a payment pursuant to the 

Settlement. 

C. “Class” is used collectively to refer to the Litigation’s currently certified classes 

and subclasses in Slayman and Leighter, as well an additional class and subclasses in Berg. The 

certified class in Slayman is defined as: 

All persons who: 1) entered into an FedEx Ground or FedEx Home Delivery 

Form Operating Agreement (now known as OP-149 and Form OP-149- RES); 2) 

drove a vehicle on a full-time basis (meaning exclusive of time off for commonly 

excused employment absences) from July 20, 1999 through October 15, 2007 to 

provide package pick-up and delivery services pursuant to the Operating 

Agreement; and 3) were dispatched out of a terminal in the state of Oregon. 

 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 4 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 5

The certified class and subclasses in Leighter are defined as: 

All persons who: 1) entered into a FedEx Ground or FedEx Home Delivery Form 

Operating Agreement (now known as OP-149 and Form OP-149- RES); 2) drove 

a vehicle on a full-time basis (meaning exclusive of time off for commonly 

excused employment absences) from July 20, 1999 through July 27, 2009 to 

provide package pick-up and delivery services pursuant to the Operating 

Agreement; and 3) were dispatched out of a terminal in the state of Oregon. 

All persons who: 1) entered into a FedEx Ground or FedEx Home Delivery Form 

Operating Agreement (now known as OP-149 and Form OP-149- RES); 2) drove 

a vehicle on a full-time basis (meaning exclusive of time off for commonly 

excused employment absences) to provide package pick-up and delivery services 

pursuant to the Operating Agreement; 3) were dispatched out of a terminal in the 

state of Oregon; and 4) who, at any time from August 10, 2005 through July 27, 

2009 operated vehicles with a gross vehicle weight rating of less than 10,001 

pounds. 

All persons who: 1) entered into a FedEx Ground or FedEx Home Delivery Form 

Operating Agreement (now known as OP-149 and Form OP-149- RES); 2) drove 

a vehicle on a full-time basis (meaning exclusive of time off for commonly 

excused employment absences) to provide package pick-up and delivery services 

pursuant to the Operating Agreement; 3) were dispatched out of a terminal in the 

state of Oregon; and 4) whose Operating Agreement was terminated at any time 

from July 20, 1999 through July 27, 2009. 

The Parties have agreed to the following settlement class and subclasses definitions in Berg: 

All persons who: 1) entered into a FedEx Ground or FedEx Home Delivery Form 

Operating Agreement (now known as OP-149 and Form OP-149- RES); 2) drove 

a vehicle on a full-time basis (meaning exclusive of time off for commonly 

excused employment absences) from July 27, 2009 through September 18, 2015, 

to provide package pick-up and delivery services pursuant to the Operating 

Agreement; and 3) were dispatched out of a terminal in the state of Oregon. 

All persons who: 1) entered into a FedEx Ground or FedEx Home Delivery Form 

Operating Agreement (now known as OP-149 and Form OP-149- RES); 2) drove 

a vehicle on a full-time basis (meaning exclusive of time off for commonly 

excused employment absences) to provide package pick-up and delivery services 

pursuant to the Operating Agreement; 3) were dispatched out of a terminal in the 

state of Oregon; and 4) who, at any time from July 27, 2009 through September 

18, 2015, operated vehicles with a gross vehicle weight rating of less than 10,001 

pounds. 

All persons who: 1) entered into a FedEx Ground or FedEx Home Delivery Form 

Operating Agreement (now known as OP-149 and Form OP-149- RES); 2) drove 

a vehicle on a full-time basis (meaning exclusive of time off for commonly 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 5 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 6

excused employment absences) to provide package pick-up and delivery services 

pursuant to the Operating Agreement; 3) were dispatched out of a terminal in the 

state of Oregon; and 4) whose Operating Agreement was terminated at any time 

from July 27, 2009 through September 18, 2015. 

For the purpose of these class definitions, and for purposes of this Settlement Agreement only, 

“persons” shall be defined to include both individuals who contracted in their own name and 

individuals who were the authorized officer or owner of any business entity (whether partnership, 

limited liability company, sole proprietorship, corporation, or other business structure) who were 

signatories to Operating Agreements with FXG. It shall also include individuals or business 

entities (of whatever type and whenever formed) which entered into, or assumed an assignment 

of, an FXG Operating Agreement, where the authorized officer or owner of the business entity is 

or was a Class Member. 

D. “Class Member” means any individual or business entity identified in Section I.C 

above, and/or any signatory to an FXG Operating Agreement whom the Parties otherwise agree 

shall be considered a member of the Class. A preliminary list of the Class Members is attached 

hereto as Exhibit A. Notwithstanding the attached list, nothing shall prevent the Parties, through 

their counsel, from mutually agreeing to subsequently modify the list of Class Members to 

correct errors or omissions therein. “Slayman and Leighter Class Member” shall refer to a Class 

Member who is a member of the classes and/or subclasses in Slayman and/or Leighter. “Berg

Class Member” shall refer to a Class Member who is a member of the class and/or subclasses in 

Berg. “Class Member” shall not include any person who timely opted out of both the Slayman

and Leighter classes and subclasses. “Class Member” also shall not include any person who is 

not a Slayman and Leighter Class Member and timely submits a Request for Exclusion from the 

Berg class and subclasses. 

E. “Class Counsel” means Steve D. Larson and Mark A. Friel of Stoll Stoll Berne 

Lokting & Shlachter PC. 

F. “Class Settlement Fund” means the fund that will be established and maintained 

to resolve claims at issue, as described in Section III.A below, and which is intended to be a 

qualified settlement fund within the meaning of Internal Revenue Code § 468B and Treasury 

Regulation § 1.468B.1. 

G. “Court” means the United States District Court for the District of Oregon. 

H. “Effective Date” means the first business day after the following has occurred: (i) 

45 days have lapsed from the entry by the Court of the Final Approval Order and the Judgment 

thereon, and no notice of appeal of the Judgment or any Order in the Litigation has been filed, 

the time provided for in Rule 4 of the Federal Rules of Appellate Procedure to take any such 

appeal has expired, and any right to take any such appeal from the Judgment or from any such 

Order has been waived or otherwise lost; or (ii) if an appeal has been taken, each such appeal has 

been finally adjudicated and the Final Approval Order and Judgment have been upheld in all 

respects by each such final adjudication, and either the time for initiation of the next step in the 

appellate process (e.g., a petition for writ of certiorari) has expired without any action by 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 6 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 7

appellant(s) or the next step in the appellate process was invoked and has been concluded without 

any impact on the Final Approval Order or Judgment. 

I. “Eligible Class Member” means each Class Member who timely and properly 

completes in full, signs under penalty of perjury, and submits, the Forms in accordance with the 

requirements of the Preliminary Approval Order. 

J. “Final Approval Hearing” means the final hearing, to be held after notice has been 

provided to the Class Members in accordance with Section IV of this Agreement, to determine 

whether to grant final approval to the Settlement and enter the Final Approval Order and the 

Judgment. 

K. “Final Approval Order” means the proposed order granting final approval to the 

Settlement, to be entered by the Court with the terms and substantially in the form of Exhibit H

to this Agreement. 

L. “Final Claims Date” means the date that the Preliminary Approval Order 

establishes as the date on or before which, to meet the timing requirement for a claim to qualify 

as a Valid Claim, all Forms must be either: (1) placed in the United States Mail with first-class 

postage, addressed to the Settlement Administrator, and post marked by the United States Postal 

Service; or (2) uploaded to the Settlement Website in accordance with the instructions provided 

on the website. 

M. “Forms” means, collectively, Form W-9 and the Claim Form to be included with 

the Settlement Notice. 

N. “Form W-9” means the Internal Revenue Service’s Form W-9 (Request for 

Taxpayer Identification Number and Certification), which will be included with the Settlement 

Notice. 

O. “Judgment” means the final judgment to be entered by the Court with the terms 

and substantially in the form of Exhibit I to this Agreement. 

P. “Settlement Notice” means, individually or collectively as the context may 

indicate, the written notices to be approved by the Court and mailed to Class Members in 

accordance with Section IV of this Agreement, the Detailed Notices attached hereto as Exhibits 

B-2 (“Slayman and Leighter Detailed Notice”) and Exhibit C-2 (“Berg Detailed Notice”), and/or 

the proposed Summary Notice attached hereto as Exhibit D. “Slayman and Leighter Settlement 

Notice” means the proposed written notice attached hereto as Exhibit B-1, that is mailed to 

Slayman and Leighter Class Members. “Berg Class and Settlement Notice” means the proposed 

Settlement Notice, attached hereto as Exhibit C-1, that is mailed to Berg Class Members. 

Q. “Preliminary Approval Order” means the proposed Order Preliminarily 

Approving Class Action Settlement, Certifying Berg Settlement Class and Subclasses, 

Approving Notice Procedures, and Setting Final Approval Hearing, to be entered by the Court 

with the terms and in the form of Exhibit G to this Agreement. 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 7 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 8

R. “Released Claims,” as to Plaintiffs and all Class Members, means all claims, 

actions, causes of action, administrative claims, demands, debts, damages, penalties, costs, 

interest, attorneys’ fees, obligations, judgments, expenses, or liabilities, in law or in equity, 

whether now known or unknown, contingent or absolute, which (i) are owned or held by 

Plaintiffs (in their individual and/or representative capacities) or Class Members and/or their 

affiliated business entities (if any, including any predecessors in interest and past, present and 

future officers), or any of them, as against Releasees, or any of them; and (ii) arise under or are in 

any way related to the alleged misclassification of workers, the alleged non-payment of wages or 

any claim associated with any Oregon wage statute (including ORS chapters 652 and 653) and 

associated regulations, alleged claim of fraud, or alleged claim for rescission of contract, or that 

is alleged or could have been alleged in the Litigation or to any act, omission, damage, matter, 

cause, or event whatsoever arising out of the initiation, defense, or settlement of the Litigation or 

the claims or defenses asserted in the Litigation for any time prior to September 19, 2015, except 

for the enforcement of this Settlement Agreement. 

The Released Claims include any known or unknown claims for damages or injunctive 

relief relating to claims described herein. Specifically, Plaintiffs and all Class Members in 

exchange for the valuable consideration offered herein, on their own behalf, and on behalf of any 

corporation, limited liability company, sole proprietorship, and any other business entity with 

which they have an ownership interest, hereby expressly waive any and all rights and benefits 

conferred upon them by Section 1542 of the California Civil Code and expressly consent that this 

Agreement (including, without limitation, the Release set forth herein) shall be given full force 

and effect according to each and all of its express terms and provisions, including those related to 

unknown and unsuspected claims, if any, as well as those relating to any other claims 

hereinabove specified. Section 1542 provides: 

“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH 

THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS 

OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, 

WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY 

AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” 

S. “Releasees” means: (a) FXG, and its consolidated subsidiaries, successors, 

predecessors, assigns, affiliates, parent companies, shareholders, officers, directors, agents, 

insurers, attorneys, and employees; and (b) FXG’s past, present, and future shareholders, 

officers, directors, agents, insurers, attorneys, and employees. 

T. “Settlement Administrator” means a qualified firm selected by the Parties and 

approved by the Court to administer the Settlement and the Class Settlement Fund as described in 

Section III. 

 U. “Valid Claim” refers to Forms that: (i) are timely submitted by a Class Member in 

accordance with the requirements of the Preliminary Approval Order; (ii) are signed under 

penalty of perjury by that Class Member; and (iii) contain all of the information required for that 

Class Member to be an Eligible Class Member. Class Members who timely submit Forms that 

are deficient in one or more respects will receive a deficiency notice from the Settlement 

Administrator and will have 30 days after the mailing of the deficiency notice in which to cure 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 8 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 9

the deficiency. If a Class Member fails to cure the deficiency within that time, the Settlement 

Administrator shall deem the deficient claim to be an invalid claim. 

II. REQUIRED EVENTS

The events set forth in this Section II, in addition to the occurrence of the “Effective 

Date” as described in Section I.H, are conditions precedent to this Agreement becoming 

effective. 

As soon as practicable after the execution of this Agreement by all Plaintiffs and FXG, 

the Plaintiffs shall file this Agreement and a motion seeking entry of the Preliminary Approval 

Order, substantially in the form of Exhibit G hereto, which by its terms shall accomplish all of 

the following: 

1. Preliminarily approve this Settlement as fair, reasonable, and adequate to 

the Class Members; 

2. Designate Rust Consulting, Inc. as the Settlement Administrator, and 

approve it to perform the following functions in accordance with the terms of this 

Agreement, the Preliminary Approval Order, and the Final Approval Order: 

a. Provide for the Settlement Notice (with the Final Approval Hearing 

date) and the Forms, in a form substantially the same as the documents 

attached hereto as Exhibit B-1, Exhibit C-1, and Exhibit E, to be sent by 

mail to all Class Members that can be identified through a reasonable 

effort; 

b. Direct a Summary Notice, substantially in the form attached hereto 

as Exhibit D, to be published once in The Oregonian; 

c. Provide for the notice required by the Class Action Fairness Act 

(“CAFA”), 28 U.S.C. §1715, substantially in the form attached hereto as 

Exhibit F, to be mailed in accordance with the provisions of CAFA to the 

appropriate federal and state officials; 

d. Establish a website (the “Settlement Website”) for the purpose of: 

(i) providing information to Class Members regarding the Settlement; (ii) 

allowing Class Members to download relevant documents, including the 

complaints in the Litigation, this Agreement, the Settlement Notice 

(including the Detailed Notices, substantially in the form attached hereto 

as Exhibit B-2 and Exhibit C-2), the Forms, the Preliminary Approval 

Order, and the motions filed by Class Counsel for attorney’s fees, costs, 

and service awards, and for Final Approval; (iii) allowing the uploading of 

completed Forms; and (iv) providing a toll-free number for Class 

Members to call with questions; 

e. Mail, by first-class United States Mail, to every Class Member 

from whom it has not received the Forms, a postcard reminder stating that 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 9 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 10

it has not received Forms from that Class Member and reminding the Class 

Member of the need, if they wish to be eligible to receive a payment under 

the Settlement, to either mail the Forms to the Settlement Administrator, or 

upload the Forms to the Settlement Website, on or before the deadline 

stated in the Settlement Notice; 

f. Receive and process any written requests for exclusion (“opt outs”) 

from Berg Class Members (“Requests for Exclusion”) in accordance with 

Section VI of this Agreement; 

g. Receive, evaluate, and either approve as meeting the requirements 

of Section III.C of this Agreement or disapprove as failing to meet those 

requirements, the Forms submitted by Class Members seeking to receive a 

payment under this Settlement, all in accordance with Sections I.U and III 

of this Agreement; 

h. Provide to FXG and Class Counsel, 14 days after the first mailing 

of the Settlement Notice and Forms and then updated every 14 days 

thereafter, (i) a list of the names and addresses of all Class Members who 

have submitted Forms and whose Forms the Settlement Administrator has 

determined constitute Valid Claims; (ii) a separate list of the names and 

addresses of all Class Members who have submitted Forms and whose 

Forms the Settlement Administrator has determined do not constitute 

Valid Claims; (iii) a separate list of the names and addresses of all Class 

Members who have submitted documents indicating that they wish to 

object to the Settlement; and (iv) a separate list of the names and addresses 

of all Berg Class Members who have submitted Requests for Exclusion; 

i. Send, by first-class United States Mail, to each Class Member who 

has timely submitted Forms that the Settlement Administrator has 

determined to be deficient in some respect, a notice of deficiency; 

j. Process objections to the Settlement in accordance with Section VI 

of this Agreement; 

k. Mail settlement payments to Class Members with Valid Claims, as 

ordered by the Court in the Final Approval Order, in accordance with 

Section III of this Agreement; 

l. Mail, or transfer by wire, payment(s) for attorneys’ fees and costs 

to Class Counsel, as ordered by the Court in the Final Approval Order, in 

accordance with Section VII of this Agreement; 

m. Mail service awards to Plaintiffs as ordered by the Court in the 

Final Approval Order, in accordance with Section VII of this Agreement; 

n. Establish, designate, and maintain the Class Settlement Fund as a 

“qualified settlement fund” under Internal Revenue Code § 468B and 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 10 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 11

Treasury Regulation § 1.468B-1, for the purpose of resolving the 

contested claims of Eligible Class Members; 

o. Maintain the assets of the Class Settlement Fund in a non-interest 

bearing escrow account segregated from the assets of FXG and any person 

related to FXG; 

p. Obtain an employer identification number (EIN) for the Class 

Settlement Fund pursuant to Treasury Regulation § 1.468B-2(k)(4); 

q. Prepare and file federal income tax returns for the Class Settlement 

Fund, as well as any other tax filings the Class Settlement Fund must make 

under federal, state, or local law; 

r. Cooperate with FXG to jointly file a relation-back election under 

Treasury Regulation § 1.468B-1(j)(2), if necessary, to treat the Class 

Settlement Fund as coming into existence as of the earliest possible date; 

s. Pay and deposit the federal taxes owed by the Class Settlement 

Fund under Treasury Regulation § 1.468B-2, as well as any state or local 

taxes owed by the Class Settlement Fund; 

t. Prepare, file, and issue all necessary tax reporting forms for the 

Class Settlement Fund, including IRS Forms 1099 and W-2 regarding the 

distribution of payments to the Class Members, Class Counsel, and 

Plaintiffs; 

u. Provide FXG with copies of all tax reporting and filings made for 

the Class Settlement Fund, including copies of the checks and IRS Forms 

1099 and W-2s issued to Class Members, Class Counsel, and Plaintiffs, 

and any other documentation to show that the tax reporting and filings 

were timely transmitted to the claimants and the applicable taxing 

authorities; 

v. Pay any additional tax liabilities (including penalties and interest) 

that arise from the establishment and administration of the Class 

Settlement Fund solely from the assets of the Class Settlement Fund 

without any recourse against FXG for additional monies; 

w. Within 30 days after the payment of all Valid Claims, provide to 

FXG and Class Counsel a statement of the total number of claims 

submitted, the total number of claims adjudicated to be Valid Claims, and 

the total dollar amount paid to each Class Member (the “Final 

Accounting”); 

x. Liquidate any remaining assets of the Class Settlement Fund after 

all payments to Class Members, Class Counsel, and Plaintiffs have been 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 11 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 12

made and all tax obligations have been satisfied, and distribute such assets 

as directed by the Court; 

y. Performing such other tasks as the Parties mutually agree or the 

Court orders the Settlement Administrator to perform; and 

z. Petition the Court for termination of the Class Settlement Fund 

once all of the duties listed above have been completed. 

3. Certify the settlement class and subclasses in Berg, appoint Timothy Berg 

as class representative for the class and subclasses in Berg, and appoint Class Counsel as 

class counsel in Berg. 

4. Approve the form, contents, and methods of notice to be given to the Class 

Members as set forth in Section IV of this Agreement, and direct the Settlement 

Administrator to provide such notices. 

5. Establish procedures and deadlines for Class Members to submit Requests 

for Exclusion or object to the Settlement and to submit Forms to the Settlement 

Administrator, all consistent with Sections III and VI of this Agreement. 

 6. Schedule deadlines for the filing and/or submission of (a) Requests for 

Exclusion (for Berg Class Members); (b) objections to the Settlement (for all Class 

Members), and (c) papers in support of final approval of the Settlement; and 

7. Schedule the Final Approval Hearing for a date which is no sooner than 

135 days after the Court enters the Preliminary Approval Order. 

 At the Final Approval Hearing, the Parties will jointly request the Court to enter the Final 

Approval Order and the Judgment, substantially in the form of Exhibit H and Exhibit I, which 

will: (1) grant final approval to the Settlement and this Agreement as fair, reasonable, and 

adequate to the Class; (2) provide for the release of all Released Claims and enjoins Class 

Members from asserting, filing, maintaining, or prosecuting any of the Released Claims in the 

future; (3) order the dismissal with prejudice of all Released Claims, and incorporate the releases 

and covenant not to sue stated in this Agreement, with each of the Parties to bear his or its own 

costs and attorneys’ fees, except as provided in Section VII below with respect to Class 

Counsel’s attorneys’ fees and costs; (4) authorize the Settlement Administrator to pay Valid 

Claims in accordance with the terms of the Agreement; (5) authorize the payment of Class 

Counsel’s attorneys’ fees and costs as detailed in Section Vll below; (6) authorize the payment of 

service awards to each of the Plaintiffs as detailed in Section VII below; and (7) preserve the 

Court’s continuing jurisdiction over the administration of the Settlement and enforcement of the 

Agreement. 

Plaintiffs, Class Counsel, and FXG will cooperate and take all reasonable actions to 

accomplish the above. If the Court fails to enter the Preliminary Approval Order or the Final 

Approval Order substantially in the form submitted by the Parties, Plaintiffs, Class Counsel, and 

FXG will use all reasonable efforts that are consistent with this Agreement to cure any defect 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 12 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 13

identified by the Court. If, despite such efforts, the Court does not enter the Preliminary 

Approval Order and Final Approval Order, the Parties will return to their prior positions in the 

Litigation in accordance with Section XI.A of this Agreement. 

III. PAYMENTS TO ELIGIBLE CLASS MEMBERS, AND PROCEDURES FOR 

PROVIDING PAYMENTS TO ELIGIBLE CLASS MEMBERS WHOSE CLAIMS 

ARE DETERMINED TO BE VALID CLAIMS 

 A. Payment to Class Settlement Fund 

No later than five business days after the Effective Date, and in accordance with the other 

terms of this Agreement and its exhibits, FXG shall make the following payment to resolve the 

contested claims of Eligible Class Members: fifteen million four hundred fifty thousand dollars 

($15,450,000), plus any additional amount sufficient to pay the Class Settlement Fund’s share of 

employment and payroll taxes due, if any, on any settlement amounts allocated to Eligible Class 

Members for overtime wage claims (the “Settlement Payment”). The portion of the Class 

Settlement Fund allocated to payments to Eligible Class Members’ overtime wage claims shall 

not exceed $775,000. FXG shall satisfy its Settlement Payment obligation by causing the 

requisite funds to be deposited into the Class Settlement Fund. The Parties intend the Class 

Settlement Fund to be a “qualified settlement fund” under Internal Revenue Code § 468B and 

Treasury Regulation § 1.468B-1. Accordingly, FXG shall retain no rights or reversionary 

interests in the Settlement Payment once transferred to the Class Settlement Fund. Furthermore, 

FXG’s obligation to make the Settlement Payment is contingent on: (1) the Court’s entry of the 

Preliminary Approval Order appointing the Settlement Administrator and approving the 

Settlement Administrator to establish and maintain the Class Settlement Fund; and (2) the 

Court’s entry of the Final Approval Order releasing and dismissing with prejudice all of the 

Released Claims. Under no circumstances shall FXG be required to pay more under this 

Settlement than the amount of the Settlement Payment. The Class Settlement Fund is a common 

fund that includes Class Counsel’s fees and costs as described more fully in Section VII.A of this 

Agreement, the service award payments to Plaintiffs as described more fully in Section VII.B of 

this Agreement, and the administrative expenses, costs of notice, and cost of claims 

administration as described in Section V of this Agreement. The portion of the Class Settlement 

Fund remaining after payment of any fees, costs, administrative expenses, and service awards as 

awarded by the Court, shall be referred to herein as the “Net Class Settlement Fund.” 

B. Payment Calculation for Class Members 

Each Eligible Class Member who timely submits a Valid Claim (a “Claimant”) shall 

receive a payment based on a calculation made by Class Counsel (the “Payment Calculation(s)”). 

Class Counsel shall make and submit to the Settlement Administrator and FXG their Payment 

Calculation(s) for each Claimant no later than fifteen (15) business days after entry by the Court 

of the Final Approval Order. The Payment Calculation(s) shall take into account available 

information regarding the dates and duration of contracting, hours and weeks of work, vehicles 

used, and other factors Class Counsel may, in their judgment, deem relevant. Each Eligible Class 

Member who timely submits a Valid Claim shall receive a payment of no less than $500. Class 

Counsel assume and accept all responsibility and liability associated with their Payment 

Calculation(s). 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 13 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 14

If any Class Member does not timely submit a Valid Claim, or if any Berg Class Member 

timely files a Request for Exclusion, then the amount of the Class Settlement Fund allocable to 

that Class Member shall be distributed on a pro rata basis to the Eligible Class Members who did 

timely submit a Valid Claim. The pro rata distribution will be based on the percentage share in 

the Net Class Settlement Fund of each Eligible Class Member who did timely submit a Valid 

Claim. Although Class Members who do not timely submit a Valid Claim are not entitled to 

receive a settlement payment under this Agreement, they shall still be bound by the other 

provisions of this Agreement, including without limitation the release of claims in Section VIII. 

C. Procedures for Evaluation, Approval, and Payment of Valid Claims

The Settlement Administrator shall be responsible for the following functions in 

accordance with the terms of this Settlement, the Preliminary Approval Order, and the Final 

Approval Order: 

1. Establishing, designating, and maintaining the Class Settlement Fund as a 

“qualified settlement fund” under Internal Revenue Code § 468B and Treasury 

Regulation § 1.468B-1 for the purpose of resolving the contested claims of Eligible Class 

Members, and maintaining the assets of the Class Settlement Fund in a non-interest 

bearing escrow account segregated from the assets of FXG and any person related to 

FXG; 

2. Mailing, by first-class United States Mail, the Settlement Notice (with the 

Final Approval Hearing date and deadlines established by the Court in the Preliminary 

Approval Order) and the Forms to all Class Members that can be identified through a 

reasonable effort; 

3. Direct the Summary Notice to be published once in The Oregonian; 

4. Establishing the Settlement Website for the purpose of: (i) providing 

information to Class Members regarding the Settlement; (ii) allowing Class Members to 

download relevant documents, including the complaints in the Litigation, this Agreement, 

the Settlement Notice (including the Detailed Notices), the Forms, the Preliminary 

Approval Order, and the motions filed by Class Counsel for attorney’s fees, costs, and 

service awards, and for Final Approval; (iii) allowing the uploading of completed Forms; 

and (iv) providing a toll-free number for Class Members to call with questions; 

5. Mailing, by first-class United States Mail, to every Class Member from 

whom it has not received the Forms, a postcard reminder stating that it has not received 

Forms from that Class Member and reminding the Class Member of the need, if they wish 

to be eligible to receive a payment under the Settlement, to either mail the Forms to the 

Settlement Administrator, or upload the Forms to the Settlement Website, on or before 

the deadline stated in the Settlement Notice; 

 6. Notifying the appropriate federal and state officials under CAFA; 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 14 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 15

7. Receiving, evaluating, and approving or disapproving the Forms submitted 

by Class Members seeking to receive a payment pursuant to this Settlement; 

8. Receiving and evaluating all Exclusion Requests by Berg Class Members; 

9. Processing objections to the Settlement; 

10. Providing to FXG and Class Counsel: (i) a list of the names and addresses 

of all Class Members who have submitted Forms and whose Forms the Settlement 

Administrator has determined to constitute Valid Claims; (ii) a separate list of the names 

and addresses of all Class Members who have submitted Forms and whose Forms the 

Settlement Administrator has determined do not constitute Valid Claims; (iii) a separate 

list of the names and addresses of all Class Members who have submitted documents 

indicating that they wish to object to the Settlement; and (iv) a separate list of the names 

and addresses of all Berg Class Members who have submitted Exclusion Requests along 

with copies of the Exclusion Requests; 

11. Mailing, by first-class United States Mail, a notice of deficiency to each 

Class Member that timely submitted Forms and whose Forms the Settlement 

Administrator has determined to be deficient in some respect; 

12. Mailing, by first-class United States Mail, settlement payments to Class 

Members with Valid Claims in accordance with the Payment Calculation for each such 

Class Member provided to the Settlement Administrator by Class Counsel; 

13. Mailing, by first-class United States Mail, or transferring by wire pursuant 

to instructions provided by Class Counsel, payment(s) for attorneys’ fees and costs to 

Class Counsel; 

14. Mailing, by first-class United States Mail, service awards to Plaintiffs; 

15. Obtaining an employer identification number (EIN) for the Class 

Settlement Fund pursuant to Treasury Regulation § 1.468B-2(k)(4);

16. Preparing and filing federal income tax returns for the Class Settlement 

Fund, as well as any other tax filings the Class Settlement Fund must make under federal, 

state, or local law;

17. Cooperating with FXG to jointly file a relation-back election under 

Treasury Regulation § 1.468B-1(j)(2), if necessary, to treat the Class Settlement Fund as 

coming into existence as of the earliest possible date;

18. Paying and depositing the federal taxes owed by the Class Settlement Fund 

under Treasury Regulation § 1.468B-2, as well as any state or local taxes owed by the 

Class Settlement Fund;

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 15 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 16

19. Preparing, filing, and issuing all necessary tax reporting forms for the 

Class Settlement Fund, including IRS Forms 1099 and W-2 regarding the distribution of 

payments to the Class Members, Class Counsel, and Plaintiffs;

20. Providing FXG with copies of all tax reporting and filings made for the 

Class Settlement Fund, including copies of the checks and IRS Forms 1099 and W-2 

issued to Class Members, Class Counsel, and Plaintiffs, and any other documentation to 

show that the tax reporting and filings were timely transmitted to the claimants and the 

applicable taxing authorities;

21. Pay any additional tax liabilities (including penalties and interest) that 

arise from the establishment and administration of the Class Settlement Fund solely from 

the assets of the Class Settlement Fund without any recourse against FXG for additional 

monies; 

22. Providing the Final Accounting to FXG and Class Counsel; 

23. Liquidating any remaining assets of the Class Settlement Fund after all 

payments to Class Members, Class Counsel, and Plaintiffs have been made and all tax 

obligations have been satisfied, and distributing such assets as directed by the Court; 

24. Performing such other tasks as the Parties mutually agree or the Court 

orders the Settlement Administrator to perform; and 

25. Petitioning the Court for termination of the Class Settlement Fund once all 

of the duties listed above have been completed. 

D. Payment to Class Members 

Upon occurrence of the Effective Date, the Settlement Administrator shall, as soon as 

reasonably practicable, but no more than 30 business days after the Effective Date: mail, by firstclass United States Mail, to Claimants (as defined in Section III.B) checks in the amounts 

determined by Class Counsel pursuant to Section III.B and drawn on an account funded by the 

Class Settlement Fund. One hundred and fifty (150) days from the date of issuance of checks to 

Claimants, the Settlement Administrator shall provide Class Counsel with a list of the names and 

addresses of all Claimants who have not yet cashed their checks. Class Counsel may then contact 

any of those Claimants to remind them that the checks must be cashed within one hundred and 

eighty (180) days of the date of issuance or they will be deemed null and void. To the extent 

checks are not cashed within one hundred and eighty (180) days of issuance, those funds shall be 

deposited with a cy pres recipient to be mutually agreed upon by the Parties, and approved by the 

Court on motion filed by Class Counsel. If the Parties cannot agree, Class Counsel will file a 

motion seeking approval of their proposed cy pres recipient. 

IV. SETTLEMENT NOTICE 

The Parties agree that the Settlement Notice (including the Detailed Notices), Summary 

Notice, and Forms provide information sufficient to inform the Class Members of the material 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 16 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 17

terms of this Settlement, the appropriate means for obtaining additional information regarding 

this Agreement and the Litigation, the appropriate means for either objecting (in the case of all 

Class Members) or submitting Requests for Exclusion (in the case of Berg Class Members), and 

the appropriate means for and information about submitting a claim for payment pursuant to the 

Settlement. The parties also agree that the Berg Class and Settlement Notice, the Berg Detailed 

Notice, and Summary Notice provide information sufficient to inform the Berg Class Members 

of the nature of the subject matter of the Litigation, appropriate means for obtaining additional 

information regarding the Litigation, and meet all the requirements of Rule 23(c) of the Federal 

Rules of Civil Procedure. To facilitate the efficient administration of this Settlement, and to 

facilitate payment of Valid Claims under the Settlement, the Settlement Administrator will be 

directed to publish the Summary Notice, to provide all Class Members with copies of the 

Settlement Notice and Forms, to make the Detailed Notices available on the Settlement Website, 

and to provide contact information for Class Counsel in the event they have questions. The 

Parties will request the Court to approve the Settlement Notice, Detailed Notices, Summary 

Notice, and Forms in the Preliminary Approval Order. 

As soon as practicable, but no later than 30 days after the Court’s entry of the Preliminary 

Approval Order, the Settlement Administrator shall send or cause to be sent, by first-class United 

States Mail, a copy of the Settlement Notice and Forms to every Class Member who can be 

identified through reasonable effort (“the First Mailing”). Before conducting the First Mailing, 

the Settlement Administrator will obtain or cause to be obtained address updates utilizing a 

national change of address database. 

As soon as practicable, but no later than 30 days after the Court’s entry of the Preliminary 

Approval Order, the Settlement Administrator will direct the Summary Notice to be published 

once in The Oregonian. 

As soon as practicable, but no later than 30 days after the Court’s entry of the Preliminary 

Approval Order, the Settlement Administrator shall establish the Settlement Website for the 

purpose of: (i) providing information to Class Members regarding the Settlement; (ii) allowing 

Class Members to download relevant documents, including the complaints in the Litigation, this 

Agreement, the Settlement Notice (including the Detailed Notices), the Forms, the Preliminary 

Approval Order, and the motions filed by Class Counsel for attorney’s fees, costs, and service 

awards, and for Final Approval; (iii) allowing the uploading of completed Forms; and (iv) 

providing a toll-free number for Class Members to call with questions. 

As soon as practicable, but no later than 60 days after the Court’s entry of the Preliminary 

Approval Order, the Settlement Administrator shall send or cause to be sent, by first-class United 

States Mail, a copy of the Settlement Notice and Forms to every Class Member with respect to 

which the First Mailing was returned with a forwarding address or otherwise as undeliverable 

(the “Second Mailing”). Before conducting the Second Mailing, the Settlement Administrator 

will obtain or cause to be obtained address updates utilizing a national change of address 

database. 

As soon as practicable, but no later than 90 days after entry of the Preliminary Approval 

Order, the Settlement Administrator shall mail, by first-class United States Mail, to every Class 

Member from whom it has not received the Forms, a postcard reminder stating that it has not 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 17 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 18

received Forms from that Class Member and reminding the Class Member of the need, if they 

wish to be eligible to receive a payment under the Settlement, to either mail the Forms to the 

Settlement Administrator, or upload the Forms to the Settlement Website, on or before the 

deadline stated in the Settlement Notice. 

The Parties agree that the dissemination of the Settlement Notice and Forms by mail, 

publication, and by posting them on the Settlement Website, in the manner specified in this 

Section IV, satisfies the notice requirements of due process and Rule 23 of the Federal Rules of 

Civil Procedure. The Plaintiffs will request the Court to approve, in the Preliminary Approval 

Order, the direct mailing of the Settlement Notice and Forms, the posting of the Detailed Notices 

on the Settlement Website, and the publication of the Summary Notice, as set forth in this 

Section IV. 

V. COSTS OF NOTICE AND CLAIMS ADMINISTRATION

All costs of: (a) preparing and disseminating the Settlement Notice, Detailed Notices, 

Summary Notice, and Forms provided for in Section IV above, and (b) all other Administration 

Expenses, including payments made for the services of the Settlement Administrator, will be 

payable from the Class Settlement Fund or by Class Counsel. Unless otherwise specifically 

agreed in writing, FXG shall not be responsible for any costs that may be incurred by, on behalf 

of, or at the direction of Plaintiffs or Class Counsel in (a) responding to inquiries about the 

Agreement, the Settlement, or the Litigation, (b) defending the Agreement or the Settlement 

against any challenge to them, (c) defending against any challenge to any order or judgment 

entered pursuant to the Agreement, or (d) for any other reason except to the extent required by 

law. 

VI. PROCEDURES FOR SETTLEMENT APPROVAL 

A. Preliminary Approval 

Plaintiffs shall use their best efforts, within 14 days of the execution of this Agreement, to 

move the Court to enter the Preliminary Approval Order, and FXG shall not oppose said motion. 

The proposed deadlines to be established in the Preliminary Approval Order are as follows: 

1. 30 days after entry of the Preliminary Approval Order: Date on or before 

which Settlement Notices and Forms will be mailed to Class Members via the First 

Mailing. 

2. 30 days after entry of the Preliminary Approval Order: Date on or before 

which the Settlement Administrator will direct the Summary Notice to be published once 

in The Oregonian. 

3. 30 days after entry of the Preliminary Approval Order: Date on or before 

which the Settlement Administrator shall establish the Settlement Website for the purpose 

of: (i) providing information to Class Members regarding the Settlement; (ii) allowing 

Class Members to download relevant documents, including the complaints in the 

Litigation, this Agreement, the Settlement Notice (including the Detailed Notices), the 

Forms, the Preliminary Approval Order, and the motions filed by Class Counsel for 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 18 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 19

attorney’s fees, costs, and service awards, and for Final Approval; (iii) allowing the 

uploading of completed Forms; and (iv) providing a toll-free number for Class Members 

to call with questions. 

4. 60 days after entry of the Preliminary Approval Order: Date on or before 

which Settlement Notices and Forms will be remailed via the Second Mailing to any 

Class Members with respect to whom any of the First Mailings were returned as 

undeliverable. 

5. 60 days after entry of the Preliminary Approval Order: Date on or before 

which Class Counsel will file a Motion for an Award of Attorneys’ Fees and Costs, and 

Service Awards to Plaintiffs. 

6. 90 days after entry of the Preliminary Approval Order: Date on or before 

which the Settlement Administrator shall mail, by first-class United States Mail, to every 

Class Member from whom it has not received the Forms, a postcard reminder stating that 

it has not received Forms from that Class Member and reminding the Class Member of 

the need, if they wish to be eligible to receive a payment under the Settlement, to either 

mail the Forms to the Settlement Administrator, or upload the Forms to the Settlement 

Website, on or before the deadline stated in the Settlement Notice. 

7. 105 days after entry of the Preliminary Approval Order: Date on or before 

which objections to the Settlement, the Agreement, or the amount of fees and costs that 

Class Counsel has requested, together with all supporting memoranda and other material, 

must be filed with the Court and served on Class Counsel and FXG. 

8. 105 days after entry of the Preliminary Approval Order: Date on or before 

which any Requests for Exclusion by Berg Class Members must be either postmarked by 

the United States Postal Service or actually received by the Settlement Administrator. 

9. 105 days after entry of the Preliminary Approval Order: Date on or before 

which any person or attorney seeking to appear at the Final Approval Hearing, for the 

purpose of objecting to the Settlement, the Agreement, or the amount of fees and costs 

that Class Counsel has requested, must file with the Court and serve on Class Counsel 

and FXG an entry of appearance in the Litigation and notice of intention to appear at the 

Final Approval Hearing. 

10. 105 days after entry of the Preliminary Approval Order: Final Claims Date 

on or before which, to meet the timing requirement for a claim to qualify as a Valid 

Claim, all Forms must be either: (i) postmarked by the United States Postal Service after 

being placed in the United States Mail with first-class postage, addressed to the 

Settlement Administrator; or (ii) uploaded to the Settlement Website in accordance with 

the instructions provided on the website. 

11. 120 days after entry of the Preliminary Approval Order: Date on or before 

which Class Counsel will file a Motion for Final Approval of Class Action Settlement, 

and for an Award of Attorney Fees and Costs, and Service Awards to Plaintiffs. 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 19 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 20

12. The Parties will coordinate with the Court to set a date for the Final 

Approval Hearing that is no sooner than 135 days after entry of the Preliminary Approval 

Order. 

 B. Final Approval

At the Final Approval Hearing, the Plaintiffs will request the Court to enter the Final 

Approval Order and the Judgment, substantially in the form of Exhibit H and Exhibit I, which 

will: (1) grant final approval to the Settlement and this Agreement as fair, reasonable, and 

adequate to the Class; (2) provide for the release of all Released Claims and enjoins Class 

Members from asserting, filing, maintaining, or prosecuting any of the Released Claims in the 

future; (3) order the dismissal with prejudice of all Released Claims, and incorporate the releases 

and covenant not to sue stated in this Agreement, with each of the Parties to bear his or its own 

costs and attorneys’ fees, except as provided in Section VII below with respect to Class 

Counsel’s attorneys’ fees and costs; (4) authorize the Settlement Administrator to pay Valid 

Claims in accordance with the terms of the Agreement; (5) authorize the payment of Class 

Counsel’s attorneys’ fees and costs as detailed in Section Vll below; (6) authorize the payment of 

service awards to each of the Plaintiffs as detailed in Section VII below; and (7) preserve the 

Court’s continuing jurisdiction over the administration of the Settlement and enforcement of the 

Agreement. 

VII. CLASS COUNSEL’S ATTORNEYS’ FEES AND COSTS, AND SERVICE 

AWARDS TO PLAINTIFFS

A. FXG shall not oppose Class Counsel’s request for attorneys’ fees and costs 

covering all legal services provided by Class Counsel in the past and future to the members of the 

Class in connection with the Litigation (whether before the MDL Court or this Court), the 

Settlement, any appeal in connection with the Settlement, implementation of the Settlement, or 

otherwise in an amount not to exceed thirty percent (30%) of the common Class Settlement 

Fund. The motion for an award of attorneys’ fees and costs shall be subject to Court approval, 

and the Court will determine what amount of fees and costs shall be awarded and issue an Order 

stating the amount of fees and costs to be awarded. 

B. FXG shall not oppose Class Counsel’s request for a service award to each of the 

six Plaintiffs for up to ten thousand dollars ($10,000.00) each, above what each is otherwise 

eligible to receive under Section III of this Agreement. The service awards shall be paid from the 

common Class Settlement Fund. 

C. The agreed amounts set forth above in this Section will be subject to Court 

approval, which approval shall be stated in the Final Approval Order of the Court. Upon the 

Effective Date, the Settlement Administrator shall, as soon as reasonably practicable, but no 

more than ten (10) business days after the Effective Date, cause to be paid to Class Counsel and 

the Plaintiffs those amounts specified above from the Class Settlement Fund, as approved by the 

Court. Class Counsel shall provide the Settlement Administrator in a timely manner all 

information needed with respect to the issuance of the checks for those amounts, including their 

and Plaintiffs’ tax identification/social security numbers on Form W-9. The Settlement 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 20 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 21

Administrator shall have no obligation to make payments under this Section until such 

information is received. 

If any notice of an appeal from the Final Approval Order, the Judgment thereon, or any 

Order in the Litigation is filed by any Party, objector, Class Member, or other person, the 

Settlement shall not be or become final or effective, and the Settlement Administrator shall not 

be obliged to make any payment to Class Counsel or to Plaintiffs, until 10 business days after the 

Effective Date. 

D. Except as identified in this Section VII and upon transferring the Settlement 

Payment to the Class Settlement Fund, FXG will have no responsibility or liability for any 

amount of attorneys’ fees or costs for work performed or expenses incurred in connection with 

the Litigation to any of the Plaintiffs’ counsel or any other counsel for Plaintiffs or any Class 

Member, including any prior firm of the Plaintiffs’ counsel or those involved in the MDL 

Proceeding. In the event any claim for attorneys’ fees or costs in connection with the Litigation is 

made by any counsel other than Class Counsel, the Parties agree that FXG has no obligation of 

any kind to satisfy any such claim. Class Counsel agree to indemnify FXG for any claims made 

against FXG by any counsel other than Class Counsel for fees or costs for work performed in 

connection with the Litigation. Class Counsel represent that there are no liens related to any fees 

associated with the claims of the Class Members as of the execution date of this Agreement. 

FXG shall have no responsibility or liability for any amount of attorneys’ fees or costs 

attributable to the Lawsuit, including any incurred in the MDL proceedings. Any attorneys’ fees 

or costs dispute between Class Counsel and any other attorney(s) will not interfere with the 

Settlement, the provisions of this Settlement Agreement, the dismissal of the Litigation, or the 

releases obtained pursuant to the Settlement Agreement. 

VIII. RELEASE 

Upon entry of the Final Approval Order by the Court, the Litigation shall be dismissed 

with prejudice, an order of dismissal with prejudice shall be entered, and all Released Claims (as 

defined in Section I.R above) shall thereby be conclusively settled, compromised, satisfied, and 

released as to the Releasees. 

In connection with such release of claims, Plaintiffs and the Class Members hereby 

acknowledge that they are aware that they or their attorneys may hereafter discover claims or 

facts in addition to or different from those which they now know or believe to exist with respect 

to the Released Claims, but that it is their intention to hereby fully, finally, and forever settle and 

release all of the Released Claims, known or unknown, suspected or unsuspected, that they may 

have against Releasees. In furtherance of such intention, the release herein given to the Releasees 

by the Plaintiffs and Class Members shall be and remain in effect as a full and complete general 

release of all Released Claims. 

Notwithstanding the above, the Court shall retain jurisdiction over the Parties, the Class 

Members and the Settlement with respect to the future performance of the terms of this 

Settlement Agreement, and to assure that all payments and other actions required by the 

Settlement are properly carried out. 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 21 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 22

IX. COVENANT NOT TO SUE

Plaintiffs, on behalf of themselves and the Class Members (a) covenant and agree that 

neither Plaintiffs nor any of the Class Members, nor anyone authorized to act on behalf of any of 

them, will commence, authorize, or accept any benefit from any judicial or administrative action 

or proceeding, other than as expressly provided for in this Settlement, against Releasees, or any 

of them, in either their personal or corporate capacity, with respect to any claim, matter, or issue 

that in any way arises from, is based on, or relates to any alleged loss, harm, or damages 

allegedly caused by Releasees, or any of them, in connection with the Released Claims; (b) 

waive and disclaim any right to any form of recovery, compensation, or other remedy in any such 

action or proceeding brought by or on behalf of any of them; and (c) agree that this Settlement 

shall be a complete bar to any such action. 

X. REPRESENTATIONS AND WARRANTIES

Each of the Parties represents and warrants to, and agrees with, each of the other Parties 

as follows: 

A. Each of the Parties has had the opportunity to receive, and has received, 

independent legal advice from his or its attorneys regarding the advisability of making the 

Settlement, the advisability of executing this Agreement, and the legal and income tax 

consequences of this Settlement, and fully understands and accepts the terms of this Settlement. 

B. Plaintiffs represent and warrant that no portion of any claim, right, demand, 

action, or cause of action against any of the Releasees that Plaintiffs are releasing in this 

Agreement, and no portion of any payment to which Plaintiffs may be entitled, has been 

assigned, transferred, or conveyed by or for Plaintiffs in any manner; and no person other than 

the Plaintiffs and the Class Members have any legal or equitable interest in the claims, demands, 

actions, or causes of action to be released in this Agreement. 

C. Any other person or entity (including, but not limited to, insurers, lien holders, 

business partners, related or associated business entities, or other creditors) that has any 

judgments, liens, subrogation interests, or related claims which arise out of the Released Claims 

or the damages alleged by the Plaintiffs and the Class as a result of the Released Claims must be 

satisfied from the payments to Claimants as detailed in Section III. Plaintiffs and Class Members 

agree that they are liable for, and will release, hold harmless, defend, and indemnify the 

Releasees from and against any and all Released Claims, known or unknown, that may be 

brought by any person, firm, corporation or other entity, including any lien holders, against the 

Releasees for any such judgments, liens, interests or claims that exist arising out of the Released 

Claims. 

D. None of the Parties relies or has relied on any statement, representation, omission, 

inducement, or promise of any other Party (or any officer, agent, employee, representative, or 

attorney for any other Party) in executing this Agreement, or in making the Settlement provided 

for herein, except as expressly stated in this Agreement. 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 22 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 23

E. Each of the Parties has investigated the facts pertaining to the Settlement and this 

Agreement, and all matters pertaining thereto, to the full extent deemed necessary by that Party 

and his or its attorneys. 

F. Each of the Parties has carefully read, and knows and understands, the full 

contents of this Agreement and is voluntarily entering into this Agreement after having had the 

opportunity to consult with, and having in fact consulted with, his or its attorneys. 

G. Section titles or captions contained herein are inserted as a matter of convenience 

and for reference, and in no way define, limit, extend or describe the scope of this Settlement or 

any provision hereof. 

H. Each of the Parties has participated in the drafting of all provisions of this 

Agreement, has had an adequate opportunity to read, review, and consider the effect of the 

language of this Agreement, and has agreed to its terms. 

I. It is understood and agreed that this Agreement is for the compromise of disputed 

claims and is not to be construed as or deemed to be an admission of any liability, fault, or 

responsibility on the part of FXG or any other Releasee. 

J. It is understood and agreed that the terms and conditions of this Agreement are the 

result of lengthy, intensive, arm’s-length negotiations between the Parties and that this 

Agreement shall not be construed in favor of or against any Party by reason of the extent to 

which any Party or his or its counsel participated in the drafting of this Agreement. 

K. This Agreement constitutes and comprises the entire agreement among the Parties 

with respect to the subject matter hereof. It supersedes all prior and contemporaneous oral and 

written agreements and discussions. It may be amended only by an agreement in writing, signed 

by all Parties hereto. 

L. The Parties agree that any dispute regarding the interpretation or enforcement of 

the terms of this Settlement or in connection with this Agreement shall be resolved by the Court. 

M. Class Counsel, FXG’s in-house counsel, and FXG’s undersigned outside counsel 

agree that they will not issue or cause to be issued any press release directed to any media 

representative regarding the Litigation or the Settlement (except as required to effectuate notice 

under this Agreement or as required by law), except that subject to prior approval of the content 

by FXG, Class Counsel may post information relating to the Settlement on their firm website, 

with links to the Settlement Website. 

XI. MISCELLANEOUS 

 A. Conditional Nature of Agreement 

At Class Counsel’s option, expressed in written notice to FXG’s counsel, this Agreement 

shall become null and void, and no obligation on the part of any of the Parties will accrue, if the 

Court materially alters any of the terms of this Agreement to the detriment of Plaintiffs or the 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 23 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 24

Class, or fails to enter the Preliminary Approval Order or the Final Approval Order in 

substantially the form submitted by the Parties, except that a court ruling regarding Class 

Counsel’s attorneys’ fees and costs shall not be a basis for withdrawal. At FXG’s option, 

expressed in written notice to Class Counsel, this Agreement shall become null and void, and no 

obligation on the part of any of the Parties will accrue, if the Court materially alters any of the 

terms of this Agreement to the detriment of FXG, or fails to enter the Preliminary Approval 

Order or the Final Approval Order in substantially the form submitted by the Parties. Any appeal 

by Class Counsel of the attorneys’ fees and costs awarded by the Court in connection with this 

Settlement shall not be a basis for any Party to have this Agreement become null and void. If this 

Agreement becomes null and void, the Parties shall move forward with the Litigation as though 

no settlement had been reached, all of the Parties to the Litigation being placed in the same 

position they were before this Settlement was proposed, negotiated, and agreed upon. 

 B. Severability 

None of the terms of this Agreement is severable from the others. However, if the Court 

should rule that any term is void, illegal, or unenforceable for any reason, FXG, in its sole 

discretion, and Plaintiffs, in their sole discretion (but acting in accord with their duties and 

obligations to the Class), may elect to waive any such deficiency and proceed with the Settlement 

under the terms and conditions ultimately approved by the Court. 

C. Effectiveness, Amendments, and Binding Nature 

This Agreement may be amended only by written agreement signed by the Parties. 

Except as otherwise stated above, each of the Parties, including Plaintiffs on behalf of themselves 

and the Class, expressly accepts and assumes the risk that, if facts or laws pertinent to matters 

covered by this Agreement are hereafter found to be other than as now believed or assumed by 

that Party to be true or applicable, this Agreement shall nevertheless remain effective. 

This Agreement is binding on, and shall inure to the benefit of, the Parties and the Class 

Members and their respective agents, employees, representatives, officers, directors, parents, 

subsidiaries, assigns, executors, administrators, insurers, and successors in interest. All Releasees 

other than FXG, which is a Party, are intended to be third-party beneficiaries of this Agreement. 

 D. Cooperation in Implementation 

FXG, Plaintiffs, and their respective counsel (including Class Counsel) agree to prepare 

and execute any additional documents that may reasonably be necessary to effectuate the terms 

of this Agreement. 

 E. Governing Law 

This Agreement shall be construed and governed in accordance with the procedural and 

substantive laws of the State of Oregon without regard to any principles of choice of law, except 

that all matters of federal tax law and the Class Settlement Fund’s compliance with Internal 

Revenue Code § 468B and the Treasury Regulations thereunder shall be governed by federal law. 

 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 24 of 27
{SSBLS Main Documents/7523/001/00573745‐1 } 25

 F. No Admission of Liability 

The Parties are entering into this Settlement for the purpose of compromising and settling 

disputed claims. Nothing in this Agreement or in the documents relating to the Settlement shall 

be construed, deemed, or offered as an admission by any of the Parties, or by any member of the 

Class, for any purpose in any judicial or administrative action or proceeding, whether in law or in 

equity, and regardless of whether this Agreement ultimately becomes effective. 

G. No Retaliation by FXG

FXG shall not target, retaliate, discriminate, or otherwise take any adverse action against 

either Plaintiffs or any Class Member by reason of the facts that any of them (a) instituted or in 

any way participated in the Litigation or (b) elects or indicates an intention to participate or not to 

participate in the Settlement. 

 H. Income Tax Reporting 

No representation has been made to the Plaintiffs, Class Members, or their attorneys by 

FXG regarding the taxability of any portion of the payments under this Agreement. Plaintiffs, 

Class Members, and Class Counsel are solely responsible for all of the income tax reporting, 

accounting, and payment, or other disposition or obligations related to the payments described in 

this Agreement, except that the Settlement Administrator will provide Plaintiffs and Class 

Members with copies of IRS Forms 1099 and/or W-2 as applicable for any payments the Class 

Settlement Fund makes to them under this Agreement. 

 

Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 25 of 27
Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 26 of 27
Case 3:14-cv-01663-HZ Document 55 Filed 04/01/16 Page 27 of 27