Settlement Agreement Is Intended by the Settling Parties to Fully, Finally, and Forever Resolve, Discharge and Settle the Released Claims
Total Page：16
File Type：pdf, Size：1020Kb
Warren and David A. Carney, Baker & Hostetler LLP. The Settlement Agreement is intended by the Settling Parties to fully, finally, and forever resolve, discharge and settle the Released Claims (as defined below), upon and subject to the terms and conditions hereof. I. THE LITIGATION. On May 5, 2017, Plaintiff David Orr instituted a civil action on behalf of a class of similarly affected persons against Inter-Continental Hotels Corporation and Intercontinental Hotels Group Resources, Inc., alleging that as a result of IHG’s security failures, he and the other class members had their payment card information stolen by hackers in the Data Security Incidents, as defined below, and, as a result, incurred damages (“the Litigation”). On July 10, 2017, Inter-Continental Hotels Corporation and InterContinental Hotels Group Resources, Inc. filed a motion to dismiss Orr’s complaint for failure to state a claim. On July 14, 2017, Plaintiffs David Orr and Henry Chamberlain filed their amended complaint. On August 4, 2017, Plaintiffs David Orr, Henry Chamberlain, Angela Mickel, and Jennifer Grady filed their Second Amended Complaint. Plaintiffs David Orr, Henry Chamberlain, Angela Mickel, and Jennifer Grady and Defendants are referred to as the Parties. On September 8, 2017, Inter- Continental Hotels Corporation and InterContinental Hotels Group Resources, Inc. moved to dismiss the Second Amended Complaint for failure to state a claim. The motion was fully briefed and was pending when the Settling Parties reached this Settlement. Representative Plaintiffs believe that the claims asserted in the Litigation, as set forth in the Second Amended Class Action Complaint, have merit. Representative Plaintiffs and Plaintiffs’ Counsel, however, recognize and acknowledge the expense and length of continued proceedings necessary to prosecute the Litigation against Defendants, including through further motion practice, trial, and potential appeals. Representative Plaintiffs and Plaintiffs’ Counsel also have 2 considered the uncertain outcome and the risk of continued litigation, as well as the significant difficulties and potential delays inherent in such litigation. Representative Plaintiffs and Plaintiffs’ Counsel are also mindful of their burden of proof and possible defenses to the claims asserted in the Litigation. Representative Plaintiffs and Plaintiffs’ Counsel believe the settlement set forth in this Settlement Agreement confers substantial benefits upon the Settlement Class (as defined below), particularly when balanced against the risks of continued litigation. Representative Plaintiffs and Plaintiffs’ Counsel have determined that the settlement set forth in this Settlement Agreement is fair, reasonable, and adequate, and in the best interests of the Settlement Class. For its part, IHG denies each and every claim and contention alleged against it in the Litigation. Nonetheless, IHG has concluded that further conduct of the Litigation could be protracted and expensive, and that it is desirable that the Litigation be fully and finally settled in the manner and upon the terms and conditions set forth in this Settlement Agreement. IHG has also taken into account the uncertainty and risks inherent in any litigation, and therefore determined that it is desirable and beneficial that the Litigation be settled in the manner and upon the terms and conditions set forth in this Settlement Agreement. NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and among Representative Plaintiffs, individually and on behalf of the Settlement Class, by and through Lead Class Counsel, and IHG that, subject to the approval of the Court, the Litigation and the Released Claims shall be finally and fully compromised, settled, and released, and the Litigation shall be dismissed with prejudice as to all Parties, upon and subject to the terms and conditions of this Settlement Agreement, as set forth in the following Terms of Settlement: 3 II. TERMS OF SETTLEMENT. 1. Definitions. As used in the Settlement Agreement, the following terms have the meanings specified below. 1.1 “Claims” means known claims and Unknown Claims (as defined in ¶ 1.23), actions, allegations, demands, rights, liabilities, and causes of action of every nature and description whatsoever, whether contingent or non-contingent, choate or inchoate, and whether at law or equity or under common law, civil law or statute. 1.2 “Data Security Incidents” means the malware intrusion incidents referred to in statements or announcements made by IHG on December 28, 2016, February 3, 2017, and April 14, 2017, and which occurred between August 1, 2016, and December 29, 2016. 1.3 “IHG” means Inter-Continental Hotels Corporation and InterContinental Hotels Group Resources, Inc., along with each of their parents, affiliates, subsidiaries, affiliated Persons, and any entities as described in ¶ 1.14. 1.4 “Effective Date” means the date by which all of the events and conditions specified in ¶ 1.5 hereof for the Judgment to become Final and in ¶ 9.1 have occurred or have been met. 1.5 “Final” means the occurrence of all of the following events: (i) the settlement pursuant to this Settlement Agreement is approved in final form by the Court; (ii) the Court has entered a Judgment (as that term is defined herein); (iii) the time to appeal or seek permission to appeal from the Judgment (by motion for an extension of time in which to file an appeal, or otherwise) has expired or, if appealed, the appeal has been dismissed in its entirety, or the Judgment has been affirmed in its entirety by the court of last resort to which such appeal may be taken, and such dismissal or affirmance has become no longer subject to further appeal or review. 4 Notwithstanding the above, no order of the Court or modification or reversal or appeal of any order of the Court concerning the amount(s) of any attorneys’ fees, costs, or expenses requested by Lead Class Counsel hereunder or awarded by the Court to Lead Class Counsel hereunder shall affect whether the Judgment is “Final” as defined in the preceding sentence, or any other aspect of the Judgment. 1.6 “Judgment” means a final judgment rendered by the Court, in the form attached hereto as Exhibit G, or a final judgment substantially similar to such form in substance. 1.7 “Lead Class Counsel” means Ben Barnow and Erich P. Schork, Barnow and Associates, P.C., and David J. Worley, Evangelista Worley LLC. 1.8 “Litigation” means Orr, et al. v. InterContinental Hotels Group, PLC, et al., No 17-cv-01622-MLB (N.D. Ga.). 1.9 “Notice Program” means the settlement notice program as set forth in the Declaration of Jeanne C. Finegan on Settlement Notice Procedures (“Decl.”), attached hereto as Exhibit A. 1.10 “Opt-Out Date” means twenty-one (21) days prior to the date set in the Detailed Notice for the Final Fairness Hearing, which shall be the date by which members of the Settlement Class must mail their requests to be excluded from the Settlement Class in order for that request to be effective. The postmark date shall constitute the date of mailing for these purposes. 1.11 “Plaintiffs’ Executive Committee” means John Yanchunis and Jean Martin, Morgan & Morgan Complex Litigation Group, Brian K. Herrington, Schlanger Law Group LLP, and Ranse M. Partin, Conley Griggs Partin LLP. 5 1.12 “Plaintiffs’ Counsel” means Lead Class Counsel, members of Plaintiffs’ Executive Committee, and James Evangelista of Evangelista Worley, LLC, Christopher D. Jennings of Johnson Vines PLLC, and Steven W. Teppler of Abbott Law Group, P.A. 1.13 “Person” means an individual, corporation, partnership, limited partnership, limited liability company or partnership, association, joint stock company, estate, legal representative, trust, unincorporated association, government or any political subdivision or agency thereof, and any business or legal entity, and their respective spouses, heirs, affiliates, subsidiaries, parents, attorneys, predecessors, successors, representatives, and/or assignees. 1.14 “Related Persons” means any past or present director, officer, employee, contractor, representative, attorney, or agent of IHG who has not been charged with a crime related to the Data Security Incidents. 1.15 “Released Claims” shall mean any and all Claims that either have been asserted or could have been asserted by any Settlement Class Member against any of the Released Persons based on, relating to, concerning or arising out of the allegations, facts, or circumstances alleged in the Litigation, and related to the Data Security Incidents. Without limitation of the foregoing, Released Claims specifically include Claims stemming from the Data Security Incidents that may have been or could have been asserted whether known or unknown, by any Settlement Class Member against any person or entity that could seek indemnification or contribution from any of the Released Persons in respect of such Claim. Released Claims shall not include the right of any Settlement Class Member or any Released Person to enforce the terms of the settlement contained in the Settlement Agreement. 1.16 “Released Persons” means IHG as that term is defined in ¶ 1.3 of this Agreement, as well as all insurers and/or reinsurers of IHG, any and all IHG franchisees, including all owners, 6 operators and managers of any IHG Branded Hotels (as defined in ¶ 1.24 of this Agreement) operating in the United States, as well as any other business partners and affiliates doing business with IHG in connection with the Data Security Incidents, and the Related Persons. 1.17 “Representative