Jackson et al v. Citrix Systems, Inc.

Exhibit Settlement Agreement and Release

Southern District of Florida, flsd-0:2019-cv-61350

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3 Exhibit 1 3 SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release ("Settlement Agreement" or "Agreement") is entered into by and between Lee Milligan, on behalf of himself and his minor son, Lindsey Howard, Kristi Jackson, Michelle Ramus, Charles Ramus, Brandon Sargent, and Natalie Young ("Plaintiffs"), individually and on behalf of Participating Settlement Class Members (as defined in Paragraph 30) (together "Plaintiffs"), and (2) Citrix Systems, Inc. ("Defendant" or "Citrix") (collectively the "Parties"), in the action In re: Citrix Data Breach Litigation, Case No. 19-cv- 61350, pending in the U.S. District Court for the Southern District of Florida. RECITALS WHEREAS, between May 24 and June 23, 2019, three proposed class action lawsuits were filed against Citrix in the U.S. District Court for the Southern District of Florida relating to a data breach disclosed by Citrix on or about March 8, 2019, potentially affecting certain Personal Information of current and former Citrix employees and, in some cases, their beneficiaries, dependents and others (the "Data Breach"). WHEREAS, on July 16, 2019, the Court entered an order consolidating the three related actions before the Honorable Roy K. Altman, United States District Judge, directing Plaintiffs to file a consolidated complaint, and setting a schedule for submitting applications for consideration as interim class counsel. (Doc. 16). On July 29, 2019, Plaintiffs filed a consolidated class action complaint. (Doc. 18). Citrix answered the complaint on August 22, 2019. (Doc. 23). WHEREAS, Citrix denies: a) the allegations and all liability with respect to any and all facts and claims alleged in the Action; b) that the class representatives in the Action and the class they purport to represent have suffered any damage; and c) that the Action satisfies the requirements to be tried as a class action under Federal Rule of Civil Procedure 23. WHEREAS, on September 26, 2019, the Court entered a scheduling order. (Doc. 28). The Court thereafter entered an order appointing interim class counsel. (Doc. 35). WHEREAS, the Parties exchanged initial disclosures, engaged in early-stage discovery, and agreed to engage the Honorable Jay C. Gandhi (United States Magistrate Judge, Ret.) of JAMS ADR as a mediator to oversee settlement negotiations in this Action. In advance of formal mediation, Citrix provided certain discovery. The Parties also exchanged detailed mediation briefs with their respective positions on the merits of the claims and class certification. WHEREAS, following extensive arm's length settlement negotiations conducted through Judge Gandhi that included an all-day mediation session on March 26, 2020, the Parties executed a binding term sheet setting forth the essential terms of settlement. On March 30, 2020, the Court entered an order vacating pending motions, pretrial deadlines, and the trial date in light of settlement. (Doc. 42). NOW, THEREFORE, in exchange for the mutual promises and valuable consideration provided for in this Agreement, and without any admission or concession by either Party, the 1 3 Parties agree to a full, complete, and final settlement and resolution of the Action, subject to Court approval, on the following terms and conditions: I. DEFINITIONS In addition to terms defined at various points within this Agreement, the following defined terms shall have the meanings set forth below: 1. "Action" means the consolidated class action lawsuit captioned In re: Citrix Data Breach Litigation, Case No. 19-cv-61350, currently pending before the Honorable Roy K. Altman in the U.S. District Court for the Southern District of Florida. 2. "Approved Claim" means the timely submitted Claim Form by a Participating Settlement Member that has been approved by the Settlement Administrator. 3. "Attested Time" means time spent remedying issues related to the Data Breach, as provided in Section III of this Agreement. 4. "Citrix's Counsel" means David F. McDowell and Nancy Thomas of Morrison & Foerster LLP. 5. "Claim Form" or "Claim" means the form(s) Participating Settlement Class Members must submit to be eligible for reimbursement of Out-of-Pocket Losses, Attested Time, and/or to claim Credit Monitoring Services or an Alternative Cash Payment under the terms of the Settlement, which is attached hereto as Exhibit 2. 6. "Claims Deadline" means the last day to submit a timely Claim Form(s), which will occur ninety (90) days after the Notice Deadline. 7. "Claims Period" means the period of time during which Settlement Class Members may submit Claim Forms to receive Settlement benefits, which will end on the Claims Deadline. 8. "Class Counsel" means John A. Yanchunis of Morgan & Morgan, J. Austin Moore of Stueve Siegel Hanson LLP, Gayle M. Blatt of Casey, Gerry, Schenk, Francavilla, Blatt & Penfield, LLP, Rosemary M. Rivas of Levi & Korsinsky, LLP, and Herman J. Russomanno III of Russomanno & Borrello, P.A. 9. "Settlement Class Representatives" means Lee Milligan, Lindsey Howard, Kristi Jackson, Michelle Ramus, Charles Ramus, Brandon Sargent, and Natalie Young. 10. "Court" means the Honorable Roy K. Altman, United States District Judge, Southern District of Florida, or such other judge to whom the Action may hereafter be assigned. 11. "Credit Monitoring Services" means three-bureau credit monitoring services provided by Experian to Participating Settlement Class Members under the Settlement. These 2 3 services include daily three-bureau credit monitoring with Equifax, Experian, and TransUnion; identity restoration services; and $1 million in identity theft insurance, among other features. 12. "Data Breach" means the data breach initially disclosed by Citrix in or about March 2019. 13. "Effective Date" means one business day following the latest of: (i) the date upon which the time expires for filing or noticing any appeal of the Final Approval Order and Judgment or one (1) business day following entry of the Final Approval Order and Judgment if no parties have standing to appeal; or (ii) if any appeal, petition, request for rehearing, or other review has been filed, the Final Approval Order and Judgment is affirmed without material change or the appeal is dismissed or otherwise disposed of, no other appeal, petition, rehearing, or other review is pending, and the time for further appeals, petitions, requests for rehearing, or other review has expired. 14. "Fee Application" means any motion for an award of attorneys' fees, Litigation Costs and Expenses, and Service Award Payments to be paid from the Settlement Fund, as set forth in Paragraphs 90 and 92. 15. "Fee Award and Costs" means the amount of attorneys' fees and reimbursement of Litigation Costs and Expenses awarded by the Court to Class Counsel. 16. "Final Approval Order and Judgment" means an order and judgment that the Court enters after the Final Approval Hearing, which finally approves the Settlement Agreement, certifies the Settlement Class, dismisses the Action with prejudice, otherwise satisfies the settlement-related provisions of Federal Rule of Civil Procedure 23, and is consistent with all material provisions of this Settlement Agreement. Class Counsel and Citrix's Counsel will work together on a proposed Final Approval Order and Judgment, which Citrix must approve before filing. 17. "Final Approval Hearing" means the hearing to be conducted by the Court to determine the fairness, adequacy, and reasonableness of the Settlement pursuant to Federal Rule of Civil Procedure 23 and whether to issue the Final Approval Order and Judgment. 18. "Identity Restoration Services" means identity restoration services provided by Experian to all Participating Settlement Class Members under the Settlement. These services provide for professional fraud resolution and identity recovery assistance by U.S.-based agents to Participating Settlement Class Members who experience identity theft or fraud. 19. "Litigation Costs and Expenses" means costs and expenses incurred by counsel for Plaintiffs in connection with commencing, prosecuting, and settling the Action. 20. "Minor Claim Form" means the form(s) a legal guardian may submit on behalf of a Participating Settlement Class Member who is under the age of eighteen (18) at the time of claim submission seeking reimbursement of Out-of-Pocket Losses and/or Attested Time, which is attached hereto as Exhibit 3. 3 3 21. "Minor Monitoring Services" means Experian's "Minor Plus" monitoring services automatically provided to every Participating Settlement Class Member under the age of eighteen (18) under the Settlement. These services include monthly monitoring of Experian information for every enrolled minor; internet surveillance; fraud resolution services; and $1 million in identity theft insurance from material damages that may occur against a minor whose credit file is misused, among other features. 22. "Net Settlement Fund" means the amount of funds that remain in the Settlement Fund after funds are paid from or allocated for payment from the Settlement Fund for the following: (i) Notice and Administrative Expenses, (ii) Taxes and Tax-Related Expenses, (iii) Identity Restoration Services; (iv) Minor Monitoring Services; (v) Credit Monitoring Services; (vi) Service Awards Payments approved by the Court, and (vii) Fee Award and Costs approved by the Court. 23. "Non-Profit Residual Recipient" means a non-profit organization approved by the Court following distribution of Settlement payments for Approved Claims. 24. "Notice" means notice of the proposed class action Settlement to be provided to Settlement Class Members pursuant to the Preliminary Approval Order, substantially in the form attached hereto as Exhibit 1. 25. "Notice Deadline" means the last day by which Notice must issue to the Settlement Class Members, and will occur thirty (30) days after entry of the Preliminary Approval Order. 26. "Notice and Administrative Expenses" means all of the expenses incurred in the administration of this Settlement, including, without limitation, all expenses or costs associated with providing Notice to the Settlement Class, locating Settlement Class Members, processing claims, determining the eligibility of any person to be a Settlement Class Member, and administering, calculating and distributing the Settlement Fund to Settlement Class Members. Administrative Expenses also includes all reasonable third-party fees and expenses incurred by the Settlement Administrator in administering the terms of this Agreement. 27. "Objection Deadline" is the last day on which a Settlement Class Member may file an objection to the Settlement or Fee Application, which will be forty (40) days after the Notice Deadline. 28. "Opt-Out Deadline" is the last day on which a Settlement Class Member may file a request to be excluded from the Settlement Class, which will be forty (40) days after the Notice Deadline. 29. "Out-of-Pocket Losses" means documented out-of-pocket costs or expenditures that a Settlement Class Member actually incurred that are fairly traceable to the Data Breach, and that have not already been reimbursed by a third party. Out-of-Pocket Losses may include, without limitation, unreimbursed costs associated with fraud or identity theft including professional fees including attorneys' fees, accountants' fees, and fees for credit repair services and miscellaneous expenses such as notary, fax, postage, copying, mileage, and long-distance telephone charges, as 4 3 well as costs for credit monitoring costs or other mitigative services that were incurred on or between October 13, 2018 and the Notice Deadline. 30. "Participating Settlement Class Member" means a Settlement Class Member who does not submit a valid Request for Exclusion prior to the Opt-Out Deadline. 31. "Preliminary Approval Order" means an order directing issuance of Notice to Settlement Class Members, determining that the Court will likely be able to approve the Settlem