MURRAY v. BILL ME LATER, INC.

PLAINTIFFS' UNOPPOSED MOTION & MEMORANDUM IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT

SARA L. ELLIS, District Judge.

I. INTRODUCTION

Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, Class Representatives Misty Murray and Shaun Murray ("Plaintiffs" or "Class Representatives"), through Class Counsel, respectfully submit this motion for final approval of the proposed Settlement of this class action, as set forth in the Settlement Agreement and Release (the "Settlement" or the "Settlement Agreement")1 dated July 21, 2014. (Dkt. 69-1.)

The Settlement achieved by the Class Representatives and Class Counsel in this matter has been met with unqualified approval by the Settlement Class Members. To date, over 41,000 Settlement Class Members have already submitted claims, with over a month remaining in which Settlement Class Members may submit claims. Not a single Settlement Class Member objected to the Settlement or voiced any opposition. Only 33 consumers opted out of the Settlement.

The positive reaction from the Settlement Class is not surprising; the Settlement produced an excellent result for the Settlement Class. The Settlement makes available a $9,900,000.00 Settlement Fund, which will not revert to the Defendant in any circumstance, and which will be paid out in its entirety to satisfy the valid claims of the Settlement Class Members, along with the costs of administration, attorneys' fees and expenses, and Incentive Awards to reward the Class Representatives for their efforts in obtaining this strong result for the Settlement Class.

The Settlement is fair, adequate and reasonable. It has been overwhelmingly approved by the Settlement Class Members and will result in significant cash recoveries to each Settlement Class Member. As a result, this Court should grant final approval to the Settlement, and also approve the request for attorneys' fees, expenses and Incentive Awards previously requested in the October 6, 2014 motion filed by the Class Representatives and Class Counsel. (Dkt. 75.)

II. BACKGROUND

A. Unauthorized Robocalls to the Class Representatives and Commencement of this Class Action Suit

Defendant Bill Me Later is a nationwide purveyor of consumer credit for merchandise purchased online and over the phone. Bill Me Later allows consumers who want to make purchases online to make such purchases without a credit or debit card, and instead finance the payment of their purchases over several months. While Bill Me Later does not directly fund the loans — the loans are funded by its banking partners, including CIT Bank, WebBank, and Comenity Capital Bank — it processes the applications, administers the accounts for their duration, and engages in collection activity including placing automated collection calls to debtors.

As part of its application practice, Bill Me Later receives phone numbers from its customers, the predominant purpose of which is to call those customers if their accounts go into arrears. Unfortunately, the sheer size of Bill Me Later's business, coupled with the high risk of default of its customers along with periodic phone number inputting errors during the application process, have led Bill Me Later to repeatedly call consumers who are not its customers and to continue calling many of those non-customers long after they inform Bill Me Later of its error.

The Class Representatives, Misty Murray any Shaun Murray, claimed that, beginning on March 17, 2012, Bill Me Later started calling them, attempting to collect a debt from an individual named Faiza Tahir, a Bill Me Later customer. The Class Representatives tried repeatedly to get the calls to stop, but despite their requests, the calls continued unimpeded. Between March 17 and May 16, 2012, the Class Representatives allege that Bill Me Later called them 126 times, despite the fact that neither Class Representative has ever been a Bill Me Later customer.

On June 15, 2012, Plaintiffs filed a Class Action Complaint against Bill Me Later in this Court. Contemporaneously with the Complaint, Plaintiffs filed their Motion for Class Certification. Plaintiffs alleged that the autodialing technology used to call them constituted an "automatic telephone dialing system," that the calls were made using an artificial or prerecorded voice, and that they never provided Bill Me Later with their express consent to receive such calls.

B. The Class Representatives' Discovery Efforts

The Parties engaged in extensive discovery, including numerous depositions, document requests, interrogatories, and the production of thousands of documents by Bill Me Later and its agents, including third-party CSG International, Inc. ("CSG"). Plaintiffs took the depositions of three separate Bill Me Later employees in July 2013, and Bill Me Later took the depositions of both Class Representatives later in the summer of 2013. In addition, Plaintiffs subpoenaed and reviewed phone records of several years' of automated phone calls, covering millions of calls, from CSG, Bill Me Later's agent for the placing of automated debt collection calls. Plaintiffs also noticed the 30(b)(6) deposition of CSG but agreed to withdraw the Subpoena pending the outcome of the mediation that resulted in the instant Settlement. Class discovery was initially scheduled to be completed in June 2013, but, pursuant to agreement of the Parties, the Court permitted discovery to continue through October 10, 2013.

During discovery, Plaintiffs learned that Bill Me Later "invalidated" certain numbers that it believed were not accurate and/or that should not be sent additional automated collections calls. Bill Me Later produced a list of all such invalidated numbers, which included approximately one million numbers from June 2008 through 2012. This list identified the telephone number that was invalidated, the date of invalidation, and whether the number was subsequently re-validated. In response to a Subpoena in this case, Bill Me Later's agent CSG produced call detail records for all calls made by CSG on Bill Me Later's behalf between June 15, 2008 and December 31, 2012. These call detail records identified millions of automated calls, including the telephone number called, the date and time of the call, the call result, and an assigned call result "code." Some of those codes are explained in a "call flow and scripting" guideline produced in this case and explained by CSG during the discovery process.

During CSG's automated calls, the recipient of the call could indicate that the Bill Me Later customer did not live at that address — i.e., that the call was being made to a wrong number. If the call recipient indicated a wrong number and then hung up the call, CSG's system would record a particular code to indicate that the wrong number was called. An analysis of the call detail records produced in this case for all Bill Me Later calls made from June 2008 through 2012 revealed the unique phone numbers where the "wrong number" code was entered through CSG's system. Plaintiffs planned to move for class certification of a narrow class consisting of only those consumers whose phone numbers appeared on both Bill Me Later's invalidated number list and also on CSG's records as indicating that a "wrong number" code had been entered by the call recipient. Bill Me Later contended that the Plaintiffs' proposed class would not be certified for several reasons, including its arguments that it invalidated phone numbers for a number of reasons, not limited to the phone numbers being incorrect, and that call recipients falsely indicated wrong numbers on CSG's automated system.

C. Settlement Negotiations with Hon. Edward A. Infante

As the deadline to complete class discovery approached, and with the Class Representatives' class certification motion forthcoming, the Parties began to explore settlement. At the close of class certification discovery, with discovery disputes still lingering both among the Parties and third-parties, the Parties agreed to mediate to determine if a settlement could be reached in advance of the uncertainties and high risks of the class certification decision. On January 28, 2014, counsel for the Class Representatives met with both in-house and outside counsel for Defendant and its corporate parent eBay, Inc. in two full-day mediation sessions at JAMS in San Francisco, California with the Hon. Edward A. Infante (ret.), a former Chief Magistrate Judge of the United States District Court for the Northern District of California with expertise in TCPA class settlements. The Parties were unable to reach an agreement at the mediation. However, upon recommendation of Judge Infante, the Parties agreed to meet again for a second full-day mediation session, and did so in San Francisco on March 13, 2014. At the second mediation session, the Parties reached an agreement in principle to resolve the case. In the interim between these formal sessions, and in the months that followed, counsel for the Class Representatives and for Defendant, together with assistance and guidance from Judge Infante, successfully resolved all elements of the settlement. Eventually, these extended discussions culminated in the Settlement Agreement that this Court approved on July 24, 2014.

D. The Settlement Agreement

The result of the Parties' negotiations and Judge Infante's influence is a Settlement that is of tremendous benefit to the Settlement Class Members, along with voluntary changes to Bill Me Later's practices that significantly reduce further intrusions on the privacy of consumers and the public generally. The Settlement established a $9,900,000.00 cash Settlement Fund. (Ex. A, § 1.41.) Each Settlement Class Member who submits a valid Claim Form will be entitled to an equal share of the Settlement Fund, up to the full $500 statutory amount available under the TCPA, after payments are made for notice and administration costs, Court-approved attorneys' fees and expenses, and approved incentive payments to the Class Representatives. (Id. § 3.2.)

The total payment to each Settlement Class Member will depend on the number of valid Claim Forms submitted. Direct Notice was provided by First-Class Mail to approximately 308,807 consumers, and notice was provided by email to an additional approximately 34,256 consumers.2 (See Declaration of Jeanne C. Finegan, attached hereto as Exhibit B, ¶¶ 21-22.) As of the date of this filing, 41,865 Claim Forms have been received by the Settlement Administrator (see Declaration of Michael J. McMorrow, attached hereto as Exhibit C, ¶ 16), which makes it highly likely that the entire Settlement Fund, net of attorneys' fees, administrative expenses and incentive awards, will be distributed to the Settlement Class Members directly.

III. THE PRELIMINARILY-APPROVED SETTLEMENT

A. The Settlement Class

The Settlement and the Preliminary Approval Order have established a Settlement Class for this matter defined as follows:

(Ex. A, ¶ 2.1.) Upon preliminary approval of the Settlement, the Settlement Administrator, using the reverse lookup process specified in Section 2.7 of the Settlement Agreement, identified 308,807 unique individuals whose phone numbers appeared in the BML Records Results, but whose names did not match the names identified in the Reverse Lookup Results. (Ex. B., ¶ 20.) The Settlement Administrator mailed a Claim Form and the Long Form Class Notice to each of the 308,807 individuals so identified. (Id., ¶ 21.) In addition, the Settlement Administrator sent notice by email to 34,256 unique individuals identified through the reverse lookup process undertaken by Bill Me Later to identify additional phone numbers of individuals whose phone numbers were invalidated by Bill Me Later and subsequently called. (Id., ¶ 22.)

B. The Settlement Fund

The Settlement establishes a $9,900,000.00 cash settlement fund. Each authorized claimant is entitled to an equal share of the Settlement Fund, up to the full $500 statutory amount available under the TCPA, after payments are first made for notice and administration costs (approximately $925,000), Court-approved attorneys' fees (up to $3.3 million) and expenses, and Court-approved incentive payments to Plaintiffs (up to $30,000 each). Each Settlement Class Member may submit only one claim. (Ex. A. § 3.6.)

The total payment to each Settlement Class Member will depend on the number of valid Claim Forms submitted. Although the period to file claims remains open, Settlement Class Members have submitted 41,865 claims to date. Assuming the validity of all such claims and the full payment of the administrative fees, attorneys' fees and expenses and Incentive Awards, the recovery for each valid claim will exceed $135.00, well within the original estimate of the Settlement Administrator and within the range specifically identified in the Class Notice. Because the number of claims already made will easily exhaust the Settlement Fund, Class Counsel expect that the entire Distributable Settlement Fund will be distributed to Settlement Class Members, and none of the Settlement Fund will be distributed to cy pres recipients.3

Although not a formal term of the Settlement, this case has also resulted in significant non-monetary relief to the Settlement Class and the public. Shortly after the filing of the Complaint in this matter, Bill Me Later revised its internal policies relating to invalidation of phone numbers to be called. Whereas Bill Me Later previously followed what is known as a "three strikes" policy — i.e., it would often continue placing automated calls to a phone number until the third time the called party indicated it was calling the wrong number — it has changed that policy to a "one-strike" policy — meaning that it discontinues placing automated calls, or calls featuring a prerecorded or artificial voice, to a telephone number the first time that a called party indicates that Bill Me Later has called the wrong number. Bill Me Later's internal documents produced in discovery demonstrate that the reason for the change, which has already resulted and will continue to result in fewer unauthorized automated calls to non-Bill Me Later customers, was the filing of this lawsuit and the prevention of such suits in the future.

C. Notice and Settlement Administration

As noted above, the Settlement Class Members are consumers who received automated calls, or calls featuring a prerecorded or artificial voice, to their residential or cellular phones from or on behalf of Bill Me Later between June 15, 2008 and the date of Preliminary Approval of the Settlement Agreement, and who did not give Bill Me Later consent to receive such calls.

Because most Settlement Class Members were not Bill Me Later customers, Bill Me Later did not have accurate identifying information for most members of the Settlement Class. As a result, for purposes of notice, the Settlement Class is comprised of two categories of members: "Direct Notice Consumers" who received unauthorized debt-collection robocalls from Bill Me Later and whose names and addresses can be obtained through "reverse lookup" procedures; and "Publication Notice Consumers" who received unauthorized debt-collection robocalls from Bill Me Later but for whom the Parties do not have specific identifying information and have no way of determining their identities in order to send them direct notice. (See Ex. A, § 2.7.)

Direct Notice Consumers were identified through a "reverse lookup procedure." A reverse lookup entails utilizing comprehensive and extensive databases of information from telephone carriers to determine subscriber information affiliated with a telephone number at a given point in time. The procedure began with Bill Me Later providing the Settlement Administrator a list of all phone numbers to which Bill Me Later placed robocalls in the period from June 15, 2008 through the date of Preliminary Approval. (Ex. B., ¶ 20.) The Settlement Administrator then performed a reverse lookup of every number on that list, which determined the name of the individual who subscribed to that telephone number as of the date when Bill Me Later placed robocalls to that number. (Id.) The results of that reverse lookup were compared against Bill Me Later's customer account records, and all records for which the surname from the reverse lookup results did not match the surname from Bill Me Later's customer account records were considered Direct Notice Consumers who were provided notice through First Class Mail. Direct Notice was provided to 308,807 individuals. (Ex. B., ¶ 20.) Settlement Class Members whose mailed notice was returned as undeliverable were run through the U.S. Post Office's National Change of Address to identify a current address, and Direct Notice was mailed again to 37,517 such Settlement Class Members, and to an additional 1,136 Settlement Class Members who had forwarding addresses. (Id., ¶¶ 23-34.) Publication Notice Consumers received publication notice through the extensive notice plan developed by the Settlement Administrator. (Id., ¶¶ 26-30.)

The direct notice plan was supplemented with a robust publication notice plan. Combined, the notice plan reached an estimated 95% of all Settlement Class Members. (Ex. B., ¶ 33.) The publication notice plan was disseminated over a variety of media, selected to target the Publication Notice Consumers specifically. The publication notice plan placed ads in two popular magazines of general interest — Sports Illustrated and People — with a total of three insertions. (Id., ¶ 27.) The plan also targeted consumers through internet banners on popular websites, through advertisements and the establishment of a Facebook page, and through the placement of advertisements on a separate network of smartphone and tablet-based content providers. The internet banner ads reached an estimated 37% of U.S. adults who own cellular phones. (Id., ¶ 28.) Potential Class Members could click on the advertisement, which linked to the settlement website.

Finally, the notice plan established a settlement website — www.autophonecallssettlement.com — with downloadable case documents and claim forms, allowing consumers to input their telephone numbers and other identifying information to determine eligibility for settlement benefits, and to file claims or opt-out of the Settlement online. (Id., ¶ 30.) The website includes a list of anticipated "frequently asked questions" with responses, and other pertinent case information. Over 40,000 consumers have visited the website since September 22, 2014 (statistics prior to that date are unavailable), and, to date, over 29,000 claims — the majority of claims — have been submitted through the website. (Id.)

D. Opt-Out and Objection Procedures

Settlement Class Members were given ample opportunity to object or exclude themselves from the Settlement. The procedures and deadlines for filing opt-out requests and objections were referenced in the Publication Notice and conspicuously listed in the Long Form Notices and on the settlement website. (Ex. B., ¶ 30.) With regard to objections, the notices informed Settlement Class Members that the Final Approval Hearing would be their opportunity to appear and to have their objections heard. (Id.) The notices also informed Settlement Class Members that they would be bound by the release unless they timely exercised their opt-out right. (Id., Exs. B-D.) As discussed above, not a single Settlement Class Member objected to the Settlement or voiced any opposition, and only 33 consumers opted out of the Settlement. (Id., ¶ 32.)

E. Release

In exchange for the relief described above, Bill Me Later, its agent CSG International, and the banks involved in the Bill Me Later program, CIT Bank, WebBank and Comenity Capital Bank, will receive from the above-defined Class a full release of all claims related to the allegedly-improper phone calls described in the Complaint, which includes a release of any claims under the TCPA or any state laws relating to unauthorized phone calls, and any other statutory or common law claim that could have been asserted based upon the same conduct. (See Ex. A, ¶¶ 1.35, 1.36, 5.1 for a description of the complete release language.)

IV. THE SETTLEMENT WARRANTS FINAL APPROVAL

"Federal courts naturally favor the settlement of class action litigation." Isby v. Bayh, 75 F.3d 1191, 1196 (7th Cir. 1996) (citing E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884, 888-89 (7th Cir. 1985)). The Seventh Circuit has found that a District Court's inquiry as to whether to grant approval "is limited to [the consideration of] whether the proposed settlement is lawful, fair, reasonable and adequate." Uhl v. Thoroughbred Tech. & Telecomms., Inc., 309 F.3d 978, 986 (7th Cir. 2002) (citing Isby, 75 F.3d at 1198-99). This settlement easily meets that standard.

Because the essence of settlement is compromise, courts should not reject a settlement solely because it does not provide a complete victory, given that parties to a settlement "benefit by immediately resolving the litigation and receiving some measure of vindication for [their] position[s] while foregoing the opportunity to achieve an unmitigated victory." In re AT&T Mobility Wireless Data Services Sales Litig., 270 F.R.D. 330, 347 (N.D. Ill. 2010) (internal quotations and citations omitted). The requirement that a settlement be fair is designed to protect against collusion among the parties. Mars Steel Corp. v. Cont'l Ill. Nat'l. Bank & Trust Co. of Chicago, 834 F.2d 677, 684 (7th Cir. 1987) (approving settlement upon a finding of no "hanky-panky" in negotiations). There is an initial presumption that a proposed settlement is fair and reasonable when it was the result of arms-length negotiations. A. Conte & H. Newberg, Newberg on Class Actions (4th ed.), § 11.42. The lengthy duration of the litigation; the extensive and sometimes contentious investigation and discovery process; the multiple months of highly contested settlement negotiations; the excellent result for the settlement Class in spite of the significant procedural and substantive hurdles faced by the Class Representatives; and the participation of an experienced mediator throughout the negotiation process are all testament to the non-collusive nature of the proposed Settlement.

The factors ultimately to be considered by the Court in assessing final approval are: (1) the strength of the plaintiff's case compared to the amount of the settlement offer; (2) an assessment of the likely complexity of a trial; (3) the length and expense of the litigation; (4) the amount of opposition to settlement among affected parties; (5) the opinion of competent counsel; and (6) the stage of the proceedings and amount of discovery completed at the time of settlement. Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 653 (7th Cir. 2006) (internal citations omitted) (citing Isby, 75 F.3d at 1199). Of these considerations, the first is most important. Synfuel Techs., Inc., 463 F.3d at 653.

Application of the Synfuel factors to this case demonstrates that the Settlement is "fair, reasonable, and adequate." The Settlement provides significant benefits to the Settlement Class, as every Settlement Class Member has been able to make a claim for up to $500 from the Settlement Fund — the full amount of statutory damages available under the TCPA. The Class Representatives believe their TCPA claim against Bill Me Later is strong, but are also aware that Defendant has denied the material allegations of the Complaint and has raised several legal defenses, any of which, if successful, would result in the Class Representatives and the proposed Settlement Class Members receiving no payment whatsoever. Furthermore, Bill Me Later has taken the position consistently throughout this litigation that the Class Representatives would be unable to certify the class due the complex nature of its debt collection call procedures involving millions of customers and non-customers and dozens of call response "codes." Consequently, Bill Me Later's defenses to a potential class certification motion could have resulted in the Settlement Class receiving no payment even if Misty Murray and Shaun Murray were to prevail on their individual claims. Taking these realities into account, and recognizing the risks involved in any litigation, the settlement relief represents an extraordinary result for the Settlement Class.

A. All Factors Favor Final Approval

i. The Settlement Provides Significant Benefits to the Settlement Class, Particularly Given the Uncertain Outcome of a Litigated Resolution.

In evaluating the fairness of a proposed class action settlement, and as discussed in more detail below, the most important consideration is the strength of the plaintiff's case on the merits balanced against the amount offered in the settlement. Am. Int'l Grp., Inc. et al., v. ACE INA Holdings, et al., Nos. 07-cv-2898, 09 C 2026, 2012 WL 651727, at *2 (N.D. Ill. Feb. 28, 2012). See Protective Comm. for Indep. Stockholders v. Anderson, 390 U.S. 414, 424-25 (1968) ("Basic to [analyzing a proposed settlement] in every instance, of course, is the need to compare the terms of the compromise with the likely rewards of the litigation.") In considering the strength of a plaintiff's case, the Court should quantify "the net expected value of continued litigation to the class," by estimating "the range of possible outcomes." In re AT&T Mobility, 270 F.R.D. at 346-47 (internal citations omitted); accord Synfuel Techs, Inc., 463 F.3d at 653. In weighing this factor, the Court "should consider the vagaries of litigation and compare the significance of immediate recovery by way of the compromise to the mere possibility of relief in the future, after protracted and expensive litigation." Lipuma v. Am. Express Co., 406 F.Supp.2d 1298, 1323 (S.D. Fla. 2005). Finally, "[b]ecause the essence of settlement is compromise courts should not reject a settlement solely because it does not provide a complete victory to the plaintiffs." In re AT&T Mobility, 270 F.R.D. at 347 (internal quotations omitted).

The TCPA provides for $500 in damages for each violation. See 47 U.S.C. § 227(b)(3)(B). A growing body of precedent indicates that the Class Representatives would ultimately succeed in both adversarial class certification and trial. See e.g. In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 F.C.C.R. 1830 (2012), Agne v. Papa John's Int'l, Inc., C10-1139-JCC, 2012 WL 5473719 (W.D. Wash. Nov. 9, 2012) (certifying both a national and state subclass in TCPA text message action); Griffith v. Consumer Portfolio Serv., Inc., 838 F.Supp.2d 723, 727 (N.D. Ill. 2011); but see Smith v. Microsoft Corp., 297 F.R.D. 464 (S.D. Cal. 2014) (denying class certification in TCPA case due to lack of evidence of consent).

While the Class Representatives believe they would secure class certification and prevail on the merits at trial, success would in no way be assured, as Bill Me Later has vigorously defended this case at every turn. In the absence of settlement, the Class Representatives are cognizant that the "range of possible outcomes" certainly includes a number of unfavorable outcomes. (See Declaration of Evan M. Meyers, attached hereto as Exhibit D, ¶¶ 16-19.) Defendant is represented by highly skilled counsel, and continued litigation could result in a finding from this Court or the Seventh Circuit that the phone calls did not run afoul of the TCPA, or that the proposed class was inappropriate for certification, either of which would result in no relief to the Class. Further, Defendant raised several affirmative defenses and presented several potential factual hurdles during mediation, any of which, if successful, could result in no relief to the class. (Ex. D, ¶ 16.)

Bill Me Later has repeatedly indicated to Class Counsel and the Court that it would contest many aspects of the case on the merits, contending that the equipment used to make the calls does not fall under the statutory definition of an "automatic telephone dialing machine" because the equipment did not constitute a predictive dialer (see Answer, ¶19), and more importantly, that it would contest class certification, contending that the Class Representatives would be unable to adequately define a contested class based on the phone records it provided. Even if a contested class could be certified, the necessity of defining a contested class might result in a much smaller contested class than that certified in this Settlement.

Given the complexity of the issues still to be litigated and the very real potential that Defendant could succeed on any of the above-referenced issues on either a motion for class certification, motion for summary judgment or at trial — depriving the Plaintiffs and Class of any relief whatsoever — the instant Settlement was an appropriate alternative. Although the Class Representatives and Class Counsel believe that their TCPA claims are strong, given the potential for unfavorable outcomes in the case, the significant amount of beneficial relief to each Class Member submitting a claim weighs heavily in favor of granting final approval of the Settlement. See Lipuma, 406 F. Supp. 2d at 1323 ("[I]t has been held proper to take the bird in hand instead of a prospective flock in the bush.") Weighing the strength of the Class Representatives' claims and potential risks involved with continued litigation, against the exceptional results for the Settlement Class provided by the Agreement, this first factor strongly supports final approval of the Settlement. The Settlement Fund created here, which provides Settlement Class Members the ability to claim up to the full statutory amount of $500, coupled with the changes to Bill Me Later's collection activities already implemented in response to this class action suit, meets and exceeds the applicable standards of fairness and is substantially consistent with other TCPA settlements that have been approved in this District and throughout the country. Thus, given the strength of the Class Representatives' claims, the Court should find this factor satisfied.

ii. This Multi-Year Litigation has Already Involved Complex and Expensive Discovery on Novel and Uncertain Legal Issues.

Final approval of a settlement is favored where "continued litigation would require resolution of complex issues at considerable expense and would absorb many days of trial time." In re Mexico Money Transfer Litig., 164 F.Supp.2d 1002, 1019 (N.D. Ill. 2000) (finding that settlement is favored where further litigation would require additional written discovery, depositions and expert discovery, and where appellate practice is likely to result); accord Isby, 75 F.3d at 1199. Continued litigation in this case would most certainly result in an increase in the complexity of the issues to be resolved, the duration of the lawsuit, and an increase in the expenses incurred by both parties. (Ex. D., ¶18.)

Similar to the risk inherent in pursuing the merits of the case, is the risk of certifying and then maintaining class status throughout the litigation. This risk is not exclusive to instances where a plaintiff has already managed to successfully move for class certification prior to settlement. In fact, courts will still consider this factor even where a settlement is reached prior to class certification, given that pre-certification concerns validate the risk both parties faced should a plaintiff succeed or fail in certifying the class. See Gardner v. GC Services, LP, No. 10-CV-0997-IEG CAB, 2012 WL 1119534, *4 (S.D. Cal. Apr. 2, 2012) (recognizing the risk class certification poses for both parties and acknowledging the benefits of settlement prior thereto).

In light of such complexity and the amount of potential damages at issue, the defeated party would likely appeal, further delaying any resolution. (Ex. D, ¶ 18.) The Parties would incur significant additional expenses if the Settlement is not approved, including the costs of further discovery, the retention of expert witnesses, the filing and defending of further pre-trial motions, including class certification briefing, and the great expense of conducting a class action trial. Evidence and witnesses from across the country would have to be convened, adding additional expense to the litigation. (Id.) Thus, this factor weighs in favor of approving the Settlement.

iii. The Unqualified Support of the Settlement Class Demonstrates the Benefit of the Settlement and Supports Final Approval.

Class Members have shown substantial interest in the settlement, with absolutely no opposition. Direct notice was given to approximately 342,000 Settlement Class Members, and publication notice exposed millions of additional persons to the notice program. (See Ex. B.) Over 41,000 Settlement Class Members have filed claim forms, with over a month remaining before the claims filing deadline. (Ex. C, ¶ 16.) By contrast, not a single Settlement Class Member filed any formal objection to the Settlement, nor expressed any complaints to Class Counsel regarding the Settlement or the Fee Motion. (Ex. C, ¶ 17.) And despite the significant awareness of, and interest in, the Settlement, only 33 Settlement Class Members filed exclusions from the Settlement Class. (Ex. B, ¶ 32.) With a claims-to-exclusions ratio exceeding 1,000:1 (and with no objections), the Settlement Class Members have spoken, and they overwhelmingly support this Settlement.

The lack of objectors challenging the settlement favors a finding that the settlement is "fair and reasonable." Am. Civil Liberties Union v. United States Gen. Servs. Admin., 235 F.Supp.2d 816, 819 (N.D. Ill. 2002). The fact that not one Class Member filed an objection to the settlement, is "strong circumstantial evidence favoring settlement." In re Mexico Money Transfer Litig., 164 F. Supp. 2d at 1020-21. Here, not one person has objected to the Settlement and only 33 requests for exclusion from the Agreement were received. The lack of objections, combined with the miniscule percentage of exclusions, strongly supports the conclusion that the settlement is fair and reasonable. Newberg, § 11.41; see also Hammon v. Barry, 752 F.Supp. 1087, 1092 (D.D.C. 1990) (85 objections to a settlement involving about 2,000 individuals constitutes "low level of dissatisfaction"); Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799, 803 (3d Cir. 1974) (settlement approved with 20% of class objecting), cert. denied, 419 U.S. 900 (1974); Laskey v. International Union (UAW), 638 F .2d 954, 956 (6th Cir.1981) (settlement fair and reasonable when only 7 objections were filed out of 109 noticed class members).

In addition, Defendant provided notice of the Settlement to the appropriate state and federal officials pursuant to the Class Action Fairness Act of 2005 ("CAFA"), 28 U. S.C. § 1715, and no comments or opposition from those governmental entities was received. (See Notice of CAFA Compliance, Dkt. 72; Ex. D, ¶ 14.) "Although CAFA does not create an affirmative duty for either the state or federal officials to take any action in response to a class action settlement, CAFA presumes that, once put on notice, state or federal officials will raise any concerns that they may have during the normal course of the class action settlement procedures." Garner v. State Farm Mut. Auto. Ins. Co., CV-08-1365, 2010 WL 1687832, *14 (N.D. Cal. Apr. 22, 2010).

Additionally, attorneys and staff at McGuire Law, P.C. and at McMorrow Law, P.C. spoke with hundreds of Class Members about the Settlement in exercise of their fiduciary duties to the Class. (Ex. C, ¶ 17; Ex. D ¶ 8.) Several thousand more calls were received by the Settlement Administrator through the phone numbers listed in the forms of notice. (Ex. B, ¶ 31.) Notably, none of the Class Members with whom Class Counsel spoke objected to the terms of the Settlement, and hundreds verbally expressed approval of the terms of the Settlement and indicated that they would submit claim forms in this case. (Ex. D, ¶ 8; Ex. C, ¶ 17.) This lack of opposition further supports granting final approval of the Settlement.

iv. Experienced Class Counsel Believes the Settlement is Fair, Reasonable and Adequate.

Courts are entitled to rely on the opinion of competent Class Counsel that the settlement is fair, reasonable and adequate. See Isby, 75 F.3d at 1200; see also Hispanics United v. Vill. of Addison, 988 F.Supp. 1130, 1150 n. 6 (N.D. Ill. 1997) (noting a "strong initial presumption of fairness attaches" where settlement is "the result of arm's length negotiations," and where counsel are "experienced and have engaged in adequate discovery.") Counsel, all of whom are experienced in litigating class actions, and TCPA cases in particular, have expressed their support for the Settlement. (See Dkts. 69-2, 69-3 (declarations in support of Mot. for Prelim. Approval.)

Furthermore, the Settlement Agreement was finalized only after extensive arm's length negotiations in a formal mediation with Judge Infante and only after the Class Representatives obtained access to sufficient informal discovery to fairly and effectively negotiate a settlement on behalf of the Settlement Class. (Ex. D, ¶¶ 7-10.) Faced with the prospect of receiving nothing should Defendant succeed in any aspect of what assuredly would have been a vigorous defense absent settlement, Class Counsel are confident that payment of up to $500 per class member is an exceptional result in this litigation. (See Ex. D, ¶¶ 17-19; Ex. C, ¶18.)

In sum, the Settlement is the product of extensive, adversarial negotiations between counsel for both Parties experienced in class actions and consumer fraud litigation. As discussed above, the Settlement provides the Class with significant equitable and monetary relief, particularly in light of the risk of little or no recovery, and in light of the certainty of additional costs, expenses, risk and delay if litigation were to continue. Thus, in counsel's view, the proposed Settlement is fair, reasonable, and adequate and in the best interests of the Settlement Class Members.

v. The Extensive Discovery and Advanced Stage of the Proceedings Weigh in Favor of Approval.

"Approval of a settlement is proper where discovery and investigation conducted by class counsel prior to entering into settlement negotiations was extensive and thorough." Isby, 75 F.3d at 1200; accord Mangone v. First USA Bank, 206 F.R.D. 222, 226 (S.D. Ill. 2001). The Class Representatives engaged in significant discovery, including depositions and the review of thousands of pages of documents, which allowed Class Counsel to determine the relationships between Bill Me Later, its financial partners, and its third-party vendors and calling companies. That discovery allowed the Class Representatives to put forth a strong position for class certification against Bill Me Later, in addition to a strong position on the merits of the claim.

The Parties also put the strengths of their opposing positions to the test at extensive settlement negotiations and in preparation for discovery motion practice before this Court, which was avoided only through the settlement negotiations. Settlement discussions only commenced after significant investigation into the Class Representatives' claims and class certification issues. (Ex. D, ¶¶ 7-8.) Accordingly, the final factor weighs in favor of approval, and each of the five Synfuel factors supports a finding that the Settlement is fair, reasonable, and adequate, making final approval of the Settlement fully warranted.

Finally, the fairness, reasonableness, and adequacy of the instant Settlement is further supported by the recent approval of similar class action settlements by this Court. See, e.g., Desai et al v. ADT Security Services, Inc., No. 11-cv-1925 (N.D. Ill. 2013) (approving settlement creating a $15 million fund for unauthorized robocalls to 1.4 million class members, resulting in a settlement payment of approximately $50-100 per class member); Rojas et al v. Career Education Corp., No. 10-cv-05260 (N.D. Ill. 2012) (approving settlement creating a $20 million settlement fund for the transmission of 99,000 text messages entitling each class member to a $200 settlement payment); Lozano et al v. Twentieth Century Fox Film Corp. 09-cv-06344 (N.D. Ill. 2011) (approving settlement creating a $16 million settlement fund for the transmission of 98,000 text messages entitling each class member to a $200 settlement payment). Accordingly, the Settlement, which creates a $9.9 million Settlement Fund — which is non-reversionary and will be fully paid out — where each recipient of the allegedly unauthorized calls from or on behalf of Bill Me Later can submit a claim for up to $500 from the Settlement Fund, subject to pro rata reduction, is equally fair, reasonable, and adequate, and warrants Court approval.

B. The Executed Notice Program Comports with Due Process and the Requirements of Fed R. Civ. P. 23

Before the Court may grant final approval of the Settlement, Fed. R. Civ. P. 23(c)(2) requires that the Court determine that the Settlement provided the class with the "best notice practicable under the circumstances including individual notice to all members who can be identified through reasonable effort." Fed. R. Civ. P. 23(c)(2)(B); accord Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974). Notice is satisfactory where it describes the terms of the settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come forward and be heard. See Newberg, § 11:53 at 167 (4th ed. 2002) (notice is "adequate if it may be understood by the average class member.") Adequate notice sets forth the nature of the action, defines the class to be certified, the class claims and defenses at issue, while also explaining to class members that they may enter an appearance through counsel if so desired, request exclusion from the settlement class, and that any judgment will be binding on all class members. See Fed. R. Civ. P. 23 (c)(2)(B). "Neither Rule 23 nor due process require `receipt of actual notice by all class members;' rather, `notice should be mailed to the last known addresses of those who can be identified and publication used to notify the others.'" Mangone, 206 F.R.D. at 231-32 (internal citations omitted); see also Burns v. Elrod, 757 F.2d 151, 154 (7th Cir. 1985) (noting that "Rule 23 does not require defendants to exhaust every conceivable method of identification.") The Federal Judicial Center has concluded that a notice plan that reaches at least 70% of the class is reasonable. Federal Judicial Center, Judges' Class Action Notice and Claims Process Checklist and Plain Language Guide, p. 3 (2010). The Settlement Administrator and the Parties have strictly adhered to these requirements in directing notice to Class Members.

The Settlement Administrator provided notice to the Settlement Class Members as directed by this Court in the Preliminary Approval Order. (Ex. B, ¶¶ 6, 18-31.; Dkt. 71, ¶¶ 7-10.) That notice provided "the best notice that is practicable under the circumstances, including individual notice to all members who can be identified with reasonable effort." Fed. R. Civ. P. 23(c)(2); see also Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15 (1950). Notice was directly mailed to all potential Settlement Class Members for whom addresses could be located through the reverse-lookup process described in the Motion for Preliminary Approval and approved by this Court in the Preliminary Approval Order, and notice was also e-mailed to additional potential Settlement Class Members for whom valid e-mail addresses were available.

Direct Notice of the Settlement was provided by First Class Mail to 308,807 Settlement Class Members. Prior to mailing, each address was checked against the National Change of Address database, and recognized procedures were used to ensure accurate addressing and valid delivery. (Ex. B, ¶ 21.) For all undeliverable Notices, the Settlement Administrator performed an additional search and obtained valid address through a LexisNexis database and re-mailed over 38,000 Notices. (Ex. B, ¶¶ 23-24.) In addition, Direct Notice was provided by e-mail to an additional 34,256 potential Settlement Class Members. (Id., ¶ 22.) Direct Notice was provided by mail to over 92% of the Class for whom addresses were available. (See Id., ¶¶ 21-24.)

All forms of notice referenced the settlement website, www.autophonecallssettlement.com, which went live on August 22, 2014, and provided contact numbers for Class Counsel and the Settlement Administrator. (Id. ¶ 30.) The website contains the full traditional "long form" notice of the Settlement, as well as copies of relevant Court documents including the Settlement Agreement, Orders of the Court, and the Motion for Approval of Attorneys' Fees, Expenses & Incentive Awards. (Id.) The website allows Settlement Class Members to make claims online, allows Settlement Class Members to object or opt-out of the Settlement, and provides toll free numbers for Class Counsel and the Settlement Administrator. (Id., ¶¶ 30-31.)

In addition, notice was published in two of the most popular magazines in the nation, with a combined readership of over 60 million, notice was posted on popular websites, and a Facebook page was created with information about the action and claim forms. (Ex. B, ¶¶ 27-29); see Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 781, 786 (7th Cir. 2004) (Rule 23(b)(3) class) ("When individual notice is infeasible, notice by publication in a newspaper of national circulation . . . is an acceptable substitute"); see also Shurland v. Bacci Cafe & Pizzeria on Ogden, Inc., 271 F.R.D. 139, 146 (N.D. Ill. 2010) ("[T]he court is satisfied that notice by publication may be sufficient when individual class members cannot be identified.") The notice scheme included, inter alia, a description of the action and the claims, the definition of the class, and an explanation of how to appear and object and how to request an exclusion—all meeting Rule 23's requirements.

Finally, as discussed above, on August 1, 2014, in compliance with the Class Action Fairness Act, 28 U.S.C. § 1715(b), Defendant's counsel mailed a letter enclosing the requisite court documents to the U.S. Attorney General and the Attorneys General of each state and U.S. territory giving notice of the Settlement. (See Defendant's Notice of CAFA Compliance, Dkt. 72.)

Given its content and scope, as well as the percentage of Settlement Class Members successfully reached, the Notice Plan fully satisfies Rule 23 and Due Process. (See Ex. B, ¶¶ 33.)

V. THE UNOPPOSED ATTORNEY FEE AND INCENTIVE AWARDS SHOULD BE APPROVED

Each form of notice in this matter informed Settlement Class Members of the amount of attorneys' fees, expenses and Incentive Awards that would be requested in this Settlement. In addition, the Class Representatives and Class Counsel filed their Motion for Approval of Attorneys' Fees, Expenses & Incentive Awards ("Fee Motion") (Dkt. 75) on October 6, 2014, seventeen days before the October 23 deadline for objections and opt-outs. The Settlement Administrator posted the Fee Motion on the Settlement Website the following day. Posting the Fee Motion on the Settlement Website more than two weeks prior to the opt-out and objection deadline gave Settlement Class Members ample opportunity to consider the merits of the Fee Motion and any concerns with the same.

The Settlement Class Members submitted no opposition to the Fee Motion or to the attorneys' fees, expenses and Incentive Awards requested therein. (Ex. C, ¶ 17.) No objections to the Settlement or to the Fee Motion were filed, and no correspondence from Settlement Class Members expressed dissatisfaction with the fees, expenses or Incentive Awards. (Id.) The lack of opposition is not surprising; as discussed above, this Settlement provides a tremendous cash benefit to the Settlement Class, and the pendency of this action has already changed the calling behavior of Bill Me Later in ways that benefit the Settlement Class and the public.

For the reasons stated in favor of the attorneys' fees, expenses and incentive awards in the Fee Motion, and because no opposition to that Fee Motion was submitted, the Class Representatives and Class Counsel respectfully request that this Court approve the fees, expenses and Incentive Awards for the reasons set forth in the Fee Motion.

VI. CONCLUSION

For the reasons stated above and in Plaintiff's Motion for Approval of Attorneys' Fees, Expenses & Incentive Awards, the Class Representatives respectfully request that this Court grant both motions in their entirety. A proposed Final Approval Order is attached as Exhibit E.

Exhibit A

SETTLEMENT AGREEMENT AND RELEASE

TABLE OF CONTENTS

This Settlement Agreement and Release ("Settlement Agreement" or "Agreement" or "Settlement")1 is entered into between Plaintiffs Misty Murray and Shaun Murray (collectively, the "Plaintiffs"), on behalf of themselves individually and on behalf of a class of persons defined below (defined below as the "Settlement Class"), and defendant Bill Me Later, Inc. ("Defendant" or "Bill Me Later" or "BML"). Plaintiffs and Defendant are collectively referred to in this Agreement as the "Parties." This Agreement is entered into as of the date it is signed by the last of the Parties to sign it.

RECITALS

WHEREAS, on June 15, 2012, Plaintiffs filed a putative class action lawsuit in the United States District Court for the Northern District of Illinois, entitled Misty Murray and Shaun Murray v. Bill Me Later, Inc., No. 12-cv-4789 (the "Litigation");

WHEREAS, in the Litigation, Plaintiffs contended that Defendant violated the federal Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, by (a) making automated calls to cellular phones without prior express consent in violation of §227(b)(1)(A)(iii) and (b) making automated calls to residential telephones without prior express consent in violation of §227(b)(1)(B);

WHEREAS, after the lawsuit was filed, the Parties engaged in written and oral discovery, whereby Defendant produced thousands of pages of documents and made its employees available for depositions, and the Parties also obtained information and documents from third-parties through subpoena and otherwise;

WHEREAS, following the substantial completion of discovery, but prior to any briefing on class certification, the Parties agreed to engage in settlement discussions to determine whether a consensual resolution of the Litigation could be reached;

WHEREAS, in an effort to facilitate the settlement discussions, the Parties retained a private mediator, Hon. Edward A. Infante (ret.) of JAMS, Inc. (the "Mediator"), who is located in San Francisco, California and has substantial experience mediating putative class action lawsuits brought under the TCPA, in an attempt to mediate a resolution of the Litigation;

WHEREAS, in connection with the mediation efforts, the Parties submitted mediation briefs and provided certain factual information to the Mediator;

WHEREAS, the Parties participated in two full-day sessions with the Mediator (on January 28, 2014 and March 13, 2014) during which they engaged in extensive discussions about the proposed terms of settlement;

WHEREAS, at the end of the March 13, 2014 mediation session, the Parties reached an agreement in principle to resolve the case;

WHEREAS, at the end of the March 13, 2014 mediation session, the Parties executed a settlement term sheet that contained the principal terms of their agreement to resolve the case;

WHEREAS, Plaintiffs' attorneys have thoroughly investigated the relevant facts regarding BML's use of automated dialing systems and BML's practices with respect to obtaining consent from its customers, and they have thoroughly researched the law relating to the Litigation, before determining whether the Litigation should be resolved and before determining whether to enter into this Settlement Agreement;

WHEREAS, BML denies all liability for the claims made in the Litigation;

WHEREAS, without admitting or conceding any wrongdoing or liability, and solely to avoid the inconvenience and expense of further litigation, Defendant has agreed to settle all claims, demands, and liabilities between Defendant, Plaintiffs, and the Settlement Class, including all claims that have been asserted, or could have been asserted, in the Litigation;

WHEREAS, Plaintiffs and their counsel believe that the claims asserted in this Litigation have merit but have concluded that the terms and conditions provided in this Agreement are fair, reasonable, adequate, and in the best interests of the Settlement Class as a means of resolving this Litigation, after considering (1) the benefits the Settlement Class will receive under this settlement, (2) the fact that Defendant has demonstrated that it will vigorously oppose both the claims asserted in the Litigation and class certification if this case is not settled, and (3) the attendant risks, costs, uncertainties, and delays of proceeding with the Litigation; and

WHEREAS, the settlement reduced to writing in this Agreement was negotiated among the Parties in good faith and at arm's length;

NOW, THEREFORE, it is agreed, by and among the undersigned, that this Litigation shall be settled on the terms and conditions set forth herein, subject to judicial approval.

I. DEFINITIONS.

II. MOTION FOR PRELIMINARY APPROVAL AND PRELIMINARY CERTIFICATION OF PROPOSED SETTLEMENT CLASS FOR SETTLEMENT PURPOSES AND MOTION FOR FINAL ORDER AND JUDGMENT.

III. PAYMENTS TO THE SETTLEMENT CLASS.

IV. SETTLEMENT ADMINISTRATION.

V. RELEASE.

VI. INCENTIVE AWARD TO PLAINTIFFS.

VII. ATTORNEYS' FEES.

VIII. CONTINGENCIES, EFFECT OF DISAPPROVAL OR TERMINATION OF SETTLEMENT.

8.3 If for any reason this Agreement is terminated or fails to become effective, then the Parties shall be deemed to have reverted to their respective status in the Litigation before the settlement term sheet was signed and before the Settlement Agreement was signed, and the Parties shall proceed in all respects as if this Agreement and any related orders had not been entered.

IX. NO ADMISSION OF WRONGDOING.

9.1 Bill Me Later has vigorously denied, and continues to deny, that it committed any violation of the TCPA or other laws, and has vigorously denied and continues to deny all allegations of wrongdoing or liability whatsoever with respect to the Released Claims, including any and all claims of wrongdoing or liability alleged or asserted in the Complaint or the Litigation. Bill Me Later states that it is agreeing to this Settlement solely because it provides substantial and meaningful benefits to the Settlement Class and will eliminate the substantial burden, expense and uncertainties of further litigation and the concomitant distraction of resources and efforts from its business. This Agreement, and any of its terms, any agreement or order relating thereto, and any payment or consideration provided for herein, is not and shall not be construed as an admission by Bill Me Later or the Released Parties of any fault, wrongdoing, or liability whatsoever. This Agreement, and any of its terms, any agreement, order, or notice relating thereto, and any payment or consideration provided for herein shall not be offered by any party to be received in evidence in any civil, criminal, administrative, or other proceeding, as a presumption, a concession, or an admission of any fault, wrongdoing, or liability on the part of Bill Me Later or any of the Released Parties. However, nothing contained in this paragraph shall prevent this Agreement (or any agreement, order, or notice relating thereto) from being used, offered, or received in evidence in any proceeding to approve, enforce, or otherwise effectuate the Settlement (or any agreement or order relating thereto) or the Final Order and Judgment. This Agreement may be filed and used in other proceedings, where relevant, to demonstrate the fact of its existence and of this Settlement, including but not limited to the Released Parties filing the Agreement and/or the Final Order and Judgment in any other action that may be brought against them in order to support a defense or counterclaim based on principles of res judicata, collateral estoppel, release, waiver, or any other theory of claim preclusion or issue preclusion or similar defense or counterclaim.

X. MISCELLANEOUS.

10.1 Public Statements. Plaintiffs and Class Counsel shall make no statement to the press, or any other public statement describing this Settlement, that disparages Bill Me Later, WebBank, Comenity Capital Bank, or CIT Bank. Bill Me Later and Bill Me Later's Counsel shall make no statement to the press, or any other public statement describing this Settlement, that disparages Plaintiffs or Class Counsel. The Parties will agree upon a joint statement to utilize in response to any inquiries from the press regarding this Settlement, to the effect that the Parties have resolved their differences addressed in the Litigation. This paragraph shall not be construed to prevent Class Counsel from explaining to potential Settlement Class Members or others that this case has settled and how to obtain settlement benefits. This paragraph shall also not preclude Class Counsel from publicizing on its website or elsewhere that this case has settled.

10.2 Duty to Cooperate. The Parties promise to cooperate in good faith and to take all actions reasonably necessary to effectuate this Agreement. The Parties further agree that if, before the Effective Date, any issues regarding interpretation or implementation of, or compliance with, this Settlement Agreement arise between or among the Parties and such issues cannot be resolved by the Parties, that such issues shall be mediated before Hon. Edward A. Infante (Ret.), who will mediate the issues and, if the issues are not resolved, will issue a non-binding recommendation to the Parties, who agree to consider his decision. If an issue remains unresolved, it will be submitted to the Court for decision.

10.3 Entire Agreement. This Agreement is the entire agreement between the Parties regarding the subject matter covered by the terms of this Agreement and it supersedes any prior agreements, written or oral, including the term sheet and any written settlement offers or emails exchanged between the Parties regarding the subject matter covered by the terms of this Agreement. This Settlement Agreement cannot be altered, modified or amended except through a writing executed by all Parties.

10.4 Construction of Agreement. This Settlement Agreement shall be construed to effectuate the intent of the Parties to resolve all disputes encompassed by the Agreement. All Parties have participated in the drafting of this Agreement, and any ambiguity should not be resolved by virtue of a presumption in favor of any Party. The Settlement Agreement was reached at arm's-length by Parties represented by counsel.

10.5 Executed in Counterparts. This Settlement Agreement may be executed by exchange of executed signature pages by facsimile or Portable Document Format ("PDF") as an electronic mail attachment, and any signature transmitted by facsimile or PDF via electronic mail for the purpose of executing this Settlement Agreement shall be deemed an original signature for purposes of this Settlement Agreement. This Settlement Agreement may be executed in several counterparts, each of which shall be deemed to be an original, and all of which, taken together, shall constitute one and the same instrument.

10.6 Notices. Unless otherwise provided herein, any notice, request, instruction, application for Court approval, or application for Court order sought in connection with the Agreement, other than documents electronically filed with the Court, shall be in writing and delivered personally or sent by certified mail or overnight delivery service, postage pre-paid, with copies by e-mail to the attention of Class Counsel and Bill Me Later's Counsel (as well as to any other recipients that a court may specify). As of the date hereof, the respective representatives are as follows:

IN WITNESS WHEREOF, the undersigned have caused this Settlement Agreement to be executed as of the dates set forth below.

ON BEHALF OF PLAINTIFFS AND THE SETTLEMENT CLASS:

ON BEHALF OF BILL ME LATER, INC.:

Exhibit A

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

[PROPOSED] ORDER PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT

This matter coming before the Court on Plaintiff's Unopposed Motion for Preliminary Approval of Class Action Settlement (the "Motion"), the Court having reviewed in detail and considered the Motion, the Settlement Agreement and Release ("Settlement Agreement"), and all other papers that have been filed with the Court related to the Settlement Agreement, including all exhibits and attachments to the Motion and the Settlement Agreement, and all other prior proceedings in this Action,

IT IS HEREBY ORDERED AS FOLLOWS:

1. The terms of the Settlement Agreement are preliminarily approved as fair, reasonable and adequate. Capitalized terms used in this Order that are not otherwise defined herein have the meaning assigned to them in the Settlement Agreement.

2. For settlement purposes only, the Court finds that the prerequisites for class action under Federal Rule of Civil Procedure 23(a) and (b)(3) — including numerosity, commonality, typicality, adequacy, predominance, and superiority have been preliminarily satisfied.

3. The Court hereby conditionally certifies, pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure, and for the purposes of settlement only, the following Settlement Class:

4. For settlement purposes only, Plaintiffs Misty Murray and Shaun Murray are hereby appointed as Class Representatives.

5. For settlement purposes only, the following counsel are hereby appointed as Class Counsel:

6. The Court recognizes that, pursuant to the Settlement Agreement, BML retains all rights to object to the propriety of class certification in the Litigation in all other contexts and for all other purposes should the Settlement not be finally approved. Therefore, as more fully set forth below, if the Settlement is not finally approved, and litigation resumes, this Court's preliminary findings regarding the propriety of class certification shall be of no further force or effect whatsoever, and this Order will be vacated in its entirety.

7. The Court approves, in form and content, the Long Form Class Notice and the Publication Class Notice, attached as Exhibits C and D, respectively, to the Settlement Agreement, and finds that they meet the requirements of Rule 23 (c)(2)(B).

8. The Court finds that the Notice Plan attached as Exhibit E to the Settlement Agreement meets the requirements of Rule 23(c)(2)(B) and constitutes the best notice practicable under the circumstances, including direct individual notice by U.S. Mail or, in some cases, by email to Settlement Class Members who can be identified through reasonable effort, and satisfies fully the requirements of Due Process, and any other applicable law, such that the Settlement Agreement and Final Order and Judgment will be binding on all Settlement Class Members. In addition, the Court finds that no notice other than that specifically identified in the Settlement Agreement is necessary in this action. The Parties, by agreement, may revise the Class Notice and Claim Form in ways that are not material, or in ways that are appropriate to update those documents for purposes of accuracy or formatting for publication.

9. Hefner Claims Group is hereby appointed Settlement Administrator to supervise and administer the notice process, as well as to oversee the administration of the Settlement, as more fully set forth in the Settlement Agreement.

10. The Settlement Administrator may proceed with the distribution of Class Notice as set forth in the Settlement Agreement and the Notice Plan.

11. Settlement Class Members who wish to receive benefits under the Settlement Agreement must complete and submit a valid Claim Form in accordance with the instructions provided in the Class Notice. The Court hereby approves as to form and content the Claim Form attached as Exhibit C to the Settlement Agreement.

12. All Claim Forms must be postmarked or received by the Settlement Administrator, either in hard copy form or electronically, no later than twenty-one (21) days after the date of the Final Approval Hearing. Settlement Class Members who do not submit a valid and timely Claim Form shall not be entitled to receive any portion of the Settlement Fund.

13. Settlement Class Members shall be bound by all determinations and orders pertaining to the Settlement, including the release of all claims to the extent set forth in the Settlement Agreement, whether favorable or unfavorable, unless such persons request exclusion from the Settlement Class in a timely and proper manner, as hereinafter provided. Settlement Class Members who do not timely and validly request exclusion shall be so bound even if they have previously initiated or subsequently initiate litigation or other proceedings against the Defendant or the Released Parties relating to the claims released under the terms of the Settlement Agreement.

14. Any Person within the Settlement Class may request exclusion from the Settlement Class by expressly stating his/her request in a written exclusion request. Such exclusion requests must be received by the Settlement Administrator either at the address specified in the Class Notice in written form, by first class mail, postage prepaid, and postmarked no later than October 23, 2014, or electronically via the Settlement Website by October 23, 2014.

15. In order to exercise the right to be excluded, a Person within the Settlement Class must timely send or electronically submit a written request for exclusion to the Settlement Administrator providing his/her name and address, the telephone number that received the subject call or calls, the name and number of this case, and a statement that he/she wishes to be excluded from the Settlement Class. Any request for exclusion submitted via first class mail must be personally signed by the Person requesting exclusion. Any request for exclusion submitted online may be signed electronically, which will be binding for purposes of the perjury laws and shall contain a statement to that effect. No Person within the Settlement Class, or any Person acting on behalf of, in concert with, or in participation with that Person within the Settlement Class, may request exclusion from the Settlement Class of any other Person within the Settlement Class.

16. Class Counsel may file any motion seeking an award of attorneys' fees, costs and expenses, as well as Incentive Awards for the Class Representatives, no later than October 6, 2014.

17. Any Settlement Class Member who has not requested exclusion from the Settlement Class and who wishes to object to any aspect of the Settlement Agreement including the amount of the attorneys' fees and expenses that Class Counsel intends to seek and the payment of any Incentive Awards, may do so, either personally or through an attorney, by filing a written objection, together with the supporting documentation set forth in the Settlement Agreement, with the Clerk of the Court, and served upon Class Counsel and Defendant's counsel, by October 23, 2014. Addresses for Class Counsel, Defendant's Counsel, and the Clerk of Court are as follows:

18. Any Settlement Class Member who has not requested exclusion and who intends to object to this Agreement must include with the written objection his/her name and address; telephone number(s) that he/she maintains received a call made by or of behalf of BML; his/her telephone carrier for the identified telephone number at the time of such call; whether each identified telephone number is a cellular phone or a residential landline; and all arguments, citations, and evidence supporting the objection. An objecting Settlement Class Member must state, in writing, all objections and the basis for any such objection(s). Objections not filed and served in accordance with this Order shall not be received or considered by the Court. Any Settlement Class Member who fails to timely file and serve a written objection in accordance with this Order shall be deemed to have waived, and shall be forever foreclosed from raising, any objection to the Settlement, to the fairness, reasonableness, or adequacy of the Settlement, to the payment of attorneys' fees, costs, and expenses, the payment of incentive awards, and/or to the Final Approval Order and the right to appeal same.

19. A Settlement Class Member who has not requested exclusion from the Settlement Class may appear at the Final Approval Hearing in person or through counsel to show cause why the proposed Settlement should not be approved as fair, reasonable, and adequate. Attendance at the hearing is not necessary; however, persons wishing to be heard orally in opposition to the approval of the Settlement and/or Plaintiff's counsel's Fee and Expense Application and/or the request for Incentive Awards to the Class Representatives are required to indicate in their written objection their intention to appear at the Final Approval Hearing on their own behalf or through counsel. For any Settlement Class Member who files a timely written objection and who indicates his/her intention to appear at the Final Approval Hearing on their own behalf or through counsel, such Settlement Class Member must also include in his/her written objection the identity of any witnesses he/she may call to testify, and all exhibits he/she intends to introduce into evidence at the Final Approval Hearing, which shall be attached.

20. No Settlement Class Member shall be entitled to be heard, and no objection shall be considered, unless the requirements set forth in this Order and in the Settlement Agreement are fully satisfied. Any Settlement Class Member who does not make his or her objection to the Settlement in the manner provided herein, or who does not also provide copies to the designated counsel of record for the Parties at the addresses set forth herein, shall be deemed to have waived any such objection by appeal, collateral attack, or otherwise, and shall be bound by the Settlement Agreement, the releases contained therein, and all aspects of the Final Order and Judgment.

21. All papers in support of the final approval of the proposed Settlement shall be filed no later than November 6, 2014, i.e, fourteen (14) days before the Final Approval Hearing.

22. Pending the final determination of the fairness, reasonableness, and adequacy of the proposed Settlement, no Settlement Class Member may prosecute, institute, commence, or continue any lawsuit (individual action or class action) with respect to the Released Claims against any of the Released Parties.

23. A hearing (the "Final Approval Hearing"), pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, shall be held before the Court on November 20, 2014 at 1:30 p.m., i.e., approximately 120 days from the entry of the Preliminary Approval Order, at the United States Courthouse, 219 South Dearborn Street, Courtroom 1403, Chicago, Illinois 60604 (or at such other time or location as the Court may without further notice direct) for the following purposes:

(a) to finally determine whether the applicable prerequisites for settlement class action treatment under Fed. R. Civ. P. 23(a) and (b) are met;

(b) to determine whether the Settlement is fair, reasonable and adequate, and should be approved by the Court;

(c) to determine whether the judgment as provided under the Settlement Agreement should be entered, including a bar order prohibiting Settlement Class Members from further pursuing claims released in the Settlement Agreement;

(d) to consider the application for an award of attorneys' fees, costs and expenses of Class Counsel;

(e) to consider the application for Incentive Awards to the Class Representatives;

(f) to consider the distribution of the Settlement Fund pursuant to the Settlement Agreement; and

(g) to rule upon such other matters as the Court may deem appropriate.

24. The Final Approval Hearing may be postponed, adjourned, transferred or continued by order of the Court without further notice to the Settlement Class. At or following the Final Approval Hearing, the Court may enter a judgment approving the Settlement Agreement and Final Judgment and Order in accordance with the Settlement Agreement that adjudicates the rights of all Settlement Class Members.

25. Settlement Class Members do not need to appear at the Final Approval Hearing or take any other action to indicate their approval.

26. All discovery and other proceedings in the Litigation as between Plaintiffs and BML are stayed and suspended until further order of the Court except such actions as may be necessary to implement the Settlement Agreement and this Order.

27. For clarity, the deadlines set forth above and in the Settlement Agreement are as follows:

So Ordered.

Exhibit B

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

[PROPOSED] FINAL ORDER AND JUDGMENT

This matter coming to be heard on Plaintiffs' Unopposed Motion for Final Approval of Class Action Settlement ("Motion"), due and adequate notice having been given to the Settlement Class, and the Court having considered the papers filed and proceedings in this matter,

IT IS HEREBY ORDERED, ADJUDGED and DECREED as follows:

1. All capitalized terms in this Final Order and Judgment shall have the same meaning as ascribed to them in the Settlement Agreement and Release ("Settlement Agreement"), unless otherwise noted.

2. This Court has jurisdiction over the subject matter of the Litigation and personal jurisdiction over all parties to the Litigation, including all Settlement Class Members.

3. The Court preliminarily approved the Settlement Agreement by Preliminary Approval Order dated July __, 2014, and adequate notice was given to all members of the Settlement Class pursuant to the terms of the Preliminary Approval Order.

4. The Court has read and considered the papers filed in support of the Motion, including the Settlement Agreement and exhibits thereto and supporting declarations. The Court has also read and considered any written objections timely filed with the Clerk of the Court by Settlement Class Members.

5. The Court held a Final Approval Hearing on November 20, 2014, at which time the Parties and all other interested persons were afforded the opportunity to be heard in support of and in opposition to the Settlement.

6. Based on the papers filed with the Court and the presentations made to the Court by the Parties and other interested persons at the Final Approval Hearing, the Court now gives final approval to the Settlement and finds that the Settlement Agreement is fair, adequate, reasonable, and in the best interests of the Settlement Class. The complex legal and factual posture of the Litigation, and the fact that the Settlement Agreement is the result of arms' length negotiations presided over by a neutral mediator, further support this finding.

7. Pursuant to Rules 23(c) and 23(b)(3), the Court finally certifies, for settlement purposes only, the following Settlement Class:

8. The persons who made timely and valid requests for exclusion are excluded from the Settlement Class and are not bound by this Final Order and Judgment. Annexed hereto as Appendix 1 is a schedule of all such persons excluded from the Settlement Class.

9. For settlement purposes only, Plaintiffs Misty Murray and Shaun Murray are hereby appointed as Class Representatives of the Settlement Class.

10. For settlement purposes only, the following counsel are hereby appointed as Class Counsel:

11. With respect to the Settlement Class, this Court finds for settlement purposes only that: (a) the Settlement Class as defined above is so numerous that joinder of all members is impracticable; (b) there are questions of law or fact common to the Settlement Class; (c) the claims of the Class Representatives are typical of the claims of the Settlement Class; (d) the Class Representatives and Class Counsel have adequately and fairly represented, and will continue to adequately and fairly represent, the interests of the Settlement Class; (e) questions of law and fact common to the Settlement Class Members predominate over questions affecting only individual Settlement Class Members; and (f) certification of the Settlement Class is superior to other available methods for the fair and efficient adjudication of the controversy.

12. The Court has determined that the Class Notice given to the Settlement Class Members, in accordance with the Preliminary Approval Order, fully and accurately informed Settlement Class Members of all material elements of the Settlement and constituted the best notice practicable under the circumstances, and fully satisfied the requirements of Federal Rule of Civil Procedure 23, applicable law, and Due Process.

13. The Court finds that BML properly and timely notified the appropriate state and federal officials of the Settlement Agreement pursuant to 28 U.S.C. § 1715. The Court has reviewed the substance of BML's notices and accompanying materials, and finds that they complied with all applicable requirements of 28 U.S.C. § 1715.

14. The Court orders the Parties to the Settlement Agreement to perform their obligations thereunder. The terms of the Settlement Agreement shall be deemed incorporated herein as if explicitly set forth and shall have the full force of an order of this Court.

15. The Court dismisses the Litigation with prejudice and without costs (except as otherwise provided herein and in the Settlement Agreement) as to Plaintiffs' and all Settlement Class Members' claims against BML. The Court adjudges that the Released Claims and all of the claims described in the Settlement Agreement are released against the Released Parties.

16. The Court adjudges that the Plaintiffs and all Settlement Class Members who receive a distribution from the Settlement Fund shall be deemed to have fully, finally and forever released, relinquished and discharged all Released Claims against the Released Parties, as defined by the Settlement Agreement. The Court further adjudges that each Settlement Class Member who did not timely and validly request exclusion from the Settlement, but for whatever reason does not receive a distribution from the Settlement Fund, has nonetheless received valid consideration in the form of the foregone opportunity to receive money, and they shall be deemed to have fully, finally and forever released, relinquished and discharged all Released Claims against the Released Parties.

17. The Released Claims specifically extend to claims that Plaintiffs and Settlement Class Members do not know or suspect to exist in their favor at the time that the Settlement Agreement, and the releases contained therein, become effective. The Court finds that Plaintiffs have, and the Settlement Class Members are deemed to have, knowingly waived the protections of California Civil Code § 1542 and any other applicable federal or state statute, case law, rule or regulation relating to limitations on releases.

18. The Court further adjudges that, upon entry of this Order, the Settlement Agreement and the above-described release of the Released Claims will be binding on, and have res judicata preclusive effect in, all pending and future lawsuits or other proceedings maintained by or on behalf of Plaintiffs and all other Settlement Class Members who did not validly and timely opt out of the Settlement, and their respective affiliates, assigns, heirs, executors, administrators, successors and agents. The Released Parties may file the Settlement Agreement and/or this Final Order and Judgment in any action or proceeding 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.

19. Plaintiffs and Settlement Class Members who did not validly and timely request exclusion from the Settlement are permanently barred and enjoined from asserting, commencing, prosecuting or continuing any of the Released Claims or any of the claims described in the Settlement Agreement against anyone.

20. The Court approves payment of attorneys' fees, costs and expenses to Class Counsel in the amount of $ _________. This amount shall be paid from the Settlement Fund in accordance with the terms of the Settlement Agreement. The Court, having considered the materials submitted by Class Counsel in support of final approval of the Settlement and their request for attorneys' fees, costs and expenses and in response to any timely filed objections thereto, finds the award of attorneys' fees, costs and expenses appropriate and reasonable for the following reasons: First, the Court finds that the quantifiable value of the Settlement is at least $9.9 million. The Court therefore considers the Settlement to provide substantial benefits to the Settlement Class. Second, the Court finds the payment fair and reasonable in light of the substantial work performed by Class Counsel. Third, the Court concludes that the Settlement was negotiated at arms' length without collusion, and that the negotiation of the attorneys' fees only followed agreement on the settlement benefits for the Settlement Class Members. Finally, the Court notes that the Class Notice specifically and clearly advised the Settlement Class that Class Counsel, as a group, would seek an award in the amount sought.

21. The Court approves the incentive award of $30,000.00 each for Class Representatives Misty Murray and Shaun Murray and specifically finds such amount to be reasonable in light of the services performed by Plaintiffs for the Settlement Class, including taking on the risks of litigation and helping achieve the results to be made available to the Settlement Class. These amounts shall be paid from the Settlement Fund in accordance with the terms of the Settlement Agreement.

22. All checks issued to Settlement Class Members pursuant to the Settlement Agreement that are not cashed within 180 days of issuance shall be directed equally to [list recipients], which the Court approves as appropriate cy pres recipients. Likewise, to the extent there are any funds remaining from the Distributable Settlement Fund, including funds associated with uncashed checks mailed to Settlement Class Members and any funds that are not or cannot be distributed to Settlement Class Members for any reason, such funds shall be directed equally to the same recipients.

23. Neither this Final Order and Judgment nor the Settlement Agreement nor the payment of any consideration in connection with the Settlement shall be construed or used as an admission or concession by or against BML or any of the Released Parties of any fault, omission, liability, or wrongdoing, or of the validity of any of the Released Claims. This Final Order and Judgment is not a finding of the validity or invalidity of any claims in this Litigation or a determination of any wrongdoing by BML or any of the Released Parties. The final approval of the Settlement Agreement does not constitute any position, opinion, or determination of this Court, one way or the other, as to the merits of the claims or defenses of Plaintiffs, the Settlement Class Members, or BML.

24. Any objections to the Settlement Agreement are overruled and denied in all respects. The Court finds that no reason exists for delay in entering this Final Order and Judgment. Accordingly, the Clerk is hereby directed forthwith to enter this Final Order and Judgment.

25. The Parties, without further approval from the Court, are hereby permitted to agree to and adopt such amendments, modifications and expansions of the Settlement Agreement and its implementing documents (including all exhibits to the Settlement Agreement) so long as they are consistent in all material respects with the Final Order and Judgment and do not limit the rights of the Settlement Class Members.

26. Without affecting the finality of this Final Order and Judgment in any way, the Court retains jurisdiction over: (a) implementation and enforcement of the Settlement Agreement until the final judgment contemplated hereby has become effective and each and every act agreed to be performed by the parties hereto pursuant to the Settlement Agreement have been performed; (b) any other action necessary to conclude the Settlement and to administer, effectuate, interpret and monitor compliance with the provisions of the Settlement Agreement; and (c) all Parties to this Litigation and the Settlement Class Members for the purpose of implementing and enforcing the Settlement Agreement until each and every act agreed to be performed by the parties hereto pursuant to the Settlement Agreement have been performed.

So ordered this __ day of _____________, 2014.

Exhibit C

NOTICE OF CLASS ACTION LAWSUIT AND PROPOSED SETTLEMENT

PLEASE READ THIS NOTICE CAREFULLY. IT EXPLAINS THAT YOU MAY BE ENTITLED TO RECEIVE A PAYMENT OF UP TO $500.00 FROM A CLASS ACTION SETTLEMENT. YOUR RIGHTS AND OPTIONS AND THE DEADLINES TO EXERCISE THEM — ARE EXPLAINED IN THIS NOTICE.

THIS IS NOT NOTICE OF A LAWSUIT AGAINST YOU. THIS IS NOT A SOLICITATION FROM A LAWYER.

WHY DID I GET THIS NOTICE?

WHAT IS THIS LAWSUIT ABOUT?

WHY IS THIS A CLASS ACTION?

WHY IS THERE A SETTLEMENT?

WHAT DOES THE SETTLEMENT PROVIDE?

WHAT RIGHTS AM I GIVING UP IN THIS SETTLEMENT?

WHAT ARE MY OPTIONS?

HOW MUCH WILL I BE PAID?

WHEN WILL I BE PAID?

WHAT WILL HAPPEN IF THE COURT DOES NOT APPROVE THE SETTLEMENT?

WHO REPRESENTS THE CLASS?

The attorneys who have been appointed by the Court to represent the Class are:

WHERE CAN I GET ADDITIONAL INFORMATION?

Exhibit D

IF YOU RECEIVED AN AUTOMATED OR PRERECORDED TELEPHONE CALL MADE BY OR ON BEHALF OF BILL ME LATER, YOU MAY BE ENTITLED TO A CASH PAYMENT FROM A SETTLEMENT

Para una notificacion en Espanol, visitar www.Autophonecallssettlement corn

A Settlement has been proposed in a class action lawsuit regarding telephone calls made by or on behalf of Bill Me Later, Inc. ("BML"). The lawsuit, Murray, et al. v. Bill Me Later, Inc., Case No. 12-cv-4789 (U.S. Dist. Court for the Northern District of Illinois), alleges that BML and its agents violated the Telephone Consumer Protection Act, 47 U.S.C. § 227, ("TCPA") by making automated telephone calls to persons who did not give consent for such calls. The Settlement is not an admission of wrongdoing by BML. The Court has not decided who is right or wrong. Rather, the parties are resolving the dispute by agreement.

Am I a Member of the Settlement Class?

You're a Settlement Class Member if, between June 15, 2008 and July 24, 2014, you received a call made by or on behalf of Bill Me Later where such call was made without your consent to either (1) your cellular telephone using an automatic telephone dialing system, or (2) your cellular or landline telephone using an artificial or prerecorded voice.

What are the terms of the proposed Settlement?

The total amount of the Settlement Fund is $9,900,000.00. If the Court approves the Settlement, each Settlement Class Member who submits a valid, timely Claim Form will be entitled to an equal payment from the Settlement Fund up to $500 per claimant, after expenses, attorneys' fees, and incentive awards are paid from the Settlement Fund. The exact amount of your payment is unknown at this time but is expected to be approximately $75-$150 and may be more or less depending on how many Settlement Class Members return valid Claim Forms.

What are my Options?

To make a claim for a cash payment, you must mail or submit online a completed Claim Form by December 11, 2014. If you do not wish to participate in the Settlement, you may exclude yourself from the Class by mail or online by October 23, 2014, or you may object to the Settlement by submitting a written objection by October 23, 2014. If you do nothing, you will be bound by the decisions of the Court if the Settlement is approved. Submitting a timely and valid Claim Form is the only way to receive a cash payment through this Settlement. Visit www.Autophonecallssettlement.com for more detailed and important information about your options under the Settlement.

Hearing on the proposed Settlement

The Court will hold a Final Approval Hearing on November 20, 2014 at 1:30 p.m. at the U.S. Courthouse, Room 1403, 219 S. Dearborn St. Chicago, IL 60604 to consider whether the proposed Settlement is fair, reasonable, and adequate. At the hearing, Class Counsel will ask the Court to award attorneys' fees up to $3.3 million, plus expenses not to exceed $100,000 for their work in the case. The Court will also consider incentive award payments up to $30,000 to each of the two Class Representatives. You may, but do not have to, attend the hearing, which may be changed by the Court.

For more information and for a Claim Form, visit www.Autophonecallssettlement.com, or call 1-844-245-3766.

Exhibit E

Exhibit B

DECLARATION OF JEANNE C. FINEGAN, APR

CONCERNING IMPLEMENTATION OF NOTIFICATION PROGRAM

I, JEANNE C. FINEGAN, declare as follows:

OVERVIEW

d. McGee v. Continental Tire North America, Inc. et al, Civ. No. 06-6234(GEB) (D.N.J.). The Court noted:

e. In re: Canadian Air Cargo Shipping Class Actions (Ontario Superior Court of Justice, Court File No. 50389CP, Supreme Court of British Columbia, Quebec Superior Court). In the Endorsement of Settlement, Ontario Superior Court of Justice Regional Senior Justice Lynne C. Leitch stated:

f. Lucas v. KMART Corporation, Civil Action No 99-CV-01923 (JLK) (D. Colo. 2006). The Court noted:

g. Varacallo v. Massachusetts Mutual Life Insurance Company, Civil Action No. 04-2702 (JLL) (D.N.J. 2004). The Court noted:

h. Wilson v. Massachusetts Mutual Life Insurance Company, Case No. 101-CV 98-02814 (First Judicial District Court County of Santa Fe State of New Mexico 2002). The Court stated:

i. Thomas A. Foster and Linda E. Foster v. ABTco Siding, Case No. 95-151-M (Circuit Court of Choctaw County, Alabama 2000). The Court stated:

j. Sparks v. AT&T Corporation, Case No. 96-LM-983 (Third Judicial Circuit Madison County, Illinois 2001). In granting final approval to the Settlement, the Court commented on the notification program as follows:

k. In re: Louisiana-Pacific Inner-Seal Siding, Civil Action Nos. 879-JE, and 1453-JE (D. Or. 1995, 1999). The Court stated:

15. Additionally, I have published extensively on various aspects of legal noticing, including the following publications and articles:

a. Author, `Being `Media-Relevant' — What It Means And Why It Matters — Law360.com, New York (September 11, 2013, 2:50 PM ET).

b. Co-Author, "New Media Creates New Expectations for Bankruptcy Notice Programs," ABI Journal, Vol. XXX, No 9, November 2011.

c. Quoted Expert, "Effective Class Action Notice Promotes Access to Justice: Insight from a New U.S. Federal Judicial Center Checklist," Canadian Supreme Court Law Review, (2011), 53 S.C.L.R. (2d).

d. Co-Author, with Hon. Dickran Tevrizian, "Expert Opinion: It's More Than Just a Report... Why Qualified Legal Experts Are Needed to Navigate the Changing Media Landscape," BNA Class Action Litigation Report, 12 CLASS 464, 5/27/11.

e. Co-Author, with Hon. Dickran Tevrizian, "Your Insight: It's More Than Just a Report ... Why Qualified Legal Experts Are Needed to Navigate the Changing Media Landscape, TXLR, Vol. 26, No. 21, 5/26/2011.

f. Author, Five Key Considerations for a Successful International Notice Program, BNA Class Action Litigation Report, 4/9/10 Vol. 11, No. 7 p. 343.

g. Quoted: Technology Trends Pose Novel Notification Issues for Class Litigators, BNA Electronic Commerce and Law Report, 15, ECLR 109, 1/27/10.

h. Author, Legal Notice: R U ready 2 adapt? BNA Class Action Litigation Report, Vol. 10, No. 14, 7/24/2009, pp. 702-703.

i. Author, On Demand Media Could Change the Future of Best Practicable Notice, BNA Class Action Litigation Report, Vol. 9, No. 7, 4/11/2008, pp. 307-310.

j. Quoted in, Warranty Conference: Globalization of Warranty and Legal Aspects of Extended Warranty, Warranty Week, February 28, 2007, available at www.warrantyweek. com/archive/ww20070228.html.

k. Co-Author, Approaches to Notice in State Court Class Actions, For The Defense, Vol. 45, No. 11, November, 2003.

1. Author, The Web Offers Near, Real-Time Cost Efficient Notice, American Bankruptcy Institute Journal, Vol. XXII, No. 5, 2003.

m. Author, Determining Adequate Notice in Rule 23 Actions, For The Defense, Vol. 44, No. 9, September, 2002.

n. Co-Author, The Electronic Nature of Legal Noticing, American Bankruptcy Institute Journal, Vol. XXI, No. 3, April, 2002.

o. Author, Three Important Mantras for CEO's and Risk Managers in 2002, International Risk Management Institute, irmi.com/, January, 2002.

p. Co-Author, Used the Bat Signal Lately, The National Law Journal, Special Litigation Section, February 19, 2001.

q. Author, How Much is Enough Notice, Dispute Resolution Alert, Vol. 1, No. 6, March, 2001.

r. Author, Monitoring the Internet Buzz, The Risk Report, Vol. XXIII, No. 5, January, 2001.

s. Author, High-Profile Product Recalls Need More Than the Bat Signal, International Risk Management Institute, irmi.com/, July 2001.

t. Author, The Great Debate — How Much is Enough Legal Notice? American Bar Association — Class Actions and Derivatives Suits Newsletter, Winter 1999.

u. Author, What are the best practicable methods to give notice? Georgetown University Law Center Mass Tort Litigation Institute, CLE White Paper: Dispelling the communications myth — A notice disseminated is a notice communicated, November 1, 2001.

16. In addition, I have lectured or presented extensively on various aspects of legal noticing. A sample list includes the following:

a. Bridgeport Continuing Ed., Speaker, Webinar "Media Relevant in the Class Notice Context." July 2014.

b. Bridgeport Continuing Ed. Faculty Panelist, "Media Relevant in the Class Notice Context," April 2014.

c. CASD 5th Annual Speaker, "The Impact of Social Media on Class Action Notice." Consumer Attorneys of San Diego Class Action Symposium, San Diego, California, September 2012.

d. Law Seminars International, Speaker, "Class Action Notice: Rules and Statutes Governing FRCP (b)(3) Best Practicable... What constitutes a best practicable notice? What practitioners and courts should expect in the new era of online and social media." Chicago, IL, October 2011.

e. CLE International, Faculty Panelist, Building a Workable Settlement Structure, CLE International, San Francisco, California May, 2011.

f. Consumer Attorneys of San Diego (CASD), Faculty Panelist, "21st Century Class Notice and Outreach," 2nd Annual Class Action Symposium CASD Symposium, San Diego, California, October 2010.

g. Consumer Attorneys of San Diego (CASD), Faculty Panelist, "The Future of Notice," 2nd Annual Class Action Symposium CASD Symposium, San Diego, California, October 2009.

h. American Bar Association, Speaker, 2008 Annual Meeting, "Practical Advice for Class Action Settlements: The Future of Notice In the United States and Internationally — Meeting the Best Practicable Standard."

i. American Bar Association, Section of Business Law Business and Corporate Litigation Committee — Class and Derivative Actions Subcommittee, New York, NY, August 2008.

j. Faculty Panelist, Women Lawyers Association of Los Angeles (WLALA) CLE Presentation, "The Anatomy of a Class Action." Los Angeles, CA, February 2008.

k. Faculty Panelist, Practicing Law Institute (PLI) CLE Presentation, 11th Annual Consumer Financial Services Litigation. Presentation: Class Action Settlement Structures — "Evolving Notice Standards in the Internet Age." New York/Boston (simulcast) March, 2006; Chicago, April, 2006; and San Francisco, May 2006.

1. Expert Panelist, U.S. Consumer Product Safety Commission. I was the only legal notice expert invited to participate as an expert to the Consumer Product Safety Commission to discuss ways in which the CPSC could enhance and measure the recall process. As an expert panelist, I discussed how the CPSC could better motivate consumers to take action on recalls and how companies could scientifically measure and defend their outreach efforts. Bethesda, MD, September 2003.

m. Expert Speaker, American Bar Association. Presentation: "How to Bullet-Proof Notice Programs and What Communication Barriers Present Due Process Concerns in Legal Notice," ABA Litigation Section Committee on Class Actions & Derivative Suits, Chicago, August 6, 2001.

17. A comprehensive description of my credentials and experience that qualify me to provide expert opinions on the adequacy of class action notice programs is attached as Exhibit A.

Notice Program Methodology

18. To appropriately design and target the notice publication component of the Notice Program, we have used a scientific methodology that is used throughout the advertising industry and that has been embraced by courts in the United States. See Daubert v. Merrell Dow Pharmaceuticals 509 U.S. 579 (1993) (experts must apply a technique that may be tested by peers and use industry accepted methodology); Kumho Tire Co. v. Carmichael 526 U.S. 137 (1999) (same). This methodology has been accepted by numerous Courts throughout the United States. Accordingly, my staff and I studied data provided by nationally syndicated media research bureaus, including GfK Mediamark Research and Intelligence, LLC ("GfK MRI"), comScore2 in order to determine the estimated net audience reached through this legal notice program.

Notice Program Implementation

19. In compliance with the Order, the Notice program commenced on August 25, 2014 and was substantially completed on September 25, 2014. The elements of this comprehensive Notice Program included: 1) notice by direct mail and email; 2) notice by publication; 3) notice by Internet and mobile advertising; 4) a Facebook page; 5) a Settlement website; and 6) toll-free information telephone number.

Mailed Notice

20. In compliance with the Order, on or about August 6, 2014, Heffler received via a secure portal, 47,493,058 name, address and BML phone number records from defense counsel Sidley Austin, LLP. Heffler identified 15,981,302 records in the client data that had bad phone numbers and removed those records from any further analysis, leaving 31,511,756 records to further review. Heffler analyzed the remaining 31,511,756 records and identified all the unique records using a combination of account number, phone number, name and address. This analysis yielded a dataset of 2,037,692 records. These 2,037,692 records were analyzed by Heffler to formulate a Final Class List. Heffler prepared a file containing 2,037,692 records and sent it to LexisNexis ("Lexis") with specific implementation instructions for performing a reverse phone look-up. Lexis then conducted the reverse look-up that encompassed the Class Period of June 15, 2008 to July 24, 2014. Lexis was directed to identify all of the names and addresses associated with a phone number during the class period. If more than one name was associated with the phone number during the period, Lexis sent the relevant data for each of the names associated with the phone number. Lexis provided Heffler with an output file containing 2,585,994 records following the reverse phone look-up. Lexis then culled the data for records that matched the look-up critical for owners during the Class Period, June 15 2008 through July 24, 2014. Lexis returned 691,180 records that did not match the criteria during the trace process, leaving 1,894,814 records from Lexis that matched the look-up criteria and owned the phone number at any time during the Class Period. These 1,894,814 records were then used to perform a matching comparison with the original data that was provided to Heffler on August 6, 2014. For each of the 1,894,814 Lexis output records, Heffler matched a combination of the phone number and the surname to the same in the original data. If the phone number and surname combination matched a record in the original data set, the Lexis record was considered a "match" and no further action was taken; 1,514,815 records were noted to be in this category. If the phone number and surname combination did not match a record in the original data set, the Lexis record was noted as "unmatched" and those unmatched records were used in formulating the final class list; 379,999 records were noted to be in the "unmatched" category. The 379,999 "unmatched" records then went through a de-duplication process to identify unique records for our final class list. Any class member that had a distinct combination of phone number, name and address were considered unique based on the aforementioned criteria and the final class list of 308,807 records was compiled.

21. In preparation for the Notice mailing, Heffler sent the 308,807 Final Class List records through the U.S. Postal Services, National Change of Address Database ("NCOA"), in an effort to identify current addresses for the records. On September 12, 2014, notices were mailed to the 308,807 members of the Final Class List. Attached as Exhibit B is a Class Notice and Claim Form sent to the Final Class List.

22. On August 6, 2014 Heffler was also provided via a secure portal 34,256 records with email addresses for potential class members. On September 12, 2014, Heffler emailed a Class Notice to 34,256 records. Of the 34,256 emails that were sent, 7,341 records bounced back, and therefore were not delivered. Attached as Exhibit C is the notice sent via email.

23. As of October 31, 2014, Heffler has received 60,348 notices returned as undeliverable. 57,375 of the undeliverable records have been sent through an address trace process with LexisNexis. The trace process produced 37,517 records with an address update. Heffler has re-mailed notices to the 37,517 records with updated addresses.

24. As of October 31, 2014, Heffler has received 1,136 notices returned with a forwarding address provided by the United States Postal Service. Heffler has updated the address in the claims databases and has re-mailed notices to all 1,136 records.

25. Heffler is also responsible for the receipt of Objection and Exclusion Requests for the Settlement. As of this October 31, 2014, Heffler has received thirty-two (32) Exclusion Requests and zero (0) Objections.

Notice by Publication Program as Implemented

26. In compliance with the Order, notice by publication was to occur as described in Exhibit E to the Settlement Agreement. This requirement has been successfully accomplished.

27. Broad nationwide notice was accomplished through publication of the Summary Notice one time in Sports Illustrated and two times in People Magazine. Sports Illustrated is a widely distributed weekly magazine with a circulation of 3,065,507 and 19,680,554 readers. People Magazine reports a circulation of 3,637,633 with over 44,415,498 readers. In combination, the magazine circulation totals 6,703,140, with more then 64,096,052 readers3. Attached as Exhibit D are tear sheet proofs of publication for these titles.

Internet Banner Ads

28. In compliance with the Court's Order, Internet banner ads were posted on the sites identified below. The banners were posted over a one-month period and were estimated to have reached over 37 percent of US Adults who own cell phones. Banner ads provided information for visitors to self-identify themselves as potential Class Members, where they then could "click" on the banner and then link directly to the official website for more information and where they could register online, or download the registration form. If class members had additional questions, the toll-free information line was also posted on the website. Attached as Exhibit E are screen shots of banner ads as they appeared online.

Social Media Outreach

29. In compliance with the Court's Order, a Facebook Page was created where Court information about the settlement was posted.

Website

30. In compliance with the Order, the Notice Program included an official website www.AutoPhoneCallsSettlement.com that went live on August 22, 2014. The website served as a "landing page for the banner advertising," where Class Members may continue to obtain further information about the class action, their rights, download claim forms and related information, including the Settlement Agreement, Court Orders, and Plaintiff's Motion for Approval of Fees, Expenses, and Incentive Awards. To date, over 29,000 claims were filed via the settlement website. Additionally, website visitors were able to enter telephone number which received the automated calls, phone carrier, name and address information, email to determine eligibility. Visitors were also asked to certify that their claim forms were true and correct by checking a box and electronically signing the form. The website address was prominently displayed in the publication notice and is accessible 24-hours a day, 7-days a week. As of October 31, 2014 the site has received 40,011 visits.

Telephone Helpline

31. Heffler also maintains a 24-hour toll-free telephone line, 1.844.245.3766, where callers may obtain information about the class action. As of October 31, 2014 the toll free line has received 3,703 calls.

Exclusions and Objections

32. Class members were advised they had the right to exclude themselves from or object to the Settlement, provided that they file a Request for Exclusion or Objection by the October 23, 2014 deadline. As of October 31, 2014, Heffler has received requests from 32 class members to be excluded from the settlement. Heffler has received no Objections to the Settlement.

Conclusion

33. As a result of the highly effective and robust efforts conducted in our reverse look up process to identify class members, the direct mail and email effort significantly exceeded our original projections. Therefore, the combination of paid media and direct notice is now estimated to have reached over 95 percent of targeted class members. In my opinion, the efforts employed in this notice program were of the highest communication standards, which were reasonably calculated to provide notice that was not only consistent, but exceeded Best Practicable court approved notice programs in similar matters which are consistent with the Federal Judicial Center's guidelines concerning appropriate reach.

34. I declare under the penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on November 6, 2014 in Tigard, Oregon.

Exhibits to Declaration of Jeanne C. Finegan, APR

Concerning Implementation of Notification Program

Exhibit A: Jeanne Finegan Expert Qualifications

Exhibit B: Mailed Class Notice and Claim Form

Exhibit C: Emailed Notice

Exhibit D: Print Publication

Exhibit E: Internet Screenshots

Exhibit A

Exhibit B

NOTICE OF CLASS ACTION LAWSUIT AND PROPOSED SETTLEMENT

PLEASE READ THIS NOTICE CAREFULLY. IT EXPLAINS THAT YOU MAY BE ENTITLED TO RECEIVE A PAYMENT OF UP TO $500.00 FROM A CLASS ACTION SETTLEMENT. YOUR RIGHTS AND OPTIONS — AND THE DEADLINES TO EXERCISE THEM — ARE EXPLAINED IN THIS NOTICE.

THIS IS NOT NOTICE OF A LAWSUIT AGAINST YOU. THIS IS NOT A SOLICITATION FROM A LAWYER.

WHY DID I GET THIS NOTICE?

WHAT IS THIS LAWSUIT ABOUT?

WHY IS THIS A CLASS ACTION?

WHY IS THERE A SETTLEMENT?

WHAT DOES THE SETTLEMENT PROVIDE?

WHAT RIGHTS AM I GIVING UP IN THIS SETTLEMENT?

WHAT ARE MY OPTIONS?

(1) Accept the Settlement.

(2) Exclude yourself.

(3) Object to the Settlement.

You may appear at the Final Approval Hearing, to be held on November 20, 2014, at 1:30 p.m., in Courtroom 1403 of the Everett McKinley Dirksen United States Courthouse, 219 South Dearborn Street, Chicago, IL 60604 in person or through counsel to show cause why the proposed Settlement should not be approved as fair, reasonable, and adequate. Attendance at the hearing is not necessary; however, persons wishing to be heard orally in opposition to the approval of the Settlement, and/or the request for attorneys' fees and expenses, and/or the request for compensation awards to the Class Representatives are required to indicate in their written objection their intention to appear at the hearing on their own behalf or through counsel and to identify the names of any witnesses they intend to call to testify at the Final Approval Hearing, as well as to identify any exhibits they intend to introduce at the Final Approval Hearing.

(4) Do Nothing.

HOW MUCH WILL I BE PAID?

WHEN WILL I BE PAID?

WHAT WILL HAPPEN IF THE COURT DOES NOT APPROVE THE SETTLEMENT?

WHO REPRESENTS THE CLASS?

WHERE CAN I GET ADDITIONAL INFORMATION?

DATED: July 24, 2014

By order of: Honorable Sarah L. Ellis, District Court Judge, United States District Court, Northern District of Illinois

BILL ME LATER SETTLEMENT PROOF OF CLAIM FORM

To receive a payment up to $500 from the Settlement Fund you must complete and return this Claim Form by December 11, 2014.

A Claim Form can be submitted using one of the following methods:

1. Online by visiting www.Autophonecallssettlement.com and completing an online Claim Form no later than midnight, U.S. Eastern Standard Time, on December 11, 2014.

2. By mail to the Settlement Administrator, completed, signed, and postmarked no later than December 11, 2014, sent to the following address: MURRAY v. BILL ME LATER, C/O HEFFLER CLAIMS GROUP, P.O. BOX 360, PHILADELPHIA, PA 19105-0360.

3. By email to the Settlement Administrator at info@Autophonecallssettlement.com no later than midnight, U.S. Eastern Standard Time, on December 11, 2014. If you use email, you must send the Claim Form in a format that includes a legible signature.

IMPORTANT NOTE: You must submit a Claim Form by mil, email or submit the Claim Form online to receive payment. Each Settlement Class Member is entitled to make only one claim regardless of the number of telephone calls received.

You must fully complete the following information by printing below your (i) name, (ii) address, (iii) telephone number that you believe was called without your consent by or on behalf of Bill Me Later between June 15, 2008 and July 24, 2014, and (iv) the name of the telephone carrier for that telephone number during the time period when you received the automated calls, and then sign and date the form.

I hereby certify that automated calls from Bill Me Later were received on the telephone number listed above, that I was the authorized user of the telephone number listed above when those automated calls from Bill Me Later were received, and that I did not consent to receive automated calls from Bill Me Later at the time the calls were made.

I certify that this is true and correct. I understand that the Settlement Administrator has the right to verify my responses with my telephone carrier or otherwise and to dispute any claims that are based on inaccurate responses.

Exhibit C

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

NOTICE OF CLASS ACTION LAWSUIT AND PROPOSED SETTLEMENT PLEASE READ THIS NOTICE CAREFULLY. IT EXPLAINS THAT YOU MAY BE ENTITLED TO RECEIVE A PAYMENT OF UP TO $500.00 FROM A CLASS ACTION SETTLEMENT. YOUR RIGHTS AND OPTIONS — AND THE DEADLINES TO EXERCISE THEM — ARE EXPLAINED IN THIS NOTICE. THIS IS NOT NOTICE OF A LAWSUIT AGAINST YOU. THIS IS NOT A SOLICITATION FROM A LAWYER.

WHY DID I GET THIS NOTICE?

This is a Court-authorized notice of a proposed settlement ("Notice") in a class action lawsuit. The settlement would resolve a lawsuit brought on behalf of individuals who allege they received, but did not consent to receive, automated telephone calls made by persons or entities working on behalf of Bill Me later, Inc. ("Bill Me Later"). This lawsuit relates only to such calls that were made without the called party's consent and that were made to either (1) a cellular phone using an automatic telephone dialing system, or (2) a cellular or landline phone using an artificial or prerecorded voice. If you are receiving this Notice by mail, you have been identified as someone who may have received one of these automated telephone calls between June 15, 2008 and July 24, 2014.

WHAT IS THIS LAWSUIT ABOUT?

The lawsuit alleges that Bill Me Later and its agents violated the federal Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, by making automated or prerecorded telephone calls to called parties who did not give consent to receive such calls. Bill Me Later contests the claims in the Complaint and denies that it violated the TCPA.

WHY IS THIS A CLASS ACTION?

In a class action, one or more people called "Class Representatives" sue on behalf of people who have similar claims. All of these people together are a "Settlement Class" or "Settlement Class Members." The Settlement, if approved by the Court, resolves the issues for all Settlement Class Members, except for those who exclude themselves from the Settlement Class.

WHY IS THERE A SETTLEMENT?

The Court did not decide in favor of the Plaintiffs or the Defendant. Instead, both sides have agreed to a Settlement. The Settlement avoids the cost, risk and delay of trial, and Settlement Class Members will get compensation now rather than, if at all, years from now. Under the Settlement, Settlement Class Members will have the opportunity to obtain a payment in exchange for giving up certain legal rights. The Class Representatives and their attorneys believe the Settlement is best for all Settlement Class Members. Bill Me Later has not conceded it is liable, but is instead agreeing to settle to avoid the costs and risks associated with litigation.

WHAT DOES THE SETTLEMENT PROVIDE?

The total amount of the Settlement Fund is $9,900,000. The cost to administer the Settlement (including the cost of processing Claim Forms and mailing Settlement checks), the cost to inform people about the Settlement (including the cost of publishing and mailing the Notice and maintaining the Settlement website), and attorneys' fees and expenses of Class Counsel and payments to the Class Representatives will come out of these funds. The amount remaining after deducting these costs will be paid to eligible Settlement Class Members who submit valid Claim Forms, up to a maximum of $500.00 per claimant. The lawyers who brought this lawsuit (listed below) will ask the Court to award them attorneys' fees of $3.3 million plus their expenses in an amount not to exceed $100,000 for the substantial time, costs, and effort they put into this case. The Class Representatives also will apply to the Court for payments, in the total amount of $30,000 each for their service to the Settlement Class.

WHAT RIGHTS AM I GIVING UP IN THIS SETTLEMENT?

Unless you exclude yourself from this Settlement, you will be considered a member of the Settlement Class, which means you give up your right to file or continue a lawsuit against Bill Me Later, certain of its agents, and/or banks that extend or have extended credit under the Bill Me Later Program ("Released Parties"), arising from automated telephone calls made by or on behalf of Bill Me Later. Giving up your legal claims is called a release. The precise terms of the release are set forth in the Settlement Agreement, which is available on the settlement website listed below. Unless you formally exclude yourself from this Settlement, you will release your claims whether or not you submit a Claim Form and receive payment. If you have any questions, you can talk for free to the attorneys identified below who have been appointed by the Court to represent the Settlement Class, or you are welcome to talk to any other lawyer of your choosing.

WHAT ARE MY OPTIONS?

(1) Accept the Settlement.

To accept the Settlement, send in a complete Claim Form by December 11, 2014. A Claim Form is enclosed with this Notice. You also may obtain a Claim Form at www.AutoPhoneCallsSettlement.com, and you have the option of submitting your claim form online at the same website. You also may email the completed Claim Form to the Settlement Administrator at info@AutoPhoneCallsSettlement.com<mailto:info@AutoPhoneCallsSettlement.com> If the Settlement is approved, and you have submitted a valid claim, a check will be mailed to you. Submitting a valid and timely Claim Form is the only way to receive a payment from this Settlement, and is the only thing you need to do to receive a payment.

(2) Exclude yourself.

You may exclude yourself from the Settlement. If you do so, you will not receive any cash payment, but you will not release any claims you may have against the Released Parties and are free to pursue whatever legal rights you may have by pursuing your own lawsuit against the Released Parties at your own risk and expense. To exclude yourself from the Settlement, you must mail a signed letter to the Settlement Administrator at MURRAY v. BILL ME LATER, C/O HEFFLER CLAIMS GROUP, P.O. BOX 360, PHILADELPHIA, PA 19105-0360, postmarked by October 23, 2014. You may also exclude yourself online at www.AutoPhoneCallsSettlement.com. The exclusion letter must state that you exclude yourself from this Settlement and must include the name and case number of this litigation, as well as your full name, address, and the telephone numbers at which you received a call made by or on behalf of Bill Me Later.

(3) Object to the Settlement.

If you wish to object to the Settlement, you must submit your objection in writing to the Clerk of the Court of the United States District Court for the Northern District of Illinois, Everett McKinley Dirksen United States Courthouse, 219 South Dearborn Street, Chicago, IL 60604. The objection must be received by the Court no later than October 23, 2014. You must also send a copy of your objection to the attorneys for both Parties to the lawsuit, including at least one of the attorneys representing the Settlement Class (set forth below), as well as the attorneys representing Bill Me Later (Mark Blocker, Sidley Austin LLP, 1 South Dearborn St., Chicago, IL 60603), postmarked no later than October 23, 2014. Any objection to the proposed Settlement must include your full name; address; the telephone number(s) at which you received a call by made or on behalf of BML; the telephone carrier associated with each such identified telephone number; whether each identified telephone number is a cellular phone or a residential landline; and all grounds for the objection with factual and legal support for the stated objection.

You may appear at the Final Approval Hearing, to be held on November 20, 2014, at 1:30 p.m., in Courtroom 1403 of the Everett McKinley Dirksen United States Courthouse, 219 South Dearborn Street, Chicago, IL 60604 in person or through counsel to show cause why the proposed Settlement should not be approved as fair, reasonable, and adequate. Attendance at the hearing is not necessary; however, persons wishing to be heard orally in opposition to the approval of the Settlement, and/or the request for attorneys' fees and expenses, and/or the request for compensation awards to the Class Representatives are required to indicate in their written objection their intention to appear at the hearing on their own behalf or through counsel and to identify the names of any witnesses they intend to call to testify at the Final Approval Hearing, as well as to identify any exhibits they intend to introduce at the Final Approval Hearing.

(4) Do Nothing.

If you do nothing, you will receive no money from the Settlement Fund. Unless you exclude yourself from the Settlement, you will not be able to file or continue a lawsuit against the Released Parties regarding any released claims. Submitting a valid and timely Claim Form is the only way to receive a payment from this Settlement.

HOW MUCH WILL I BE PAID?

If the Court approves the Settlement, every Settlement Class Member who submits a timely and valid Claim Form will be entitled to an equal payment from the Settlement Fund. Each Settlement Class Member is entitled to make only one claim regardless of the number of telephone calls received. It is estimated based on typical response rates that each claimant is likely to receive between $75.00 and $150.00, but the amount could be higher or lower based on the actual number of valid Claim Forms submitted by Settlement Class Members. However, in no event will you be entitled to receive more than the statutory maximum of $500.00.

WHEN WILL I BE PAID?

If the Court finally approves the Settlement, you will be paid as soon as possible after the court order becomes final, which should be within 90 days after the Settlement has been finally approved. If there is an appeal of the Settlement, payment will likely be delayed. The Settlement Administrator will include information about the timing of payment at www.AutoPhoneCallsSettlement.com<http://del2.com/url/1522920/2961b27/>. All checks issued to Settlement Class Members will expire and become void 180 days after they are issued. Any uncashed checks issued from the Settlement Fund will be donated to charitable or non-profit organizations approved by the Court.

WHAT WILL HAPPEN IF THE COURT DOES NOT APPROVE THE SETTLEMENT?

If the Court does not approve the Settlement, if it approves the Settlement and the approval is reversed on appeal, or if the Settlement does not become final for some other reason, you will not be paid at this time and the case will continue, which may or may not be in the form of a class action. The Parties may negotiate a different settlement or the case may proceed forward.

WHO REPRESENTS THE CLASS?

The attorneys who have been appointed by the Court to represent the Class are:

WHERE CAN I GET ADDITIONAL INFORMATION?

This Notice is only a summary of the proposed Settlement of this lawsuit. More details are in the Settlement Agreement which, along with other documents, can be obtained at www.AutoPhoneCallsSettlement.com<http://del2.com/url/1522921/2961b27/>. If you have any questions, you can also call the Settlement Administrator at 1-844-245-3766 or Class Counsel at the numbers set forth above. In addition to the documents available on the case website, all pleadings and documents filed in Court may be reviewed or copied in the Office of the Clerk. Please do not call the Judge or the Clerk of the Court about this Case. They will not be able to give you advice on your options.

Click Here to Submit or Download a Claim Form https://www.autophonecallssettlement.com/claim/<http://del2.com/url/1522922/2961b27/>

DATED: July 24, 2014

By order of: Honorable Sarah L. Ellis, District Court Judge, United States District Court, Northern District of Illinois

QUESTIONS? VISIT WWW.AUTOPHONECALLSSETTLEMENT.COM<http://del2.com/url/1522923/2961b27/> OR CALL TOLL FREE 1-844-245-3766. PARA UNA NOTIFICACION EN ESPANOL, LLAMAR OR VISITAR NUESTRO WEBSITE.

MURRAY v. BILL ME LATER | C/O HEFFLER CLAIMS GROUP | P.O. BOX 360 | PHILADELPHIA, PA | 19105-0360 top

Click here<http://del2.com/mailprefs/335f6e8/2961b27/> to update your information or stop future mailings.

Exhibit D

Exhibit E

Exhibit C

DECLARATION OF MICHAEL J. McMORROW

I, MICHAEL J. McMORROW, pursuant to 28 U.S.C. § 1746, hereby declare as follows:

1. I am over the age of eighteen and am fully competent to make this declaration. I make this Declaration based upon personal knowledge unless otherwise indicated.

2. I am an attorney admitted to practice in the State of Illinois and in the United States District Court for the Northern District of Illinois, and other federal district courts. I make this Declaration in support of Plaintiffs' Motion for Final Approval of Class Action Settlement.

3. I am the principal of McMorrow Law, P.C., and I, along with Myles McGuire and Evan Meyers of McGuire Law, P.C., have been appointed as Class Counsel in this matter, representing Plaintiffs Misty Murray and Shaun Murray ("Plaintiffs"), and the Settlement Class.

4. All capitalized terms in this Declaration have the same meaning set forth in the simultaneously filed Plaintiffs' Motion & Memorandum in Support of Final Approval of Class Action Settlement.

5. I have regularly engaged in major complex litigation on behalf of consumers, and have extensive experience in class action lawsuits that are similar in size and complexity to the present case. I have been appointed as class counsel in numerous consumer class actions.

6. I have extensive experience in prosecuting consumer class actions involving the TCPA in particular. See, e.g., Satterfield v. Simon & Schuster (N.D. Cal. 2010); Lozano v. Twentieth Century Fox (N.D. Ill. 2011); Kramer v. Autobytel (N.D. Cal. 2011); Rojas v. Career Education Co. (N.D. Ill. 2012); and In re Jiffy Lube Spam Text Litigation, (S.D. Cal. 2012).

7. Through the investigation, litigation, mediation, and settlement process, I have gained an intimate understanding of the instant litigation and believe the Settlement to more than exceed the "fair, adequate, and reasonable" standard required for the Court's approval.

8. In litigating this case, the other Class Counsel and I were required to conduct substantial investigation into the claims in this case, to engage in significant discovery relating to class certification issues and significant legal research regarding untested questions in the class certification context, including several depositions in Chicago and in Baltimore, to prepare for and attend two separate mediations, to draft a comprehensive settlement agreement, to prepare preliminary approval papers and accompanying exhibits, including the Class Notices and several declarations, and to prepare the instant final approval papers. I did all of this work on behalf of the Plaintiffs and the Class without compensation and requiring that other work be foregone.

9. On January 28, 2014, I, along with other Counsel for the Parties, participated in a formal mediation with Hon. Edward A. Infante (ret.), former Chief Magistrate Judge of the U.S. District Court for the Northern District of California, at JAMS in San Francisco, CA. After a day-long mediation, the Parties were unable to reach an agreement. At that time, Judge Infante made a proposal of a negotiating range, which was accepted by both Parties. As a result, the Parties agreed to return to San Francisco for an additional day-long mediation on March 13, 2014. The Parties reached an agreement in principle to resolve the case at the second mediation.

10. Despite this agreement in principal, the Settlement Agreement was not finalized until Class Counsel negotiated the specific terms of the Settlement Agreement with counsel for the Defendant in the months that followed, together with assistance and guidance from Judge Infante. Eventually, these discussions culminated in the Settlement Agreement.

11. Only after the relief to the Class was agreed-upon and several drafts of settlement papers had been exchanged, did the Parties decide upon the amount of attorneys' fees or incentive awards.

12. Class Representatives Misty Murray and Shaun Murray brought this matter to the attention of Class Counsel, and remained vitally involved in this litigation from the outset. Their continued attentive involvement was critical to the ultimate successful resolution of this matter to the benefit of the Settlement Class. The Class Representatives showed a strong commitment to the Class and this action by assisting Class Counsel in answering lengthy discovery, sitting for depositions, and aiding in preparation for the mediations that resulted in this Settlement. I believe that, but for the participation of the Class Representatives, the substantial benefit to the Class available through the Settlement would not have resulted.

13. Prior to the mediations, the Parties never discussed incentive awards of any type, and there was no pre-agreement with the Class Representatives concerning any award for being a class representative or bringing the suit.

14. To my knowledge, which has been confirmed by Defendant's counsel, Mark Blocker, no Attorney General has filed or otherwise indicated any objection to the Settlement or any aspect of it.

15. After submitting the Settlement to this Court and receiving preliminary approval on July 24, 2014, the Parties and the Settlement Administrator began the process of effectuating the Notice Plan and responding to inquiries from Settlement Class Members.

16. Records produced to me by the Settlement Administrator indicate that, as of October 31, 2014, 41,865 Claim Forms have been received by the Settlement Administrator.

17. I have spoken with over 200 Settlement Class Members by phone in connection with the Settlement in this action since the Settlement Administrator distributed notice to the Settlement Class. None of the Settlement Class Members with whom I spoke indicated any dissatisfaction with the Settlement, and the overwhelming majority indicated approval of the Settlement and that they intended to file claims with the Settlement Administrator. In addition, no Settlement Class Members have objected to me, in writing or by phone, regarding the Fee Motion or the fees, expenses and Incentive Awards requested therein, in the month since I filed that Motion.

18. Because of the complexity and novelty of the legal issues involved in this case, the considerable defenses that Defendant and its highly skilled counsel raised and promised to raise in the litigation, as well as Defendant Bill Me Later's indication that absent a settlement it will continue pursuing these arguments and defenses, I believe that the Settlement Agreement provides a substantial benefit to the Settlement Class and is fair, reasonable and adequate.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Executed in Chicago, Illinois on November 6, 2014.

Exhibit D

DECLARATION OF EVAN M. MEYERS

I, EVAN M. MEYERS, pursuant to 28 U.S.C. § 1746, hereby declare as follows:

1. I am over the age of eighteen and am fully competent to make this declaration. I make this Declaration based upon personal knowledge unless otherwise indicated.

2. I am an attorney admitted to practice in the State of Illinois and in the United States District Court for the Northern District of Illinois, and other federal district courts. I make this Declaration in support of Plaintiffs' Motion for Final Approval of Class Action Settlement.

3. I am a partner at the law firm of McGuire Law, P.C. and I, along with Myles McGuire of my firm and Michael J. McMorrow of McMorrow Law, P.C., have been appointed as Class Counsel in this matter, representing Plaintiffs Misty Murray and Shaun Murray ("Plaintiffs"), as well as the Settlement Class.

4. All capitalized terms in this Declaration have the same meaning set forth in the simultaneously filed Plaintiffs' Motion & Memorandum in Support of Final Approval of Class Action Settlement.

5. My firm has regularly engaged in major complex litigation on behalf of consumers, and has extensive experience in class action lawsuits that are similar in size and complexity to the present case. Myles McGuire and I have also been appointed as class counsel in numerous complex consumer class actions.

6. Our firm also has extensive experience in prosecuting consumer class actions involving the TCPA in particular. The first federal circuit court opinion authorizing consumer suits for unauthorized text messages was litigated by the attorneys of McGuire Law at their previous firm, and subsequent reported opinions in multiple federal districts regarding the TCPA have also been litigated by the attorneys of McGuire Law. See, e.g., Weinstein v. The Timberland Co., et al. (N.D. Ill. 2008); Satterfield v. Simon & Schuster (N.D. Cal. 2010); Lozano v. Twentieth Century Fox (N.D. Ill. 2011); Kramer v. Autobytel (N.D. Cal. 2011); Rojas v. Career Education Co. (N.D. Ill. 2012); In re Jiffy Lube Spam Text Litigation, (S.D. Cal. 2012); Lee v. Stonebridge Life Ins. Co. et al., (N.D. Cal 2013).

7. Through the investigation, litigation, mediation, and settlement process, I, along with the other attorneys and employees of McGuire Law, have gained an intimate understanding of the instant litigation and believe the Settlement to more than exceed the "fair, adequate, and reasonable" standard required for the Court's approval.

8. In litigating this case, Class Counsel were required to conduct substantial investigation into the claims in this case, to engage in significant discovery relating to class certification issues and significant legal research regarding untested questions in the class certification context, to prepare for and attend two separate mediations, to draft a comprehensive settlement agreement, to prepare preliminary approval papers and accompanying exhibits, including the Class Notices and several declarations, and to prepare the instant final approval papers. Class Counsel also invested substantial time speaking with class members who called with questions and comments about the Settlement. All of this work was done on behalf of the Plaintiffs and the Class without compensation and requiring that other work be foregone.

9. On January 28, 2014, I along with other Counsel for the parties participated in a formal mediation with Hon. Edward A. Infante (ret.), former Chief Magistrate Judge of the U.S. District Court for the Northern District of California, at JAMS in San Francisco, CA. After a day-long mediation, the Parties were unable to reach an agreement. At that time, Judge Infante made a proposal of a negotiating range, which was independently accepted by both Parties. As a result, the Parties agreed to return to San Francisco for an additional day-long mediation on March 13, 2014. The Parties reached an agreement in principle to resolve the case at the second mediation.

10. Despite this agreement in principal, the Settlement Agreement was not finalized until Plaintiffs' counsel negotiated the specific terms of the Settlement Agreement with counsel for the Defendant in the months that followed, together with assistance and guidance from Judge Infante. Eventually, these discussions culminated in the Settlement Agreement.

11. Only after the relief to the Class was agreed-upon and several drafts of settlement papers had been exchanged, did the Parties decide upon the amount of attorneys' fees or incentive awards.

12. Class Representatives Misty Murray and Shaun Murray brought this matter to the attention of the lawyers of my firm, and remained vitally involved in this litigation from the outset. Their continued attentive involvement was critical to the ultimate successful resolution of this matter to the benefit of the Settlement Class. The Class Representatives showed a strong commitment to the Class and this action by assisting Class Counsel in answering lengthy discovery, sitting for depositions, and aiding in preparation for the mediations that resulted in this Settlement. I believe that, but for the participation of the Class Representatives, the substantial benefit to the Class available through the Settlement would not have resulted.

13. Prior to the mediations, the Parties never discussed incentive awards of any type, and there was no pre-agreement with the Class Representatives concerning any award for being a class representative or bringing the suit.

14. To my knowledge, which has been confirmed by Defendant's counsel, Mark Blocker, no Attorney General has filed or otherwise indicated any objection to the Settlement or any aspect of it.

15. After submitting the Settlement to this Court and receiving preliminary approval on July 24, 2014, the Parties and Settlement Administrator Heffler Claims Group began the process of effectuating the Notice Plan and responding to inquiries from Settlement Class Members.

16. I believe that the claims of the Class Representatives and Settlement Class Members are strong, and that if this case were to proceed to either the summary judgment or trial stages of litigation, we would likely succeed on the merits.

17. However, several variables remain that support the Parties' decision to enter into settlement, including the complexity of the case, the uncertainties involved in the class certification context, the amount in controversy, the stage of the litigation, and the presence of highly-experienced and skilled defense counsel from a top-tier national defense firm, dedicated to pursuing the defense of this action in the absence of settlement.

18. I am certain that were this litigation to continue, both sides would spend a considerable amount of time and money in labor and expenses in briefing a class certification motion, the almost certain appeal of that class certification motion by the losing side, motions for summary judgment, preparing expert witness discovery, and then arguing and briefing numerous evidentiary and pre-trial motions. Further, in addition to the risks and uncertainties for both Parties of both a class certification decision and a trial, a trial would significantly increase the costs to both Parties, and would necessitate months of preparation and the calling of witnesses from across the country. And, given the sheer amount at controversy, it is absolutely certain that the losing party would appeal any decision on the merits, in addition to the appeal of class certification.

19. Thus, given the complexity and novelty of legal issues involved, the vigorous and nuanced defenses that Defendant and its highly skilled counsel raised and promised to raise in the litigation, as well as Defendant Bill Me Later's indication that absent a settlement it will continue pursuing these arguments and defenses, I believe that the Settlement Agreement provides a substantial benefit to the Settlement Class and is fair, reasonable and adequate.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Executed in Deerfield, Illinois on November 6, 2014.

Exhibit E

[PROPOSED] FINAL ORDER AND JUDGMENT

This matter coming to be heard on Plaintiffs' Unopposed Motion for Final Approval of Class Action Settlement ("Motion"), due and adequate notice having been given to the Settlement Class, and the Court having considered the papers filed and proceedings in this matter, IT IS HEREBY ORDERED, ADJUDGED and DECREED as follows:

1. All capitalized terms in this Final Order and Judgment shall have the same meaning as ascribed to them in the Settlement Agreement and Release ("Settlement Agreement"), unless otherwise noted.

2. This Court has jurisdiction over the subject matter of the Litigation and personal jurisdiction over all parties to the Litigation, including all Settlement Class Members.

3. The Court preliminarily approved the Settlement Agreement by Preliminary Approval Order dated July 24, 2014, and adequate notice was given to all members of the Settlement Class pursuant to the terms of the Preliminary Approval Order.

4. The Court has read and considered the papers filed in support of the Motion, including the Settlement Agreement and exhibits thereto and supporting declarations. The Court notes that there have been no objections filed with the Clerk of the Court by Settlement Class Members.

5. The Court held a Final Approval Hearing on November 20, 2014, at which time the Parties and all other interested persons were afforded the opportunity to be heard in support of and in opposition to the Settlement.

6. Based on the papers filed with the Court and the presentations made to the Court by the Parties and other interested persons at the Final Approval Hearing, the Court now gives final approval to the Settlement and finds that the Settlement Agreement is fair, adequate, reasonable, and in the best interests of the Settlement Class. The complex legal and factual posture of the Litigation, and the fact that the Settlement Agreement is the result of arms' length negotiations presided over by a neutral mediator, further support this finding.

7. Pursuant to Rules 23(c) and 23(b)(3), the Court finally certifies, for settlement purposes only, the following Settlement Class:

8. The persons who made timely and valid requests for exclusion are excluded from the Settlement Class and are not bound by this Final Order and Judgment. Annexed hereto as Appendix 1 is a schedule of all such persons excluded from the Settlement Class.

9. For settlement purposes only, Plaintiffs Misty Murray and Shaun Murray are hereby appointed as Class Representatives of the Settlement Class.

10. For settlement purposes only, the following counsel are hereby appointed as Class Counsel:

11. With respect to the Settlement Class, this Court finds for settlement purposes only that: (a) the Settlement Class as defined above is so numerous that joinder of all members is impracticable; (b) there are questions of law or fact common to the Settlement Class; (c) the claims of the Class Representatives are typical of the claims of the Settlement Class; (d) the Class Representatives and Class Counsel have adequately and fairly represented, and will continue to adequately and fairly represent, the interests of the Settlement Class; (e) questions of law and fact common to the Settlement Class Members predominate over questions affecting only individual Settlement Class Members; and (f) certification of the Settlement Class is superior to other available methods for the fair and efficient adjudication of the controversy.

12. The Court has determined that the Class Notice given to the Settlement Class Members, in accordance with the Preliminary Approval Order, fully and accurately informed Settlement Class Members of all material elements of the Settlement and constituted the best notice practicable under the circumstances, and fully satisfied the requirements of Federal Rule of Civil Procedure 23, applicable law, and Due Process.

13. The Court finds that BML properly and timely notified the appropriate state and federal officials of the Settlement Agreement pursuant to 28 U.S.C. § 1715. The Court has reviewed the substance of BML's notices and accompanying materials, and finds that they complied with all applicable requirements of 28 U.S.C. § 1715.

14. The Court orders the Parties to the Settlement Agreement to perform their obligations thereunder. The terms of the Settlement Agreement shall be deemed incorporated herein as if explicitly set forth and shall have the full force of an order of this Court.

15. The Court dismisses the Litigation with prejudice and without costs (except as otherwise provided herein and in the Settlement Agreement) as to Plaintiffs' and all Settlement Class Members' claims against BML. The Court adjudges that the Released Claims and all of the claims described in the Settlement Agreement are released against the Released Parties.

16. The Court adjudges that the Plaintiffs and all Settlement Class Members who receive a distribution from the Settlement Fund shall be deemed to have fully, finally and forever released, relinquished and discharged all Released Claims against the Released Parties, as defined by the Settlement Agreement. The Court further adjudges that each Settlement Class Member who did not timely and validly request exclusion from the Settlement, but for whatever reason does not receive a distribution from the Settlement Fund, has nonetheless received valid consideration in the form of the foregone opportunity to receive money, and they shall be deemed to have fully, finally and forever released, relinquished and discharged all Released Claims against the Released Parties.

17. The Released Claims specifically extend to claims that Plaintiffs and Settlement Class Members do not know or suspect to exist in their favor at the time that the Settlement Agreement, and the releases contained therein, become effective. The Court finds that Plaintiffs have, and the Settlement Class Members are deemed to have, knowingly waived the protections of California Civil Code § 1542 and any other applicable federal or state statute, case law, rule or regulation relating to limitations on releases.

18. The Court further adjudges that, upon entry of this Order, the Settlement Agreement and the above-described release of the Released Claims will be binding on, and have res judicata preclusive effect in, all pending and future lawsuits or other proceedings maintained by or on behalf of Plaintiffs and all other Settlement Class Members who did not validly and timely opt out of the Settlement, and their respective affiliates, assigns, heirs, executors, administrators, successors and agents. The Released Parties may file the Settlement Agreement and/or this Final Order and Judgment in any action or proceeding 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.

19. Plaintiffs and Settlement Class Members who did not validly and timely request exclusion from the Settlement are permanently barred and enjoined from asserting, commencing, prosecuting or continuing any of the Released Claims or any of the claims described in the Settlement Agreement against anyone.

20. The Court approves payment of attorneys' fees, costs and expenses to Class Counsel in the amount of $_______. This amount shall be paid from the Settlement Fund in accordance with the terms of the Settlement Agreement. The Court, having considered the materials submitted by Class Counsel in support of final approval of the Settlement and their request for attorneys' fees, costs and expenses and in response to any timely filed objections thereto, finds the award of attorneys' fees, costs and expenses appropriate and reasonable for the following reasons: First, the Court finds that the quantifiable value of the Settlement is at least $9.9 million. The Court therefore considers the Settlement to provide substantial benefits to the Settlement Class. Second, the Court finds the payment fair and reasonable in light of the substantial work performed by Class Counsel. Third, the Court concludes that the Settlement was negotiated at arms' length without collusion, and that the negotiation of the attorneys' fees only followed agreement on the settlement benefits for the Settlement Class Members. Finally, the Court notes that the Class Notice specifically and clearly advised the Settlement Class that Class Counsel, as a group, would seek an award in the amount sought.

21. The Court approves the incentive award of $____________ each for Class Representatives Misty Murray and Shaun Murray and specifically finds such amount to be reasonable in light of the services performed by Plaintiffs for the Settlement Class, including taking on the risks of litigation and helping achieve the results to be made available to the Settlement Class. These amounts shall be paid from the Settlement Fund in accordance with the terms of the Settlement Agreement.

22. All checks issued to Settlement Class Members pursuant to the Settlement Agreement that are not cashed within 180 days of issuance shall be directed equally to a recipient or recipients which the Court will as appropriate cy pres recipients, if necessary. Likewise, to the extent there are any funds remaining from the Distributable Settlement Fund, including funds associated with uncashed checks mailed to Settlement Class Members and any funds that are not or cannot be distributed to Settlement Class Members for any reason, such funds shall be directed equally to the same recipients.

23. Neither this Final Order and Judgment nor the Settlement Agreement nor the payment of any consideration in connection with the Settlement shall be construed or used as an admission or concession by or against BML or any of the Released Parties of any fault, omission, liability, or wrongdoing, or of the validity of any of the Released Claims. This Final Order and Judgment is not a finding of the validity or invalidity of any claims in this Litigation or a determination of any wrongdoing by BML or any of the Released Parties. The final approval of the Settlement Agreement does not constitute any position, opinion, or determination of this Court, one way or the other, as to the merits of the claims or defenses of Plaintiffs, the Settlement Class Members, or BML.

24. Any objections to the Settlement Agreement are overruled and denied in all respects. The Court finds that no reason exists for delay in entering this Final Order and Judgment. Accordingly, the Clerk is hereby directed forthwith to enter this Final Order and Judgment.

25. The Parties, without further approval from the Court, are hereby permitted to agree to and adopt such amendments, modifications and expansions of the Settlement Agreement and its implementing documents (including all exhibits to the Settlement Agreement) so long as they are consistent in all material respects with the Final Order and Judgment and do not limit the rights of the Settlement Class Members.

26. Without affecting the finality of this Final Order and Judgment in any way, the Court retains jurisdiction over: (a) implementation and enforcement of the Settlement Agreement until the final judgment contemplated hereby has become effective and each and every act agreed to be performed by the parties hereto pursuant to the Settlement Agreement have been performed; (b) any other action necessary to conclude the Settlement and to administer, effectuate, interpret and monitor compliance with the provisions of the Settlement Agreement; and (c) all Parties to this Litigation and the Settlement Class Members for the purpose of implementing and enforcing the Settlement Agreement until each and every act agreed to be performed by the parties hereto pursuant to the Settlement Agreement have been performed. So ordered ___ this day of _________, 2014.

APPENDIX 1

(Exclusions from Settlement)