Common use of Procedural History and Recitals Clause in Contracts

Procedural History and Recitals. 1. On November 13, 2021, Plaintiff ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ filed a putative class action complaint in the Action seeking damages, restitution, and declaratory relief arising from the allegedly unfair and unconscionable assessment and collection of APPSN Fees and Retry NSF Fees. 2. On February 28, 2020, Defendant filed its Answer and Affirmative Defenses. 1 All capitalized terms herein have the meanings ascribed to them in Section II or various places in the Agreement. 146358862 3. On June 1, 2020, Plaintiffs amended the Complaint, adding four new plaintiffs – ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ Propsersi, ▇▇▇▇▇▇ ▇▇▇▇▇, and B Sqeaky Clean LLC. 4. On July 8, 2020, Defendant filed its Answer and Affirmative Defenses to the Amended Complaint. 5. The Court issued several scheduling orders throughout the litigation of the Case and the Parties vigorously pursued pursuant to those Order. In particular, Plaintiffs served document requests and interrogatories on March 26, 2020, to which Defendant served its written responses. 6. Plaintiffs noticed and took a Rule 30(b)(6) deposition of NBT on September 22, 2020. 7. The discovery process, although professional, was often contentious. Counsel for the Parties met and conferred on various occasions regarding NBT’s discovery responses and deposition testimony. On October 27, 2020, after the Parties were unable to reach agreement on the scope of additional document production, information and testimony, including complex electronic discovery, Plaintiffs filed a motion to compel additional discovery responses. Defendant filed an opposition to the motion on November 10, 2020. 8. That motion to compel remained pending when the Parties began settlement discussions. The Parties informed the Court of the discussions and, after a telephonic conference before Magistrate Judge Lovric on March 10, 2021, the Court stayed proceedings pending a mediation to be completed by July 1, 2021. 9. On June 21, 2021, the Parties participated in a mediation before ▇▇▇▇ ▇. ▇▇▇▇▇. The Parties did not settle at the mediation. The Parties undertook further data analysis, then reconvened for a second mediation on August 20, 2021. 10. The second day of mediation also did not result in a settlement, but the mediator made a mediator’s proposal that the Parties ultimately accepted. On August 23, 2021, the Parties filed a Status Report with the Court, confirming their agreement in principle and requesting that the Court stay all deadlines in the Action. 11. Further negotiations by the Parties resulted in the Settlement reflected in this Agreement. 12. The Parties now agree to settle the Action in its entirety, without any admission of liability, with respect to all Released Claims of the Releasing Parties. Defendant has entered into this Agreement to resolve any and all controversies and disputes arising out of or relating to the allegations made in the Action, and to avoid the burden, risk, uncertainty, expense, and disruption to its business operations associated with further litigation. Defendant does not in any way acknowledge, admit to or concede any of the allegations made in the Amended Complaint, and expressly disclaims and denies any fault or liability, or any charges of wrongdoing that have been or could have been asserted in the Amended Complaint. Nothing contained in this Agreement shall be used or construed as an admission of liability and this Agreement shall not be offered or received in evidence in any action or proceeding in any court or other forum as an admission or concession of liability or wrongdoing of any nature or for any other purpose other than to enforce the terms of this Agreement. Plaintiffs have entered into this Agreement to liquidate and recover on the claims asserted in the Amended Complaint, and to avoid the risk, delay, and uncertainty of continued litigation. Plaintiffs do not in any way concede the claims alleged in the Amended Complaint lack merit or are subject to any defenses. The Parties intend this Agreement to bind Plaintiffs, Defendant, and all Settlement Class Members.

Procedural History and Recitals. 1. On November 13July 26, 20212019, former Plaintiff ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ filed a putative class action complaint in the Action seeking damages, restitution, and declaratory relief arising from the allegedly unfair and unconscionable assessment and collection of APPSN Fees and Retry NSF Account Verification Fees. 2. On February 28November 15, 20202019, Defendant filed its Answer and Affirmative Defenses. a Motion to Dismiss the Complaint 1 All capitalized terms herein have the meanings ascribed to them in Section II or various places in the Agreement. 146358862pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). 3. On June 1December 15, 20202019, Plaintiffs amended the Complaint, adding four new plaintiffs – Plaintiff ▇▇▇▇▇▇▇ ▇▇▇▇▇ moved to amend the Complaint, adding two new plaintiffs, ▇▇▇▇ ▇▇▇▇▇▇▇▇ Propsersiand ▇▇▇▇▇ ▇▇▇▇▇. 4. On February 18, 2020, the Court granted in part and denied in part Defendant’s motion to dismiss, dismissing Plaintiff ▇▇▇▇▇▇▇ ▇▇▇▇▇’▇ claims, and B Sqeaky Clean LLCgranting leave to amend for Plaintiff ▇▇▇▇▇▇▇▇’▇ APPSN fee claim and Plaintiff ▇▇▇▇▇’▇ Account Verification fee claim. 45. On July 8February 28, 2020, Plaintiffs ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ filed an Amended Complaint, alleging claims on behalf of two classes for breach of the Account agreement. 6. On March 13, 2020, Defendant filed its Answer and Affirmative Defenses to the Amended ComplaintDefenses. 57. The Parties were directed by the Court issued several scheduling orders throughout to submit their Case Management Plan on April 6, 2020, which resulted in the litigation of Court issuing its Scheduling Order on April 14, 2020. 8. The Parties initiated the Case discovery process with Plaintiffs ▇▇▇▇▇▇▇▇ and the Parties vigorously pursued pursuant to those Order. In particular, Plaintiffs served ▇▇▇▇▇ serving document requests and interrogatories on March 2624, 2020, to which Defendant served its written responses. 6. Plaintiffs noticed and took a Rule 30(b)(6) deposition of NBT responses on September 22June 29, 2020. 79. The discovery process, although professional, was often contentious. Counsel for Court entered an Order directing the Parties met and conferred on various occasions regarding NBT’s discovery responses and deposition testimonyto attend a mediation in an effort to resolve the putative class claims in this Action. 10. On October 2714, 2020, after the Parties were unable to reach agreement on the scope of additional document production, information and testimony, including complex electronic discovery, Plaintiffs filed a motion to compel additional discovery responses. Defendant filed an opposition to the motion on November 10, 2020. 8. That motion to compel remained pending when the Parties began settlement discussions. The Parties informed the Court of the discussions and, after a telephonic conference before Magistrate Judge Lovric on March 10, 2021, the Court stayed proceedings pending a mediation to be completed by July 1, 2021. 9. On June 21, 2021, the Parties participated in a mediation before ▇▇▇▇ ▇. ▇▇▇▇▇. The Parties did not settle at the mediation, but further negotiations by the Parties resulted in the Settlement reflected in this Agreement. The Parties undertook further data analysis, then reconvened for a second mediation on August On October 20, 2021. 10. The second day of mediation also did not result in a settlement, but the mediator made a mediator’s proposal that the Parties ultimately accepted. On August 23, 20212020, the Parties filed a Status Report with the CourtNotice of Settlement, confirming their agreement in principle and requesting that the Court stay all deadlines in the Action. 11. Further negotiations by the Parties resulted in the Settlement reflected in this Agreement. 12. The Parties now agree to settle the Action in its entirety, without any admission of liability, with respect to all Released Claims of the Releasing Parties. Defendant has entered into this Agreement to resolve any and all controversies and disputes arising out of or relating to the allegations made in the ActionAmended Complaint, and to avoid the burden, risk, uncertainty, expense, and disruption to its business operations associated with further litigation. Defendant does not in any way acknowledge, admit to or concede any of the allegations made in the Amended Complaint, and expressly disclaims and denies any fault or liability, or any charges of wrongdoing that have been or could have been asserted in the Amended Complaint. Nothing contained in this Agreement shall be used or construed as an admission of liability and this Agreement shall not be offered or received in evidence in any action or proceeding in any court or other forum as an admission or concession of liability or wrongdoing of any nature or for any other purpose other than to enforce the terms of this Agreement. Plaintiffs have entered into this Agreement to liquidate and recover on the claims asserted in the Amended Complaint, and to avoid the risk, delay, and uncertainty of continued litigation. Plaintiffs do not in any way concede the claims alleged in the Amended Complaint lack merit or are subject to any defenses. The Parties intend this Agreement to bind Plaintiffs, Defendant, and all Settlement Class Members.