IN THE COURT OF COMMON PLEAS
TRUMBULL COUNTY, OHIO
EDWARD B. WEST, an individual resident
of Niles, Trumbull County, Ohio
on behalf of himself and all similarly situated
persons and entities,
Plaintiff,
v. No. 04-CV-1898
Logan, J.
CARFAX, INC., a foreign corporation,
10304 Eaton Place, Suite 500
Fairfax, Virginia
- and -
POLK CARFAX, INC., a foreign
Corporation,
Defendants.
REVISED SETTLEMENT AGREEMENT
Christopher M. Mason
NIXON PEABODY LLP
437 Madison Avenue
New York, New York 10022
212-940-3000
Attorneys for Defendants
William B. Federman
FEDERMAN & SHERWOOD
10205 North Pennsylvania
Oklahoma City, Oklahoma 73120
405-235-1560
Attorneys for Plaintiff and the Class
Hugh E. McKay
PORTER WRIGHT MORRIS & ARTHU
925 Euclid Avenue, Suite 1700
Cleveland, Ohio 44115
216-443-9000
Attorneys for Defendants
Curtis J. Ambrosey
AMBROSEY & FREDERICKA
144 North Park Avenue, Suite 200
Warren, Ohio 44481
330-393-6400
Attorneys for Plaintiff and the Class
Plaintiff, on behalf of himself and the Class as defined below, in full and complete settlement of this Action, agree with Defendants to this Revised Settlement Agreement. This Revised Settlement Agreement increases certain benefits to Class Members and provides notice to them of these increased benefits. Otherwise, it is substantively the same as the original Settlement Agreement.
I. The following terms have the following meanings for purposes of this Revised Settlement Agreement:
A. "Action" means this lawsuit.
B. "Approved Claim" means a claim for a Voucher made by a Class Member to the extent such claim is timely, truthful, complete, and complies in all other respects with this Revised Settlement Agreement.
C. "Attorneys' Fees" means the reasonable attorneys' fees and costs of Plaintiff and Class Counsel, all as may be requested by Class Counsel and awarded by the Court in an amount not to exceed $566,000.00.
D. "Carfax" means Carfax, Inc., and all its parents, affiliates, subsidiaries, successors, and assigns.
E. "Class" means, for purposes of the Settlement Agreement and this Revised Settlement Agreement only, all present and former customers who purchased a Carfax Vehicle History Report directly from Carfax in the United States. The Class does not include Defendants, Class Counsel, Defendants' Counsel, or the employees of any of them, or any state, federal, foreign, or local government.
F. "Class Actions" means, collectively, Bryson v. Carfax, Inc. & R.L. Polk & Co., No. 5CV500734 (N.C. Super. Ct. Craven County); Davis v. Carfax, Inc. & R.L. Polk & Co., No. CJ-04-1316L (Ok. Dist. Ct. Cleveland County); Fitchett v. Carfax, Inc. & R.L. Polk & Co., No. 426331 (Cal. Super. Ct. Riverside County); Hajovsky v. Carfax, Inc. & R.L. Polk & Co., Cause No. 04-002148-CV-272 (Tex. Dist. Ct. Brazos County); Janota v. Carfax, Inc. & R.L. Polk & Co., No. A-04-0219-CV-A (Tex. Dist. Ct. Aransas County); Jay Automotive Group, Inc. v. Carfax, Inc. & R.L. Polk & Co., File No. SU 04 CV 3103 (Ga. Super. Ct. Muscogee County); Lifsey v. Carfax, Inc. & R.L. Polk & Co., Case No. BC 329052 (Cal. Super. Ct. Los Angeles County); Mid-South Motors, Inc. v. Carfax, Inc. & Polk Carfax, Inc., CT-006060-03 (Tenn. Cir. Ct. Shelby County); and West v. Carfax, Inc. & Polk Carfax, Inc., No. 04-CV-1898 (Ohio Ct. of Common Pleas Trumbull County).
G. "Class Member" means a person or entity belonging to the Class.
H. "Class Counsel" means all counsel representing Plaintiff or any Class Member in the Class Actions, including but not limited to William B. Federman and his firm, Federman & Sherwood, Brian Herrington and his firm, Sweet & Freese, PLLC; Precious T. Martin, Sr., and his firm, Gibbs & Martin, PLLC; David Galyon and Curt Crowley and their firm, Schwartz & Associates; Gary H. Clemmons and his firm, Chesnutt, Clemmons, Thomas & Peacock, P.A.; Arthur R. Angel; Fred Davis and his firm, Davis & Davis; Jacqueline Sailer and Paul T. Curley and their firm, Murray Frank & Sailer LLP; Richard J. Vita and his firm, the Law Offices Of Richard J. Vita, P.C.; Thomas J. Knight and his firm, Hubbard & Knight; Randy McMurray and David A. McLaughlin and their firm, Cochran, Cherry, Givens & Smith, P.C., Frank L. Watson, III, and his firm, Watson Burns; and Curtis J. Ambrosey and James J. Fredericka and their firm, Ambrosey & Fredericka.
I. "Class Notice" means the E-mail Notice, the Publication Notice, and the Supplemental E-mail Notice.
J. "Complaint" means the complaint and any amended complaint in this Action or in any of the other Class Actions.
K. "Court" means the court in which this Action is pending.
L. "Defendants" means Carfax and Polk.
M. "Defendants' Counsel" means Christopher M. Mason and his firm, Nixon Peabody LLP, together with Hugh E. McKay and Tracy Turnbull and their firm, Porter Wright Morris & Arthur LLP.
N. "E-mail Notice" means an e-mail disclosing the settlement of this Action and the other Class Actions, providing Class Members with notice of their rights to opt out or object to such settlement, and otherwise containing text substantially in the form of Exhibit A to the Settlement Agreement and this Revised Settlement Agreement.
0. "Final Approval" means entry by the Court of a final judgment and order:
1. Dismissing this Action with prejudice;
2. To the extent not already dismissed, requiring Class Counsel to dismiss with prejudice all of the other Class Actions;
3. Enjoining Carfax for two years, beginning 14 days after the date of Final Approval of this settlement, or from such date as Carfax has made such changes, if earlier, to change certain disclosures and the details of its on-line contracting process (as compared to the process existing at the commencement of the Class Actions), as follows:
a. To include on the www.carfax.com homepage the following statement: "Carfax Vehicle History Reports are based on information supplied to CARFAX. CARFAX does not have the complete history of every vehicle";
b. To provide a full refund of the purchase price of a Carfax Vehicle History Report purchased from Carfax if a refund is requested from Carfax within ninety (90) days of such purchase;
c. To change the www.carfax.com order page so that there is a larger and more visible direction to the customer to look at the terms of the Customer Agreement before asking Carfax to process an order;
d. To continue to say, in words or substance, immediately above the order button for Vehicle History Reports on the www.carfax.com order page, that "By processing my order, I agree to the terms of the Customer Agreement and understand that CARFAX may not have the complete history of every vehicle";
e. To include above or next to the order button for Vehicle History Reports on the www.carfax.com order page, in a typeface larger than the text of the contract language itself, a statement in words or substance, with a directional arrow pointing to the location of the Customer Agreement, to "Make sure you read our Customer Agreement before you ask us to process your order";
f. To have the directional arrow described above point to a scroll box or pop up box or sidebar that will include all of the text of the relevant Customer Agreement. That text will not incorporate by reference any other text;
g. To continue to indicate in proximity to the order button on the www.carfax.com order page the existence of any "no risk money back guarantee" for Vehicle History Reports;
h. To provide a copy of the Customer Agreement in a confirming e-mail to every consumer customer who places an order with Carfax for a Vehicle History Report on-line at http://www.carfax.com/;
i. To provide the relevant terms and conditions of any guarantee either by providing a button on the www.carfax.com website to print such terms and conditions or by including such terms and conditions in a confirming e-mail sent to the customer after the registration of a guarantee, or earlier; and
j. To include on the www.carfax.com homepage a hyperlink to a webpage describing the database from which Carfax Vehicle History Reports are drawn. The language agreed to in paragraph III(F) below for Part IV of the Claim Form shall appear on this webpage. The webpage shall discuss the types of data in Carfax's database (including a discussion of the kind currently located at www.Carfax.com\vehicle history\opt2.cfm) and shall include the information currently available at the "sources" hyperlink on the www.Carfax.com\vehicle history\opt2.cfm webpage, together with a repetition of the text of the "Instant Answers" to the questions "Do CARFAX Vehicle History Reports have information about accidents?", "I know this vehicle has had an accident. Why isn't it listed on the CARFAX Vehicle History Report?", and "Does CARFAX get total loss data from insurance companies?" from the Carfax Help Center webpages as they exist as of the date of this Revised Settlement Agreement. The text of the required items on this webpage may be combined and organized to avoid repetition. In addition, CARFAX will ensure that the "Do CARFAX Vehicle History Reports have information about accidents?" Instant Answer contains a statement that "we do not have all accidents as many have never been reported, or may only have been reported to a source to which CARFAX does not have access." On the "sources" chart on its website, CARFAX will also replace the statement "selected states only" next to "Police reports" with the statement "police department reports (various state and local jurisdictions)." Carfax will maintain the "Instant Answers" referenced above in substantially similar form for at least the two years required by this Revised Settlement Agreement, modified only to the extent required by changes in Carfax's actual business.]
4. Approving the settlement of this Action as against Defendants as provided by this Revised Settlement Agreement (or this Revised Settlement Agreement as further amended by the parties); and
5. Expressly incorporating the release language in Paragraph VIII below.
P. "Final Hearing Date" means a date to be set by the Court for Final Approval.
Q. "Incentive Award" means any award for Plaintiff Edward B. West, not to exceed $1,000.00, reasonably requested by Plaintiff in this Action and awarded by the Court.
R. "Polk" means Polk Carfax, Inc. and all its parents, affiliates, subsidiaries, successors, and assigns, including but not limited to R.L. Polk & Co.
S. "Preliminary Approval" means entry by the Court of an order:
1. Certifying the Class for settlement purposes only;
2. Appointing Plaintiff as an adequate representative of the Class for such purposes;
3. Appointing Class Counsel to represent the Class;
4. Preliminarily approving the settlement contemplated by the Settlement Agreement; and
5. Approving the form and method of distribution of the Class Notice.
T. "Publication Notice" means a notice of settlement to be published by Carfax in USA Today and Investors' Business Daily and containing text substantially in the form of Exhibit B to the Settlement Agreement and this Revised Settlement Agreement.
U. "Revised Settlement Agreement" means the Settlement Agreement as revised in this document to increase certain benefits to Class Members and provide notice to them of these increased benefits, and any further revisions to it.
V. "Settlement Agreement" means the original Settlement Agreement preliminarily approved by the Court, and any revisions to it.
W. "Supplemental E-mail Notice" means an e-mail disclosing the final approval of the settlement of this Action and the other Class Actions, reminding Class Members of their rights to claim benefits pursuant to the settlement, and otherwise containing text substantially in the form of Exhibit C to this Revised Settlement Agreement and a subject line stating "Legal Notice from Carfax re Settlement".
X. "Voucher" means a coupon to be made available to each Class Member who submits an Approved Claim. Each Class Member may select one of the following. No person may redeem more than one Voucher:
1. A non-transferable Voucher for a refund of up to $20.00 for documented payment by the Class Member, redeemable within two years after Final Approval, for any comprehensive mechanical inspection (but not, for example, for a legally-required annual or biannual emissions or safety inspection), performed during those two years by an ASE-certified or AAA-approved mechanic, service station, or garage for the purpose of:
a. Inspection of a used car the Class member is considering buying, or
b. Inspection of the Class member's own car in anticipation of selling that car to a third party, or
c. Inspection of the Class member's own car in anticipation of a change in the primary driver or state of registration of such car.
2. A transferable Voucher for two free Carfax Vehicle History Reports from Carfax, redeemable within one year after Final Approval; or
3. A transferable Voucher for one free Carfax Vehicle History Report from Carfax, redeemable within two years after Final Approval; or
4. A transferable Voucher for 50% off an unlimited number of Carfax Vehicle History Reports (for personal, not commercial use) over 30 consecutive days, redeemable within three years after Final Approval.
II. Promptly after execution of the Settlement Agreement, Class Counsel and Defendants' Counsel submitted the Settlement Agreement to the Court for Preliminary Approval.
III. The manner of notice described in the Settlement Agreement and this Revised Settlement Agreement are the most practicable method of providing notice to Class Members, and are reasonably calculated under the circumstances to apprise them of the pendency of the Action and the other Class Actions, of their right to object to or opt out of the settlement contemplated by the Settlement Agreement, or otherwise to avail themselves of the rights created by the Settlement Agreement and, subsequently, this Revised Settlement Agreement . Following Preliminary Approval, Carfax distributed Class Notice as follows:
A. Within 30 days of Preliminary Approval, Carfax caused the Publication Notice to be published.
B. Within 30 days of Preliminary Approval, Carfax provided a settlement website for further information about the settlement.
C. Within 30 days of the Publication Notice, Carfax sent E-mail Notice to all e-mail addresses Carfax had for Class Members who purchased a Carfax Vehicle History Report directly from Carfax within the last year. Carfax provided a sworn affidavit describing the scope of such distribution to Defendants' Counsel.
D. Within 30 days of Final Approval, Carfax will send Supplemental E-mail Notice to all e-mail addresses Carfax has for consumer Class Members who purchased a Carfax Vehicle History Report directly from Carfax on or after October 27, 2003.
E. Within 5 business days of Final Approval, Carfax will add to the settlement website described in paragraph III(B) of this Revised Settlement Agreement links to the following documents: (1) the Complaint, (2) the original Settlement Agreement, (3) this Revised Settlement Agreement, and (4) any order or judgment of the Court with respect to Final Approval.
F. No later than the date on which the Supplemental E-mail Notice is sent, Carfax will modify the Claim Form on the settlement website so that Part IV of the form describes the Vouchers available to Class Members using the same language found in Paragraph I(0)(V) of this Revised Settlement Agreement and the associated Supplemental E-Mail Notice. Part IV of the Claim Form will be further revised so that, immediately below the box for the third CARFAX Voucher will appear, in the same font as the font used to describe the Vouchers, the words "CARFAX does not have the complete history of every vehicle. A CARFAX Vehicle History Report is based only on information supplied to CARFAX. Other information about the vehicle, including problems, may not have been reported to CARFAX. Use a Vehicle History Report as one important tool, along with a vehicle inspection and test drive, to make a better decision about a used car."
IV. Following Preliminary Approval, only Class Members could object to, or opt out of, the Class and the proposed settlement, and only as follows:
A. Any Class Member who wished to object to the Settlement Agreement or the settlement it contemplated were required to serve Class Counsel and Defendants' Counsel with a copy of a written notice of objection, together with a copy of any memorandum of law and any evidence upon which the Class Member intended to rely, by hand, mail, or courier delivery for receipt by Class Counsel and Defendants' Counsel not later than 31 days before the Final Hearing Date. Such Class Member was at the same time required to file the original of these papers with the Clerk of the Court. Objections that were filed or served late shall be deemed a nullity. Any Class Member who did not object in the manner provided above was deemed to have waived all objections and shall forever be foreclosed from making any objection to the fairness, reasonableness, or adequacy of, or otherwise opposing in any way, the Settlement Agreement or the settlement it contemplates.
B. Any Class Member who wished to appear and object in person or through counsel on the Final Hearing Date was required to serve and file a proper objection as provided above and also to serve and file at the same time a notice of intent to appear specifically identifying the Class Member or counsel who would speak to such objection.
C. Plaintiff and Defendants had the right to respond not later than seven days prior to the Final Hearing Date to any and all timely objections by Class Members.
D. Any Class Member who wishes to remove himself, herself, or itself from the Class (and thus opt out of this settlement) must do so in writing. Class Members were originally required to serve this opt out notice by hand, mail, or courier delivery for receipt by Class Counsel and Defendants' Counsel not later than 45 days before the Final Hearing Date. Class Members shall now have a second opportunity to opt out by serving this opt out notice by hand, mail, or courier delivery for receipt by Class Counsel and Defendants' Counsel not less than 30 days after the date of the Supplemental E-Mail Notice Any Class Member who does not opt out shall be bound by any judgment entered in the Action, whether favorable or unfavorable to such Class Member or the Class.
V. Pending Final Approval of this settlement, the Court has enjoined commencement or prosecution by any Class Member of any claim covered or to be covered by the Settlement Agreement (which remains the same in this Revised Settlement Agreement) and the settlement it contemplates.
VI. Each Class Member who submits an Approved Claim shall be entitled to receive a Voucher from Carfax. Only one Voucher may be requested or used per Class Member. Within 180 days after Final Approval and the completion of any appeals, or the lapse of any applicable appeal periods without any appeal, whichever is later, Carfax will begin distributing Vouchers to Class Members who have submitted Approved Claims. Class Members who submitted Approved Claims before the Supplemental E-Mail Notice will be permitted to amend their Approved Claim between the time of the Supplemental E-mail Notice and the end of the period specified in the Supplemental E-mail Notice.
VII. Defendants may take whatever steps they deem necessary in their sole discretion, including legal action or resort to law enforcement authorities, to prevent fraudulent claims under this Revised Settlement Agreement, the counterfeiting or fraudulent use of Vouchers, or use of Vouchers in a manner not reasonably contemplated by this Revised Settlement Agreement.
VIII. Except to the extent expressly reserved elsewhere in this Revised Settlement Agreement, all Class Members shall be deemed upon Final Approval to have released and discharged Defendants, their parents, subsidiaries, affiliates, predecessors, successors, and assigns, and each of their past, present and future officers, directors, employees, agents, representatives, attorneys, heirs, administrators, executors, predecessors, successors and assigns, (collectively, the "Releasees"), from any and all causes of action; claims; damages; equitable, legal, and administrative relief; interest; demands; or rights, whether presently known or unknown, whether based on facts in addition to or different from those which they now know or believe to be true, or whether based on federal, state, or local statute or ordinance, regulation, contract, common law, or any other source, that have been, could have been, may be, or could be alleged or asserted by any Class Member, either directly or indirectly, on their own behalf, on behalf of the Class, or on behalf of any other person, against the Releasees relating to, on the basis of, in connection with, or arising out of, in whole or in part, the subject matter of any of the claims alleged in the Complaint. All Class Members expressly waive any and all rights or benefits they may now have, or in the future may have, under any law relating to the releases of unknown claims, including, without limitation, California Civil Code Section 1542, which otherwise provides that "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor", or under any other law or principle of common law of any State or territory of the United States, or of any foreign country, that is comparable or equivalent in substance or intent to California Civil Code Section 1542. This release is not intended to extend to claims which arise only after this settlement is fully concluded, which are unrelated to the settlement or its subject matter, and which are based wholly on facts not in existence at the time the settlement is fully concluded.
IX. The Court may choose to award Attorneys' Fees to Class Counsel. The Court may also choose to make an Incentive Award. These amounts shall be determined and awarded as follows:
A. On or before the Final Hearing Date, Class Counsel shall submit a sworn application to the Court applying for Attorneys' Fees. In no event shall Class Counsel or any member of the Class seek any Attorneys' Fees exceeding $566,000.00 from the Court, the Class, Defendants, or any other Releasee. In no event shall Defendants or any other Releasee be obligated to pay Class Counsel or any Class Member any amount that exceeds $566,000.00 in Attorneys' Fees.
B. On or before the Final Hearing Date, Class Counsel shall submit a sworn application to the Court applying for any Incentive Award. In no event shall Class Counsel or any Class Member seek an Incentive Award for anyone other than Plaintiff Edward B. West, or for more than $1,000.00 for him, from the Court, the Class, Defendants, or any Releasee. In no event shall Defendants or any Releasee be obligated to pay any amount that exceeds $1,000.00 for any Incentive Award.
C. Defendants will not object to any properly supported applications for Attorneys' Fees and an Incentive Award that comply with the terms of this Revised Settlement Agreement.
D. Defendants will pay or cause to be paid to Class Counsel, by payment to Federman & Sherwood on behalf of all Class Counsel, no later than 30 days after the completion of any appeals, or immediately after the lapse of all applicable appeal periods if no appeal is filed, whichever is later, any Attorneys' Fees up to $566,000.00 awarded by the Court, together with any Incentive Award made by the Court up to $1,000.00 for Plaintiff Edward B. West. Carfax shall be held harmless by Class Counsel upon the payment of such amounts as ordered by the Court.
E. No amount of Attorneys' Fees or Incentive Award claimed by any person or entity in this Action, in connection with this Action, or in connection with the settlement of this Action may be claimed by any such person or entity in any other action or proceeding. Plaintiff and Defendants each acknowledge that the Attorneys' Fees and Incentive Award provisions of the Settlement Agreement were negotiated after all material terms of the relief to be provided to the Class in the Settlement Agreement were negotiated and that none of the Attorneys' Fees or any Incentive Award that may be awarded by the Court will diminish any of the relief to be provided to the Class under this Revised Settlement Agreement.
X. Defendants may terminate this Revised Settlement Agreement in its entirety at any time and without further obligation if:
A. Any court rejects, materially modifies, or denies approval of any material provision of this Revised Settlement Agreement; or
B. Any court makes any order purporting to alter or amend materially any material provision of this Revised Settlement Agreement, or purporting to preclude Plaintiff or Defendants, or any of them, from proceeding in whole or in part with the proposed settlement or this Revised Settlement Agreement.
XI. In the event of termination of this Revised Settlement Agreement:
A. This Revised Settlement Agreement shall be considered null and void and have no force or effect, and no person or entity shall be bound by any of its terms; and
B. The rights of all persons or entities with respect to the claims and defenses asserted in this Action and the other Class Actions shall be restored to the positions existing immediately prior to execution of the Settlement Agreement.
XII. The Settlement Agreement and this Revised Settlement Agreement were negotiated at arm's-length between parties of equal bargaining power, and were drafted jointly by Class Counsel and Defendants' Counsel. The amount of the settlement, as well as the other terms of the Settlement Agreement and this Revised Settlement Agreement, reflect a good faith settlement of the Class Members' claims, reached voluntarily after consultation with legal counsel.
XIII. By entering into the Settlement Agreement and this Revised Settlement Agreement, no Defendant is admitting any liability to any Class Member or any other person or entity or waiving any claim, counterclaim, defense, or affirmative defense.
XIV. Neither the Settlement Agreement, nor this Revised Settlement Agreement, nor any of their provisions or exhibits, nor any brief in support of them, nor any of the negotiations or proceedings preceding approval of this settlement in a final order and judgment, shall be offered or received in evidence in any action or proceeding of any nature, or otherwise referred to or used in any manner in any court or other tribunal, except to enforce or implement the terms of this Revised Settlement Agreement; to support or defend this Revised Settlement agreement on any appeal from a final order and judgment; or to enforce or assert a claim or defense of res judicata, collateral estoppel, claim or issue preclusion, settlement, release, merger and bar, or any similar claim or defense against a Class Member or third party.
XV. This Revised Settlement Agreement contains the entire agreement and understanding of Plaintiff, the Class, Class Counsel, Defendants, and Defendants' Counsel with respect to its subject matter. This Revised Settlement Agreement supersedes all prior agreements or understandings (whether oral or written), if any, between or among them with respect to such subject matter and may not be altered, amended, or modified except by a written instrument duly executed by a Defendants' Counsel and a Class Counsel.
XVI. Plaintiff, Defendants, Class Counsel, and Defendant's Counsel shall:
A. Cooperate fully with one another in seeking approval of the settlement contemplated by this Revised Settlement Agreement.
B. Cooperate fully with one another in defending any appeal from the settlement contemplated by this Revised Settlement Agreement, defending any collateral attack on such settlement or on its preclusive effect, and prosecuting any appeal from denial of approval of such settlement, except that Defendants shall (other than their agreement not to object as described in Paragraph IX(C) above) have no obligation to take any position with respect to any attorneys' fees, costs, disbursements, expert witness fees, or incentive amounts awarded or not awarded by the Court.
XVII. The Court shall retain jurisdiction to implement and enforce the terms of this Revised Settlement Agreement, including jurisdiction to alter without further notice to the Class any dates or deadlines set by this Revised Settlement Agreement or the Court.
XVIII. Each of the undersigned represents and warrants that he or she has authority to execute this Revised Settlement Agreement on behalf of the persons he or she purports to represent. This Revised Settlement Agreement may be executed in counterparts and all the executed counterparts shall together be treated as a whole. Facsimile signatures shall be deemed equivalent to original signatures for purposes of execution.
XIX. This Revised Settlement Agreement and the rights and obligations it contains shall be binding upon, and inure to the benefit of, the successors and assigns of the parties to it.
XX. The waiver by any person or entity of any breach of this Revised Settlement Agreement by any other person or entity shall not be deemed a waiver of any other prior or subsequent breach and shall not constitute a continuing waiver.
XXI. This Revised Settlement Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions.
Dated: June 25, 2007.