exv10w1



 





Exhibit 10.1




UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS




	 	 	 	 	 
	IN RE TJX COMPANIES RETAIL

	 	¦
	 	MASTER DOCKET
	SECURITY BREACH LITIGATION

	 	¦
	 	Civil Action No. 07-10162
	(including cases transferred

	 	¦
	 	(Lead Case)
	pursuant to:

	 	¦	 	 
	THE TJX COMPANIES, INC.,

	 	¦	 	 
	CUSTOMER DATA SECURITY BREACH

	 	¦
	 	MDL Docket No. 1838
	LITIGATION)

	 	¦	 	 
	 


	 	¦	 	 
	THIS DOCUMENT RELATES TO:

	 	¦	 	 
	CONSUMER TRACK ACTIONS

	 	¦	 	 
	 


	 	¦	 	 






AMENDED SETTLEMENT AGREEMENT




     This Amended Settlement Agreement, dated as of November 14, 2007 (the “Settlement Agreement”),
is made and entered into by and among the following Settling Parties (as defined below) to the
above-captioned consolidated action: (i) ACohen Marketing & Public Relations, LLC, Julie Buckley,
Anne Cohen, LaQuita Kearney, Laura Lerner, Robert Mann, Jitka Parmet, Deborah Wilson, Kathleen
Robinson, Shannon Kidd and Mary Robb Farley, (the “Representative Plaintiffs”), individually and on
behalf of the Settlement Class (as defined below), by and through (in alphabetical order) Ben
Barnow, Barnow and Associates, P.C.; Lester L. Levy, Wolf Popper LLP; and Sherrie R. Savett, Berger
& Montague, P.C. (together, “Settlement Class Co-Lead Counsel”); (ii) The TJX Companies, Inc.
(“TJX”), by and through its counsel of record, Harvey J. Wolkoff and Mark P. Szpak, Ropes & Gray
LLP, and (iii) Fifth Third Bancorp (“Fifth Third”), by and through its counsel of record, W. Breck
Weigel, Vorys Sater Seymour and Pease LLP. The Settlement Agreement is intended by the Settling
Parties fully, finally, and forever to resolve, discharge, and settle the Released Claims (as
defined below), upon and subject to the terms and conditions hereof.



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I. THE LITIGATION




     On January 17, 2007, and February 21, 2007, TJX issued press releases disclosing that it had
suffered an unauthorized intrusion or intrusions (hereinafter, “the Intrusion”) into the portion of
its computer system that processes and stores information related to customer transactions.
Beginning thereafter, in January 2007, and continuing through June 2007, lawsuits were filed in
various state and federal jurisdictions in the United States, as well as in Canada, asserting
claims against TJX in relation to the Intrusion. In April 2007, those actions pending in the
United States District Court for the District of Massachusetts (“the Court”) were consolidated
(“Consolidated Class Action”). The consolidated Massachusetts proceedings were divided into a
“consumer track,” comprising all actions asserting putative class claims on behalf of TJX customers
(“Consolidated Consumer Class Action”),1 and a “financial institution track,” comprising
all actions asserting putative class claims on behalf of financial institutions.



     On May 9, 2007, in the Consolidated Consumer Class Action, a Consolidated Class Action
Complaint (“the Complaint”) was filed alleging five counts, i.e., negligence, breach of contract,
breach of implied contract, violation of Massachusetts General Laws, Chapter 93A Section 9, and
Massachusetts General Laws, Chapter 93A, Section 11, and identifying ACohen Marketing & Public
Relations, LLC, Julie Buckley, Anne Cohen, LaQuita Kearney, Laura Lerner, Robert Mann, Kimberly
Myck-Rawson, Jitka Parmet, and Deborah Wilson, as the named representative plaintiffs.





 




			
	1	 	Mace v. TJX Companies, Inc., Civ. No. 1:07-cv-10162 (D.
Mass.); Buckley et al. v. TJX Companies, Inc., et al., Civ. No. 1:07-cv-10209
(D. Mass.); Gaydos v. TJX Companies, Inc., et al., Civ. No. 1:07-cv-10217 (D.
Mass.); Cohen et al. v. TJX Companies, Inc., et al., Civ. No. 1:07-cv-10280 (D.
Mass.); Rivas et al. v. TJX Companies, Inc., Civ. No. 1:07-cv-10565 (D. Mass.);
McMorris et al. v. TJX Companies, Inc., et al., Civ. No. 1:07-cv-10682 (D.
Mass.); Arians et al. v. TJX Companies, Inc., et al., Civ. No. 1:07-cv-10754
(D. Mass.); Mascolo-Brown et al. v. TJX Companies, Inc., et al., Civ. No.
1:07-cv-10769 (D. Mass.).




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The Complaint named, as defendants, TJX and Fifth Third. On June
12, 2007, TJX and Fifth Third each filed motions to dismiss the Complaint, which motions were
opposed on July 13, 2007.




     Pursuant to orders by the Judicial Panel on Multi-District Litigation dated June 28, 2007 and
July 18, 2007, actions pending in other federal district courts across the United States asserting
claims against TJX in relation to the Intrusion (“the Tag-along Actions”) were designated to be, or
by the time of the execution of this Settlement Agreement will have been, transferred to and made a
part of the consolidated proceedings pending in the United States District Court for the District
of Massachusetts.2 In conjunction with the filing of this Settlement Agreement, an
Amended Consolidated Class Action Complaint (the “Amended Consolidated Complaint”) is being filed
in the Consolidated Consumer Class Action on behalf of the Settlement Class alleging the same or
similar claims as are alleged in the Complaint and in the complaints in the Tag-along Actions and
Canadian Actions, adding Kathleen Robinson as a Representative Plaintiff, and also adding Shannon
Kidd, a resident of Canada, and Mary Robb Farley, a resident of Puerto Rico, as Representative
Plaintiffs.



     Pursuant to the terms set out below, this Settlement Agreement resolves all actions and
proceedings asserted or that could be asserted against TJX and Fifth Third and their respective
Related Parties in relation to the Intrusion by and on behalf of putative classes of TJX customers
in the United States (including the District of Columbia), Puerto Rico and Canada, including
the





 




			
	2	 	Wood et al. v. TJX Companies, Inc., et al., Civ. No.
2:07-cv-00147 (N.D. Ala.); Lemley v. TJX Companies, Inc., et al., Civ. No.
2:07-cv-02168 (C.D. Cal.); Miranda v. TJX Companies, Inc., et al., Civ. No.
3:07-cv-01075 (D. P.R.); Tennent v. TJX Companies, Inc., et al., Civ. No.
3:07-cv-00484 (S.D. Cal.); Salinas et al. v. TJX Companies, Inc., et al., Civ.
No. 2:07-cv-02172 (C.D. Cal.); Pickering v. TJX Companies, Inc., et al., Civ.
No. 2:07-cv-02172 (C.D. Cal.); Robinson v. TJX Companies, Inc., et al., Civ.
No. 1:07-cv-02139 (N.D. Ill.); Wardrop v. TJX Companies, Inc., Civ. No.
1:07-cv-00430 (W.D. Mich.); Taliaferro et al. v. TJX Companies, Inc., et al.,
Civ. No. 1:07-cv-00388 (S.D. Ohio); Lack et al. v. TJX Companies, Inc., et al.,
Civ. No. 6:07-cv-00233 (E.D. Tex.); Lamb v. TJX Companies, Inc., et al., Civ.
No. 4:07-cv-00379 (W.D. Mo.); Roberts v. TJX Companies, Inc., et al., Civ. No.
1:07-cv-02887 (N.D. Ill.); Hamilton Griffin v. TJX Companies, Inc., et al.,
Civ. No. 4:07-cv-01113 (E.D. Mo.); Dundon et al. v. TJX Companies, Inc., et
al., Civ. No. 4:07-cv-00078 (S.D. Ga.); Hill et al. v. TJX Companies, Inc., et
al., Civ. No. 4:07-cv-00276 (N.D. Fla.); Sharkey v. TJX Companies, Inc., et
al., Civ. No. 2:07-cv-00389 (M.D. Fla.); Agnelly v. TJX Companies, Inc., et
al., Civ. No. 2:07-cv-03271 (E.D. La.); Gutierrez v. TJX Companies, Inc., et
al., Civ. No. 1:07-cv-03533 (N.D. Ill.).




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Consolidated Consumer Class Action, the Tag-along Actions and any other such actions by and on
behalf of putative classes of TJX customers originating or that may originate in jurisdictions in
the United States (including the District of Columbia), Puerto Rico, and Canada (collectively, “the
Litigation”).





II. CLAIMS OF THE REPRESENTATIVE PLAINTIFFS AND BENEFITS OF SETTLEMENT




     The Representative Plaintiffs believe that the claims asserted in the Litigation as set forth
in the Amended Consolidated Complaint have merit. Representative Plaintiffs and Settlement Class
Co-Lead Counsel, however, recognize and acknowledge the expense and length of continued proceedings
necessary to prosecute the Litigation against TJX, Fifth Third and their respective Related Parties
through motion practice, trial, and potential appeals. Settlement Class Co-Lead Counsel also have
taken into account the uncertain outcome and the risk of further litigation, as well as the
difficulties and delays inherent in such litigation. Settlement Class Co-Lead Counsel are also
mindful of the inherent problems of proof and possible defenses to the claims asserted in the
Litigation. Settlement Class Co-Lead Counsel believe that the settlement set forth in this
Settlement Agreement confers substantial benefits upon the Settlement Class (as defined below).
Settlement Class Co-Lead Counsel have determined that the settlement set forth in this Settlement
Agreement is fair, reasonable, and adequate, and in the best interests of the Settlement Class.



III. DENIAL OF WRONGDOING AND LIABILITY




     TJX denies each and all of the claims and contentions alleged against it and its Related
Parties in the Litigation, including as set forth in the Amended Consolidated Complaint, and
believes that these claims and contentions are totally without merit. Specifically, TJX denies all
charges of wrongdoing or liability as alleged against it and its Related Parties in the
Litigation. Nonetheless, TJX has concluded that further conduct of the Litigation would be
protracted and expensive, and that



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it is desirable that the Litigation be fully and finally settled
in the manner and upon the terms and conditions set forth in this Settlement Agreement. TJX also
has taken into account the uncertainty and risks inherent in any litigation, especially in class
action cases such as this Litigation. TJX has, therefore, determined that it is desirable and
beneficial that the Litigation be settled in the manner and upon the terms and conditions set forth
in this Settlement Agreement. Fifth Third denies each and all of the claims and contentions
alleged against it and its Related Parties in the Litigation, including as set forth in the Amended
Consolidated Complaint, and believes that these claims and contentions are totally without merit.
Specifically, Fifth Third denies all charges of wrongdoing or liability as alleged against it and
its Related Parties in the Litigation.



IV. TERMS OF SETTLEMENT




     NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and among the Representative
Plaintiffs, individually and on behalf of the Settlement Class, by and through Settlement Class
Co-Lead Counsel, and each of TJX and Fifth Third that, subject to the approval of the Court, the
Litigation and the Released Claims shall be finally and fully compromised, settled, and released,
and the Litigation shall be dismissed with prejudice as to all Settling Parties, upon and subject
to the terms and conditions of this Settlement Agreement, as follows.



     1. Definitions



     As used in the Settlement Agreement, the following terms have the meanings specified below:




     1.1 “Claims” means known claims and Unknown Claims, actions, allegations, demands, rights,
liabilities, and causes of action of every nature and description whatsoever, whether contingent
or non-contingent, and whether at law or equity.



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     1.2 “Claims Administration” means the processing of claims received from Settlement Class
Members by the Claims Administrator, and “Costs of Claims Administration” means all actual costs
associated with or arising from Claims Administration.




     1.3 “Claims Administrator” means such claims administrator as may be selected by TJX and
agreed to by Settlement Class Co-Lead Counsel, with preference to the Garden City Group, Inc. if
its overall price is equal to or lower than a comparable entity.




     1.4 “Credit Monitoring and Identity Theft Insurance” shall mean (i) for Unreceipted Return
Customer Claimants residing in the United States or Puerto Rico, the Equifax “Credit
WatchTM Gold with 3-in-1 Credit Monitoring” product (including $20,000 in identity
theft insurance) that TJX previously offered in the Prior TJX Credit Monitoring/Insurance Offer,
(ii) for Unreceipted Return Customer Claimants residing in Canada, the most similar credit
monitoring and identity theft insurance products offered commercially by Intersections Inc. at
equivalent cost to TJX, and (iii) for Unreceipted Return Customer Claimants residing in New
York, where such Credit Monitoring and Identity Theft Insurance is not currently available from
Equifax or other similar provider, the most similar credit monitoring and identity theft
insurance products offered commercially.




     1.5 “Effective Date” means the first date by which all of the events and conditions
specified in ¶ 9.1 hereof have occurred and have been met.




     1.6 “Final” means the occurrence of all of the following events: (i) the settlement
pursuant to this Settlement Agreement is approved by the Court; (ii) the Court has entered a
Judgment (as that term is defined herein); (iii) the time to appeal or seek permission to
appeal from the Judgment has expired or, if appealed, the appeal has been dismissed in its
entirety, or the Judgment has been affirmed in its entirety by the court of last resort to which
such appeal may be taken, and such dismissal or affirmance has become no longer subject to
further appeal



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or review. Notwithstanding the above, any order modifying or reversing any fee
award made in this case shall not affect whether the Judgment is “Final” as defined in the
preceding sentence, or any other aspect of the Judgment.




     1.7 “Judgment” means a judgment rendered by the Court, in the form attached hereto as
Exhibit E, or a judgment substantially similar to such form in both terms and cost.




     1.8 “Named Plaintiff” means each Person (as defined in ¶ 1.11 herein) who is named as a
plaintiff in any pending case in the Litigation and who, prior to the execution of the
Settlement Agreement by Settlement Class Co-Lead Counsel, joins in this settlement by affirming
in a writing (which will be filed with the Court by the Settling Parties) that he or she, or his
or her counsel, approve and join in this settlement.




     1.9 “Notice Specialist” means Hilsoft Notifications, Souderton, Pennsylvania.




     1.10 “Opt-Out Date” means the date by which members of the Settlement Class must mail their
requests to be excluded from the Settlement Class in order for that request to be effective.
The postmark date shall be the mailing date.




     1.11 “Person” means an individual, corporation, partnership, limited partnership, limited
liability company or partnership, association, joint stock company, estate, legal
representative, trust, unincorporated association, government or any political subdivision or
agency thereof, and any business or legal entity, and their respective spouses, heirs,
predecessors, successors, representatives, or assignees.




     1.12 “Plaintiffs’ Counsel” means Settlement Class Co-Lead Counsel, and all other attorneys
who represent Named Plaintiffs who have joined in this settlement.




     1.13 “Prior TJX Credit Monitoring/Insurance Offer” means the offer previously made by TJX
to certain Unreceipted Return Customers of one year of the Equifax “Credit WatchTM
Gold with 3-in-1 Credit Monitoring” product.



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     1.14 “Related Parties” means an entity’s past or present directors, officers, employees,
contractors, auditors, principals, agents, attorneys, predecessors, successors, parents,
subsidiaries, divisions and related or affiliated entities, and includes, without limitation,
any Person related to such entity who is, was or could have been named as a defendant in any of
the United States, Puerto Rico or Canadian actions in the Litigation.




     1.15 “Released Acquiring Banks” means Chase Merchant Services LLC; The Chase Manhattan
Bank; Chase Paymentech Solutions; Paymentech Canada; Banco Popular de Puerto Rico; First Data
Loan Company, Canada; and Laurentian Bank of Canada (assignee of Toronto-Dominion Bank).




     1.16 “Released Claims” shall collectively mean any and all Claims, including those arising
under state or federal law of the United States or under provincial or federal law of Canada or
under the law of Puerto Rico (including, without limitation, any causes of action under Mass.
Gen. Laws ch. 93A, Mass. Gen. Laws ch. 214, § 1B, the California Business & Professional Code §
17200 et seq., California Civil Code § 1798.80 — 84 et seq., California Civil Code § 1798.53,
Tex. Bus. & Com. § 48.001 et seq., Georgia Code § 10-1-910 et seq., and any similar statutes in
effect in any other states in the United States or in Puerto Rico; the Personal Information
Protection Act, the Privacy Act, the Personal Information Protection and Electronic Documents
Act, the Freedom of Information and Protection of Privacy Act, and any similar statutes in
effect in Canada or the provinces of Canada; negligence;
negligence per se; breach of contract; breach of fiduciary duty; breach of confidence;
misrepresentation (whether fraudulent, negligent or innocent); unjust enrichment; and bailment),
and including, but not limited to, any and all claims in any state or federal court of the
United States, or any provincial or federal court of Canada, or any court of or located in
Puerto Rico, for damages, injunctive relief, disgorgement, declaratory relief, equitable relief,
attorneys’ fees and expenses, pre-judgment



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interest, credit monitoring services, the creation of
a fund for future damages, statutory penalties, restitution, the appointment of a receiver, and
any other form of relief, that either have been asserted or could have been asserted by any
Settlement Class Member against any of the Released Persons or any of the Indemnified Persons
(as defined below) based on, relating to, concerning or arising out of the allegations, facts,
or circumstances alleged in the Litigation or any other allegations, facts or circumstances with
respect to the Intrusion. Without limitation of the foregoing, Released Claims specifically
include any Claim for alleged injury or loss stemming from the Intrusion as may have been or
could have been asserted by any Settlement Class Member against any person or entity (such as,
for example and without limitation, any entity that issued credit or debit cards to Settlement
Class Members) (collectively, the “Indemnified Persons”) that could seek indemnification or
contribution from any of the Released Persons in respect of such Claim, except that Released
Claims shall not include Claims by any individual Settlement Class Member against any
card-issuing financial institution brought on an individual, case-by-case basis for
reimbursement or waiver of purportedly fraudulent card charges (or other charges by the
card-issuing financial institution in connection with purportedly fraudulent card charges) that
such card-issuing financial institution assertedly should have reimbursed or waived but has
refused to reimburse or waive. Released Claims shall not include the right of any Settlement
Class Member or any Released Person or any
Indemnified Person to enforce the terms of the settlement contained in the Settlement
Agreement. Further, for all Settlement Class Members who are not part of the Unreceipted Return
Customers referenced in ¶ 2.1 below, and who have given their social security number, whether by
driver’s license or any other means, to TJX, there shall be no waiver of any claim that they may
have regarding identity theft from the Intrusion (other than credit/debit card charges) if
brought within three years from the execution of this Settlement Agreement. Any such claim may
be made only as an individual



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claim, as the right to a class action or relief on a class basis
for any such claim is released and waived, and, in the event of the assertion of any such
individual
claim, the parties against whom the claim is asserted shall be deemed to have
retained and shall have the right to assert any responsive claims, counterclaims and defenses
relating thereto, as well as any cross-claims and third-party claims and defenses relating
thereto, all notwithstanding the provisions of ¶ 6.2 and ¶ 6.3 below.




     1.17 “Released Persons” means TJX and its Related Parties, Fifth Third and its Related
Parties, and the Released Acquiring Banks and their respective Related Parties.




     1.18 “Representative Plaintiffs” means ACohen Marketing & Public Relations, LLC, Julie
Buckley, Anne Cohen, LaQuita Kearney, Laura Lerner, Robert Mann, Jitka Parmet, Deborah Wilson,
Kathleen Robinson, Shannon Kidd, and Mary Robb Farley.




     1.19 “Settlement Class” means all Persons in the United States (including the District of
Columbia), Puerto Rico or Canada who shopped at TJX Stores in the United States, Puerto Rico or
Canada, made a purchase or return, have had or allege having had personal or financial data
stolen or placed at risk of being stolen from TJX’s computer systems, and who were or may be
damaged thereby or who allege damage therefrom. Excluded from the definition of Settlement
Class are TJX, Fifth Third, and their respective
officers and directors, and those Persons who timely and validly request exclusion from the
Settlement Class.




     1.20 “Settlement Class Co-Lead Counsel” means Ben Barnow, Barnow and Associates, P.C.;
Lester L. Levy, Wolf Popper LLP; and Sherrie R. Savett, Berger & Montague, P.C.




     1.21 “Settlement Class Member(s)” means a Person(s) who falls within the definition of the
Settlement Class.



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     1.22 “Settling Parties” means, collectively, TJX, on behalf of itself and its Related
Parties, Fifth Third, on behalf of itself and its Related Parties, and the Representative
Plaintiffs, individually and on behalf of the Settlement Class.




     1.23 “TJX Stores” means stores operated by TJX under any of the names T.J. Maxx, Marshalls,
T.J. Maxx ‘n More, Marshalls MegaStore, The Maxx, HomeGoods, A.J. Wright, Winners, and
HomeSense.




     1.24 “Unknown Claims” means any of the Released Claims that any Settlement Class Member,
including any Representative Plaintiff, does not know or suspect to exist in his favor at the
time of the release of the Released Persons which, if known by him or her, might have affected
his or her settlement with and release of the Released Persons, or might have affected his or
her decision not to object to and/or to participate in this settlement. With respect to any and
all Released Claims, the Settling Parties stipulate and agree that, upon the Effective Date, the
Representative Plaintiffs expressly shall have, and each of the other Settlement Class Members
shall be deemed to have, and by operation of the Judgment shall have, waived the provisions,
rights, and benefits conferred by California Civil Code § 1542, and also any and all provisions,
rights, and benefits conferred by any law of any state, province or territory of the United
States (including, without limitation, Montana Code Ann.
§ 28-1-1602; North Dakota Cent. Code § 9-13-02; and South Dakota Codified Laws § 20-7-11),
Puerto Rico or Canada, or principle of common law or international or foreign law, including
Canadian and Puerto Rican law, which is similar, comparable, or equivalent to California Civil
Code §1542, which 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.



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The Settlement Class Members, including the Representative Plaintiffs, and any of them, may
hereafter discover facts in addition to or different from those that they, and any of them, now
know or believe to be true with respect to the subject matter of the Released Claims, but the
Representative Plaintiffs expressly shall have, and each other Settlement Class Member shall be
deemed to have, and by operation of the Judgment shall have, upon the Effective Date, fully,
finally, and forever settled and released any and all Released Claims. The Settling Parties
acknowledge, and the Settlement Class Members shall be deemed by operation of the Judgment to
have acknowledged, that the foregoing waiver is a material element of the settlement of which
this release is a part. Notwithstanding the foregoing, the Settling Parties acknowledge and
incorporate here as if fully set forth here the last two sentences of ¶ 1.16 above.




     1.25 “Unreceipted Return Customers” means those customers who returned merchandise to a TJX
Store without receipts and who were sent a letter from TJX that TJX had specifically identified
that their names and addresses, and driver’s license or military, state or tax identification
numbers, were information TJX believed was stolen in the Intrusion.




     1.26 “Unreceipted Return Customer Claimant” means an Unreceipted Return Customer who
submits a valid claim under ¶ 2.1 below.




     1.27 “Voucher” means a voucher usable for credit against the purchase of merchandise
(excluding gift cards) at any TJX Store (with up to $1.00 in cash back according to TJX’s usual
procedures), which shall be valid for a period of one year from the date of transmission, have
no restrictions on transferability and be freely stackable (i.e., multiple vouchers can be
combined on a single transaction) and applied for credit in addition to all other sales or
discounts then available, including the 15% off one day sales event provided for hereunder (for
example, if the purchase price of goods equals $100 and the balance remaining on a Voucher
equals $30, and another sale or discount amounts to 15% off, then the Settlement Class Member
pays $55 ($100



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-
$15 - $30 = $55)), and may be provided in paper or plastic form, at TJX’s
election, and may be in the form of a special gift card issued by TJX or an affiliate thereof,
again at TJX’s election. Settlement Class Members submitting a valid claim for any voucher under
¶ 2.2 below may elect to be sent, in lieu of such voucher, a $15 check per voucher
(“Check-in-Lieu”), by so indicating on the claim form. Vouchers provided under ¶ 2.2 below to
Settlement Class Members with an address in the United States or Puerto Rico shall be issued in
U.S. currency amounts and shall be usable at TJX Stores located in the United States or Puerto
Rico. Vouchers provided under ¶ 2.2 below to Settlement Class Members with an address in Canada
shall be issued in Canadian currency amounts and shall be usable at TJX Stores located in
Canada. Checks-in-Lieu shall similarly be in the currency of the place of the Settlement Class
Member’s address (i.e., $15 U.S. for Settlement Class Members with an address in the United
States or Puerto Rico, and $15 Canadian for Settlement Class Members with an address in Canada).
Checks-in-Lieu shall be valid for 180 days from the date of issue.




     1.28 “United States” as used in this Settlement Agreement includes the District of
Columbia.



     2. The Settlement



     2.1 (a) TJX shall make available free of charge (i) to Unreceipted Return Customer Claimants
(other than those set forth in subparagraph 2.1(a)(ii)), three years of Credit Monitoring and
Identity Theft Insurance from the date of subscription, and (ii) to Unreceipted Return Customer
Claimants who accepted the Prior TJX Credit Monitoring/Insurance Offer, two years of Credit
Monitoring and Identity Theft Insurance from the date of subscription in addition to the one year
of Credit Monitoring/Insurance previously provided under the Prior TJX Credit Monitoring/Insurance
Offer. Unreceipted Return Customer Claimants shall have 90 days following the Claims
Administrator’s mailing of written notice of the settlement benefit provided in this subparagraph



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2.1(a), as set out in the form attached hereto as Exhibit D, to subscribe for the Credit Monitoring
and Identity Theft Insurance made available under this subparagraph.



          (b) TJX shall reimburse each Unreceipted Return Customer Claimant who submits valid
documentary support to the Claims Administrator showing that he or she replaced his or her driver’s
license between January 17, 2007 and June 30, 2007, other than in the ordinary course, for the
actual replacement cost of the driver’s license in the amount charged by the motor vehicle
department of the issuing state, province or territory. Unreceipted Return Customer Claimants
shall have 90 days following the Claims Administrator’s mailing of written notice of the settlement
benefit provided in this subparagraph 2.1(b), as set out in the form attached hereto as Exhibit
C-1, to submit a claim therefor. This provision compensates any such Settlement Class Member for
driver’s license replacement costs only, and does not preclude such Settlement Class Member from
seeking any other benefit or reimbursement available to such Settlement Class Member under any
other provision of this Settlement Agreement.




          (c) TJX shall reimburse each Unreceipted Return Customer Claimant whose social security number
is the same as his or her driver’s license or military, tax or state identification number, and who
did not accept the Prior TJX Credit Monitoring/Insurance Offer, for any unreimbursed loss of more
than sixty dollars ($60) resulting from identity theft from the Intrusion (other than credit/debit
card charges) that occurred during the period from January 17, 2007 through the date 40 days after
the Credit Monitoring and Identity Theft Insurance is first offered generally pursuant to the
Settlement Agreement.




               (i) Unreceipted Return Customers seeking reimbursement of losses pursuant to this subparagraph
2.1(c) must submit a written claim to TJX (through the Claims Administrator), in the form of
Exhibit C-2, together with proof of such losses, within six months after the Effective Date.
Following such submission of the claim, TJX shall have 30 days to accept



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the claim, reject the
claim, or identify, in writing to the claimant, such consents and additional information (“Claim
Supplementation”) as TJX may reasonably request to investigate the claim. If TJX requests such
Claim Supplementation, it shall be provided to TJX (through the Claims Administrator) by the
claimant within 30 days of the request, and TJX shall have 30 days from receipt of the Claim
Supplementation to accept or reject the claim.



               (ii) The claimant shall have 30 days following any rejection by TJX to submit the claim,
including all supporting materials previously submitted to TJX, to an independent arbitrator from
JAMS/Endispute. JAMS/Endispute shall notify TJX and TJX shall have 30 days from the date of such
notice to provide its reasons for rejection of the claim to JAMS/Endispute, and JAMS/Endispute
shall conduct such hearing and proceedings, if any, as it deems fit. The decision of
JAMS/Endispute shall be final. The fees and expenses of JAMS/Endispute shall be paid for by TJX.



               (iii) Individual payments made by TJX pursuant to this subparagraph 2.1(c) shall be reduced by
the amount of any Vouchers or Checks-in-Lieu received by the Unreceipted Return Customer Claimant
pursuant to subparagraph 2.2 below. In any event, any such Settlement Class Member may continue to
seek any other benefit or reimbursement available to such Settlement Class Member under any other
provision in this agreement. For example, if a claim under this ¶ 2.1(c) exceeds the amount of any
Vouchers or Checks-in-Lieu received by such Settlement Class Member pursuant to ¶ 2.2 below, then
such Settlement Class Member may seek reimbursement for cash pursuant to this ¶ 2.1(c), less the
amount of any Vouchers or Checks-in-Lieu received. Notwithstanding the foregoing, the total amount
payable by TJX pursuant to this subparagraph 2.1(c) is limited to an aggregate of $1 million, and
in the event the value of accepted claims pursuant to this subparagraph 2.1(c) exceeds $1 million,
such claims shall be prorated. No claims under this subparagraph 2.1(c) shall be payable by TJX
until 30 days after the decision by JAMS/Endispute of all claims submitted to independent
arbitration.



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     2.2 TJX shall provide Vouchers or Checks-in-Lieu to all Settlement Class Members who submit
valid claims under pains and penalties of perjury, using the claim form attached hereto as Exhibit
C-3, showing that they:




(i) made a purchase with a credit card, debit card or check at a TJX Store
during the period from December 31, 2002 through September 2, 2003 or the
period from May 15, 2006 through December 18, 2006,
and


(ii) incurred reasonable, more than de minimis (i.e., $5.00 or more)
out-of-pocket costs and/or lost time (calculated at $10.00 per hour) between
January 17, 2007 and June 30, 2007, as a result of the Intrusion as alleged
in the Complaint (other than driver’s license replacement costs reimbursed
under ¶ 2.1 above), all as set forth in (a) and (b) below.


Settlement Class Members submitting a claim under this ¶ 2.2 may do so under one of two categories:





(a) Self-Certification Category: Settlement Class Members may demonstrate that they
satisfy both (i) and (ii) above by self-certification. TJX will provide Settlement
Class Members submitting valid self-certifications in this category a Voucher in the
amount of $30.00 or a Check-in-Lieu in the amount of $15.00. Total benefits
pursuant to this subparagraph 2.2(a) shall not exceed $10 million. Each valid claim
shall be treated as a $30 charge against such $10 million cap whether the claimant
elects to receive a $30 Voucher or a $15 Check-in-Lieu. In the event the total of
such charges exceeds $10 million, the dollar amount of each Voucher or Check-in-Lieu
under this subparagraph 2.2(a) shall be proportionately reduced (e.g., if the total
of such charges exceeds $10 million by $667,000 (i.e., by 1/15 of $10,000,000), the



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dollar amount of each such Voucher shall be $28.00 and the dollar amount of each
such Check-in-Lieu shall be $14.00).




(b) Documentary Support Category: Settlement Class Members must submit a sales
slip, credit or debit card account statement, or cancelled check to demonstrate that
they satisfy (i) above, and reasonable documentation (other than self-certification)
to demonstrate that they satisfy (ii) above. TJX will provide each Settlement Class
Member submitting a valid claim in this category a Voucher in the amount of $30.00
or a Check-in-Lieu in the amount of $15.00. If a Settlement Class Member submits
documentation to satisfy (ii) above showing (by means other than self-certification)
$5.00 or more in actual, out-of pocket costs and that the total of out-of-pocket
costs together with lost time (calculated at $10.00 per hour) are more than $30.00,
TJX shall provide such Settlement Class
Member a second Voucher in the amount of $30.00 or a second Check-in-Lieu in the
amount of $15.00 (i.e., claimants satisfying the requirements of this sentence may
receive a total of either two Vouchers or two Checks-in-Lieu, as opposed to one of
each). The total amount of Vouchers under this subparagraph 2.2(b) is not subject to
any cap. The total amount of Checks-in-Lieu under this subparagraph 2.2(b) is
subject to a cap of $7 million, with each Check-in-Lieu treated as a $15 charge
against such cap (claimants qualifying for two Checks-in-Lieu under this
subparagraph may, in the discretion of TJX, instead be sent a single physical check
for the combined amount of $30, which shall be treated as a $30 charge against such
cap), and in the event the total of such charges exceeds $7 million, the dollar
amount of each Check-in-Lieu under this subparagraph 2.2(b) shall be proportionately
reduced (e.g., if the dollar amount of



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such charges exceeds $7 million by $467,000
(i.e., by 1/15 of $7,000,000), the dollar amount of each such Check-in-Lieu shall be
$14.00).



     Eligible Settlement Class Members submitting a claim under this ¶ 2.2 are limited to one claim
per household, and must do so under category (a) or category (b), but not both. Settlement Class
Members submitting a claim under this ¶ 2.2 may also submit a claim for any other benefit or
reimbursement available to such Settlement Class Member under any other provision of this
agreement. Settlement Class Members meeting the requirements for benefits under this ¶ 2.2 shall
have until a date certain, which shall be 90 days from the first scheduled date for the Final
Fairness Hearing, but if that date shall fall on a weekend or holiday, then the first business day
following, to submit a claim therefor. Claims shall be submitted to, and Vouchers or
Checks-in-lieu provided by TJX to valid claimants shall be distributed to such valid claimants by,
the Claims Administrator.



     2.3 TJX shall hold a one-time special event (the “Special Event”) in which prices on all
merchandise (excluding gift cards) in all TJX Stores shall be reduced by 15%. This 15% price
reduction shall be applied at the check-out register and shall be in addition to all other
discounts (other than employee discounts), if any, and shall be available to all customers making
purchases on that day. The Special Event shall be on one day on a Thursday, Friday or Saturday in
January, February or July as designated by TJX. The Special Event shall occur following the
Effective Date on a date which will allow for proper commercial management of the event. TJX
Stores shall have extended hours (8:00 a.m. to 10:00 p.m.) on the day of the Special Event, except
as may be limited by local laws. While by necessity and practicality, the public may access this
sale, the sale is provided for by this Settlement Agreement and is available to all members of the
Settlement Class. The description of this settlement benefit in the Summary Notice and Notice
shall be as set out in the forms attached hereto as Exhibits B and C hereto. TJX shall provide
customary course of business notice of the event, to be advertised close in time to the day on
which the Special Event will occur.



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TJX represents that it has not had any storewide sale event in
the TJX Stores systemwide in the past, to the best of senior management’s recollection, and that
this sale event is the direct result of this settlement, and that the 15% price reduction during
the event shall be in addition to any and all other discounts, sales, and the like (other than
employee discounts) available at the time of the event. No discount available to the public shall
be withdrawn because of the Special Event.



     2.4 TJX shall provide for an ombudsman to be available at a toll free number during normal
business hours to handle questions about card cancellations, credit theft, etc., through January
19, 2008. TJX shall provide a link on its website to the website of the Federal Trade Commission
(the “FTC”) regarding credit or identity theft, through January 19, 2008.



     2.5 By 30 days after the date of this Settlement Agreement (i.e., the Amended Settlement
Agreement), an independent expert retained by TJX shall submit a written report to plaintiffs’
designated independent expert, setting forth any actions taken or planned to be taken by TJX,
subsequent to TJX’s discovery of the Intrusion, to enhance the security of TJX’s computer system
(the “Enhancement Actions”). The independent expert retained by TJX shall, within 30 days of
submitting such report, meet with plaintiffs’ independent expert (together with counsel for TJX and
plaintiffs) to discuss the report. Plaintiffs’ independent expert shall within 30 days thereafter
provide a responsive letter to plaintiffs stating whether the Enhancement Actions are, in the
judgment of plaintiff’s independent expert, a prudent and good faith attempt by TJX to minimize the
likelihood of intrusions in the future. Within 15 days thereafter, Settlement Class Co-Lead
Counsel shall provide TJX with a letter indicating whether they accept the report, or do not accept
it, and failure to provide such letter to TJX shall be deemed acceptance. All of the foregoing
terms of this ¶ 2.5 shall be subject to such confidentiality restrictions as TJX may reasonably
require to protect the security of its computer system. The settlement is contingent upon
Settlement Class Co-Lead Counsel’s acceptance of the Enhancement Actions as set out in the report,
which must in any event occur prior



-19-









 







to any notice to the class, and which acceptance shall not be
unreasonably withheld. Unless otherwise prohibited by the FTC, and subject to such confidentiality
restrictions as TJX or the FTC may reasonably require (including, without limitation, any
appropriate redactions) to protect the security of TJX’s computer system, TJX shall provide to the
Settlement Class Co-Lead Counsel reports relative to any actions taken or planned to be taken by
TJX, subsequent to TJX’s discovery of the Intrusion, to enhance the security of TJX’s computer
system, that TJX submits to the FTC upon conclusion of any resolution of the pending FTC
investigation of the Intrusion.



     2.6 All costs associated with notice to the Settlement Class as required herein and Claims
Administration shall be paid by TJX.



     2.7 The Settling Parties agree, for purposes of this settlement only, to the certification of
the Settlement Class. If the settlement set forth in this Settlement Agreement is not approved by
the Court, or if the settlement is terminated or cancelled pursuant to the terms of this Settlement
Agreement, then this Settlement Agreement, and the certification of the Settlement Class provided
for herein, will be vacated and the Litigation shall proceed as though the Settlement Class had
never been certified, without prejudice to any party’s position on the issue of class certification
or any other issue. The Settling Parties’ agreement to the certification of the Settlement Class
is also without prejudice to any position asserted by the Settling Parties in any other proceeding,
case or action including, without limitation, the “financial institutions track” proceedings
otherwise consolidated with the Litigation in the above-captioned civil action, as to which all of
their rights are specifically preserved.



     2.8 Settlement Class Co-Lead Counsel agree that TJX’s and Fifth Third’s time to answer or
otherwise respond to the Amended Consolidated Complaint shall be treated by them as extended
without date.



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     3. Order of Preliminary Approval and Publishing of Notice of a Final
Fairness Hearing



     3.1 As soon as practicable after the execution of the Settlement Agreement, Settlement Class
Co-Lead Counsel and counsel for TJX and Fifth Third shall jointly submit this Settlement Agreement
to the Court, and, within 7 calendar days after the period for any termination of the Settlement
Agreement pursuant to ¶ 10.4 has expired without Settlement Class Co-Lead Counsel having taken such
action, Settlement Class Co-Lead Counsel shall file a motion for preliminary approval of the
settlement with the Court and apply for entry of an order
(the “Order of Preliminary Approval and Publishing of Notice of a Final Fairness Hearing”), in
the form attached hereto as Exhibit A, or an order substantially similar to such form in both terms
and cost, requesting, inter alia,



          (a) certification of the Settlement Class for settlement purposes only pursuant to ¶ 2.7;





          (b) preliminary approval of the settlement as set forth herein;




          (c) approval of the publication of a customary form of summary notice (the “Summary Notice”)
in the form attached hereto as Exhibit B (in a manner certified by the Notice Specialist to have a
reach of not less than approximately 80% of the putative class, targeted to adults over 18, in the
United States, Puerto Rico and Canada), and a customary long form of notice (“Notice”) in the form
attached hereto as Exhibit C, which together shall include a fair summary of the parties’
respective litigation positions, the general terms of the settlement set forth in the Settlement
Agreement, instructions for how to object to or opt-out of the settlement, the process and
instructions for making claims to the extent contemplated herein, and the date, time, and place of
the Final Fairness Hearing;




          (d) appointment of Hilsoft Notifications as Notice Specialist;




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          (e) appointment of the Garden City Group, Inc. as Claims Administrator (as conditioned above);
and




          (f) approval of the Unreceipted Return Customer Notice and Proofs of Claim attached hereto as
Exhibits D, C-1 and C-2; and approval of the Voucher/Check-in-Lieu Proof of Claim attached hereto
as Exhibit C-3.




     3.2 TJX shall pay for and shall assume the administrative responsibility of providing notice
to the Settlement Class in accordance with the Order of Preliminary Approval and Publishing of
Notice of a Final Fairness Hearing, and the costs of such notice, together with
the Costs of Claims Administration, shall be paid by TJX. Notice shall be provided to the
Unreceipted Return Customers by first-class direct mail, to the extent reasonably practicable. The
notice program otherwise (including notice to those Settlement Class Members referenced in the last
two sentences of ¶ 1.16 above) shall be by publication in print and shall be designed to have a
reach of not less than approximately 80% of the putative class, targeted to adults over 18, in the
United States, Puerto Rico and Canada through publication of a Summary Notice in the form attached
hereto as Exhibit B, and which publication shall run, if approved by the Court, in a range of
consumer magazines, newspapers, and/or newspaper supplements to be designated by the Notice
Specialist and approved by the Court. The Claims Administrator shall establish a dedicated
settlement website, and shall maintain and update the website throughout the Claim Period, with the
forms of Summary Notice, Notice, and Proofs of Claim approved by the Court, as well as this
Settlement Agreement. The Claims Administrator also will provide copies of the forms of Summary
Notice, Notice, and Proofs of Claim approved by the Court, as well as this Settlement Agreement,
upon request. Prior to the Final Fairness Hearing, the Settlement Class Co-Lead Counsel and TJX
shall cause to be filed with the Court an appropriate affidavit or declaration with respect to
complying with this provision of notice. At a minimum, Notice shall be provided in English,
Spanish or French as appropriate for



-22-









 







TJX locations in accordance with the language used in TJX’s
usual course of business advertising, promotions and in-store displays.



     3.3 The Settlement Class Co-Lead Counsel and TJX shall request that after notice is given, the
Court hold a hearing (the “Final Fairness Hearing”) and grant final approval of the settlement set
forth herein.



     3.4 The Settlement Class Co-Lead Counsel and TJX further agree that the proposed Order of
Preliminary Approval and Publishing of Notice of a Final Fairness Hearing
shall provide, subject to Court approval, that, pending the final determination of the
fairness, reasonableness, and adequacy of the settlement set forth in the Settlement Agreement, no
Settlement Class Member, either directly, representatively, or in any other capacity, shall
institute, commence, or prosecute against the Released Persons any of the Released Claims in any
action or proceeding in any court or tribunal.



     4. Opt-Out Procedures



     4.1 Each Person wishing to opt out of the Settlement Class shall individually sign and timely
submit written notice of such intent to either of the designated Post Office boxes established by
the Claims Administrator. The written notice must clearly manifest an intent to be excluded from
the Settlement Class. To be effective, written notice must be postmarked at least 21 days prior to
the date set in the Notice for the Final Fairness Hearing.



     4.2 All Persons who submit valid and timely notices of their intent to be excluded from the
Settlement Class, as set forth in ¶ 4.1 above, referred to herein as “Opt-Outs,” shall neither
receive any benefits of nor be bound by the terms of this Settlement Agreement. All Persons
falling within the definition of the Settlement Class who do not request to be excluded from the
Settlement Class in the manner set forth in ¶ 4.1 above shall be bound by the terms of this
Settlement Agreement and Judgment entered thereon.



-23-









 





     5. Objection Procedures



     5.1 Each Settlement Class Member wishing to object to the settlement shall submit a timely
written notice of his objection which shall set forth the reasons for the Settlement Class Member’s
objection, and further state whether the objector intends to appear at the Final Fairness Hearing.
The objection also must provide information identifying the objector as a Settlement Class Member,
including (a) proof (e.g., a sales slip, credit or debit statement, or cancelled check) of having
made a purchase or return at a TJX Store, or an affidavit setting forth,
in as much detail as the objector remembers, the fact of purchase(s) or return(s), the
product(s) purchased or returned, the price of the product(s), the approximate date of said
purchase(s) or returns, and the place of the purchase(s) or returns, and (b) documentation
supporting the objector’s allegation of damage. To be timely, written notice of an objection in
appropriate form must be filed with the Clerk of the United States District Court for the District
of Massachusetts, John Joseph Moakley U.S. Courthouse, 1 Courthouse Way, Boston, MA 02210, 21 days
prior to the date set in the Notice for the Final Fairness Hearing, and served concurrently
therewith upon any one of the Settlement Class Co-Lead Counsel (Ben Barnow, Barnow and Associates,
P.C., One North LaSalle Street, Suite 4600, Chicago, IL 60602; Sherrie R. Savett, Berger &
Montague, P.C. , 1622 Locust Street, Philadelphia, PA 19103; or Lester L. Levy, Wolf Popper LLP,
845 Third Avenue, New York, NY 10022), counsel for TJX (Harvey J. Wolkoff, Ropes & Gray LLP, One
International Place, Boston, MA, 02110), and counsel for Fifth Third (W. Breck Weigel, Vorys Sater
Seymour and Pease LLP, Atrium Two, Suite 2000, 221 East Fourth Street, Cincinnati, OH 45202).



     6. Releases



     6.1 Upon the Effective Date, each Settlement Class Member, including the Representative
Plaintiffs, shall be deemed to have, and by operation of the Judgment shall have, fully, finally,
and forever released, relinquished, and discharged all Released Claims. Further, upon



-24-









 







the
Effective Date of the settlement, and to the fullest extent permitted by law, each Settlement Class
Member including the Representative Plaintiffs shall, either directly, indirectly,
representatively, as a member of or on behalf of the general public, or in any capacity, be
permanently barred and enjoined from commencing, prosecuting, or participating in any recovery in,
any action in this or any other forum (other than participation in the settlement as provided
herein) in which any of the Released Claims is asserted.



     6.2 Upon the Effective Date, TJX and Fifth Third shall be deemed to have, and by operation of
the Judgment shall have, fully, finally, and forever released, relinquished, and discharged,
Representative Plaintiffs, each and all of the Settlement Class Members, Settlement Class Co-Lead
Counsel, and all other Plaintiffs’ Counsel who have consented to and joined in the settlement, from
all claims, including Unknown Claims, based upon or arising out of the institution, prosecution,
assertion, settlement or resolution of the Litigation or the Released Claims, except for
enforcement of the Settlement Agreement as to such matters as pertain to each of them. Any other
Claims or defenses TJX and Fifth Third may have against such Persons, including without limitation
any Claims based upon or arising out of any retail, banking, debtor-creditor, contractual or other
business relationship with such Persons, that are not based upon or do not arise out of the
institution, prosecution, assertion, settlement or resolution of the Litigation or the Released
Claims, are specifically preserved and shall not be affected by the preceding sentence.



     6.3 Upon the Effective Date, Fifth Third, on behalf of itself and its subsidiaries, divisions
and affiliates (including, without limitation, Fifth Third Bank), and TJX, on behalf of itself and
its subsidiaries, divisions and affiliates, shall be deemed to have, and by operation of the
Judgment shall have, fully, finally, and forever released, relinquished, and discharged each other,
and one another’s respective subsidiaries, divisions and affiliates, of and from only those Claims
based upon or arising out of the institution, prosecution, assertion, settlement or resolution of
the



-25-









 







Litigation or the Released Claims (except for the enforcement of the Settlement Agreement as to
such matters as pertain to each of them), including (without limitation) any Claim for
indemnification or contribution in respect of, or for attorneys’ fees or costs incurred by reason
of, the Litigation or the Released Claims. Any other Claims they or their respective
subsidiaries, divisions and affiliates may have against one another or their respective
subsidiaries, divisions and affiliates are specifically preserved, including without
limitation Claims for contribution or indemnity by contract or at common law not in respect of the
Litigation or the Released Claims, Claims based upon or arising out of the institution,
prosecution, assertion, settlement or resolution of the Claims asserted against them or either of
them in the “financial institutions track” of the consolidated proceedings in the United States
District Court for the District of Massachusetts, Claims based on their respective rights and
duties under existing contracts with respect to fees, charges, penalties, assessments, fines, and
allocations of loss by and all other obligations to payment card associations, and Claims based
upon or arising out of any precompliance or compliance or noncompliance proceedings or any other
proceedings under payment card association rules.



     6.4 Notwithstanding any term herein, TJX shall not have, or been deemed to have, released,
relinquished, or discharged any Representative Plaintiff, Settlement Class Member, or Plaintiffs’
Counsel who have consented to and joined in the settlement, from any claim based on or arising out
of any act of fraud, misrepresentation, or other misconduct in connection with the submission of
any claim pursuant to the settlement set forth in this Settlement Agreement, or any claim against
any of them based on or arising out of any failure to abide by the terms of the Settlement
Agreement.



     6.5 Notwithstanding any term herein, neither TJX nor Fifth Third nor their respective
subsidiaries, divisions or affiliates shall have or shall be deemed to have released, relinquished
or discharged any Claim or defense against any Person other than each other, their respective



-26-









 







subsidiaries, divisions and affiliates, Representative Plaintiffs, each and all of the Settlement
Class Members, Settlement Class Co-Lead Counsel, and all other Plaintiffs’ Counsel who have
consented to and joined in the settlement. Persons not released by TJX or Fifth Third
or their respective subsidiaries, divisions or affiliates of any Claim or defense include,
without limitation, the Released Acquiring Banks and their respective Related Parties.



     7. Plaintiffs’ Counsel’s Attorneys’ Fees, Costs, and Expenses



     7.1 The Settling Parties did not discuss attorneys’ fees, costs, and expenses, as provided for
in ¶ 7.2, until after the substantive terms of the settlement had been agreed upon, other than that
TJX would pay reasonable attorneys’ fees and expenses as may be agreed to by TJX and Settlement
Class Co-Lead Counsel, and/or as ordered by the Court, or in the event of no agreement, then as
ordered by the Court. TJX and Settlement Class Co-Lead Counsel then negotiated and agreed as
follows:



     7.2 TJX has agreed to pay, subject to Court approval, up to the amount of $6,500,000.00 to
Settlement Class Co-Lead Counsel for attorneys’ fees, and up to $150,000.00 to Settlement Class
Co-Lead Counsel for reasonable costs and expenses, subject to reasonable documentation. Settlement
Class Co-Lead Counsel, in their sole discretion, to be exercised reasonably, shall allocate and
distribute the amount of attorneys’ fees, costs, and expenses awarded by the Court among
Plaintiffs’ Counsel. If any Plaintiff’s Counsel disagrees with the allocation of fees and/or costs
he or she has been awarded, they may after 14 days of the receipt of said award file a motion with
the Court seeking an adjustment in said award. Settlement Class Co-Lead Counsel shall have 14 days
to file a response to any such motion.



     7.3 Within 10 days of the Effective Date, TJX shall pay the attorneys’ fees, costs, and
expenses, as set forth above in ¶ 7.2, to an account established by Settlement Class Co-Lead



-27-









 







Counsel. Settlement Class Co-Lead Counsel shall thereafter distribute the award of attorneys’
fees, costs, and expenses consistent with ¶ 7.2.



     7.4 The amount(s) of any award of attorneys’ fees, costs, and expenses is intended to be
considered by the Court separately from the Court’s consideration of the fairness,
reasonableness, and adequacy of the settlement. No order of the Court or modification or
reversal or appeal of any order of the Court concerning the amount(s) of any attorneys’ fees,
costs, or expenses awarded by the Court to Settlement Class Co-Lead Counsel shall affect whether
the Judgment is Final or constitute grounds for cancellation or termination of this Settlement
Agreement.



     8. Administration of Claims



     8.1 The Claims Administrator shall administer and calculate the claims submitted by Settlement
Class Members under ¶ 2.1 and ¶ 2.2, except as provided otherwise therein. Settlement Class
Co-Lead Counsel and TJX shall be given reports as to both claims and distribution, and have the
right to review and obtain supporting documentation and challenge such reports if they believe them
to be inaccurate or inadequate. The Claims Administrator’s determination of the validity or
invalidity of any such claims shall be binding.



     8.2 Except as otherwise ordered by the Court, all Settlement Class Members who fail to timely
submit a proof of claim for any benefits hereunder within the time frames set forth herein, or such
other period as may be ordered by the Court, or otherwise allowed, shall be forever barred from
receiving any payments or benefits pursuant to the settlement set forth herein, but will in all
other respects be subject to and bound by the provisions of the Settlement Agreement, the releases
contained herein, and the Judgment.



     8.3 No Person shall have any claim against the Claims Administrator, TJX, or Settlement Class
Co-Lead Counsel based on distributions of benefits made substantially in



-28-









 







accordance with the
Settlement Agreement and the settlement contained herein, or further order(s) of the Court.



     8.4 All payments and distributions (including Voucher or Check-in-Lieu distributions)
hereunder, unless expressly provided otherwise, shall be made within 90 days of the deadline for
filing claims, or 90 days of the Effective Date, whichever is later.



     9. Conditions of Settlement, Effect of Disapproval, Cancellation or
Termination



     9.1 The Effective Date of the settlement shall be conditioned on the occurrence of all of the
following events:



          (a) the Court has entered the Order of Preliminary Approval and Publishing of Notice of a
Final Fairness Hearing, as required by ¶ 3.1, hereof;




          (b) TJX has not exercised its option to terminate the Settlement Agreement pursuant to ¶ 9.3
hereof;




          (c) the Court has entered the Judgment granting final approval to the settlement as set forth
herein; and




          (d) the Judgment has become Final, as defined in ¶ 1.6, hereof.




     9.2 If all of the conditions specified in ¶ 9.1 hereof are not satisfied, then the Settlement
Agreement shall be canceled and terminated subject to ¶ 9.4 hereof, unless Settlement Class Co-Lead
Counsel and counsel for TJX mutually agree in writing to proceed with the Settlement Agreement.



     9.3 Within 7 days after the deadline established by the Court for Persons to request exclusion
from the Settlement Class, Settlement Class Co-Lead Counsel shall furnish to counsel for TJX a
complete list of all timely and valid requests for exclusion (the “Opt-Out List”). TJX, in its
sole discretion, shall have the option to terminate this Settlement Agreement if the aggregate
number



-29-









 







of Persons who submit valid and timely requests for exclusion from the Settlement Class
exceeds 10,000 Persons eligible to be Settlement Class Members.



     9.4 In the event that the Settlement Agreement is not approved by the Court or the settlement
set forth in the Settlement Agreement is terminated in accordance with its terms, (a) the Settling
Parties shall be restored to their respective positions in the Litigation, and shall jointly
request that all scheduled litigation deadlines shall be reasonably extended by the Court so as to
avoid prejudice to any Settling Party or litigant, which extension shall be subject to the decision
of the Court, and (b) the terms and provisions of the Settlement Agreement shall have no further
force and effect with respect to the Settling Parties and shall not be used in the Litigation or in
any other proceeding for any purpose, and any judgment or order entered by the Court in accordance
with the terms of the Settlement Agreement shall be treated as vacated, nunc pro tunc.
Notwithstanding any statement in this Settlement Agreement to the contrary, no order of the Court
or modification or reversal on appeal of any order reducing the amount of attorneys’ fees, costs,
and expenses awarded to Settlement Class Co-Lead Counsel shall constitute grounds for cancellation
or termination of the Settlement Agreement.



     9.5 Settlement Class Co-Lead Counsel and TJX acknowledge that the Litigation includes six
pending lawsuits filed against TJX as putative class actions in Canada (the “Canadian
Actions”).3 Each Plaintiff in each of those actions (the “Canadian Plaintiffs”) agrees
to the terms of the settlement set forth in this Settlement Agreement, including, without
limitation, ¶ 6.1





 




			
	3	 	Copithorn v. TJX Companies, Inc., et al., Q.B.G. No.
100 of A.D. 2007 (Court of Queen’s Bench of Saskatchewan, Judicial Centre of
Regina); Churchman et al. v. TJX Companies, Inc., et al., Civ. No. 0701-000964
(Court of Queen’s Bench of Alberta, Judicial District of Calgary); Ryley v. TJX
Companies, Inc., et al., Civ. No. 07 0278 Victoria (Supreme Court of British
Columbia); Howick v. TJX Companies, Inc., et al., Civ. No. 06-000382-073
(Province of Quebec, District of Montreal); Churchman et al. v. TJX Companies,
Inc., et al., Civ. No. 07-50449 (Court of Queen’s Bench of Manitoba, Winnipeg
Centre); Wong et al. v. TJX Companies, Inc., et al., Civ. No. 07-ct-000272CP
(Ontario Superior Court of Justice).




-30-









 









hereinabove and this ¶ 9.5, as signified by the signature of their counsel herein
below. Settlement Class Co-Lead Counsel and TJX, with the Canadian Plaintiffs and the Canadian
counsel signing this agreement on their behalf, stipulate and agree
to a stay of the Canadian Actions pending implementation of the settlement contained in this Settlement
Agreement through the Effective Date, and further stipulate and agree to secure in advance of the
Effective Date such orders from the Canadian courts as may be necessary to implement the foregoing
stay and further obtain, prior to the Effective Date, all orders necessary to dismiss the Canadian
Actions with prejudice effective as of and no later than the Effective Date.



     10. Miscellaneous Provisions



     10.1 The Settling Parties: (a) acknowledge that it is their intent to consummate this
agreement; and (b) agree to cooperate to the extent reasonably necessary to effectuate and
implement all terms and conditions of this Settlement Agreement, and any applicable requirements
under the Class Action Fairness Act of 2005, and to exercise their best efforts to accomplish the
terms and conditions of this Settlement Agreement.



     10.2 The parties intend this settlement to be a final and complete resolution of all disputes
between them with respect to the Litigation. The settlement compromises claims which are contested
and shall not be deemed an admission by any Settling Party as to the merits of any claim or
defense. The Settling Parties each agree that the settlement was negotiated in good faith by the
Settling Parties, and reflects a settlement that was reached voluntarily after consultation with
competent legal counsel. The Settling Parties reserve their right to rebut, in a manner that such
party determines to be appropriate, any contention made in any public forum that the Litigation was
brought or defended in bad faith or without a reasonable basis.



     10.3 Neither the Settlement Agreement nor the settlement contained therein, nor any act
performed or document executed pursuant to or in furtherance of the Settlement Agreement or



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the
settlement: (a) is or may be deemed to be or may be used as an admission of, or evidence of, the
validity or lack thereof of any Released Claim, or of any wrongdoing or liability of any of the
Released Persons; or (b) is or may be deemed to be or may be used as an
admission of, or evidence of, any fault or omission of any of the Released Persons, in any
civil, criminal, or administrative proceeding in any court, administrative agency, or other
tribunal. Any of the Released Persons may file the Settlement Agreement and/or the Judgment in any
action that may be brought against them in order to support a defense or counterclaim based on
principles of res judicata, collateral estoppel, release, good faith settlement, judgment bar or
reduction or any other theory of claim preclusion or issue preclusion or similar defense or
counterclaim.



     10.4 Representative Plaintiffs shall be entitled to reasonable confirmatory discovery from TJX
to be conducted by Settlement Class Co-Lead Counsel. The period for confirmatory discovery shall
begin as of the date of this Settlement Agreement (i.e., the Amended Settlement Agreement) and
shall last for a period until November 30, 2007. Defendants shall cooperate in good faith to make
such confirmatory discovery possible. At the conclusion of confirmatory discovery, Settlement
Class Co-Lead Counsel shall, based upon all facts known to them, determine in good faith whether in
their opinion the settlement is fair, reasonable and adequate. If Settlement Class Co-Lead Counsel
determine that the settlement is not in their opinion fair, reasonable and adequate, Settlement
Class Co-Lead Counsel shall terminate the Settlement and give notice to defendants of such
termination within 10 days after confirmatory discovery concludes. In such case, the settlement
shall be null and void, and the parties shall return to their original positions. TJX may defer
incurring costs for notice under ¶ 3.2, and/or providing such notice under ¶ 3.2, until the period
for Settlement Class Co-Lead Counsel to terminate the settlement pursuant to this paragraph has
expired without Settlement Class Co-Lead Counsel taking such action.



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     10.5 All documents and materials provided by TJX in confirmatory discovery shall be returned
to TJX, pursuant to ¶ 21 of the Stipulated Protective Order entered by the Court on July 2, 2007,
within 60 days of the Effective Date.



     10.6 The Settlement Agreement may be amended or modified only by a written instrument signed
by or on behalf of all Settling Parties or their respective successors-in-interest.



     10.7 This Settlement Agreement, together with the Exhibits attached hereto, constitutes the
entire agreement among the parties hereto (and supersedes, in all respects, the Settlement
Agreement entered into by and among the Settling Parties dated as of September 21, 2007, together
with the Exhibits attached thereto) and no representations, warranties, or inducements have been
made to any party concerning the Settlement Agreement other than the representations, warranties,
and covenants contained and memorialized in such document. Except as otherwise provided herein,
each party shall bear its own costs.



     10.8 Settlement Class Co-Lead Counsel, on behalf of the Settlement Class, are expressly
authorized by the Representative Plaintiffs to take all appropriate actions required or permitted
to be taken by the Settlement Class pursuant to the Settlement Agreement to effectuate its terms
and also are expressly authorized to enter into any modifications or amendments to the Settlement
Agreement on behalf of the Settlement Class which they deem appropriate.



     10.9 Each counsel or other Person executing the Settlement Agreement on behalf of any party
hereto hereby warrants that such Person has the full authority to do so.



     10.10 The Settlement Agreement may be executed in one or more counterparts. All executed
counterparts and each of them shall be deemed to be one and the same instrument. A complete set of
original executed counterparts shall be filed with the Court.



     10.11 The Settlement Agreement shall be binding upon, and inure to the benefit of, the
successors and assigns of the parties hereto.



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     10.12 The Court shall retain jurisdiction with respect to implementation and enforcement of
the terms of the Settlement Agreement, and all parties hereto submit to the jurisdiction of the
Court for purposes of implementing and enforcing the settlement embodied in the Settlement
Agreement.



     10.13 This Settlement Agreement shall be considered to have been negotiated, executed and
delivered, and to be wholly performed, in the Commonwealth of Massachusetts, and the rights and
obligations of the parties to the Settlement Agreement shall be construed and enforced in
accordance with, and governed by, the internal, substantive laws of the Commonwealth of
Massachusetts without giving effect to that State’s choice of law principles.



     10.14 As used herein, “he” means “he, she, or it;” “his” means “his, hers, or its,” and “him”
means “him, her, or it.”



     10.15 All dollar amounts are in United States dollars, unless otherwise expressly stated.



     10.16 All agreements made and orders entered during the course of the Litigation relating to
the confidentiality of information shall survive this Settlement Agreement.



     //



     //



     //



     //



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     IN WITNESS WHEREOF, the parties hereto have caused the Settlement Agreement to be executed, by
their duly authorized attorneys.



	 	 	 	 	 	 	 
	Counsel for The TJX Companies, Inc.


/s/ Harvey J. Wolkoff  

Harvey J. Wolkoff 

Mark P. Szpak 

ROPES & GRAY LLP 

One International Place 

Boston, MA 02110-2624

(617) 951-7000

hwolkoff@ropesgray.com 

mszpak@ropesgray.com


Counsel for Fifth Third Bancorp


/s/ W. Breck Weigel  

W. Breck Weigel 

VORYS SATER SEYMOUR AND PEASE LLP 

Atrium Two, Suite 2000

221 East Fourth Street 

Cincinnati, OH 45202

(513) 723-4078

wbweigel@vssp.com 


Robert N. Webner 

VORYS SATER SEYMOUR AND PEASE LLP 

52 E. Gay Street 

P.O. Box 1008

Columbus, OH 43215

(614) 464-8243

rnwebner@vssp.com


/s/ James R. Carroll  

James R. Carroll 

SKADDEN, ARPS, SLATE, MEAGHER &

FLOM, LLP 

One Beacon Street 

Boston, Massachusetts

(617) 573-4800

jcarroll@skadden.com

	 	 
	 	Settlement Class Co-Lead Counsel

(in alphabetical order)


/s/ Ben Barnow 

Ben Barnow 

BARNOW AND ASSOCIATES, P.C.

1 North LaSalle, Suite 4600

Chicago, IL 60602

(312) 621-2000

b.barnow@barnowlaw.com


/s/ Lester L. Levy 

Lester L. Levy 

WOLF POPPER LLP 

845 Third Avenue 

New York, NY 10022

(212) 759-4600

llevy@wolfpopper.com


/s/ Sherrie R. Savett 

Sherrie R. Savett 

BERGER & MONTAGUE, P.C. 

1622 Locust Street 

Philadelphia, PA 19103

(215) 875-3000

ssavett@bm.net


Counsel for Canadian Plaintiffs, 

pursuant to ¶ 9.5 hereinabove


/s/ E.F. Anthony Merchant  

E.F. Anthony Merchant, Q.C. 

MERCHANT LAW GROUP LLP 

2401 Saskatchewan Drive 

Regina, Canada S4P 4H8

(306) 359-7777

tmerchant@merchantlaw.com
	 	 







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