Common use of Procedural History and Recitals Clause in Contracts

Procedural History and Recitals. 1. On June 3, 2021, Plaintiff ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ filed a putative class action Complaint in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, entitled Abercrombie v. TD Bank, N.A., No. CACE-21-11047. On behalf of a putative nationwide class, the Complaint asserted claims for breach of contract and breach of the covenant of good faith and fair dealing. 2. On July 6, 2021, Defendant filed a Notice of Removal under 28 U.S.C. § 1446, removing this action to the United States District Court for the Southern District of Florida, where 1 All capitalized terms herein have the meanings ascribed to them in Section II below or various other places in the Agreement. 146452206 it was assigned case number 0:21-cv-61376-▇▇▇▇▇▇▇▇/▇▇▇▇. 3. On August 13, 2021, Defendant filed a Motion to Dismiss Class Action Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). 4. Plaintiff opposed the Motion on September 10, 2021. 5. Between June and September, 2021, the Parties engaged in informal discovery and exchanged information, in the context of seeking to reach a resolution to the claims through direct negotiations. 6. On September 15, 2021, the parties reached agreement in principle and executed a settlement term sheet. 7. Thereafter, the parties negotiated the details of this final Settlement Agreement and Releases. 8. The Parties now agree to settle the Action in its entirety, without any admission of liability, with respect to all Released Claims, Releasees, and Releasing Parties. Defendant has entered into this Agreement to resolve any and all controversies and disputes (directly or indirectly) arising out of or relating to the allegations made in the 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 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 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. Plaintiff has entered into this Agreement to liquidate and recover on the claims asserted in the Complaint, and to avoid the risk, delay, and uncertainty of continued litigation. Plaintiff does not in any way concede the claims alleged in the Complaint lack merit or are subject to any defenses. The Parties intend this Agreement to bind Plaintiff, Defendant, and all Settlement Class Members.

Procedural History and Recitals. 1. On June 3January 31, 20212020, Plaintiff ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ filed a putative class action Complaint complaint in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, entitled Abercrombie v. TD Bank, N.A., No. CACE-21-11047. On behalf of a putative nationwide class, the Complaint asserted claims for breach of contract and breach of the covenant of good faith and fair dealing. 2. On July 6, 2021, Defendant filed a Notice of Removal under 28 U.S.C. § 1446, removing this action to the United States District Court for the Southern District of FloridaFlathead County, where Montana, Case No. DV-15-2020-0000105- 1 All capitalized terms herein have the meanings ascribed to them in Section II below or various other places in the Agreement. 146452206 it was assigned case number 0:21-cv-61376-BC, seeking damages, restitution, and declaratory relief arising from the allegedly improper assessment and collection of APPSN Fees and Retry Fees (the “Montana Complaint”). 2. On June 16, 2020, Plaintiff ▇▇▇▇▇▇▇ filed an amended complaint in Case No. DV- 15-2020-0000105-BC, asserting the same claims but adding as plaintiffs NewWest Communications LLC and ▇▇/▇▇▇▇▇ ▇▇▇▇▇▇▇▇. 3. On August 1324, 20212020, Defendant Plaintiffs ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ filed a Motion to Dismiss Class Action Complaint pursuant to Federal Rule putative class action complaint in the United States District Court for the Eastern District of Civil Procedure 12(b)(6Washington, Case No. 2:20-cv-00303-RMP, seeking damages, restitution, and declaratory relief arising from, among other things, the allegedly improper assessment and collection of APPSN Fees and out-of-network ATM Fees (the “Washington Complaint”). 4. Plaintiff opposed On October 22, 2020, Defendant filed a motion to compel individual arbitration of the Motion on September 10, 2021claims alleged in the Washington Complaint. 5. Between June and SeptemberOn December 17, 20212020, the Parties engaged participated in informal discovery a mediation of Case No. DV-15- 2020-0000105-BC and exchanged information, in Case No. 2:20-cv-00303-RMP before the context of seeking ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. Infante (▇▇▇.). The Parties were able to reach a resolution to settlement, the claims through direct negotiationsterms of which are reflected in this Agreement. 6. On September 15, 2021, the parties reached agreement in principle and executed a settlement term sheet. 7. Thereafter, the parties negotiated the details of this final Settlement Agreement and Releases. 8. The Parties now agree to settle the Action in its entirety, without any admission of liability, with respect to all Released Claims, Releasees, and Claims of the Releasing Parties. Defendant has entered into this Agreement to resolve any and all controversies and disputes (directly or indirectly) arising out of or relating to the allegations that have been or could have been made in the ComplaintAction, 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 Montana Complaint or the Washington Complaint, and expressly disclaims and denies any fault or liability, or any charges of wrongdoing that have been or could have been asserted against it in the Complainteither complaint. Nothing contained in this Agreement shall be used or construed as an admission of liability, 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. Plaintiff has Plaintiffs have entered into this Agreement to liquidate and recover on the claims asserted in the ComplaintAction, and to avoid the risk, delay, and uncertainty of continued litigation. Plaintiff does Plaintiffs do not in any way concede the claims alleged or that could have been asserted in the Complaint Action lack merit or are subject to any defenses. The Parties intend this Agreement to bind PlaintiffPlaintiffs, Defendant, and all Settlement Class Members.