Case 2:21-mc-01230-JFC Document 2213 Filed 09/07/23 Page 1 of 56

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE: PHILIPS RECALLED CPAP, Master Docket: Misc. No. 21-mc-1230-JFC

BI-LEVEL PAP, AND MECHANICAL
VENTILATOR PRODUCTS MDL No. 3014
LITIGATION

This Document Relates to:

All Actions Asserting Economic Loss
Claims

BRIEF IN SUPPORT OF UNOPPOSED MOTION OF PROPOSED SETTLEMENT

CLASS REPRESENTATIVES FOR PRELIMINARY APPROVAL OF CLASS
SETTLEMENT AGREEMENT AND RELEASE OF ECONOMIC LOSS CLAIMS AND
TO DIRECT NOTICE TO THE PROPOSED SETTLEMENT CLASS
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TABLE OF CONTENTS

I. INTRODUCTION ............................................................................................................. 1
II. HISTORY OF THE LITIGATION AND PROPOSED CLASS SETTLEMENT ............ 4
A. The Litigation......................................................................................................... 4
B. Motions to Dismiss ................................................................................................ 5
C. Discovery ............................................................................................................... 5
D. Mediation and Settlement ...................................................................................... 6
III. NOTABLE SETTLEMENT TERMS ................................................................................ 8
A. Proposed Settlement Class ..................................................................................... 8
B. Payments Available to Settlement Class Members ............................................... 9
1. Device Payment Awards ............................................................................ 9
2. Device Return Awards ............................................................................. 10
3. Device Replacement Awards ................................................................... 10
4. Payer Awards ........................................................................................... 11
C. Funding of Settlement Payments ......................................................................... 11
1. Device Payment Awards .......................................................................... 12
2. Device Return Awards ............................................................................. 13
3. Device Replacement Awards ................................................................... 13
4. Payer Awards ........................................................................................... 14
D. Additional Benefits .............................................................................................. 14
1. Accelerated Implementation Option (“AIO”) .......................................... 14
2. Extended Warranties ................................................................................ 15
E. Settlement Administration and Claims Submissions ........................................... 15
1. Settlement Administration ....................................................................... 15
2. Claims Submissions ................................................................................. 16
F. Releases................................................................................................................ 19
G. Attorneys’ Fees and Expenses ............................................................................. 20
H. The Notice Plan.................................................................................................... 20
IV. ARGUMENT ................................................................................................................... 20
A. Legal Standards For Settlement Approval ........................................................... 20
B. Preliminary Approval of the Proposed Settlement Is Warranted......................... 24

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1. Settlement Class Counsel and the Class Representatives have

adequately represented the Class ............................................................. 25
2. The proposed Settlement was negotiated at arm’s length ........................ 26
3. The relief provided to the Settlement Class is adequate .......................... 27
a. The costs, risks, and delay of trial and appeal ............................. 27
b. The proposed method of distributing relief to the
Settlement Class and processing Settlement Class
Members’ Claims is easy, efficient, and effective ....................... 32
c. The terms of a proposed award of attorneys’ fees, including
timing and payment, have not yet been negotiated ...................... 33
4. The proposed Settlement treats Settlement Class Members
equitably relative to each other ................................................................ 34
A. Certification of the Proposed Class for Purposes of Settlement Only is
Appropriate .......................................................................................................... 35
1. Numerosity Under Rule 23(a)(1) ............................................................. 36
2. Commonality Under Rule 23(a)(2) .......................................................... 36
3. Typicality Under Rule 23(a)(3) ............................................................... 37
4. Adequacy of Representation Under Rule 23(a)(4) .................................. 38
5. The Predominance and Superiority Requirements of Rule 23(b)(3) ....... 39
6. Ascertainability ........................................................................................ 40
B. The Notice Program is the Best Notice Practicable Under the
Circumstances ...................................................................................................... 42
1. The Proposed Notice Plan is the most practicable under the
circumstances ........................................................................................... 42
2. The Proposed Notice Clearly Explains Settlement Class Members’
Rights ....................................................................................................... 44
3. The Proposed Settlement Administrator Is Qualified .............................. 45
E. A Final Fairness Hearing Should be Scheduled. ................................................. 45
V. CONCLUSION ................................................................................................................ 46

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TABLE OF AUTHORITIES
Page(s)

Cases

Abramson v. Agentra, LLC,

2021 WL 3370057 (W.D. Pa. Aug. 3, 2021) ............................................................................ 40

Amchem Prods. v. Windsor,

521 U.S. 591 (1997) ............................................................................................................ 36, 39

Byrd v. Aaron’s Inc.,

784 F.3d 154 (3d Cir. 2015)...................................................................................................... 41

Calhoun v. Invention Submission Corp.,

2023 WL 2411354 (W.D. Pa. Mar. 8, 2023) ..................................................................... passim

Carnegie v. Household Int’l, Inc.,

376 F.3d 656 (7th Cir. 2004) .................................................................................................... 29

Cole’s Wexford Hotel, Inc. v. UPMC & Highmark Inc. (“Cole’s Wexford I”),
2016 WL 6919773 (W.D. Pa. Apr. 6, 2016) (Conti, J.)............................................................ 21

Cole’s Wexford Hotel, Inc. v. UPMC & Highmark Inc. (“Cole’s Wexford II”),
2016 WL 6236892 (W.D. Pa. July 29, 2016) (Conti, J.) .............................................. 24, 26, 30

Copley v. Evolution Well Servs. Operating LLC,

2023 WL 1878581 (W.D. Pa. Feb. 10, 2023) ..................................................................... 23, 27

Ehrheart v. Verizon Wireless,

609 F.3d 590 (3d Cir. 2010)...................................................................................................... 21

Girsh v. Jepson,
521 F.2d 153 (3d Cir. 1975)...................................................................................................... 23

Gonzalez v. Corning,
885 F.3d 186 (3d Cir. 2018)...................................................................................................... 40

Granillo v. FCA US LLC,

2019 WL 4052432 (D.N.J. Aug. 27, 2019) .............................................................................. 31

Hickton v. Enterprise Rent-A-Car Company,

2013 WL 12137092 (W.D. Pa. Apr. 29, 2013) (Conti, J.) .................................................. 21, 30

In re All-Clad Metalcrafters, LLC v. Cookware Mktg. & Sales Practices Litig.,

2023 WL 2071481 (W.D. Pa. Feb. 17, 2023) .................................................................... passim

In re Baby Products Antitrust Litig.,

708 F.3d 163 (3d Cir. 2013)...................................................................................................... 30

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In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prod. Liab. Litig.
(“In re GMC”), 55 F.3d 768 (3d Cir.), cert. denied, 516 U.S. 824 (1995) .................. 24, 30, 36

In re: Google Inc. Cookie Placement Consumer Priv. Litig.,

934 F.3d 316 (3d Cir. 2019).......................................................................................... 21, 23, 24

In re JUUL Labs, Inc. Mktg. Sales Pracs. & Prod. Liab. Litig.,
609 F. Supp. 3d 942 (N.D. Cal. 2022) ...................................................................................... 36

In re Mercedes-Benz Emissions Litig.,

2021 WL 8053614 (D.N.J. July 12, 2021) ................................................................................ 27

In re Nat’l Football League Players Concussion Injury Litig. (“In re NFL I”),
775 F.3d 570 (3d Cir. 2014)................................................................................................ 24, 46

In re Nat’l Football League Players Concussion Injury Litig. (“In re NFL II”),
821 F.3d 410 (3d Cir.),............................................................................................ 24, 32, 38, 42

In re Processed Egg Prods. Antitrust Litig.,

284 F.R.D. 249 (E.D. Pa. 2012) ................................................................................................ 44

In re Prudential Ins. Co. Am. Sales Practice Litig.,

148 F.3d 283 (3d Cir. 1998).......................................................................................... 23, 28, 37

In re Prudential Ins. Co. of Am. Sales Practices Litig.,

962 F. Supp. 450 (D.N.J. 1997) ................................................................................................ 45

In re Railway Indus. Empl. No-Poach Antitrust Litig.,

2020 WL 13852931 (W.D. Pa. Aug. 26, 2020) (Conti, J.) ................................................. 24, 25

In re Rent-Way Sec. Litig.,

305 F. Supp. 2d 491 (W.D. Pa. 2003) ................................................................................. 44, 45

In re Valsartan, Losartan & Irbesartan Prod. Liab. Litig.,

2023 WL 1818922 (D.N.J. Feb. 8, 2023) ................................................................................. 36

In re Volkswagen & Audi Warranty Extension Litig.,

89 F. Supp. 3d 155 (D. Mass. 2015) ................................................................................... 31, 32

Larson v. AT&T Mobility,

Inc., 687 F.3d 109 (3d Cir. 2012) ............................................................................................. 44

Murphy v. Hundreds is Huge, Inc.,

2022 WL 2110202 (W.D. Pa. June 10, 2022) ........................................................................... 23

Murphy v. Le Sportsac, Inc.,

2023 WL 375903 (W.D. Pa. Jan. 24, 2023) .............................................................................. 21

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Newton v. Merrill Lynch,

259 F.3d 154 (3d Cir. 2001)...................................................................................................... 38

Palamara v. King’s Family Restaurants,

2008 WL 1818453 (W.D. Pa. Apr. 22, 2008) ........................................................................... 32

Reinig v. RBS Citizens, N.A.,

912 F.3d 115 (3d Cir. 2018)...................................................................................................... 36

Reyes v. Netdeposit, LLC,

802 F.3d 469 (3d Cir. 2015)...................................................................................................... 37

Rodriguez v. Nat’l City Bank,

726 F.3d 372 (3d Cir. 2013)...................................................................................................... 37

Rossini v. PNC Fin. Servs. Grp., Inc.,

2020 WL 3481458 (W.D. Pa. June 26, 2020)..................................................................... 25, 27

In re Warfarin Sodium Antitrust Litig. (“In re Warfarin”),

391 F.3d 516 (3d Cir. 2004)................................................................................................ 21, 29

Solak v. Ford Motor Co.,

2023 WL 4628456 (E.D. Mich. July 19, 2023) .................................................................. 27, 30

Sullivan v. DB Invs., Inc.,

667 F.3d 273 (3d Cir. 2011).......................................................................................... 24, 39, 40

Torres v. BrandSafway Indus. LLC,

2023 WL 346667 (W.D. Pa. Jan. 20, 2023) .............................................................................. 22

Vaughn v. Am. Honda Motor Co.,

627 F. Supp. 2d 738 (E.D. Tex. 2007) ...................................................................................... 32

Vines v. Covelli Enterprises,

2012 WL 5992114 (W.D. Pa. Nov. 30, 2012) .......................................................................... 39

Walker v. Highmark BCBSD Health Options, Inc.,

2022 WL 17592067 (W.D. Pa. Dec. 13, 2022)......................................................................... 36

Wetzel v. Liberty Mut. Ins. Co.,

508 F.2d 239 (3d Cir. 1975)...................................................................................................... 38

Zanghi v. Freightcar Am., Inc.,

2016 WL 223721 (W.D. Pa. Jan. 19, 2016) ........................................................................ 25, 32

Statutes

28 U.S.C. §1407 .............................................................................................................................. 4

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Rules

Fed. R. Civ. P. 23 ................................................................................................................... passim

Other Authorities

Manual for Complex Litigation (Fourth) (2004) .................................................................... 24, 46

4 William B. Rubenstein, Newberg and Rubenstein on Class Actions §13:50, Westlaw

(6th ed. Database updated June 2023) ................................................................................. 26, 44

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I. INTRODUCTION

Proposed Settlement Class Representatives seek preliminary approval of the Class

Settlement Agreement and Release of Economic Loss Claims against the Philips Defendants and

other Released Parties.1 The Settlement confers substantial benefits upon the proposed Settlement

Class,2 was negotiated in good faith and at arm’s length by experienced counsel, and should be

preliminarily approved under Fed. R. Civ. P. 23(e)(1)(B) because the Court will likely be able to

find after a Final Fairness Hearing that it is fair, reasonable, and adequate. The Court should also

conditionally certify the proposed Settlement Class to which the Parties have stipulated.

The proposed Settlement resolves the Economic Loss Claims of Users and Payers3 with

respect to approximately 10.8 million CPAPs, BiPAPs, and ventilator devices with polyester

polyurethane (“PE-PUR”) foam that were recalled by Philips RS beginning on June 14, 2021 due

to potential health risks caused by the degradation of the foam. The Settlement is the result of a

year of extensive negotiations that began in September 2022 when the first of four in-person

mediation sessions was conducted by the highly experienced, Court-appointed Settlement

Mediator, Hon. Diane M. Welsh (Ret.). As explained in her Declaration,4 the Parties were very

1
The “Philips Defendants” are, collectively, Philips RS North America LLC (“Philips RS”),
Koninklijke Philips N.V. (“KPNV”), Philips North America LLC, Philips Holding USA, Inc., and
Philips RS North America Holding Corporation. The Released Parties also include, among others,
Defendants Polymer Technologies, Inc. and Polymer Molded Products LLC.
2
Unless otherwise noted, capitalized terms have the same meaning herein that they have in the
proposed Class Settlement Agreement and Release of Economic Loss Claims, attached hereto as
Ex. “A” (“Settlement Agreement” or “SA”), at §1.
3
“Users” are persons or entities who purchased, leased, rented, or paid for (in whole or part), or
were prescribed a Recalled Device. Id. §§1.51, 1.59. “Payers” are entities that reimbursed (in
whole or part) a User’s payment to purchase, lease, rent, or otherwise pay for a Recalled Device,
including insurers, self-funded employers, and other third-party payers. Id. §§1.34, 1.51.
4
The Declaration of Hon. Diane M. Welsh (Ret.) in Support of Proposed Economic Loss Claims
Settlement dated July 26, 2023, is attached hereto as Ex. “B” (“Welsh Decl.”).
 Case 2:21-mc-01230-JFC Document 2213 Filed 09/07/23 Page 9 of 56

well-informed before entering into the Settlement – they exchanged comprehensive mediation

statements that addressed the many complex factual and legal issues relating to the Economic Loss

Claims and engaged in targeted discovery of documents and information relevant to the mediation

discussions. During this time, the Parties also engaged in extensive briefing on the Defendants’

motions to dismiss, further clarifying some of the key legal issues in this litigation.

Mediation efforts culminated in a signed Term Sheet on May 24, 2023. Thereafter, the

Parties engaged in protracted negotiations over the complex terms of the Settlement Agreement

and accompanying exhibits, with the Agreement ultimately executed on September 7, 2023.

Importantly, the Parties’ negotiations focused solely on relief for the Settlement Class, and they

did not negotiate attorneys’ fees during the mediation process or during their subsequent

negotiations of the terms of the Settlement Agreement. Welsh Decl. ¶16.

Pursuant to this proposed Settlement, the Philips Defendants will pay a minimum of $479

million into non-reversionary Settlement Funds, with a minimum of $445,000,000 for Device

Payment Awards and Device Return Awards to Eligible Users (“User Settlement Fund”) and

$34,000,000 for Payer Awards to Eligible Payers (“Payer Settlement Fund”). As necessary, the

Philips Defendants will replenish the User Settlement Fund to pay additional Device Payment and

Device Return Awards to Eligible Users that exceed the prefunded baseline thresholds. The Philips

Defendants have also agreed to pay up to $15,000,000 for Device Replacement Awards to Eligible

Users.

Eligible Users will receive Device Return Awards of $100 for each Recalled Device they

return to Philips RS, and they will also receive Device Payment Awards ranging from $55.63 to

$1,552.25 per Recalled Device, depending on the Recalled Device at issue. These cash payments

will not be reduced, regardless of how many claims are filed. A fixed amount of $34,000,000 will

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be available for Payer Awards to pay Eligible Payers. This amount will not increase or decrease

based on the number or amount of Eligible Payers or submissions for Payer Awards. SA §2.10.1.

In addition to the Settlement Funds for Settlement Class Members, the Philips Defendants

have agreed to pay separately any attorneys’ fees and costs that may be awarded by the Court to

Settlement Class Counsel, as well as Service Awards of $5,000 to each of the five Settlement Class

Representatives, subject to Court approval. Accordingly, the payments to Settlement Class

Counsel and the Settlement Class Representatives will not diminish the recovery of Settlement

Class Members. Moreover, the Settlement Fund will not be reduced on account of the cost of

Notice and Settlement Administration, as the Philips Defendants have likewise agreed to pay those

reasonable expenses in addition to and separately from the payments to Settlement Class Members.

Another important feature of the Settlement is that Settlement Class Members who enroll

their Recalled Devices in the Settlement (or register them in a Philips RS recall program) and

timely return their Recalled Devices to Philips RS will automatically receive Device Payment

Awards and Device Return Awards for each returned device without having to complete and

submit a claim form. Another signature feature of the Settlement is the “Accelerated

Implementation Option” (“AIO”), which enables Eligible Users who have enrolled or registered

their Recalled Devices and returned them before the Claims Period Deadline to obtain their Device

Payment Award and Device Return Award even before any appeals from the Final Judgment have

been decided, and regardless of the outcome of those appeals.

In sum, the proposed Settlement confers very substantial benefits upon Settlement Class

Members, was negotiated in good faith and at arm’s length by highly experienced counsel on both

sides, and avoids the considerable risks, delays, expense, and burdens of continued class action

litigation of Plaintiffs’ Economic Loss Claims. Significantly, Plaintiffs’ Personal Injury claims and

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Medical Monitoring claims are expressly excluded from the scope of this proposed settlement.

Settlement Class Counsel respectfully submit that preliminary approval is warranted, and notice

should be directed to the proposed Settlement Class.

II. HISTORY OF THE LITIGATION AND PROPOSED CLASS SETTLEMENT

A. The Litigation

On June 14, 2021, Philips RS announced recalls of approximately 10.8 million of its CPAP,

BiPAP, and ventilator devices sold, leased, rented or otherwise distributed in the United States.

Shortly thereafter, litigation related to the Recalled Devices was commenced against the Philips

Defendants in various federal and state courts involving claims for economic loss, medical

monitoring and personal injury. On October 8, 2021, the Judicial Panel on Multidistrict Litigation

(“JPML”) granted a Motion for Transfer and Coordination or Consolidation Under 28 U.S.C.

§1407 thereby establishing this MDL (“the MDL”), assigned the MDL to this Court (“the MDL

Court”), and transferred all then-pending federal lawsuits to the MDL for coordinated or

consolidated pretrial proceedings. ECF No. 1.

On October 10, 2022, Plaintiffs filed a Consolidated Third Amended Class Action

Complaint for Economic Losses on behalf of themselves and all others similarly situated. ECF No.

785 (“Economic Loss Complaint” or “EL Compl.”).5 Plaintiffs alleged that the PE-PUR foam in

the Recalled Devices is susceptible to hydrolysis, causing it to degrade and expose patients to toxic

particles and VOCs, EL Compl. ¶¶214-17, 255-71, some of which are known or suspected

carcinogens. Id. ¶¶272-88. As a result, Plaintiffs allege, among other things, the Recalled Devices

were defective and worthless at the time of purchase. Id. ¶254. Plaintiffs allege that if Settlement

5
In subsequent weeks, Plaintiffs also filed a Consolidated Second Amended Class Action
Complaint for Medical Monitoring (ECF No. 815) and an Amended Master Long Form Complaint
for Personal Injuries and Damages and an accompanying Short Form Complaint (ECF No. 834).
Medical Monitoring and Personal Injury Claims are excluded from this Settlement and preserved.
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Class Members had been aware that the Recalled Devices were defective and worthless, they

would not have spent money on them. See, e.g., id. ¶¶20, 22-150.

B. Motions to Dismiss

Five separate motions to dismiss were filed attacking Plaintiffs’ Economic Loss Complaint.

ECF Nos. 902, 911, 913, 915, 918. In particular, the Philips Defendants challenged Plaintiffs’

allegations that they suffered economic harm because of the purchase or acquisition of Recalled

Devices, arguing that Plaintiffs lacked standing and had failed to state a claim upon which relief

may be granted. See ECF No. 912. The Philips Defendants, other than Philips RS, argued that

Plaintiffs had not alleged specific conduct on the part of those entities and had not alleged sufficient

facts to establish an alter ego or agency theory of liability. ECF No. 919. KPNV argued that the

Court lacked personal jurisdiction on all claims other than in Pennsylvania on the negligent recall

claim. ECF No. 914. Plaintiffs filed briefs in opposition to these motions, ECF Nos. 1527, 1531,

1566, 1743, and 1745, and the motions are still pending.

C. Discovery

Discovery began shortly after the litigation commenced. Plaintiffs served discovery

requests in early March of 2022. The Rule 26(f) meeting was held on or about April 5, 2022, and

in the months following, the Parties negotiated an ESI protocol, a Protective Order, search terms,

and Plaintiffs otherwise continued to serve discovery. Beginning as early as April of 2022, the

Philips Defendants began to produce documents, and periodic document productions have

continued since that time.

To date, Plaintiffs have reviewed hundreds of thousands of documents, including emails,

Microsoft Teams chats, and mobile text messages produced by the Philips Defendants and third

parties, that are relevant to issues such as liability, organizational structure, insurance, and sales

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and marketing. In addition, using various e-discovery tools, Plaintiffs have been able to prioritize

review of the most highly relevant documents. Plaintiffs also engaged in discovery to develop a

factual record related to KPNV’s motion to dismiss for lack of personal jurisdiction and with

respect to the liability of the various Philips Defendants. Finally, Plaintiffs engaged experts during

the discovery process, including experts on class damages, providing further insight into the

strengths and weaknesses of the Economic Loss Claims. Some of the experts provided substantial

assistance to Settlement Class Counsel in connection with their Science Day presentation to the

Court on September 1, 2022.

D. Mediation and Settlement

The proposed Settlement was the product of hard-fought, arm’s-length negotiations and a

mediation process that was ordered by the Court. On May 26, 2022, the Court appointed the

Honorable Diane M. Welsh (Ret.) to serve as a Settlement Mediator in this litigation. ECF No. 588

(Pretrial Order No. 16). Shortly after her appointment, on June 24, 2022, Judge Welsh held a Zoom

meeting with counsel for the Parties and subsequently corresponded with counsel to discuss the

general issues in the case and the logistics for the mediation. See Welsh Decl. ¶6. Over the course

of the next 13 months, Judge Welsh presided over an intensive mediation and settlement

negotiation process that resulted in the proposed Settlement of the Economic Loss Claims. Id. ¶¶6-

20.

Beginning before the first mediation session, the Parties exchanged detailed mediation

statements that addressed the factual issues pertaining to the Economic Loss Claims and the key

legal issues relating to those claims as well as initial settlement proposals. Id. ¶7. On September

15, 2022, under the supervision of Judge Welsh, the Parties held their first in-person mediation

session, which was attended by Settlement Class Counsel, outside counsel for the Philips

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Defendants, and senior representatives of the Philips Defendants with settlement authority. Id. ¶8.

The mediation session consisted of joint sessions with all participants, and breakout sessions with

each side individually where counsel for both sides made multiple presentations regarding various

factual and legal issues. Id.

During the first mediation session, the Parties discussed how to prioritize targeted

discovery to facilitate and inform the mediation discussions. Id. ¶9. As a result, certain document

discovery, specific interrogatories, and other discovery requests were prioritized. Id. Responses to

that discovery enabled the Parties to become fully informed of the relevant facts and allowed them

to carefully evaluate the strengths and weaknesses of their respective positions. Id.

On November 15, 2022, the Parties held a second in-person mediation session where they

continued to discuss the structure of a proposed settlement and a draft Settlement Term Sheet. Id.

¶11. During this time period, the Parties continued to exchange information and documents. Under

the continued supervision and guidance of Judge Welsh, the Parties held two more in-person

mediation sessions on February 23 and 24, 2023. Id. ¶12.

In addition to the in-person mediation sessions, the Parties negotiated extensively over the

phone, via Zoom, by email, and in person, and involved Judge Welsh from time-to-time to help

resolve disputes as they arose. Id. ¶¶13-15. Over the next three and a half months, the Parties

engaged in extensive negotiations over the terms of the Settlement Agreement and the many

exhibits thereto, exchanging numerous drafts, engaging in extensive back and forth, and calling

upon Judge Welsh to resolve certain disputes from time to time. Id. ¶15. Ultimately, the Parties

executed the Settlement Agreement on September 7, 2023.

Throughout the Settlement negotiation process, the Parties refrained from negotiating

attorneys’ fees and costs for Settlement Class Counsel. Id. ¶16. Settlement Class Counsel

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aggressively sought meaningful and substantial benefits for the Settlement Class while recognizing

both the risks that would be faced if litigation of the Economic Loss Claims proceeded and the

substantial costs and delays in pursuing the matter through fact and expert discovery, class

certification, summary judgment, trial, and appeal. Id. ¶18. For their part, counsel for the Philips

Defendants pushed back on many of the demands advanced by Settlement Class Counsel and

articulated the obstacles Plaintiffs and the putative class would face in litigation, while at the same

time recognizing the risks, expenses, and burdens of such litigation for their own clients. Id. ¶19.

Simply put, the proposed Settlement is one that is the result of good faith, fair, thorough, and fully-

informed arm’s-length negotiations. Id. ¶¶19-20.

III. NOTABLE SETTLEMENT TERMS

A. Proposed Settlement Class

The proposed Settlement Class consists of:

Plaintiffs and all other individuals or entities in the United States [including its
Territories (American Samoa, Guam, the Northern Mariana Islands, Puerto Rico,
and the U.S. Virgin Islands), and the District of Columbia], including individuals
who are United States citizens, residents, United States military, diplomatic
personnel and employees living or stationed overseas, who or which, prior to the
announcement of the Recalls, either (a) purchased, leased, rented, or paid for (in
whole or part), or were prescribed a Recalled Device (“Users”), or (b) reimbursed
(in whole or part) a User’s payment to purchase, lease, rent, or otherwise pay for a
Recalled Device, including insurers, self-funded employers, and other third-party
payers (“Payers”). Individuals or entities whose payment obligations with respect
to a particular Recalled Device preceded the announcement of the relevant Recall
are part of the Settlement Class even if certain of their payment obligations post-
dated the Recall (e.g., certain renters and lessees).

EXCLUDED from the Settlement Class are: (a) Defendants and their officers,
directors, and employees; (b) the MDL Court, Settlement Mediator, Claims
Appeals Special Master, and Special Masters assigned to the MDL; (c) individuals
who have already released Released Claims against one or more of the Defendants
pursuant to individual settlements or other resolutions; (d) DMEs [Durable Medical
Equipment providers]; (e) the federal government and any federal government
payers, including the United States Department of Health and Human Services

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Centers for Medicare & Medicaid Services, the Department of Defense, and the
U.S. Department of Veterans Affairs; and (f) Settlement Class Counsel.

Settlement Agreement §1.51. See also id. §§ 1.15, 1.58.

B. Payments Available to Settlement Class Members

The Settlement will provide four categories of substantial monetary payments to Settlement

Class Members: (1) compensation to Eligible Users for payments made to purchase, rent, or lease

a Recalled Device (“Device Payment Awards”); (2) compensation to Eligible Users for returning

a Recalled Device to Philips RS (“Device Return Awards”); (3) compensation to Eligible Users

for money spent out-of-pocket to replace their Recalled Devices between the June 14, 2021

announcement of the Recall and the September 7, 2023 Execution Date of the Settlement (“Device

Replacement Awards”); and (4) compensation to Eligible Payers for reimbursing (in whole or in

part) Users for payments made to purchase, lease, rent or otherwise pay for a Recalled Device

(“Payer Awards”). Id. §§3.2-3.4, 3.6. In addition, Users may be eligible for extended warranties

on certain Remanufactured Devices (i.e., the repaired, refurbished or new devices that Philips

Respironics provided to Users under its recall programs with the FDA). Id. §3.5.

1. Device Payment Awards

All Users are eligible for Device Payment Awards if they purchased, leased, rented, or paid

for (in whole or part) a Recalled Device and they did not receive their full payment back pursuant

to a warranty before the Recall was announced. Id. §§3.2.1, 3.2.6, 6.4. The amounts of these

Awards for Users vary for each type of Recalled Device. Id. §3.2. Significantly, these Device

Payment Award amounts are fixed, and will not be reduced, regardless of how many claims are

filed. Id. §2.7.1. In the event multiple Users make valid Device Payment Award claims with respect

to the same Recalled Device (e.g., a rented Recalled Device), the Device Payment Award for that

Recalled Device will be allocated on a pro rata basis in accordance with each User’s total
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payments for that device.6 Id. §3.2.5.

2. Device Return Awards

In addition to Device Payment Awards, the proposed Settlement provides for a Device

Return Award of $100 per Recalled Device for all Eligible Users who have either (1) already

returned a Recalled Device to Philips RS pursuant to a Recall Program or (2) return a Recalled

Device to Philips RS by the Claims Period Deadline pursuant to either the terms of the Settlement

or a Recall Program.7 Id. §3.3. Only one Device Return Award is available for each Recalled

Device. Id. As is the case with Device Payment Awards, the $100 payment for Device Return

Awards is fixed and will not be reduced, regardless of how many claims are filed. Id. §2.7.1.

Receipt of a Device Return Award for a particular Recalled Device does not affect a User’s

eligibility to also receive a Device Payment Award. Id. §3.3.6. Users who receive a Device Return

Award may also receive a Device Replacement Award under certain conditions. Id. §§3.4.6, 3.4.7.

3. Device Replacement Awards

The proposed Settlement also provides for Device Replacement Awards to Eligible Users.

Users who paid out of pocket for a comparable Replacement Device on or after the Recall was

announced on June 14, 2021 and prior to the September 7, 2023 Execution Date of the Settlement

without having received, or prior to receiving, a Remanufactured Device from the Philips RS

Recall Program are eligible for a Device Replacement Award. Id. §3.4. The amount of the Device

Replacement Award for a particular User will be based on the amount actually paid by the User8

6
Receipt of a Device Payment Award does not affect a User’s eligibility, if applicable, for a Device
Return Award and/or a Device Replacement Award with respect to that same device. SA §3.2.7.
7
Philips RS agrees to make prepaid labels available on the Settlement website so as to allow Users
to return their Registered or Enrolled Recalled Devices to Philips RS. Id. §3.3.4.
8
The amounts of a Device Replacement Award will not be based on any payment made by
insurance or another third-party payer on behalf of or for the benefit of the User. Id. §1.46.
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to purchase, lease, or rent the Replacement Device; the value of the replaced Philips RS Recalled

Device; and the total valid claims for Replacement Awards that are submitted, subject to the

funding limitations for this Award. Id. §3.4.1. Only one Device Replacement Award is available

per Recalled Device. Id. §3.4.3.

4. Payer Awards

The proposed Settlement also provides for Payer Awards to Eligible Payers. Payer Awards

will be determined based on each Eligible Payer’s relative market share (aggregated among all

Eligible Payers) based on the number of insured lives covered by the Eligible Payer in the United

States and the dollar amount of direct premiums written by the Eligible Payer in the United States

for Calendar Years 2021 and 2022. Id. §6.7, et seq. The Settlement Administrator will determine

each Eligible Payer’s Market Share Percentage based on industry data and the information

provided in the Payer Declarations and Claim Forms. Id.

C. Funding of Settlement Payments

Pursuant to the terms of the Settlement Agreement, Settlement Funds will be established

with payments made by the Philips Defendants. There will be a User Settlement Fund and a Payer

Settlement Fund. Id. §1.54. Subject to Court approval, the Parties agree that Huntington Bank

should serve as Settlement Fund Escrow Agent. Id. §1.55. Each Settlement Fund will be

established and initially funded through deposits by, or on behalf of, the Philips Defendants, no

later than 14 days after execution of the Settlement Agreement, of the Initial Payment for Class

Notice and Settlement Administration, in the amounts of $7,350,000 into the User Settlement Fund

and $100,000 into the Payer Settlement Fund. Id. §§2.3.2, 2.4.1. The Philips Defendants will make

additional payments for Settlement Administration separate and apart from their payments for

Settlement Awards. Id. §§2.4.2, 6.1.1.

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Payments for Device Payment Awards, Device Return Awards, and Payer Awards will be

a minimum of $479 million, with no maximum for Device Payment Awards and Device Return

Awards, and there will be no reversion of the prefunded payments to the Philips Defendants. Id.

§§2.5.1, 2.7.1., 2.10.1., 2.12. In addition to the prefunded amounts, the Philips Defendants will

pay up to $15,000,000 for Device Replacement Awards. Id. §§2.8.1., 6.6.2.4. These funds will be

paid as follows:

1. Device Payment Awards

The Initial Device Payment Amount will be calculated based on total Device Payment

Awards for all Registered Recalled Devices as of the Execution Date plus an amount equal to the

total Device Payment Awards for 5% of the remaining Recalled Devices that have not been

registered by that time. Id. §2.5.1. The Initial Device Payment Amount will be paid in two

installments by wire transfer into the User Settlement Fund: (1) 25% of the Initial Device Payment

Amount (“first installment”) will be paid no later than 14 days following MDL Court Final

Approval; and (2) 75% of the Initial Device Payment Amount (“second installment”) will be paid

no later than 14 days following the Effective Date.9 Id. In the event the first installment of the

Initial Device Payment Amount is insufficient to pay Device Payment Awards to Users electing

the AIO, discussed below, the Philips Defendants shall deposit additional funds from the second

installment to make sure the User Settlement Fund is large enough to make those payments. Id.

The combined first and second installment payments for the Initial Device Payment

Amount will be no less than $309 million. Id. The Settlement Agreement provides for additional

9
“Effective Date” is the date when the Settlement becomes Final (i.e., after the MDL Court enters
the Final Order and Judgment, and all appeals have been exhausted or resolved in a manner that
upholds the Final Order and Judgment). SA §1.17.

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payments to be made by the Philips Defendants, on a monthly basis, if the Initial Device Payment

Amount and the Initial Device Return Amount are not sufficient to make all Device Payment

Awards and Device Return Awards required by the Settlement. Id. §2.7, et seq.

2. Device Return Awards

The Initial Device Return Amount will be an amount equal to $100 for each and every

Registered and Enrolled Recalled Device returned by Users to Philips RS pursuant to the Recall

Programs or the Settlement as of the date of MDL Court Final Approval.10 Id. §2.6.1. The Initial

Device Return Amount will be paid in two installments by wire transfer into the User Settlement

Fund: (1) 25% of the Initial Device Return Amount (“first installment”) will be paid no later than

14 days following MDL Court Final Approval; and (2) 75% of the Initial Device Return Amount

(“second installment”) will be paid no later than 14 days following the Effective Date. Id. In the

event the first installment of the Initial Device Return Amount is insufficient to pay Device Return

Awards to Users electing the AIO, discussed below, the Philips Defendants shall deposit additional

funds from the second installment to make sure the User Settlement Fund is large enough to make

those payments. Id.

The combined first and second installment payments for the Initial Device Return Amount

will be not less than $136 million. Id.

3. Device Replacement Awards

The Philips Defendants will also pay up to $10,000,000 (the “Device Replacement

Amount”) by wire transfer into the User Settlement Fund no later than 14 days after the Settlement

Administrator determines the total number and amount of valid claims for Device Replacement

10
Users who still possess Trilogy 100/200 Recalled Devices and wish to return them cannot
“enroll” their devices in the Settlement. They need to register their Trilogy 100/200 with Philips
RS pursuant to a Recall Program and follow the retrieval process under that program. Id. §3.3.4.
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Awards. Id. §2.8.1. The determination of the Device Replacement Amount will not occur until

after the Claims Period Deadline. Id. If the total amount needed to satisfy claims for Device

Replacement Awards exceeds $10,000,000, the balance of any funds remaining in the User

Settlement Fund after payment of all Device Payment Awards and Device Return Awards

(“Balance of Funds in User Settlement Fund”) will be used to make Device Replacement Awards.

Id. §6.6.2.3. To the extent that the Device Replacement Amount plus the Balance of Funds in User

Settlement Fund are insufficient to pay at least 50% of the total amount of claims for Device

Replacement Awards, the Philips Defendants will pay an additional amount into the User

Settlement Fund sufficient to pay 50% of the total amount of claims for Device Replacement

Awards, up to a maximum of an additional $5,000,000. Id. §6.6.2.4.

4. Payer Awards

The Philips Defendants will pay the Payer Amount of $34,000,000 into the Payer

Settlement Fund no later than 14 days following the Effective Date. Id. §2.10.1. The Payer

Amount, plus accrued interest in the Payer Settlement Fund, will be used to pay Payer Awards (id.

§2.11) and is non-reversionary (id. §2.12) and fixed, meaning it will not increase or decrease based

upon the number of claims that are made by Payers (id. §2.10.1). In light of the calculations and

allocations that must be made after all Payer claims are submitted, Payer Awards will not be paid

until after the Claims Period Deadline or the Effective Date, whichever is later. Id. §6.7.2.

D. Additional Benefits

1. Accelerated Implementation Option (“AIO”)

A valuable aspect of the Settlement is that Users who return their Recalled Device before

the Effective Date of the Settlement (including those who have already returned their Recalled

Devices) may receive their Device Payment Award and Device Return Award on an accelerated

basis before any appeals have been decided if they meet certain conditions set forth in Section
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6.3.2 of the Settlement Agreement.11 These payments will be made within 60 days after the later

of (1) MDL Court Final Approval, (2) Philips RS’s receipt of the Recalled Device, or (3) the

completion of each of the steps identified in Section 6.3.2. Id. §§6.3.3., et seq.

Payments made under the AIO are non-reversionary, meaning that Users who elect AIO

get their payments without having to wait for the appeals process to run its course, and get to keep

the money even if the Settlement is not upheld on appeal. Id. §2.12.

2. Extended Warranties

Philips RS agrees to provide extended warranties to Users who receive (or have received)

a Remanufactured Device from Philips RS as part of a Recall Program. Id. §3.5, et seq. Philips RS

agrees to provide the following extended warranties: (1) two years for materials and workmanship

for Remanufactured Devices that have a different Serial Number from the associated Recalled

Device; and (2) two years for materials and workmanship on the repair work that was performed

by Philips RS pursuant to the Recall Programs (not the entire Remanufactured Device) on

Remanufactured Devices that have the same Serial Number as the associated Recalled Device (i.e.,

the Remanufactured Device and the Recalled Device are the same device by Serial Number). Id.

E. Settlement Administration and Claims Submissions

1. Settlement Administration

The Philips Defendants are responsible for paying all reasonable costs of Notice and

Settlement Administration. Id. §6.1.1. These payments are in addition to the Settlement Fund

payments being made to Settlement Class Members, and thus will not reduce the amounts to be

11
To participate in AIO, Users must complete an individual release and an individual assignment
of their claims against manufacturers of ozone cleaning products to Philips RS. Id. §§6.3.2.1,
6.3.2.2. This is required because they will be receiving Settlement benefits before the class-wide
release and class-wide assignment have gone into effect (i.e., AIO benefits will be received before
the period for appealing the Final Order and Judgment has expired). Id. §6.3.3. The form of each
document is attached to the Settlement Agreement as Exhibit 6.
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received by Class Members. Subject to Court approval, the Parties agree that Angeion Group, LLC

(“Angeion”) should serve as the Settlement Administrator. Id. §1.50.

The Settlement Administrator will be responsible for disseminating notice, calculating

payments (and withholdings) based on the plan of allocation set forth in the Settlement Agreement,

determining Additional Amounts that the Philips Defendants need to pay into the Settlement Fund

for Device Payment Awards and Device Return Awards, creating a Settlement website, reviewing

the validity of claim submissions and distributing funds to Eligible Settlement Class Members,

withholding and paying applicable taxes, and other duties as provided in any agreement entered

into between the Parties and the Settlement Administrator. See, e.g., id. §6.1.2. The Settlement

Administrator may make necessary adjustments to claims and notice processes as circumstances

may dictate, subject to the approval of Settlement Class Counsel and the Philips Defendants. Id.

§6.1.3. The Settlement Administrator will also receive and process objections and opt-out requests

by Settlement Class Members, which must be submitted no later than 60 days after the

dissemination of Notice to Settlement Class Members. Id. §§10.1-10.2.

2. Claims Submissions

The Claims Period will begin when the Settlement Administrator disseminates Notice to

the Settlement Class (i.e., 60 days following entry of this Court’s Preliminary Approval Order)

and conclude on the Claims Period Deadline, which is 120 days after the date of the Final Fairness

Hearing. Id. §§1.7, 6.2.1, 9.1.2.

Automatic Payments for Users who return their Registered or Enrolled Recalled Device.

To date, over 3 million Users have registered for the Philips RS Recall Programs, and over 1.3

million of the Users have returned their Registered Recalled Device to Philips RS pursuant to a

Recall Program. All Users who have already returned or subsequently return their Registered or

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Enrolled Recalled Device to Philips RS by the Claims Period Deadline will be paid the Device

Payment Award associated with the returned Recalled Device and their $100 Device Return

Award, without the need to submit a claim form, within 60 days after the later of (1) the Effective

Date or (2) receipt of the Recalled Device by Philips RS. Id. §§6.4.1.1, 6.4.2.1.

Streamlined Online Confirmation Process for Users Who Previously Registered for a

Recall Program but Who Do Not or Cannot Return their Registered Recalled Device. To receive

a Device Payment Award, Users who registered for a Recall Program prior to the Settlement’s

Execution Date but do not or cannot return their Registered Recalled Device to Philips RS must,

prior to the Claims Period Deadline, complete a simple process confirming their contact

information and the Serial Number and Registration Number of their Recalled Device (if

available), which may be done online (or, the User may complete a written confirmation form that

is attached to the Settlement Agreement as Exhibit 7). Id. §6.4.2.2. Such Users will not be required

to submit any supporting documentation as part of this process, and payment of their Device

Payment Award will be made within 60 days after the latter of (1) the Effective Date, or (2)

completion of the confirmation process. Id.

Claim Submission Process for all other Settlement Class Members (Users and Payers).

To receive a Device Payment Award, all other Users must submit a completed Claim Form

(attached to the Settlement Agreement as Exhibit 4) by the Claims Period Deadline and provide

sufficient documentation that the User purchased, leased, rented, or otherwise paid for one or more

Recalled Devices. 12 Id. §6.4.3.1. To receive a Payer Award, Payers must submit a Payer

12
With respect to rental Recalled Devices, the Device Payment Award for that Device will be
allocated by the Settlement Administrator (after the Claims Period Deadline) among Eligible
Settlement Class Members on a pro rata basis, taking into consideration the number of Eligible
Settlement Class Members for the rental Recalled Device and the respective portion of their
payments for that rental Recalled Device. Id. §6.4.4.1. In light of the allocation that must be made
Footnote continued on next page
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Declaration and Claim Form supported by sufficient information and documentation as to the

number of insured lives in the United States covered by the Payer and the dollar amount of direct

premiums written by the Payer in the United States in the Calendar Years 2021 and 2022 (attached

to the Settlement Agreement as Exhibit 8) by the Claims Period Deadline. Id. §6.7.1. Users and

Payers can make their submissions online via a custom portal developed by the Settlement

Administrator, or by mailing paper claim forms and supporting documentation to the Settlement

Administrator. All valid claims will be paid to Users after the Effective Date within 60 days after

they are processed and approved by the Settlement Administrator. Id. §6.4.3.2. Valid claims for

Eligible Payers will be paid within 180 days after the Claims Period Deadline or the Effective

Date, whichever is later, following processing and approval by the Settlement Administrator and

an opportunity for appeals of Payer Claims Determinations. Id. §§6.7.2, et seq., 6.8.1, 6.8.2.

Users Seeking Device Replacement Awards. Device Replacement Awards are intended to

compensate Eligible Users who, on or after June 14, 2021 and prior to the Execution Date, paid

out of pocket (in whole or in part) for a Replacement Device without having received or prior to

receiving from a Recall Program a Remanufactured Device associated with the User’s Recalled

Device. Id. §3.4. Users seeking a Device Replacement Award must submit a completed Device

Replacement Award Claim Form (in the form attached to the Settlement Agreement as Exhibit 5),

before the Claims Period Deadline, supported by the required documentation. Id. §6.6.1. After the

Claims Period Deadline, the Settlement Administrator will calculate the total valid claims for

Device Replacement Awards submitted during the Claims Period, which will trigger the payment

with respect to rental Recalled Devices, no Device Payment Award shall be made with respect to
rental Recalled Devices until after the Effective Date. Id. §6.4.4.2.
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obligations by the Philips Defendants as set forth above.13 Id. §6.6.2, et seq. Eligible Users will be

paid Device Replacement Awards within 60 days after the Settlement Administrator performs that

calculation. Id. §6.6.3.

Claims Appeals. Any Settlement Class Member whose claim is denied (in whole or in part)

by the Settlement Administrator for any reason shall be provided with a written notice explaining

the deficiency and a period of 30 days to resubmit the claim to attempt to cure the deficiency. Id.

§6.8.1. The Settlement Agreement also provides a process by which any Settlement Class Member

or Defendant who believes that a claim for a payment under the Settlement has not been paid or

processed in accordance with the Agreement or with any applicable orders of the MDL Court, can

appeal Claims Determinations by the Settlement Administrator to the Claims Appeals Special

Master. Id. §6.8, et seq. Subject to Court approval, the Parties propose the Honorable Thomas J.

Rueter (Ret.) as the Claims Appeals Special Master.14 Id. §1.5. The decision of the Claims Appeals

Special Master with respect to such appeals shall be final and binding on the Class Member or

Defendant without further appeal. Id. §6.8.5.

F. Releases

By virtue of the Settlement, the Parties agree to mutual releases. Id. §4, et seq. Settlement

Class Members agree to release their Economic Loss Claims against the Released Parties. Id.

§§1.16, 1.42, 1.43, 4.6. The Release does not include claims against Defendants or other Released

Parties for Medical Monitoring and Personal Injury Claims. Id. §§4.1, 4.2. Also, Settlement Class

Members do not release their Economic Loss Claims against Ozone Cleaning Companies. Id. §4.3.

13
Depending upon the amount of claims submitted for Device Replacement Awards and the
amount of funds available to pay them from the User Settlement Fund, the Philips Defendants have
agreed to pay up to $15,000,000 to satisfy these claims. Id. §6.6.3.
14
Judge Rueter is a retired U.S. Magistrate Judge of the U.S. District Court for the Eastern District
of Pennsylvania and is currently affiliated with JAMS in their Philadelphia office.
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Instead, Settlement Class Members assign those claims to Philips RS. Id. §§4.3, 5.1.

G. Attorneys’ Fees and Expenses

The Philips Defendants have agreed to pay separately the amount of attorneys’ fees and

costs awarded to Settlement Class Counsel in any final Order of the MDL Court in addition to the

compensation provided to Settlement Class Members under this Settlement. Id. §18.1.

Accordingly, any award of attorneys’ fees and costs shall not diminish the recovery of Settlement

Class Members. To date, the Parties have not reached agreement on the amount of attorneys’ fees

and costs to be paid to Settlement Class Counsel. Attorneys’ fees and costs are discussed in detail

in Section IV.B.3.c., infra.15

H. The Notice Plan

The proposed Notice is described in the Settlement, and the Notice Plan and Forms of

Notice are attached to the Settlement Agreement as Exhibits 2 and 3(a)-3(h). See also Declaration

of Steven Weisbrot, Esq. of Angeion Group, LLC dated September 5, 2023, attached hereto as Ex.

“C” (“Angeion Decl.”), at ¶¶17, 20-58. Details of the Notice are set forth in Section IV.D, infra.

IV. ARGUMENT

A. Legal Standards For Settlement Approval

Approval of a class action settlement involves a two-step process. First, at the preliminary

approval stage, the Court decides whether it will be likely to ultimately approve the settlement and

certify the settlement class, thus warranting the dissemination of notice to the proposed settlement

class. See Fed. R. Civ. P. 23(e)(1)(B); Cole’s Wexford Hotel, Inc. v. UPMC & Highmark Inc.

15
Settlement Class Counsel will recommend, subject to approval by the Court, that each
Settlement Class Representative receive a Service Award in the amount of $5,000 in recognition
for their service as a Settlement Class Representative, and the Philips Defendants agree not to
oppose such request. SA §18.2. If approved, these payments will be in addition to the
compensation provided to Settlement Class Members under this Settlement and will not diminish
the recovery of Settlement Class Members under the Settlement. Id.
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(“Cole’s Wexford I”), 2016 WL 6919773, at *1-2 (W.D. Pa. Apr. 6, 2016) (Conti, J.) (finding that

proposed settlement “falls within the range of reasonableness meriting possible final approval”

and directing the dissemination of notice). Second, after notice has been disseminated and class

members have had the opportunity to object to or opt out of the settlement, the Court conducts a

final fairness hearing and decides whether to approve the settlement. Fed. R. Civ. P. 23(e)(2);

Hickton v. Enterprise Rent-A-Car Company, 2013 WL 12137092, at *3 (W.D. Pa. Apr. 29, 2013)

(Conti, J.) (same); see also Calhoun v. Invention Submission Corp., 2023 WL 2411354, at *5-6

(W.D. Pa. Mar. 8, 2023) (describing two-step process).

The Third Circuit has a “strong judicial policy in favor of class action settlement.” Ehrheart

v. Verizon Wireless, 609 F.3d 590, 595 (3d Cir. 2010). When reviewing a settlement, the Third

Circuit has repeatedly stressed that “we favor the parties reaching an amicable agreement and

avoiding protracted litigation. We do not wish to intrude overly on the parties’ hard-fought

bargain.” In re: Google Inc. Cookie Placement Consumer Priv. Litig., 934 F.3d 316, 326 (3d Cir.

2019) (“In re: Google Inc.”) (internal citation omitted). “Settlement agreements are to be

encouraged because they promote the amicable resolution of disputes and lighten the increasing

load of litigation faced by the federal courts.” Ehrheart, 609 F.3d at 595. Thus, “the settlement of

class actions is preferred to protracted litigation: ‘there is an overriding public interest in settling

class action litigation, and it should therefore be encouraged.’” Murphy v. Le Sportsac, Inc., 2023

WL 375903, at *9 (W.D. Pa. Jan. 24, 2023) (quoting In re Warfarin Sodium Antitrust Litig. (“In

re Warfarin”), 391 F.3d 516, 535 (3d Cir. 2004)).

To grant preliminary approval and disseminate notice of the proposed settlement to the

Settlement Class, a court must find that it “will likely be able to: (i) approve the proposal under

Rule 23(e)(2); and (ii) certify the class for purposes of judgment on the proposal.” Fed. R. Civ. P.

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23(e)(1)(B) (emphasis added). Courts within this District recognize that “[a]t the preliminary

approval stage, the bar to meet the fair, reasonable and adequate standard is lowered,” and a court’s

focus should be on whether the proposed settlement “discloses grounds to doubt its fairness or

other obvious deficiencies such as unduly preferential treatment of class representatives or

segments of the class, or excessive compensation of attorneys, and whether it appears to fall within

the range of possible approval.” Torres v. BrandSafway Indus. LLC, 2023 WL 346667, at *2 (W.D.

Pa. Jan. 20, 2023) (internal quotation marks and citation omitted); see also McRobie v. Credit Prot.

Assoc., 2020 WL 6822970, at *3 (E.D. Pa. Nov. 20, 2020) (“Preliminary approval of a proposed

class action settlement is not binding on the Court and is generally granted unless a proposed

settlement is obviously deficient.”).

Under Rule 23(e)(2), in determining whether it will likely be able to find that a proposed

settlement is “fair, reasonable, and adequate,” a court should consider whether:

(A) the class representatives and class counsel have adequately represented the
class;

(B) the proposal was negotiated at arm’s length;

(C) the relief provided for the class is adequate, taking into account:

(i) the costs, risks, and delay of trial and appeal;

(ii) the effectiveness of any proposed method of distributing relief to the class,
including the method of processing class-member claims;

(iii) the terms of any proposed award of attorney’s fees, including timing of
payment; and

(iv) any agreement required to be identified under Rule 23(e)(3); and

(D) the proposal treats class members equitably relative to each other.

The 2018 Advisory Committee Notes to Subdivision 23(e)(2) explain that the “core concerns”

listed in the text of Rule 23(e)(2) and set forth above do not “displace” a court’s consideration of

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the other factors that have been adopted by each Circuit Court to assess the fairness of a class

settlement.

In the Third Circuit, courts have traditionally considered nine factors when determining the

fairness of a proposed settlement, as set forth in Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir. 1975).

These Girsh factors significantly overlap with the Rule 23(e)(2) factors: “(1) the complexity,

expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the

stage of the proceedings and the amount of discovery completed; (4) the risks of establishing

liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through

the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of

reasonableness of the settlement fund in light of the best possible recovery; [and] (9) the range of

reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of

litigation.”16 Id. (internal quotation marks and citation omitted); see also In re: Google Inc., 934

F.3d at 322 n.2 (quoting Girsh factors); In re Prudential Ins. Co. Am. Sales Practice Litig., 148

F.3d 283, 323 (3d Cir. 1998), cert. denied, 525 U.S. 1114 (1999) (listing additional factors that

court may apply if relevant).

In addition, the Third Circuit has stated clearly that “[w]e apply an initial presumption of

fairness in reviewing a class settlement when: (1) the negotiations occurred at arm’s length; (2)

there was sufficient discovery; (3) the proponents of the settlement are experienced in similar

litigation; and (4) only a small fraction of the class objected.” In re Nat’l Football League Players

Concussion Injury Litig., 821 F.3d 410, 436 (3d Cir.), cert. denied, 137 S. Ct. 591 (2016) (“In re

16
Courts in this District have differed as to whether the Girsh factors should be considered at both
the preliminary and final approval stages, or just at final approval. Compare Murphy v. Hundreds
is Huge, Inc., 2022 WL 2110202 at *8-13 (W.D. Pa. June 10, 2022) (applying Girsh at preliminary
approval stage) with Copley v. Evolution Well Servs. Operating LLC, 2023 WL 1878581, at *2,
n.1 (W.D. Pa. Feb. 10, 2023) (stating that Girsh applies only at final approval stage).
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NFL II”) (internal quotation marks and citation omitted); see also In re: Google Inc., 934 F.3d at

326; In re Railway Indus. Empl. No-Poach Antitrust Litig., 2020 WL 13852931, at *2 (W.D. Pa.

Aug. 26, 2020) (Conti, J.) (“In re Railway Antitrust”); Cole’s Wexford Hotel, Inc. v. UPMC &

Highmark Inc. (“Cole’s Wexford II”), 2016 WL 6236892, at *2 (W.D. Pa. July 29, 2016) (Conti,

J.).

If the preliminary approval criteria are met, a court must also consider whether it is likely

to certify a class for settlement purposes. See Fed. R. Civ. P. 23(e)(1)(B)(ii). The Third Circuit has

long held that the certification of a settlement class serves “the core purpose of Rule 23(b)(3),

which is to vindicate the claims of consumers and other groups of people whose individual claims

would be too small to warrant litigation.” See, e.g., Sullivan v. DB Invs., Inc., 667 F.3d 273, 312

(3d Cir. 2011) (en banc), cert. denied, 566 U.S. 923 (2012) (internal quotation marks and citation

omitted); In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prod. Liab. Litig. (“In re GMC”), 55

F.3d 768, 777-78 (3d Cir.), cert. denied, 516 U.S. 824 (1995). The Manual for Complex Litigation

advises that “[i]f the case is presented for both class certification and settlement approval, the

certification hearing and preliminary fairness evaluation can usually be combined. The judge

should make a preliminary determination that the proposed class satisfies the criteria set out in

Rule 23(a) and at least one of the subsections of Rule 23(b).” Manual for Complex Litigation

(Fourth) §21.632 (2004); see also In re Nat’l Football League Players Concussion Injury Litig.,

775 F.3d 570, 582 (3d Cir. 2014) (“In re NFL I”) (quoting §21.632 of Manual with approval).

B. Preliminary Approval of the Proposed Settlement Is Warranted

The Settlement should be preliminarily approved under Rule 23(e)(1)(B) because, upon

consideration of all of the relevant factors, the Court will likely be able to approve the Settlement

as “fair, reasonable, and adequate” after a Final Fairness Hearing. In addition, the Court should

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find that a presumption of fairness applies because the proposed Settlement was negotiated at

arm’s length before Judge Welsh by experienced counsel who had the benefit of sufficient

discovery and thus could fully evaluate the strengths and weaknesses of their respective positions.

See, e.g., In re Railway Antitrust, 2020 WL 13852931, at *2.

1. Settlement Class Counsel and the Class Representatives have

adequately represented the Class

Experienced Counsel. Settlement Class Counsel consist of Plaintiffs’ Co-Lead Counsel

and the Chair and Vice-Chairs of the Settlement Committee, who were appointed by the Court

after a thorough interview and vetting process (ECF No. 395, Pretrial Order No. 8). They have

decades of experience litigating complex products liability and other class action litigation, and

have negotiated favorable settlements in many such cases. Since the inception of this litigation,

the Court has been able to observe first-hand the vigorous and skilled litigation of this matter by

Settlement Class Counsel. They used their skills, prior experience, and familiarity with the facts

and law in this case to negotiate the best possible settlement for the Settlement Class, with the

assistance of a Court-appointed Settlement Mediator. See Rossini v. PNC Fin. Servs. Grp., Inc.,

2020 WL 3481458, at *13 (W.D. Pa. June 26, 2020) (“The ‘proponents’ of the settlement—most

significantly, Plaintiffs’ counsel—are also experienced in similar litigation. . . . This generally

supports a presumption that counsel knew what they were doing when negotiating the

settlement.”); Zanghi v. Freightcar Am., Inc., 2016 WL 223721, at *15 (W.D. Pa. Jan. 19, 2016)

(“[S]ignificant weight should be attributed to the belief of experienced counsel that settlement is

in the best interest of the class.”) (internal quotation marks and citation omitted).

Class Representatives. The proposed Settlement Class Representatives have fulfilled their

responsibilities on behalf of the Settlement Class by working closely with Settlement Class

Counsel on the litigation of the Economic Loss Claims, reviewing pleadings, and responding to
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Defendants’ document requests.

2. The proposed Settlement was negotiated at arm’s length

Arm’s-Length Negotiations. The proposed Settlement Agreement was the result of an

arduous negotiation process, including mediation supervised by a well-respected and experienced

Court-appointed mediator, that took a year from the initial negotiations to the time the Agreement

was signed, as discussed in significant detail above. The Declaration of Judge Welsh independently

corroborates that “the negotiations between the parties were protracted, hard fought and conducted

at arm’s-length and in good faith,” and the “highly capable and experienced parties and counsel

[had] a strong command of relevant facts and legal principles.” Welsh Decl. ¶¶2, 19. Importantly,

the Parties’ negotiations “focused exclusively on benefits for the Settlement Class, and there was

no discussion or negotiation of attorneys’ fees for Settlement Class Counsel” during the mediation

or in connection with the negotiations over the terms of the Settlement Agreement. Id. ¶16.

All relevant considerations demonstrate that these negotiations were at arm’s length. See 4

William B. Rubenstein, Newberg and Rubenstein on Class Actions §13:50, Westlaw (6th ed.

Database updated June 2023) (hereinafter “Newberg and Rubenstein”) (describing factors relevant

to whether negotiations are arm’s length); In re All-Clad Metalcrafters, LLC v. Cookware Mktg.

& Sales Practices Litig., 2023 WL 2071481 at *6 (W.D. Pa. Feb. 17, 2023) (“In re All-Clad”)

(“[N]egotiation of a settlement through mediation suggests reasonableness and neutrality, not

incompetence or self-dealing.”) (internal quotation marks and citation omitted) (alteration in

original); Cole’s Wexford II, 2016 WL 6236892, at *2 (“a presumption of fairness applies because

the Settlement was negotiated at arm’s length with an accomplished neutral at a Court-ordered

mediation”) (Conti, J.); Copley, 2023 WL 1878581, at *4 (finding negotiations at arm’s length

when resolved by independent mediator); Rossini, 2020 WL 3481458, at *12 (same).

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3. The relief provided to the Settlement Class is adequate

a. The costs, risks, and delay of trial and appeal

Complexity, Expense, Delay, and Risks of Continued Litigation. Absent a settlement, the

Parties would remain engaged in motion practice, discovery, and adversarial litigation for years

regarding the Economic Loss Claims. While Settlement Class Counsel believe their case is strong,

they acknowledge the risks of continuing to litigate the numerous and complex legal and scientific

issues in this litigation. See, e.g., Solak v. Ford Motor Co., 2023 WL 4628456, at *3-5 (E.D. Mich.

July 19, 2023) (dismissing claims for economic damages because the automaker conducted a

voluntary recall to fix the defective airbags free of charge). The highly experienced counsel

representing the Philips Defendants have vigorously defended this litigation every step of the way.

To prevail, Plaintiffs would have to complete fact and expert discovery, obtain class certification,

potentially litigate Rule 23(f) appeals regarding the certification order or subsequent motions for

decertification, successfully defend against summary judgment or other dispositive motions, defeat

Daubert motions, prevail at trial on liability and damages, and then prevail on any subsequent

appeals. The litigation would be protracted and expensive, to say nothing of the inherent risks and

uncertain outcomes attendant to each step along the way. In contrast to those risks, the proposed

Settlement provides significant economic benefits in a much shorter timeframe. See In re

Mercedes-Benz Emissions Litig., 2021 WL 8053614, at *4 (D.N.J. July 12, 2021) (finding that

settlement approval was appropriate where “[e]ven if [plaintiffs] did win at trial and on appeal,

relief for the Class was likely years away as a result of the lengthy litigation process. The Mercedes

Settlement eliminates these risks, cuts through the delay, and provides immediate and significant

benefits to Class Members.”); Calhoun, 2023 WL 2411354, at *13 (finding that “certainty and

immediacy of a recovery through settlement and the benefits that the Settlement Class Members

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will receive” warranted preliminary approval).

Sufficient Discovery. Plaintiffs have engaged in substantial discovery, including document

discovery, third-party discovery, jurisdictional discovery, and the targeted discovery related to the

mediation process. In addition, Plaintiffs have engaged experts to help evaluate numerous aspects

of the case. While these efforts are discussed in greater detail above, what is important is that the

amount of discovery enabled Settlement Class Counsel to fully evaluate the strengths and

weaknesses of the Parties’ respective positions. See Calhoun, 2023 WL 2411354, at *11 (granting

preliminary approval where parties had “engaged in sufficient discovery to inform their

negotiations before a settlement was reached”); In re All-Clad, 2023 WL 2071481, at *6 (granting

preliminary approval where “[t]he record establishes extensive and costly investigation, research,

and discovery have been conducted such that the attorneys for the parties are reasonably able to

evaluate the benefits of settlement.”) (internal quotation marks and citation omitted).

Stage of the Proceedings. The MDL proceedings were far enough along that Settlement

Class Counsel had an “adequate appreciation of the merits of the case before negotiating.” In re

Prudential Ins., 148 F.3d at 319 (internal quotation marks and citation omitted). In addition to the

substantial discovery discussed above, the Parties extensively briefed five motions to dismiss,

made comprehensive Science Day presentations to the Court, and exchanged comprehensive

mediation statements at the outset of their negotiations. Welsh Decl. ¶¶7-8, 11-12. Thus, as

confirmed by Judge Welsh, the parties were “fully informed” and able to carefully analyze the risk

of future litigation in comparison to the substantial and prompt relief offered by the Settlement. Id.

¶19; see In re All-Clad, 2023 WL 2071481, at *7 (finding that this factor weighed in favor of

preliminary approval where “class counsel worked with consulting experts to evaluate the alleged

defect in All-Clad’s cookware. Some written discovery proceeded for over a year. And the motions

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to dismiss and three days of mediation before retired judges provided ample insight into each side’s

positions, including strengths and weaknesses of claims and defenses.”) (citations omitted).

Likelihood of Maintaining Class Certification. This factor “measures the likelihood of

obtaining and keeping a class certification if the action were to proceed to trial,” In re Warfarin,

391 F.3d at 537, and weighs heavily in favor of approval. As stated very recently by another court

within this District when it granted preliminary approval of a settlement, “[e]ven if certification of

a class is achieved, continued discovery and resolution of legal issues could lead to decertification

or modification of the class. . . . In turn, this inevitably would result in further delay and expense,

as well as an uncertain outcome. Moreover, if a class is not certified, it is uncertain that individual

settlement class members possess the resources and financial ability to pursue their claims.”

Calhoun, 2023 WL 2411354, at *14 (citing Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661

(7th Cir. 2004) (“The realistic alternative to a class action is not 17 million individual suits, but

zero individual suits …”)); see also In re All-Clad, 2023 WL 2071481, at *7 (granting preliminary

approval because, inter alia, “[m]aintaining [a class] throughout lengthy litigation would also be

challenging, . . . If Plaintiffs failed at any stage, there would be no nationwide relief to the

settlement class.”). This is particularly true here, where the maximum out-of-pocket costs for any

Recalled Device purchased, rented, or leased is a few thousand dollars, and in many cases, less

than $100.

Reasonableness of the Settlement. Courts in this Circuit consider “reasonableness in light

of the best possible recovery and reasonableness in light of the risks the parties would face if the

case went to trial.” In re Warfarin, 391 F.3d at 538. To make that assessment, courts must compare

“the present value of the damages plaintiffs would likely recover if successful, appropriately

discounted for the risk of not prevailing” with “the amount of the proposed settlement.” In re GMC,

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55 F.3d at 806 (internal quotation marks and citation omitted); see also In re Baby Products

Antitrust Litig., 708 F.3d 163, 174 (3d Cir. 2013) (“The Court must determine whether the

compromises reflected in the settlement – including those terms relating to the allocation of

settlement funds – are fair, reasonable, and adequate when considered from the perspective of the

class as a whole.”).

The proposed Settlement here plainly falls within the range of reasonableness “in light of

the best possible recovery and attendant risks of litigation.” Cole’s Wexford II, 2016 WL 6236892,

at *2; see also Hickton, 2013 WL 12137092 at *1 (same). The main measure of damages that

Plaintiffs sought for their Economic Loss Claims was full restitution of the amount they paid to

acquire a Recalled Device. E.g., EL Compl. ¶660 (Recalled Devices had no value at time of

purchase). The Philips Defendants fought this position vigorously, arguing, among other things,

that Users had received a working device and got what they paid for, and lacked standing unless

each User could plead and prove that the foam in their specific device had degraded. See, e.g., ECF

No. 912 at 5-8. Similarly, the Philips Defendants argued that hospitals and third-party payers (i.e.,

insurers) were not injured because they either profited from the Recalled Devices (in the case of

hospitals) or were required to pay for a device for the consumer under contractual obligations

(third-party payers). See, e.g., id. at 8-10. While Plaintiffs vehemently disagree with the Philips

Defendants’ position, there was substantial risk that even if Plaintiffs prevailed on liability, the

Users’ and Payers’ damages would be significantly reduced from full restitution (and even possibly

to zero). See Solak, 2023 WL 4628456, at *3-5. While it is impossible at this time to calculate the

maximum amount Plaintiffs could receive if they were to achieve full restitution, there was a real

risk of no recovery at all.

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The Initial Device Payment Amount, Initial Device Return Amount, and Payer Amount are

non-reversionary; they require a minimum payment by the Philips Defendants of $479,700,812

that will not be reduced, regardless of the number of claims that are filed. Users’ Device Payment

Awards and Device Return Awards are set in fixed amounts and will not be reduced based on the

number of claims filed.17 None of the User or Payer Awards will be reduced on account of an

award of attorneys’ fees and costs to Settlement Class Counsel or the cost of Notice and Settlement

Administration, which are being paid by the Philips Defendants separately. In addition, Users who

registered for a Recall Program or enroll in the Settlement and timely return their Recalled Devices

to Philips RS will be paid automatically, without having to complete and submit a claim form;

Eligible Users can receive Device Payment Awards for multiple Recalled Devices; Eligible Users

can obtain Device Return Awards for multiple returned Devices, as well as Device Payment

Awards and under certain circumstances, a Device Replacement Award; Eligible Users can take

advantage of the “Accelerated Implementation Option,” which enables them to obtain their

Settlement payments after Final Approval of the Settlement by this Court but before and regardless

of the resolution of any appeals, which would entail considerable delay and potential risk and

uncertainty; and the Settlement also provides that certain Users will receive significant benefits in

the form of Extended Two Year Warranties on all Remanufactured Devices provided by Philips

RS.18 It also bears emphasis that the $100 Device Return Awards incentivize Users to return their

17
There is an exception for rental Recalled Devices. See n.12, supra.
18
See Granillo v. FCA US LLC, 2019 WL 4052432, *9 (D.N.J. Aug. 27, 2019) (“Given the
combined value of the extended warranty, . . . and cash payments, and the settlement’s benefit was
substantial”); In re Volkswagen & Audi Warranty Extension Litig., 89 F. Supp. 3d 155, 169 (D.
Mass. 2015) (finding the retail value of extended warranty “is a more sensible measure of what
the class members gained from free extended coverage”); Vaughn v. Am. Honda Motor Co., 627
F. Supp. 2d 738, 746 (E.D. Tex. 2007) (valuation of settlement benefits include “warranty
extensions”).
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Recalled Devices to Philips RS, which serves the important public policy of promoting health and

well-being. Payers will also be able to qualify for a Payer Award from the fixed $34,000,000 non-

reversionary fund, plus accrued interest.

On balance, the substantial monetary awards, along with additional benefits provided by

the Settlement, militate strongly in favor of preliminary approval particularly when compared

against the uncertainties, delays, expenses, and risks of continued litigation, including the risks

associated with damages discussed above. See In re NFL II, 821 F.3d at 440 (finding that the

“settlement represents a fair deal for the class when compared with a risk-adjusted estimate of the

value of plaintiffs’ claims” where a “pending motion to dismiss and other available affirmative

defenses could have left retired players to pursue claims in arbitration or with no recovery at all”);

Calhoun, 2023 WL 2411354, at *15 (settlement in the range of reasonableness in light of

uncertainty and risks of continued litigation); Zanghi, 2016 WL 223721, at *20 (same); Palamara

v. King’s Family Restaurants, 2008 WL 1818453, at *4 (W.D. Pa. Apr. 22, 2008) (same).

b. The proposed method of distributing relief to the Settlement

Class and processing Settlement Class Members’ Claims is
easy, efficient, and effective

The method for distributing payments to Settlement Class Members is described in detail

above. In short, the process is designed to get funds into the hands of Settlement Class Members

quickly and efficiently. In the instance of the AIO, it would be shortly after Final Approval (and

before the appellate process, if any, has run). SA §6.3, et seq. For those who do not, or cannot,

elect the AIO, funds would be distributed shortly after the Effective Date of the Settlement. Id.

§§6.4-6.7.

In addition, certain payments are automatic. Users who return their Registered or Enrolled

Recalled Device to Philips RS do not need to submit a Claim Form to receive Device Payment

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Awards or Device Return Awards. Id. §§6.4.1, 6.5.1. Users who do not return their Recalled

Device to Philips RS can access a streamlined confirmation process (via the online Settlement

website portal or in paper form) if they register prior to the Execution Date. Id. §6.4.2. Finally, a

typical Claim Form process is available for all other Settlement Class Members. Id. §§6.4.3, 6.7.1.

c. The terms of a proposed award of attorneys’ fees, including

timing and payment, have not yet been negotiated

As discussed above, the Parties have not reached agreement on the amount of attorneys’

fees and costs to be paid to Settlement Class Counsel subject to a final award by the Court but

have agreed that those fees and costs will be paid by the Philips Defendants in addition to the

Settlement Class relief and therefore, will not reduce the Settlement Class’s recovery. Id. §18.1.

In addition, the Parties have agreed that they will use the assistance of Judge Welsh to

attempt to reach an agreement on attorneys’ fees and costs. Id. If the Parties reach such an

agreement, Settlement Class Counsel will submit the negotiated amount to the Court for approval.

Id. If no such agreement is reached, the Parties will litigate the fee issues, and each Party will

present its respective position to the Court for determination. Id. In that event, the determination

of the fee and cost issues will be subject to the Parties’ agreement that: (1) the attorneys’ fees and

costs will be paid by, or on behalf of, the Philips Defendants in addition to the compensation

provided to Settlement Class Members under this Settlement; (2) any award of attorneys’ fees or

costs shall not diminish the recovery of Settlement Class Members under the Settlement; (3) while

fees will be based on the percentage of recovery methodology, with a lodestar cross-check, the

Parties reserve all arguments as to how that recovery should be calculated, what the percentage

should be, and the extent to which Settlement Class Counsel’s prosecution of the Economic Loss

Claims caused some or all of the recovery; and (4) the Parties shall have the right to appeal the

Court’s determination as to the amount of attorneys’ fees and costs. Id. Settlement Class Counsel
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represent they will not seek an award of attorneys’ fees in excess of $175,000,000, which

Settlement Class Counsel contends represents a fair percentage of the value of the Settlement in

terms of cash recoveries and other benefits to the Settlement Class, while the Philips Defendants

fully reserve the right to challenge that amount, any percentage upon which it is based, and the

items comprising the value of the Settlement. Id.

Settlement Class Counsel will file a motion for attorneys’ fees and costs at least 30 days

prior to the Opt-Out/Objection Deadline, and the deadline for the motion will be provided in the

Notice. Id. The motion will be filed on the MDL Court docket and posted on the Settlement

website, and Settlement Class Members will have the opportunity to submit written objections in

the manner prescribed by the Settlement Agreement to the request for attorneys’ fees and costs

before the Final Fairness Hearing. Id. §§12.1, 12.4.

4. The proposed Settlement treats Settlement Class Members equitably

relative to each other

The Settlement Class Members are treated equitably relative to each other under the

Settlement based on their Economic Loss Claims related to the Recalled Devices. There are two

separate Settlement Funds being established, one specific to Users and one specific to Payers. Each

Settlement Fund provides compensation for each group’s distinct alleged economic harm.

Users are eligible for Device Payment Awards, Device Return Awards, and/or Device

Replacement Awards based on objective factors. Device Payment Awards are fixed in amount

based on the type or model of the Recalled Device at issue to account for differences in the price

of various types of Recalled Devices; Device Return Awards are $100 for all Eligible Users

regardless of the type or model of the Recalled Device; and Device Replacement Awards are based

upon any given User’s actual costs to purchase, lease, or rent a comparable Replacement Device.

All Eligible Users are treated fairly relative to each other.

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Payers, who are insurers, self-funded employers, or other third-party payers that

reimbursed (in whole or in part) a User’s payment to purchase, lease, rent or otherwise pay for a

Philips RS Recalled Device will be eligible to receive a Payer Award that is based on the Eligible

Payer’s relative market share (aggregated among all Eligible Payers). That market share will be

determined by the number of insured lives in the United States covered by the Eligible Payer and

the dollar amount of direct premiums written by the Eligible Payer in the United States in the

Calendar Years 2021 and 2022, based on industry data, including but not limited to, the National

Association of Insurance Commissioners and the AIS Directory of Health Plans, as well as the

information provided in each Eligible Payer’s Declaration and Claim Form.

The allocation of the settlement funds as to each group (Users and Payers) resulted from

informed discussions and negotiations between and among Settlement Class Counsel (on behalf

of Users and Payers), additional representatives of Users and Payers, and the Philips Defendants,

aided by the Court-appointed Settlement Mediator. Significantly, all proposed Settlement Class

Representatives endorse and approve all terms of the Settlement, including the amount of

settlement funds made available for both Users and Payers.

A. Certification of the Proposed Class for Purposes of Settlement Only is

Appropriate

In Section 7.1 of the Settlement Agreement, Plaintiffs and the Philips Defendants

stipulated, for purposes of the Settlement only and subject to this Court’s approval, that the

requirements of Rule 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure are satisfied.

The benefits of a proposed settlement of a class action can be realized only through the

certification of a settlement class. See Amchem Prods. v. Windsor, 521 U.S. 591, 620 (1997); see

also Walker v. Highmark BCBSD Health Options, Inc., 2022 WL 17592067, at *5 (W.D. Pa. Dec.

13, 2022). For a court to certify a class for settlement, the “[s]ettlement [c]lass[] must satisfy the
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Rule 23(a) requirements of numerosity, commonality, typicality, and adequacy of representation,

as well as the relevant 23(b) requirement.” In re GMC, 55 F.3d at 778. A number of courts have

recognized the propriety of class certification in defective product cases where economic losses

are sought. See, e.g., In re Valsartan, Losartan & Irbesartan Prod. Liab. Litig., 2023 WL 1818922,

at *20, *25 (D.N.J. Feb. 8, 2023) (certifying consumer and third-party payor economic loss classes

for contaminated and defective Valsartan drugs); In re JUUL Labs, Inc. Mktg. Sales Pracs. &

Prod. Liab. Litig., 609 F. Supp. 3d 942, 957-58, 1002-03, 1023 (N.D. Cal. 2022) (certifying two

nationwide RICO classes and state classes).

1. Numerosity Under Rule 23(a)(1)

Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is

impracticable.” Fed. R. Civ. P. 23(a)(1). Numerosity is easily met here, as there were close to 11

million Recalled Devices sold or otherwise distributed in the United States, and the number of

proposed Settlement Class Members is in the millions.

2. Commonality Under Rule 23(a)(2)

The second prong of Rule 23(a) – commonality – “requires Plaintiffs to show that ‘there

are questions of law or fact common to the class.’” Calhoun, 2023 WL 2411354, at *7 (quoting

Fed. R. Civ. P. 23(a)(2)). This requirement is satisfied so long as the class members “share at least

one question of fact or law in common with each other.” Reinig v. RBS Citizens, N.A., 912 F.3d

115, 127 (3d Cir. 2018) (internal quotation marks and citation omitted). “[T]he bar is not a high

one.” Reyes v. Netdeposit, LLC, 802 F.3d 469, 486 (3d Cir. 2015) (cleaned up) (internal quotation

marks and citation omitted). The Third Circuit has “acknowledged commonality to be present even

when not all plaintiffs suffered an actual injury, when plaintiffs did not bring identical claims, and,

most dramatically, when some plaintiffs’ claims may not have been legally viable.” Rodriguez v.

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Nat’l City Bank, 726 F.3d 372, 382 (3d Cir. 2013) (citations omitted); see also In re Prudential

Ins., 148 F.3d at 310 (all claims and facts do not need to be identical). Rather, “the focus of the

commonality inquiry . . . is on whether the defendant’s conduct was common as to all of the class

members.” Rodriguez, 726 F.3d at 382 (internal quotation marks and citation omitted).

In this case, there are numerous common questions of law and fact, including, but not

limited to: whether the Recalled Devices were defective; if so, whether and when the Defendants

knew they were defective; whether the Recalled Devices were marketed as, among other things,

safe breathing assistance devices; whether Defendants violated RICO, numerous different state

law duties, or were unjustly enriched; and whether the purchase, rental, or payment for the Recalled

Devices caused economic losses to the Settlement Class Members. Commonality is, therefore,

easily satisfied. See In re All-Clad, 2023 WL 2071481, at *3.

3. Typicality Under Rule 23(a)(3)

Rule 23(a)(3)’s typicality requirement is also met. The claims of the proposed Settlement

Class Representatives are typical because they suffered substantially the same economic loss from

the same conduct as every other Settlement Class Member. The Settlement Class Representatives

and the Settlement Class Members all suffered financial harm arising out of, among other things,

the Philips Defendants’ design, manufacture and sale of the allegedly defective Recalled Devices;

their alleged failure to disclose or adequately remedy the alleged defect; and their alleged

negligence in delaying the Recall. Typicality is satisfied. See In re All-Clad, 2023 WL 2071481,

at *3 (typicality satisfied “because they suffered the same injury from identical conduct by All-

Clad”); Calhoun, 2023 WL 2411354, at *7 (typicality “satisfied where there is a ‘strong similarity

of legal theories or where the claim arises from the same practice or course of conduct.’”) (quoting

In re NFL II, 821 F.3d at 428); Newton v. Merrill Lynch, 259 F.3d 154, 183-84 (3d Cir. 2001).

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4. Adequacy of Representation Under Rule 23(a)(4)

The adequacy requirement of Rule 23(a)(4) ensures that that “the representative parties

will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “Adequate

representation depends on two factors: ‘(a) the plaintiff’s attorney must be qualified, experienced,

and generally able to conduct the proposed litigation, and (b) the plaintiff must not have interests

antagonistic to those of the class.’” Calhoun, 2023 WL 2411354, at *8 (quoting Wetzel v. Liberty

Mut. Ins. Co., 508 F.2d 239, 247 (3d Cir. 1975)). Both requirements are met here.

Counsel. As discussed above, Settlement Class Counsel are experienced in the prosecution

of class actions, including products liability and consumer protection class actions and have

diligently prosecuted the claims on behalf of Plaintiffs and the Settlement Class by investigating

the claims prior to bringing suit, preparing complaints and other pleadings, responding to

dispositive motions, making the Science Day presentation, conducting and responding to extensive

discovery, reviewing and analyzing extensive information, documents, and data produced by

Defendants and third parties, and engaging in lengthy and complex arm’s-length negotiations with

Defendants that culminated in this beneficial Settlement. See Calhoun, 2023 WL 2411354, at *8.

Class Representatives. The proposed Settlement Class Representatives include individuals

who paid for (in whole or in part) Recalled Devices that they used; Users who paid for

Replacement Devices; a hospital that purchased Recalled Devices; and a third-party payer. As

noted above, the Settlement Class Representatives, who are named Plaintiffs in the Economic Loss

Complaint, have fulfilled their responsibilities on behalf of the Settlement Class by working

closely with Settlement Class Counsel on the litigation of the Economic Loss Claims, reviewing

pleadings, and responding to Defendants’ discovery requests. They “share common interests [with

Class Members] in seeking compensation for the alleged harms suffered from Defendants’

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conduct” and “[b]y advancing their claims, [the Settlement Class Representatives] have also

advanced the claims of other Settlement Class Members.” See id. A finding of adequacy is

appropriate here where “[t]here is no discernible conflict of interest in the record or otherwise

between [the named representative] and the other class members” and there are substantial “factual

and legal similarities between the claims.” Vines v. Covelli Enterprises, 2012 WL 5992114, at *4

(W.D. Pa. Nov. 30, 2012).

5. The Predominance and Superiority Requirements of Rule 23(b)(3)

Plaintiffs seek to certify the Settlement Class under Rule 23(b)(3), which has two

components: predominance and superiority. In making these assessments, the Court may consider

that the class will be certified for settlement purposes only, and there is no consideration of

manageability for trial. See Amchem, 521 U.S. at 620 (citing Fed. R. Civ. P. 23(b)(3)(D)); see also

Calhoun, 2023 WL 2411354, at *9.

Predominance. The focus of the predominance “inquiry is on whether the defendant’s

conduct was common as to all of the class members, and whether all of the class members were

harmed by the defendant’s conduct.” Sullivan, 667 F.3d at 298. As shown above, there are

numerous common questions of fact and law that predominate over any questions that may affect

individual Settlement Class Members. If the case were to proceed, the ultimate issues would center

on the Philips Defendants’ common course of conduct; issues that are shared among all Settlement

Class Members and are “capable of proof at trial through evidence that is common to the class

rather than individual to its members.” Calhoun, 2023 WL 2411354, at *9 (quoting Gonzalez v.

Corning, 885 F.3d 186, 195 (3d Cir. 2018)) (internal quotation marks omitted). Accordingly, the

Rule 23(b)(3) predominance requirement is satisfied. Calhoun, 2023 WL 2411354, at *9 (finding

predominance where “Plaintiffs and the Settlement Class have the same interest in establishing

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liability, and they all seek damages for the same harm. Absent the proposed settlement, they would

rely on the same evidence of Defendants’ violations of law and on class-wide damage models to

show the fact and amount of harm.”).

Superiority. The second prong of Rule 23(b)(3) – that a class action be superior to other

available methods for the fair and efficient adjudication of the controversy – is also readily

satisfied. Superiority requires the Court to consider whether “a class action is superior to other

available methods for fairly and efficiently adjudicating the controversy.” Sullivan, 667 F.3d at

296 (internal quotation marks and citations omitted); see also Calhoun, 2023 WL 2411354, at *9.

Here, the superiority requirement is satisfied because litigating the relatively small Economic Loss

Claims of the Class Members on an individual basis against the Philips Defendants would not be

economically feasible. See, e.g., Abramson v. Agentra, LLC, 2021 WL 3370057, at *9 (W.D. Pa.

Aug. 3, 2021) (“[T]his class action is superior to other available methods because it is neither

economically feasible, nor judicially efficient, for more than 2,000 class members who have

submitted claims, let along the more than 19,000 who were sold an Agentra product, to pursue

individual claims against Agentra.”); In re All-Clad, 2023 WL 2071481, at *3.

Moreover, the Parties’ Settlement will avoid the needless duplication of effort, burdens,

and other judicial inefficiencies that would result from repeated individual litigation of the same

issues. See Calhoun, 2023 WL 2411354, at *9 (“A class-wide settlement will not only achieve

resolution of the class members’ claims without multiple lawsuits and trials, but also ensures that

similarly situated members are treated uniformly.”).

6. Ascertainability

In the Third Circuit, ascertainability is a “necessary prerequisite” of a Rule 23(b)(3) class,

and the inquiry is two-fold, “requiring a plaintiff to show that: (1) the class is defined with

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reference to objective criteria; and (2) there is a reliable and administratively feasible mechanism

for determining whether putative class members fall within the class definition.” Byrd v. Aaron’s

Inc., 784 F.3d 154, 163 (3d Cir. 2015) (internal quotation marks and citation omitted). The inquiry

does not require a plaintiff to be able to identify all class members at class certification, “instead,

a plaintiff need only show that class members can be identified.” Id. (internal quotation marks and

citation omitted) (emphasis in original).

Here, the Settlement Class has been defined with objective criteria, i.e., it is comprised of

individuals and entities who have paid for, rented, and/or were prescribed a Recalled Device prior

to the Recall, plus Payers who paid for, or reimbursed for, Recalled Devices. Each Recalled Device

has a unique Serial Number that is maintained in the Philips Defendants’ records. A substantial

number of Settlement Class Members (over 3 million) can be identified through the Philips RS

registration database associated with the Recall Programs and User information collected from

DMEs and other sources as part of the Recall. In addition, User information was obtained from

DMEs in discovery, data from the Census Registry Program, and Plaintiff Fact Sheets filed in

support of Personal Injury Complaints filed in this MDL. The ascertainability requirement is

therefore met. See In re All-Clad, 2023 WL 2071481, at *3 (“[T]he class is clearly ascertainable

because the settlement class parameters present objective criteria, and the parties can . . . identif[y]

members through detailed records.”).

Having satisfied all the requirements under Rule 23, the proposed Settlement Class

Representatives respectfully submit that the Court should certify the proposed Settlement Class

for settlement purposes. See Fed. R. Civ. P. 23(c)(1)(B).

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B. The Notice Program is the Best Notice Practicable Under the Circumstances

Rule 23(e)(1)(B) requires the Court to “direct notice in a reasonable manner to all class

members who would be bound by the proposal.” In an action certified under Rule 23(b)(3), the

Court must “direct to class members the best notice that is practicable under the circumstances,

including individual notice to all members who can be identified through reasonable effort.” Fed.

R. Civ. P. 23(c)(2)(B). “Generally speaking, the notice should contain sufficient information to

enable class members to make informed decisions on whether they should take steps to protect

their rights, including objecting to the settlement or, when relevant, opting out of the class.” In re

NFL II, 821 F.3d at 435 (internal quotation marks and citation omitted).

1. The Proposed Notice Plan is the most practicable under the

circumstances

The proposed Notice Plan involves direct notice by both pre-paid first-class mail and email

to all User and Payer Settlement Class Members with available address information. It seeks to

provide notice through identifiable DMEs, notice to Users who elected to receive messages

through the DreamMapper App, publication notice via an extensive proposed digital and print

media notice program developed by the Settlement Administrator in consultation with the Parties,

publication on a Settlement website, and publication on the Court’s website. SA §9.1, et seq.; see

also SA Exhibits 2, 3(a)-(h); Angeion Decl. ¶¶18, 21-59. The proposed Notice Plan also takes into

account and separately takes steps to target Users and Payers. See, e.g., Angeion Decl. ¶¶18, 32-

53. The media component of the Notice Plan alone is designed to reach 86.70% of the Target

Audience, and that is over and above the reach of the comprehensive direct notice campaign (mail

and email), settlement website, and toll-free telephone hotline. Id., ¶19.

For purposes of direct notice, Users can be identified through numerous sources including

information in the Philips RS registration database used for the Recall, information collected from
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DMEs and other sources as part of the Recall, information obtained from DMEs in discovery, and

User data from the Census Registry Program and Plaintiff Fact Sheets filed in support of Personal

Injury Complaints. SA §9.1.2.1; see also Angeion Decl. ¶21. Hospitals and sleep labs in the United

States can be identified from Philips RS’s own records. SA §9.1.2.2; Angeion Decl. ¶21. Angeion

has already received contact information for approximately 5,000,000 members of the proposed

Settlement Class. See Angeion Decl. ¶21.

With respect to Payers, Angeion can supplement the list of Settlement Class Members to

provide Notice to Payers through its proprietary third-party payer database that consists of drug

stores; pharmacies; insurance companies; and health, welfare and pension funds. See Angeion

Decl. ¶22. In addition to the direct notice efforts with respect to Payers, Angeion has developed a

Payer media plan that consists of digital advertisements, social media advertising via Facebook

and LinkedIn, and an additional paid search campaign via Google, specific to Payers. Id. ¶52.

Publication in HR Magazine (or a similar title) will be used to further disseminate Notice to Payers.

Id. ¶53.

The proposed Notice is comprehensive, innovative, and robust, and it targets both Users

and Payers. It includes “state-of-the-art internet advertising, a comprehensive social media

campaign and a search engine marketing campaign.” Angeion Decl. ¶70. Further, the Notice Plan

provides for the implementation of a dedicated settlement website and toll-free hotline to further

inform Settlement Class Members of their rights and options. Id. It is clear that the proposed Notice

Plan is the best notice practicable under the circumstances and fully meets the requirements of due

process and Federal Rule of Civil Procedure 23. See, e.g., Larson v. AT&T Mobility, Inc., 687 F.3d

109, 122-31 (3d Cir. 2012) (discussing importance of individual notice where reasonable); In re

Processed Egg Prods. Antitrust Litig., 284 F.R.D. 249, 266 (E.D. Pa. 2012) (individual mailings

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discharges notice requirement); In re All-Clad, 2023 WL 2071481, at *5 (finding that notice plan,

which utilized email, direct mail, digital notices, internet banners, social media notices, a

settlement website, and a toll-free number constituted best notice practicable).

2. The Proposed Notice Clearly Explains Settlement Class Members’

Rights

The proposed Notice presented here fully complies with Rule 23 and the Due Process

mandates. The proposed forms of Notice are written in plain language and aim to inform

Settlement Class Members of the Settlement and its key terms; and ensure that Settlement Class

Members will be able to review the Long Form Notice, Settlement Agreement, and other relevant

materials so that they understand their rights and options. See Advisory Committee Notes on 2018

Amendment to Rule 23(c)(2) (“The ultimate goal of giving notice is to enable class members to

make informed decisions about whether to opt out or, in instances where a proposed settlement is

involved, to object or to make claims.”); see also SA Exhibits 2, 3(a)-3(h); Newberg and

Rubenstein §8:12 (notice “must contain information that a reasonable person would consider to be

material in making an informed, intelligent decision of whether to opt out or remain a member of

the class and be bound by the final judgment.”) (internal quotation marks and citation omitted).

The proposed Notice program provides all information required under Rule 23(c)(2)(B) including

Settlement Class Members’ right to object to the Settlement or opt out of the Settlement Class, or

to participate in the Settlement and file a claim, if applicable. See SA Exhibits 2, 3(a)-3(h). The

proposed notices will also provide the date and time of the Final Fairness Hearing, and how

Settlement Class Members may appear at that hearing if they so choose. See In re Rent-Way Sec.

Litig., 305 F. Supp. 2d 491, 511 (W.D. Pa. 2003) (“[The due process] standard is met if the notice

informs class members concerning: (i) the nature of the litigation; (ii) the general terms of the

settlement; (iii) where complete information can be located; and (iv) the time and place of the
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fairness hearing and that objectors may be heard.”) (citing In re Prudential Ins. Co. of Am. Sales

Practices Litig., 962 F. Supp. 450, 527 (D.N.J. 1997) (notice must “afford [interested parties] an

opportunity to present their objections.”)).

3. The Proposed Settlement Administrator Is Qualified

The Parties carefully evaluated detailed proposals from seven experienced settlement

administrators and jointly agreed to retain (subject to the Court’s approval) Angeion Group to

serve as Settlement Administrator. The Parties engaged in extensive discussions with Angeion and

amongst themselves to reach agreement on the contours of the notice program and claims

processes. The Parties jointly request that the Court appoint Angeion as the Settlement

Administrator. Angeion is highly qualified and has significant experience administering

settlements and notice in large class action cases, including the very recent Calhoun and In re All-

Clad cases in this District. Calhoun, 2023 WL 2411354, at *5; In re All-Clad, 2023 WL 2071481,

at *5. See Angeion Decl. ¶¶1-12 (describing Angeion qualifications and experience). Angeion’s

duties and responsibilities are set forth in the Settlement Agreement. See, e.g., SA §6, et seq.

E. A Final Fairness Hearing Should be Scheduled.

The Court should schedule a Final Fairness Hearing for the following purposes: (1) to

finally determine whether the proposed Settlement is a fair, reasonable, and adequate settlement

as to the Settlement Class Members within the meaning of Rule 23(e)(2) of the Federal Rules of

Civil Procedure; (2) to determine whether a Final Judgment should be entered dismissing the

Economic Loss Claims of the Settlement Class against the Defendants with prejudice, as required

by the Settlement Agreement; (3) to consider the proposed plan of allocation set forth in the

Settlement Agreement; (4) to consider Settlement Class Counsel’s forthcoming Motion for Award

of Attorneys’ Fees and Litigation Expenses; (5) to consider the Petition for Service Awards to the

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Settlement Class Representatives; (6) to consider timely, written objections that conform to the

requirements set forth in the Settlement Agreement; and (7) to consider such other matters as the

Court may deem appropriate. See Manual for Complex Litigation (Fourth) §§21.633, 21.634; In

re NFL I, 775 F.3d at 581-83. Plaintiffs propose, and Philips Defendants do not oppose, the

following schedule for final approval:

Event Date
Preliminary Approval Order TBD
Dissemination of Notice Pursuant to 60 days after entry of Preliminary
Notice Plan Approval Order
Claims Period begins 60 days after entry of Preliminary
Approval Order
Deadline for Settlement Class Counsel 90 days after entry of Preliminary
to File Motion for Attorneys’ Fees and Approval Order
Expenses
Deadline for Settlement Class Members 120 days after entry of Preliminary
to Opt Out of or Object to the Approval Order
Settlement
Motion for Final Approval (including 21 days prior to Final Fairness
list of Opt-Outs as an Exhibit) Hearing
Response to Objections 7 days prior to Final Fairness
Hearing
Final Fairness Hearing At least 6 months after entry of
Preliminary Approval Order
Claims Period Deadline 120 days after Final Fairness
Hearing

V. CONCLUSION

For the foregoing reasons, proposed Settlement Class Representatives respectfully request

that the Court enter an Order: (1) preliminarily certify the proposed Settlement Class; (2)

preliminarily approve the Settlement; (3) determine that the Settlement appears fair, reasonable,

and adequate within the meaning of Rule 23 of the Federal Rules of Civil Procedure and thus

sufficient to promulgate notice of the Settlement to the Settlement Class; (4) order that notice be

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provided to the Settlement Class pursuant to the terms of the Settlement Agreement; (5) give

Settlement Class Members the right to object to or be excluded from the Settlement; (6) inform

Settlement Class Members that they will be bound by the Final Order and Judgment unless they

validly request exclusion; (7) stay and enjoin the continued pursuit of all Economic Loss Claims

of Settlement Class Members against Defendants and the other Released Parties, whether in the

MDL Court or in any other court or tribunal, until such time as the MDL Court has determined

whether to enter the Final Order and Judgment; (8) schedule the Final Fairness Hearing not earlier

than six months following entry of the Preliminary Approval Order; (9) appoint Angeion Group

as the Settlement Administrator; (10) appoint Huntington Bank as the Settlement Funds Escrow

Agent; (11) appoint the Honorable Thomas J. Rueter (Ret.) as the Claims Appeals Special Master;

(12) appoint Settlement Class Representatives; (13) appoint Settlement Class Counsel; (14)

preliminarily approve the plan of allocation of Settlement funds set forth in the Settlement

Agreement; (15) order the establishment of the Settlement funds, as set forth in the Settlement

Agreement; (16) order the payment of all reasonable costs of Settlement Administration, including

the reasonable fees and costs of the Settlement Administrator, Settlement Funds Escrow Agent,

Settlement Mediator, and Claims Appeals Special Master, as set forth in the Settlement

Agreement; (17) find that the Settlement Funds are to be a “Qualified Settlement Fund” as defined

in Section 468B-1(c) of the Treasury Regulations; and (18) provide that any objections by any

Settlement Class Member to the Settlement shall be heard and any papers submitted in support of

objections shall be considered by the MDL Court at the Final Fairness Hearing only if, on or before

the conclusion of the Opt-Out/Objection Period, such Settlement Class Member follows the

required procedures set forth in the Settlement Agreement.

Dated: September 7, 2023 Respectfully submitted,

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 Case 2:21-mc-01230-JFC Document 2213 Filed 09/07/23 Page 55 of 56

/s/ Sandra L. Duggan /s/ Christopher A. Seeger

Sandra L. Duggan, Esquire Christopher A. Seeger, Esquire
LEVIN SEDRAN & BERMAN LLP SEEGER WEISS LLP
510 Walnut Street, Suite 500 55 Challenger Road, 6th Floor
Philadelphia, PA 19106 Ridgefield Park, NJ 07660
(215)592-1500 (phone) (973) 639-9100 (phone)
[email protected] [email protected]

/s/ Steven A. Schwartz /s/ Kelly K. Iverson

Steven A. Schwartz, Esquire Kelly K. Iverson, Esquire
CHIMICLES SCHWARTZ KRINER & LYNCH CARPENTER, LLP
DONALDSON-SMITH LLP 1133 Penn Avenue, 5th Floor
361 West Lancaster Avenue Pittsburgh, PA 15222
Haverford, PA 19041 (412) 322-9243 (phone)
(610) 642-8500 (phone) [email protected]
[email protected]

Plaintiffs’ Co-Lead Counsel / Proposed Settlement Class Counsel

Roberta D Liebenberg, Esquire (Chair) Lisa Ann Gorshe, Esquire (Vice Chair)
FINE, KAPLAN AND BLACK, R.P.C. JOHNSON BECKER PLLC
One South Broad Street, 23rd Floor 444 Cedar Street, Ste 1800
Philadelphia, PA 19107 Saint Paul, MN 55101
(215) 567-6565 (phone) (612) 436-1852 (phone)
[email protected] [email protected]

Arthur H. Stroyd, Jr., Esquire (Vice Chair)

DEL SOLE CAVANAUGH STROYD LLC
3 PPG Place, Suite 600
Pittsburgh, PA 15222
(412) 261-2172 (phone)
(412) 261-2110 (fax)
[email protected]

Settlement Committee / Proposed Settlement Class Counsel

/s/ D. Aaron Rihn Peter St. Tienne Wolff, Esquire

D. Aaron Rihn, Esquire PIETRAGALLO GORDON ALFANO
ROBERT PEIRCE & ASSOCIATES, BOSICK & RASPANTI, LLP
P.C. One Oxford Centre - 38th Floor
707 Grant Street, Suite 125 Pittsburgh, PA 15219
Pittsburgh, PA 15219 (412) 263-2000 (phone)
(412) 281-7229 (phone) (412) 263-2001 (fax)
(412) 281-4229 (fax) [email protected]
[email protected]

Plaintiffs’ Co-Liaison Counsel

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was filed via the

Court’s CM/ECF system on this 7th day of September 2023, and will be served to Counsel for

Defendants via email.

/s/ D. Aaron Rihn

D. Aaron Rihn, Esquire
PA I.D. No.: 85752
ROBERT PEIRCE & ASSOCIATES, P.C.
707 Grant Street
Suite 125
Pittsburgh, PA 15219
Tel: 412-281-7229
Fax: 412-281-4229
[email protected]

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Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 1 of 168

BRIEF IN SUPPORT OF
PRELIMINARY APPROVAL

EXHIBIT A
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 2 of 168

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE PHILIPS RECALLED CPAP, :

BI-LEVEL PAP, AND MECHANICAL
: Master Docket: Misc. No. 21-mc-1230-JFC
VENTILATOR PRODUCTS
LITIGATION :
: MDL No. 3014
This Document Relates to: All Actions
Asserting Economic Loss Claims :

CLASS SETTLEMENT AGREEMENT AND RELEASE

OF ECONOMIC LOSS CLAIMS
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 3 of 168

TABLE OF CONTENTS
PREAMBLE ........................................................................................................................1
1. Definitions................................................................................................................2
2. Funding Obligations and Payments by the Philips Defendants .............................11
3. Settlement Benefits ................................................................................................16
4. Releases..................................................................................................................23
5. Assignment to Philips RS of Economic Loss Claims Against
Ozone Cleaning Companies ...................................................................................26
6. Allocation of Settlement Funds, Claims Process, and Claims
Period .....................................................................................................................26
7. Settlement Class Certification................................................................................37
8. Preliminary Approval of Settlement Pursuant to Federal Rule
of Civil Procedure 23(e) and Related Motions ......................................................38
9. Notice to Settlement Class Members .....................................................................39
10. Right to Opt Out of or Object to the Settlement; Opt-
Out/Objection Period .............................................................................................41
11. Opt-Outs.................................................................................................................41
12. Objections ..............................................................................................................43
13. Final Fairness Hearing ...........................................................................................45
14. Termination of this Settlement...............................................................................47
15. MDL Court Retains Jurisdiction to Implement, Interpret and
Enforce Agreement and Settlement .......................................................................48
16. Choice of Law ........................................................................................................48
17. Recall Programs .....................................................................................................48
18. Attorneys’ Fees and Expenses, and Service Awards .............................................49
19. Dispute Resolution. ................................................................................................50
20. Miscellaneous ........................................................................................................50
21. Federal Rule of Evidence 408 ................................................................................53
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 4 of 168

PREAMBLE

This Class Settlement Agreement and Release of Economic Loss Claims (this “Agreement”
and the “Settlement,” as may be amended from time to time hereafter) is entered into by and among
the Settlement Class Representatives, on the one hand, and Defendants Philips RS North America
LLC (“Philips RS”), Koninklijke Philips N.V., Philips North America LLC, Philips Holding USA,
Inc., and Philips RS North America Holding Corporation (collectively, the “Philips Defendants”),
on the other (collectively, the “Parties”).

Following extensive negotiations between the Parties with the assistance of the Court-
appointed mediator, the Honorable Diane M. Welsh (Ret.) (the “Settlement Mediator”), the Parties
have reached this Settlement. By entering into this Settlement, the Philips Defendants do not admit
any wrongdoing, liability, fault, injury, damages, or violation of any law whatsoever. The
Settlement is to be construed solely as a reflection of the Parties’ desire to facilitate a resolution
and release of all Economic Loss Claims on behalf of the Settlement Class against the Released
Parties on the terms set forth below. The Settlement does not resolve or release Medical
Monitoring and Personal Injury Claims. The Settlement will become effective only if it is
approved by the MDL Court.

RECITALS

WHEREAS, beginning June 14, 2021, Philips RS announced Recalls of approximately

10.8 million Recalled Devices sold, leased, rented or otherwise distributed in the United States;

WHEREAS, the Philips Defendants have been named as defendants in various federal and
state court actions and other proceedings in the United States and are alleged to be liable for
damages and other relief for economic injuries related to the Recalled Devices;

WHEREAS, on October 8, 2021, the Judicial Panel on Multidistrict Litigation established

the MDL, assigned the MDL to the MDL Court, and transferred all then-pending federal lawsuits
to the MDL for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407;

WHEREAS, since then, the Judicial Panel on Multidistrict Litigation has transferred
additional lawsuits to the MDL for coordinated or consolidated pretrial proceedings pursuant to
28 U.S.C. § 1407, and additional lawsuits have been filed in and/or removed to the MDL;

WHEREAS, on October 10, 2022, Plaintiffs filed a Consolidated Third Amended Class
Action Complaint for Economic Losses (“Economic Loss Complaint”), on behalf of themselves
and all others similarly situated;

WHEREAS, on October 17, 2022, Plaintiffs filed a Consolidated Second Amended Class
Action Complaint for Medical Monitoring, and on October 24, 2022, Plaintiffs filed an Amended
Master Long Form Complaint for Personal Injuries and Damages and an accompanying Short
Form Complaint (collectively, the “Medical Monitoring and Personal Injury Complaints”);
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 5 of 168

WHEREAS, the Philips Defendants deny all alleged liability, wrongdoing, fault, violation,
and damages or injuries;

WHEREAS, Settlement Class Counsel have engaged in substantial discovery,

investigation and fact gathering, including confirmatory discovery as part of the mediation process,
to evaluate the Economic Loss Claims and Defendants’ defenses;

WHEREAS, the Parties engaged in extensive good faith, arm’s-length negotiations, over
a period of many months, to resolve the Economic Loss Claims, with the assistance and oversight
of the Settlement Mediator;

WHEREAS, without conceding the correctness of any of the other Parties’ legal positions,
claims and/or defenses, the Parties wish to avoid the delays, expense, and risks inherent in
continued litigation of the Economic Loss Claims; and

WHEREAS, the Medical Monitoring and Personal Injury Claims are not the subject of
this proposed resolution of the Economic Loss Claims, but any Economic Loss Claims asserted in
the Medical Monitoring and Personal Injury Complaints are the subject of this proposed resolution
of the Economic Loss Claims.

NOW, THEREFORE, in consideration of the mutual covenants contained herein and

intending to be legally bound, the Parties agree to resolve, release and settle the Economic Loss
Claims against the Released Parties on the terms set forth below:

1. Definitions

For purposes of this Settlement, including the attached exhibits, the following terms
(designated by initial capitalization throughout this Agreement) shall have the meanings set forth
in this Section. Terms used in the singular shall include the plural.

1.1. Accelerated Implementation Option shall mean the option available to certain
Users to receive a Device Payment Award and a Device Return Award on an
accelerated basis, pursuant to the terms set forth in Section 6.3 below.

1.2. Attorneys’ Fees and Expenses shall mean the final amounts approved by the MDL
Court (following the conclusion of any appellate proceedings) in connection with
Settlement Class Counsel’s motion for attorneys’ fees, costs and litigation expenses,
as described in Section 18.1 below.

1.3. BiPAP shall mean Bi-level Positive Airway Pressure devices.

__________________
Section 1. Definitions 2
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 6 of 168

1.4. Census Registry Program shall mean the Census Registry Program established by
the MDL Court in Pretrial Order #25, as modified in Pretrial Order #25(a) (ECF
Nos. 739, 870).

1.5. Claims Appeals Special Master shall mean, subject to MDL Court approval, the
Honorable Thomas J. Rueter (Ret.).

1.6. Claims Period shall mean the period during which the Settlement Administrator
will accept claims that Settlement Class Members have submitted for Device
Payment Awards, Device Return Awards, Device Replacement Awards and/or
Payer Awards.

1.7. Claims Period Deadline shall mean 120 days after the date of the Final Fairness
Hearing.

1.8. Counsel shall mean Settlement Class Counsel and Counsel for the Philips
Defendants.

1.9. Counsel for the Philips Defendants shall mean:

1.9.1. Counsel for Philips RS:

1.9.1.1. John P. Lavelle, Jr. and Lisa C. Dykstra, Morgan, Lewis &
Bockius LLP, 1701 Market Street, Philadelphia, PA 19103-
2921; and

1.9.1.2. Erik T. Koons and Andrew T. George, Baker Botts LLP, 700
K St. NW, Washington, DC 20001.

1.9.2. Counsel for Koninklijke Philips N.V., Philips North America LLC,
Philips Holding USA Inc., and Philips RS North America Holding
Corporation:

1.9.2.1. Michael H. Steinberg, Sullivan & Cromwell LLP, 1888

Century Park East, Los Angeles, CA 90067; and

1.9.2.2. Tracy Richelle High, William B. Monahan, and Elizabeth N.

Olsen, Sullivan & Cromwell LLP, 125 Broad Street, New
York, NY 10004.

1.10. CPAP shall mean Continuous Positive Airway Pressure devices.

__________________
Section 1. Definitions 3
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 7 of 168

1.11. Defendants shall mean the defendants named in the Economic Loss Complaint,
namely, the Philips Defendants, Polymer Technologies, Inc., and Polymer Molded
Products LLC.

1.12. Device Payment Award shall mean the cash payment offered to Users relating to
the Recalled Devices described in Section 3.2 below.

1.13. Device Replacement Award shall mean the cash payment offered to Users who
qualify for a Device Replacement Award, as set forth in Section 3.4 below.

1.14. Device Return Award shall mean the cash payment offered to Users who return,
or have returned, their Recalled Devices, as set forth in Section 3.3 below.

1.15. DME shall mean Durable Medical Equipment providers.

1.16. Economic Loss Claims shall mean any and all claims, demands, actions, or causes
of action (whether for damages, fines, penalties, assessments, liens, injunctive,
equitable or any other relief, whether direct, indirect or consequential, liquidated or
unliquidated, past, present or future, or foreseen or unforeseen) relating in any way
to the Recalled Devices or the Replacement Devices, including, but not limited to,
payments, costs, reimbursements, and/or expenses incurred or made by Settlement
Class Members in connection with the purchase, rental, lease or other acquisition
of the Recalled Devices or the Replacement Devices, that have been asserted, could
have been asserted, or could be asserted by any of the Settlement Class Members,
whether known or unknown, in law or in equity, contingent or non-contingent,
suspected or unsuspected, concealed or hidden, or past, present or future, including
for attorneys’ fees, expert fees, consultant fees, or other litigation fees or costs,
except Economic Loss Claims expressly do not include Medical Monitoring and
Personal Injury Claims.

1.17. Effective Date shall mean the date when the Settlement becomes Final, not the
Execution Date or the date of MDL Court Final Approval. For avoidance of doubt,
the Effective Date shall not have been reached until both the MDL Court enters the
Final Order and Judgment and there has been the successful exhaustion of all appeal
periods without appeal or resolution of any appeals or certiorari proceedings in a
manner upholding the Final Order and Judgment.

1.18. Eligible Payers shall mean Payers who remain in the Settlement Class and who
have taken the steps applicable to them, as determined by the Settlement
Administrator, to receive a Payer Award under the Settlement.

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1.19. Eligible Users shall mean Users who remain in the Settlement Class and who have
taken the steps (if any) applicable to them, as determined by the Settlement
Administrator, to receive one or more Device Payment, Device Return, and/or
Device Replacement Awards under the Settlement.

1.20. Enrolled Recalled Devices shall mean Recalled Devices enrolled by Users in the
Settlement pursuant to the Enrollment Process.

1.21. Enrollment Process shall mean the process for Users to enroll Recalled Devices
in the Settlement to receive a Device Payment and/or a Device Return Award,
provided they otherwise meet the requirements to receive those payments under the
Settlement. The Enrollment Process is available only to Users who still possess the
Recalled Device(s) that they want to enroll in the Settlement and that have not
previously been registered in a Recall Program, and requires that Users provide at
least (i) the Serial Number for the Recalled Device(s), (ii) the User’s name, mailing
address, telephone number, and if applicable, e-mail address, and (iii) information
regarding the User’s requested form of payment under the Settlement. All Recalled
Devices except the Trilogy 100/200 Recalled Devices may be enrolled in the
Settlement if they otherwise meet the requirements for enrollment. For those Users
who still possess their Trilogy 100/200 Recalled Devices and wish to receive a
Device Return Award, they should register their Trilogy 100/200 with Philips RS
pursuant to a Recall Program. Philips RS will contact the DME to make
arrangements for the DME to schedule a time to retrieve the User’s Trilogy 100/200
and install a Remanufactured Device.

1.22. Execution Date shall mean September 7, 2023.

1.23. Extended Warranties shall mean those extended warranties provided by Philips
RS to Users who receive or received a Remanufactured Device as part of a Recall
Program, as set forth in Section 3.5 below.

1.24. Final shall mean the later of (1) the day after the deadline to appeal the Final Order
and Judgment has expired with no appeal having been taken, or (2) if an appeal is
filed, the latest of (i) the date of final affirmance of the Final Order and Judgment,
(ii) the expiration of the time for a petition for writ of certiorari to review the Final
Order and Judgment if affirmed, the denial of certiorari, or, if certiorari is granted,
the date of final affirmance of the Final Order and Judgment following review
pursuant to that grant; or (iii) the date of final dismissal of any appeal from the Final
Order and Judgment or the final dismissal of any proceeding on certiorari to review
the Final Order and Judgment that has the effect of confirming the Final Order and
Judgment. An appeal from an award of Attorneys’ Fees and Expenses or an award

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of Service Awards to Settlement Class Representatives shall not affect the finality
of the Settlement.

1.25. Final Fairness Hearing shall mean the final fairness hearing before the MDL
Court, as described in Section 13 of the Agreement.

1.26. Final Order and Judgment shall mean the Final Approval Order and Judgment
entered by the MDL Court following the Final Fairness Hearing, substantially in
the form attached as Exhibit 9 hereto.

1.27. MDL shall mean the above-captioned MDL, In re Philips Recalled CPAP, Bi-Level
PAP, and Mechanical Ventilator Prod. Litig., MDL No. 3014 (W.D. Pa.) (Conti,
J.).

1.28. MDL Court shall mean the Honorable Joy Flowers Conti, or her successor, who
presides over the MDL.

1.29. MDL Court Final Approval shall mean entry of the Final Order and Judgment by
the MDL Court.

1.30. Medical Monitoring and Personal Injury Claims shall mean any claims for
(1) medical monitoring damages or other medical monitoring relief and/or
(2) personal injuries, including for pecuniary, non-pecuniary, and punitive damages
for those personal injuries (including, but not limited to, past, present or future lost
wages, lost earning capacity, or medical costs or expenses, and pain and suffering).

1.31. Ozone Cleaning Companies shall mean manufacturers of ozone cleaning devices
for CPAP, BiPAP, ventilator or other similar devices, as well as their former,
present, and future owners, shareholders, directors, officers, employees, attorneys,
affiliates, parent companies, subsidiaries, predecessors and successors, including,
but not limited to, SoClean Inc. and its affiliated and predecessor companies.

1.32. Ozone Cleaning Products shall mean devices claiming to use ozone to disinfect,
clean, sanitize or otherwise employ ozone in connection with a CPAP, BiPAP,
ventilator or other similar device, including, but not limited to, the Better Rest, the
SoClean 1, the SoClean 2, the SoClean 2 Go, and the SoClean 3.

1.33. Payer Award shall mean the allocated portion of the Payer Amount that each
Eligible Payer is eligible for under the Settlement, as set forth in Sections 3.6 and
6.7 below.

1.34. Payers shall have the meaning set forth in Section 1.51 below in the definition of
Settlement Class.
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1.35. Plaintiffs shall mean the Plaintiffs named in the Economic Loss Complaint.

1.36. Preliminary Approval Order shall mean an order of the MDL Court preliminarily
approving the Settlement, substantially in the form attached as Exhibit 1 hereto.

1.37. Recalled Devices, or Philips RS Recalled Devices, shall mean the following
CPAP, BiPAP, ventilator, and/or other devices sold, leased, rented or otherwise
distributed in the United States:

1.37.1. C-series S/T, AVAPS (C-series and C-series HT);

1.37.2. DreamStation ASV;

1.37.3. DreamStation BiPAP;

1.37.4. DreamStation CPAP;

1.37.5. DreamStation Go;

1.37.6. DreamStation ST, AVAPS;

1.37.7. E30;

1.37.8. OmniLab Advanced Plus;

1.37.9. System One 50 Series ASV4 (Auto SV4);

1.37.10. System One 50 Series Base;

1.37.11. System One 50 Series BiPAP;

1.37.12. System One 60 Series ASV4 (Auto SV4);

1.37.13. System One 60 Series Base;

1.37.14. System One 60 Series BiPAP;

1.37.15. Trilogy 100/200, Garbin Plus, Aeris LiveVent; and

1.37.16. V30 auto.

1.38. Recall Programs shall mean ongoing and future programs administered by Philips
RS and overseen by the United States Food and Drug Administration relating to the
Recalled Devices, including to repair, refurbish, remanufacture, and/or replace

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Recalled Devices and/or that require the return of Recalled Devices to Philips RS
for remediation, compensation or otherwise. To date, Philips RS has spent more
than $500 million toward the Recall Programs.

1.39. Recall Registration Number shall mean the unique registration number a User
receives from Philips RS when the User registers his or her Recalled Device with
Philips RS pursuant to a Recall Program.

1.40. Recalls shall mean the recalls of the Recalled Devices by Philips RS, beginning
June 14, 2021.

1.41. Registered Recalled Devices shall mean Recalled Devices registered by Users
pursuant to the Recall Programs.

1.42. Released Claims shall mean all Economic Loss Claims against Defendants and the
other Released Parties. For the avoidance of doubt, Released Claims expressly does
not include (1) Economic Loss Claims of Settlement Class Members against Ozone
Cleaning Companies (which will be assigned to Philips RS as set forth in Section
5 below), (2) claims to enforce this Settlement, or (3) Medical Monitoring and
Personal Injury Claims.

1.43. Released Parties shall mean any individual who, or entity that, is or could be
responsible or liable in any way whatsoever, whether directly or indirectly, for
Economic Loss Claims. Without in any way limiting the foregoing, the Released
Parties include, without limitation, (1) Defendants, (2) any of their past, present, or
future parents, owners, predecessors, successors, subsidiaries, divisions,
affiliates/related entities, stockholders, officers, directors, board members,
supervisors, members, partners, managers, and employees, (3) any of their current,
former or future suppliers, agents, testing laboratories, attorneys, vendors,
consultants, claim administrators, recall administrators, contractors and
subcontractors, (4) any and all current, former or future distributors, sellers, insurers,
reinsurers, resellers, lessors, retail dealers, and DME providers for the Recalled
Devices, (5) any and all individuals and entities indemnified by any other Released
Party with respect to Economic Loss Claims, and (6) all of their predecessors,
successors, assigns, legatees, legal representatives, and any other stakeholders, as
well as all other persons acting by, through, or under them, including those who are,
may be, or are alleged to be jointly or jointly and severally liable with them, or any
of them. For the avoidance of doubt, notwithstanding anything to the contrary
above, the Released Parties expressly does not include Ozone Cleaning Companies.

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1.44. Remanufactured Devices shall mean repaired, refurbished, remanufactured,

and/or new replacement CPAP, BiPAP, ventilator or similar devices that Philips
RS has provided to Users pursuant to the Recall Programs.

1.45. Replacement Device shall mean a CPAP, BiPAP, ventilator or similar device that
is comparable to the replaced Philips RS Recalled Device and that was purchased,
leased, rented, or otherwise paid for directly by a User (in whole or part), but only
on or after June 14, 2021 and prior to the Execution Date, to replace the Philips RS
Recalled Device, as set forth in Section 3.4 below.

1.46. Replacement Device Claim Amount shall mean the amount documented as
actually paid by a User (e.g., not any payment made by insurance or another third-
party payer on behalf of or for the benefit of the User) to purchase, lease, or rent a
Replacement Device, subject to Section 3.4.1.1 below.

1.47. Representative Claimant shall mean the guardian, estate, administrator, or other
legal representative, including a person acting pursuant to a power of attorney for
a Settlement Class Member, with authority to act on behalf of a Settlement Class
Member. Representative Claimants do not include a Settlement Class Member’s
counsel unless that counsel is acting under a power of attorney from the Settlement
Class Member. Representative Claimants also do not include persons or entities,
such as claim aggregator companies, who purchase a User’s claim(s), charge a User
to submit a Claim Form, and/or seek to retain a portion of a User’s claim(s) in
exchange for submitting a Claim Form on behalf of such User.

1.48. Serial Number shall mean the unique identifying alphanumeric number located on
the bottom of each Recalled Device or Remanufactured Device, or in the case of
certain ventilators (such as the OmniLab Advanced Plus and Trilogy 100/200), on
the device display.

1.49. Service Awards shall mean the final amounts approved by the MDL Court
(following the conclusion of any appellate proceedings) for payment to Settlement
Class Representatives for their service as a Settlement Class Representative, as
described in Section 18.2 below.

1.50. Settlement Administrator shall mean, subject to MDL Court approval, Angeion
Group, LLC (“Angeion Group”). The Settling Parties may jointly agree to replace
Angeion Group with another mutually agreeable settlement administrator.

1.51. Settlement Class or Settlement Class Members shall include Plaintiffs and all
other individuals or entities in the United States (as defined below), including
individuals who are United States citizens, residents, United States military,
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diplomatic personnel and employees living or stationed overseas, who or which,

prior to the announcement of the Recalls, either (a) purchased, leased, rented, or
paid for (in whole or part), or were prescribed a Recalled Device (“Users”), or
(b) reimbursed (in whole or part) a User’s payment to purchase, lease, rent, or
otherwise pay for a Recalled Device, including insurers, self-funded employers,
and other third-party payers (“Payers”). Individuals or entities whose payment
obligations with respect to a particular Recalled Device preceded the announcement
of the relevant Recall are part of the Settlement Class even if certain of their
payment obligations post-dated the Recall (e.g., certain renters and lessees).

EXCLUDED from the Settlement Class are: (a) Defendants and their officers,
directors, and employees; (b) the MDL Court, Settlement Mediator, Claims
Appeals Special Master, and Special Masters assigned to the MDL; (c) individuals
who have already released Released Claims against one or more of the Defendants
pursuant to individual settlements or other resolutions; (d) DMEs; (e) the federal
government and any federal government payers, including the United States
Department of Health and Human Services Centers for Medicare & Medicaid
Services, the Department of Defense, and the U.S. Department of Veterans Affairs;
and (f) Settlement Class Counsel.

1.52. Settlement Class Counsel shall mean:

1.52.1. Christopher A. Seeger, Seeger Weiss, 55 Challenger Road, 6th Floor,

Ridgefield Park, NJ 07660;

1.52.2. Sandra L. Duggan, Levin Sedran & Berman, 510 Walnut Street, Suite
500, Philadelphia, PA 19106;

1.52.3. Steven A. Schwartz, Chimicles Schwartz Kriner & Donaldson-Smith

LLP, 361 West Lancaster Avenue, Haverford, PA 19041;

1.52.4. Kelly K. Iverson, Lynch Carpenter, LLP, 1133 Penn Avenue, 5th Floor,
Pittsburgh, PA 15222;

1.52.5. Roberta D. Liebenberg, Fine, Kaplan and Black, R.P.C., One South
Broad Street, 23rd Floor, Philadelphia, PA 19107;

1.52.6. Lisa Ann Gorshe, Johnson Becker PLLC, 444 Cedar Street, Suite 1800,
Saint Paul, MN 55101; and

1.52.7. Arthur H. Stroyd, Jr., Del Sole Cavanaugh Stroyd LLC, 3 PPG Place,
Suite 600, Pittsburgh, PA 15222.

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1.53. Settlement Class Representatives shall mean the following Plaintiffs: Elizabeth
Heilman; Ivy Creek of Tallapoosa LLC d/b/a Lake Martin Community Hospital;
Peter Barrett; Julie Barrett; and ASEA/AFSCME Local 52 Health Benefits Trust.

1.54. Settlement Funds shall mean the accounts that will be opened with the Settlement
Funds Escrow Agent, MDL 3014 EL User Settlement Fund (“User Settlement
Fund”) and MDL 3014 EL Payer Settlement Fund (“Payer Settlement Fund”), as a
Court-approved Qualified Settlement Fund pursuant to Section 1.468B-1, et seq. of
the Treasury Regulations promulgated under Section 468B of the Internal Revenue
Code of 1986, as amended. The Escrow Agreement establishing the Settlement
Funds will be in a form mutually agreed upon by the Parties.

1.55. Settlement Funds Escrow Agent shall mean Huntington Bank, which will enter
into an Escrow Agreement to carry out the tasks more fully detailed in that Escrow
Agreement, including to receive, hold, invest, and disburse funds and pay notice-
related costs and other reasonable administrative expenses authorized and approved
by the Court. The Settling Parties may jointly agree to replace Huntington Bank
with another mutually agreeable financial institution.

1.56. Settling Parties shall mean all Settlement Class Members and the Philips
Defendants.

1.57. Settling Party shall mean any one of the Settling Parties.

1.58. United States shall mean the United States of America, its Territories (American
Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin
Islands), and the District of Columbia.

1.59. Users shall have the meaning set forth in Section 1.51 above in the definition of
Settlement Class.

2. Funding Obligations and Payments by the Philips Defendants

2.1. The Philips Defendants shall be responsible to make, or to cause to be made, the
payments and to perform, or to cause to be performed, the obligations set forth in
this Agreement.

2.2. For purposes only of this Settlement and the enforcement of the payment and
performance obligations under this Settlement, the Philips Defendants submit to the
jurisdiction of the MDL Court.

2.3. Establishment and Administration of the Settlement Funds

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2.3.1. The Settlement Funds will be a MDL Court-approved Qualified

Settlement Fund pursuant to Section 1.468B-1, et seq. of the Treasury
Regulations promulgated under Section 468B of the Internal Revenue
Code of 1986, as amended.

2.3.2. The Settlement Funds will be established through a deposit or deposits

by, or on behalf of, the Philips Defendants of the Initial Payments for
Class Notice and Settlement Administration, as set forth in Section 2.4.1
below.

2.3.3. At the written direction of Settlement Class Counsel, the Settlement

Funds Escrow Agent shall invest the Settlement Funds exclusively in
instruments or accounts backed by the full faith and credit of the United
States Government or fully insured by the United States Government or
an agency thereof, including a U.S. Treasury Fund or a bank account
that is either (a) fully insured by the Federal Deposit Insurance
Corporation or (b) secured by instruments backed by the full faith and
credit of the United States Government. The Philips Defendants shall
not bear any responsibility for or liability related to the investment of
the Settlement Funds by the Settlement Funds Escrow Agent.

2.3.4. Administrative expenses of the Settlement Funds will be paid from the
Settlement Funds.

2.4. Payments for Class Notice and Settlement Administration

2.4.1. Initial Payments for Class Notice and Settlement Administration.

No later than 14 days after the Execution Date, the Philips Defendants
shall deposit, or cause to be deposited, $7,350,000 into the User
Settlement Fund and $100,000 into the Payer Settlement Fund
(collectively, the “Initial Payments for Class Notice and Settlement
Administration”) by wire transfer into the respective Settlement Funds
for purposes of paying notice-related costs, and other reasonable
administrative expenses that may be incurred pursuant to this Settlement
in conjunction with the retention and/or services of the Settlement
Administrator, the Settlement Funds Escrow Agent, the Claims Appeals
Special Master, and the Settlement Mediator.

2.4.2. Following MDL Court Final Approval, the Philips Defendants shall
make, or cause to be made, additional payments for Settlement

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Administration as set forth in Section 6.1.1 below and as required by the

Settlement.

2.5. Payments for Device Payment Awards

2.5.1. Initial Device Payment Amount. The Philips Defendants shall pay, or
cause to be paid, an amount equal to the total Device Payment Awards
(as set forth in Section 3.2 below) for all Registered Recalled Devices
as of the Execution Date, plus an amount equal to the total Device
Payment Awards for 5% of the remaining Recalled Devices that have
not been registered by Users for a Recall Program by the Execution Date
(the “Initial Device Payment Amount”). The payment shall be made by
wire transfer into the User Settlement Fund in two installments no later
than 14 days following (i) MDL Court Final Approval (25% of the
Initial Device Payment Amount) (“first installment”), and (ii) the
Effective Date (75% of the Initial Device Payment Amount) (“second
installment”). In the event the first installment of the Initial Device
Payment Amount is insufficient to pay Device Payment Awards to
Users electing the AIO option, the Philips Defendants shall deposit
additional funds from the second installment to make those payments.
The combined first and second installment payments for the Initial
Device Payment Amount will be $309,082,312.

2.5.2. Additional payments by, or on behalf of, the Philips Defendants into the
User Settlement Fund for Device Payment Awards may be required as
set forth further in Section 2.7 below.

2.6. Payments for Device Return Awards

2.6.1. Initial Device Return Amount. The Philips Defendants shall pay, or
cause to be paid, an amount equal to $100 for each and every Registered
and Enrolled Recalled Device returned by Users pursuant to the Recall
Programs or the Settlement as of the date of MDL Court Final Approval
(the “Initial Device Return Amount”). The payment shall be made by
wire transfer into the User Settlement Fund in two installments no later
than 14 days following (i) MDL Court Final Approval (25% of the
Initial Device Return Amount) (“first installment”), and (ii) the
Effective Date (75% of the Initial Device Return Amount) (“second
installment”). In the event the first installment of the Initial Device
Return Amount is insufficient to pay Device Return Awards to Users
electing the AIO option, the Philips Defendants shall deposit, or cause
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to be deposited, additional funds from the second installment to make

those payments. The combined first and second installment payments
for the Initial Device Return Amount will be no less than $136,618,500,
but is subject to increase depending on the number of Registered and
Enrolled Recalled Devices returned by Users pursuant to the Recall
Programs or the Settlement as of the date of MDL Court Final Approval.

2.6.2. Additional payments by, or on behalf of, the Philips Defendants into the
User Settlement Fund for Device Return Awards may be required as set
forth further in Section 2.7 below.

2.7. Additional Payments for Device Payment Awards and Device Return Awards

2.7.1. To the extent the sum of the Initial Device Payment Amount and the
Initial Device Return Amount is not sufficient to make all Device
Payment Awards and Device Return Awards required by the Settlement,
the Philips Defendants, on a monthly basis, will pay, or cause to be paid,
an additional amount (the “Additional Amount”) into the User
Settlement Fund necessary to make those payments.

2.7.2. The Settlement Administrator, in coordination with the Parties, shall

determine within 10 days of the end of each month the Additional
Amount necessary (if any) to make Device Payment Awards and Device
Return Awards to all Eligible Users for the following month (the
“Additional Amount Determination”). The Philips Defendants shall
pay, or cause to be paid, the Additional Amount into the User Settlement
Fund within 14 days after the Additional Amount Determination.

2.7.2.1. In the event either Party or the Settlement Administrator

later identifies a miscalculation in the amount of any
Additional Amount Determination, and the Parties are in
agreement as to the miscalculation, that amount shall be
taken into consideration by the Settlement Administrator to
increase or decrease subsequent Additional Amount
Determination(s), as appropriate. If the Parties cannot agree
as to the existence or amount of a miscalculation, such
dispute shall be resolved by the Claims Appeals Special
Master, whose decision on the matter shall be final and
unappealable by any Party.

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2.7.2.2. In the event the Philips Defendants deposit excess amounts

into the User Settlement Fund as a result of a miscalculation
of Additional Amount Determination(s) and those amounts
remain in the User Settlement Fund after all Device Payment
Awards and Device Return Awards required under the
Settlement have been made, the excess amounts shall be
returned to the Philips Defendants within 14 days after all
Device Payment Awards and Device Return Awards have
been made to Eligible Users.

2.8. Payments for Device Replacement Awards

2.8.1. Device Replacement Amount. The Philips Defendants shall pay, or

cause to be paid, up to $10,000,000 (the “Device Replacement Amount”)
by wire transfer into the User Settlement Fund no later than 14 days
after the Settlement Administrator determines the total number and
amount of valid claims for Device Replacement Awards, as set forth in
Section 6.6.2 below. This determination will not occur until after the
Claims Period Deadline, and the Philips Defendants do not have any
payment obligation with respect to Device Replacement Awards prior
to then.

2.8.2. Additional payments by, or on behalf of, the Philips Defendants into the
User Settlement Fund for Device Replacement Awards may be required
as set forth in Section 6.6.2.4 below.

2.9. The net interest earned on payments by, or on behalf of, the Philips Defendants into
the User Settlement Fund, after payment of taxes and fees owed, Class Notice and
Settlement Administration expenses (see Section 2.4 above), will accrue to the
benefit of Users and may be used to make Device Payment Awards, Device Return
Awards and/or Device Replacement Awards.

2.10. Payment for Payer Awards

2.10.1. Payer Amount. The Philips Defendants shall pay, or cause to be paid,
$34,000,000 for Payer Awards (the “Payer Amount”). The payment
shall be made by wire transfer into the Payer Settlement Fund no later
than 14 days following the Effective Date. The Payer Amount is fixed
and will not increase based on the number or amount of Eligible Payers
or Eligible Payer claims submitted.

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2.11. The net interest earned on the payment by, or on behalf of, the Philips Defendants
into the Payer Settlement Fund, after payment of taxes and fees owed, Class Notice
and Settlement Administration expenses (see Section 2.4 above), will accrue to the
benefit of Payers and may be used to make Payer Awards.

2.12. The payments by, or on behalf of, the Philips Defendants of the Initial Device
Payment Amount, the Initial Device Return Amount, and the Payer Amount
(collectively, the “Non-Reversionary Payments”) shall be non-reversionary, and
the Philips Defendants shall not be entitled to return of the Non-Reversionary
Payments; however, if the Settlement does not achieve MDL Court Final Approval
and/or does not become Final, then the Non-Reversionary Payments and accrued
interest (minus any payments made or owed for Class Notice and Settlement
Administration and minus any payments made pursuant to the AIO as set forth in
Section 6.3 below) will be returned to the Philips Defendants.

3. Settlement Benefits

3.1. Overview

3.1.1. The Settlement benefits set forth in this Agreement are separate and
distinct from any relief provided under the Recall Programs; provided,
however, that to the extent that the financial compensation to a
particular User under this Settlement is greater than the financial
compensation provided under the Recall Programs to the same User, or
vice versa, nothing precludes that User from recovering the larger of the
two but not both.

3.1.1.1. As part of the claims process for this Settlement, the

Settlement Administrator, in conjunction with the Parties,
will determine whether a User has already received financial
compensation under the Recall Programs greater than that
which otherwise would have been provided to the User
through the sum of the User’s Device Payment and Device
Return Awards. If so, the User is not entitled to a Device
Payment or Device Return Award under this Settlement.

3.1.1.2. Provided they otherwise meet the requirements set forth

herein for a Device Replacement Award, nothing in the
Recall Programs precludes Users from recovering a Device
Replacement Award.

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3.1.2. Provided they otherwise meet the requirements to receive these

payments under the Settlement, Users are eligible for the following cash
payments under the Settlement: (a) Device Payment Awards, (b) Device
Return Awards, and (c) Device Replacement Awards. As set forth in
Section 3.4.6 below, with certain exceptions, a User is not eligible for
both a Device Return Award and a Device Replacement Award with
respect to the same Recalled Device.

3.1.2.1. Users who receive a Remanufactured Device from Philips

RS also receive an Extended Warranty on the
Remanufactured Device.

3.1.3. Provided they otherwise meet the requirements to receive this payment
under the Settlement, Payers are eligible for Payer Awards. Payers are
not eligible, directly or indirectly, for any Device Payment Awards,
Device Return Awards or Device Replacement Awards, in whole or in
part.

3.2. Device Payment Awards. Only one Device Payment Award is available per
Recalled Device. The amount of each Device Payment Award will be based on the
Recalled Device at issue as follows:

Recalled Device User Device Payment

Award (Per Device)
System One 50 Series ASV4 (Auto SV4) $469.14
System One 50 Series Base $69.14
System One 50 Series BiPAP $159.46
System One 60 Series ASV4 (Auto SV4) $424.32
System One 60 Series Base $68.24
System One 60 Series BiPAP $152.70
C-series S/T, AVAPS (C-series and C-series HT) $394.37
DreamStation CPAP $55.63
DreamStation ASV $379.50
DreamStation ST, AVAPS $329.05
DreamStation BiPAP $130.63
DreamStation Go $107.43
E30 $453.83
OmniLab Advanced Plus $165.99
Trilogy 100/200, Garbin Plus, Aeris LiveVent $1,552.25
V30 auto $67.12

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3.2.1. Device Payment Awards will be paid to those Users who complete the
steps applicable to them, if any, in Section 6 below.

3.2.2. Payers are not eligible to receive Device Payment Awards, and no
portion of a Device Payment Award will be allocated under the
Settlement to Payers.

3.2.3. Users who purchased, leased, rented, or paid for multiple Recalled
Devices are eligible to seek and receive multiple Device Payment
Awards.

3.2.4. If a User purchased, leased, rented, or paid for (in whole or part) a
Recalled Device, but then returned that Recalled Device to Philips RS
under warranty (outside of a Recall Program) and received another
Recalled Device for free pursuant to that warranty, the User is only
eligible for a Device Payment Award for the Recalled Device provided
to the User for free under warranty, not the original Recalled Device
returned to Philips RS under warranty.

3.2.5. In the event multiple Users make valid Device Payment Award claims
with respect to the same Recalled Device (e.g., a Recalled Device that
was rented), the Device Payment Award for that Recalled Device will
be allocated by the Settlement Administrator after the Claims Period
Deadline on a pro rata basis in accordance with each User’s total
payments for the Recalled Device.

3.2.6. Users who purchased, leased, rented, or paid for (in whole or part) a
Recalled Device but who returned the Recalled Device under warranty
(outside of a Recall Program) and received their full payment back are
not eligible for a Device Payment Award for the Recalled Device they
returned.

3.2.7. Receipt of a Device Payment Award does not affect a User’s eligibility,
if applicable, for a Device Return Award and/or a Device Replacement
Award.

3.3. Device Return Awards. A Device Return Award, of $100 per Recalled Device
(irrespective of the type or model of Recalled Device), will be available to
compensate eligible Users who have either already returned Recalled Devices
pursuant to a Recall Program or who return Recalled Devices by the Claims Period
Deadline pursuant to either the terms of the Settlement or a Recall Program. There
shall be only one Device Return Award available for each Recalled Device.
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3.3.1. Users are eligible to receive a separate Device Return Award for each
Recalled Device they return.

3.3.2. Payers are not eligible to receive Device Return Awards, and no portion
of a Device Return Award will be allocated under the Settlement to
Payers.

3.3.3. To be eligible to receive a Device Return Award, Users must return (or
already have returned after June 14, 2021) their Registered or Enrolled
Recalled Device(s) pursuant to a Recall Program or under this
Settlement.

3.3.4. Philips RS agrees to make prepaid return labels available on the

Settlement website maintained by the Settlement Administrator so as to
allow Users to return their Registered or Enrolled Recalled Devices to
Philips RS; provided, however, that for those Users who still possess
their Trilogy 100/200 Recalled Devices and wish to receive a Device
Return Award, they should register their Trilogy 100/200 with Philips
RS pursuant to a Recall Program. Philips RS will contact the DME to
make arrangements for the DME to schedule a time to retrieve the
User’s Trilogy 100/200 and install a Remanufactured Device.

3.3.5. To receive a Device Return Award, the returned Recalled Device must
have a complete and visible original Serial Number and must have all
of its parts, other than a humidifier attachment, power cord, the memory
card, the filters, and accessories like masks and tubing.

3.3.6. Receipt of a Device Return Award for a particular Recalled Device does
not affect a User’s eligibility to receive a Device Payment Award for
that Recalled Device.

3.3.7. As set forth in Section 3.4.6 below, a User is not eligible for a Device
Return Award if the User receives 100% of his or her Replacement
Device Claim Amount with respect to the same Recalled Device.
However, as set forth in Section 3.4.7 below, in the event that a User
does not receive 100% of his or her Replacement Device Claim Amount,
the User may be entitled to a Device Return Award (or a portion thereof)
for the associated replaced and returned Recalled Device.

3.4. Device Replacement Awards. Device Replacement Awards are intended to

compensate eligible Users who, on or after June 14, 2021 and prior to the Execution
Date, paid out of pocket (in whole or in part) for a Replacement Device without
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having received or prior to receiving from a Recall Program a Remanufactured

Device associated with the User’s Recalled Device.

3.4.1. Subject to Section 3.4.1.1 below, the Device Replacement Award for a
particular User shall be based on the Replacement Device Claim
Amount.

3.4.1.1. The Parties have agreed to a list of comparable Replacement

Devices for each Philips RS Recalled Device (“Comparable
Replacement Devices List”), attached hereto as Exhibit 5(a).
In the event a User purchased, leased, or rented a
replacement device that is not identified on the Comparable
Replacement Devices List, the Settlement Administrator, in
consultation with the Parties, will determine whether the
replacement device at issue can be considered a comparable
Replacement Device. If the replacement device at issue is
not comparable to the replaced Philips RS Recalled Device
and the amount set forth on the User’s Device Replacement
Award Claim Form is greater than the value of a device that
is comparable to the replaced Philips RS Recalled Device, as
determined by the Parties in consultation with the Settlement
Administrator, the User’s Replacement Device Claim
Amount will be reduced by the Settlement Administrator to
the value of the comparable device, and the reduced amount
will constitute the User’s Replacement Device Claim
Amount.

3.4.2. To be eligible to receive a Device Replacement Award, a User must,

within the Claims Period, complete each of the following steps:

3.4.2.1. Submit a timely and valid claim, by completing the Device

Replacement Award Claim Form in the form attached hereto
as Exhibit 5 and by providing sufficient documentation of
(i) the Replacement Device, (ii) the expenses actually
incurred and paid out of pocket by the User to acquire the
Replacement Device, (iii) the purchase date for the
Replacement Device, (iv) a sworn declaration that the
Replacement Device was in fact used by the User to replace
the Recalled Device, and (v) sufficient information
regarding the Recalled Device that the Replacement Device
was replacing so as to undertake the comparability analysis

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required by Sections 1.45 and 3.4.1.1 above and to ensure

that any Device Return Award for that Recalled Device is
accounted for consistent with Sections 3.4.6 and 3.4.7 below.

3.4.2.2. Return the Recalled Device to Philips RS through the

process set forth above in Section 3.3.4. If the User no
longer possesses the Recalled Device, the User need not
return the Recalled Device to Philips RS to be eligible for a
Device Replacement Award. However, if the User still
possesses the Recalled Device, the User must return it to
Philips RS to be eligible for a Device Replacement Award.

3.4.2.3. In the event the User received a Remanufactured Device

pursuant to a Recall Program, return that Remanufactured
Device to Philips RS in reasonable working condition by
obtaining a prepaid return label available on the Settlement
website maintained by the Settlement Administrator. The
User must return the Remanufactured Device to Philips RS
to be eligible for a Device Replacement Award.

3.4.3. Only one Device Replacement Award is available per Recalled Device
(e.g., if a User purchased two Replacement Devices to replace a single
Recalled Device, the User is only eligible for a Device Replacement
Award for one of the Replacement Devices).

3.4.4. No Device Replacement Awards shall be paid until after the Claims
Period Deadline or after the Effective Date, whichever is later.

3.4.5. If otherwise eligible, Users submitting a claim for a Device

Replacement Award will also be entitled to a Device Payment Award
associated with the replaced Recalled Device. In other words, receipt
of a Device Replacement Award does not preclude a User from
receiving a Device Payment Award, subject to the terms and conditions
for receiving such an award.

3.4.6. Receipt of a Device Replacement Award will preclude a User from

receiving a Device Return Award in the event that, after the Settlement
Administrator calculates the Total Replacement Device Claim Amounts,
as provided in Section 6.6.2 below, the User receives 100% of his or her
Replacement Device Claim Amount.

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3.4.6.1. Under that circumstance, if a particular User already

received a Device Return Award for the associated replaced
and returned Recalled Device, the Device Return Award
amount will be deducted in full from that User’s Device
Replacement Award.

3.4.7. In the event that a User does not receive 100% of his or her Replacement
Device Claim Amount, the User may be entitled to a Device Return
Award (or a portion thereof) for the associated replaced and returned
Recalled Device.

3.4.7.1. Under that circumstance, Users are entitled to a Device

Return Award, or a portion thereof equal to the deficit in the
Device Replacement Award (up to $100), whichever is less.

3.4.8. Payers are not eligible to receive Device Replacement Awards, and no
portion of a Device Replacement Award is allocated under the
Settlement to Payers.

3.5. Extended Warranties. Philips RS shall provide the following Extended

Warranties to Users who receive or have received a Remanufactured Device from
Philips RS as part of a Recall Program:

3.5.1. Two years for materials and workmanship for Remanufactured Devices
that have a different Serial Number from the associated Recalled Device.

3.5.2. Two years for materials and workmanship on the repair work that was
performed by Philips RS pursuant to the Recall Programs (not the entire
Remanufactured Device) on Remanufactured Devices that have the
same Serial Number as the associated Recalled Device (i.e., the
Remanufactured Device and the Recalled Device are the same device
by Serial Number).

3.5.3. The two-year warranties referenced above in Sections 3.5.1 and 3.5.2
shall begin on (i) the date of shipment to the User, for Remanufactured
Devices shipped by Philips RS directly to the User, or (ii) the date the
Remanufactured Device was set up by the DME for the User, for
Remanufactured Devices shipped by Philips RS to the DME.

3.6. Payer Awards. Payer Awards will be paid from the Payer Amount to those Payers
that qualify for such a payment based on the protocols and processes set forth in
Section 6.7 below.

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Section 3. Settlement Benefits 22
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4. Releases

4.1. Through this Settlement, the Parties are settling and fully and forever resolving,
with complete finality, any and all Released Claims of the Settlement Class
Members against Defendants and the other Released Parties. The Settlement does
not resolve any claims that Settlement Class Members may have, if any, against the
Defendants or other Released Parties for Medical Monitoring and Personal Injury
Claims, which are not released and are expressly excluded from the definition of
Released Claims.

4.2. Other than as expressly set forth below, the Philips Defendants and any successors
to their rights or interests under this Settlement warrant and represent that they will
not challenge or oppose a Settlement Class Member’s Medical Monitoring or
Personal Injury Claims or ability to recover for those Medical Monitoring or
Personal Injury Claims on the basis of this Settlement, any payments under this
Settlement, or the Releases provided herein. Further, the Settlement does not
preclude Settlement Class Members from seeking to present evidence of their
alleged economic losses at a trial (if any) of their Medical Monitoring and/or
Personal Injury Claims. Such evidence may be presented only (if applicable) to
establish an element of their Medical Monitoring and/or Personal Injury Claims;
however, in no event shall any Settlement Class Member seek at such trial to
recover damages for those economic losses, seek to increase an exemplary or
punitive damages award on account of economic losses, or recover twice for their
economic losses. In the event a Settlement Class Member seeks to present evidence
of their alleged economic losses at a trial (if any), the Philips Defendants shall have
the right, in order to prevent double recovery of economic losses by the Settlement
Class Member, to seek to present evidence relating to this Settlement, including,
but not limited to, any/all money received by the Settlement Class Member pursuant
to this Settlement, the determination by the MDL Court that the Settlement was fair,
reasonable and adequate, and that the Settlement Class Member had the opportunity
to opt out of the Settlement.

4.3. All Economic Loss Claims of Settlement Class Members against Ozone Cleaning
Companies are expressly excluded from the definition of Released Claims and
instead will be assigned to Philips RS in accordance with Section 5 below.

4.4. The releases set forth herein expressly exclude any claims for breach of this
Agreement.

4.5. These terms are material terms of this Agreement and will be reflected in the Final
Order and Judgment.

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Section 4. Releases 23
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4.6. Release By Settlement Class

4.6.1. As of the Effective Date, each Settlement Class Member, on behalf of

themselves and their agents, heirs, executors, administrators, successors,
assigns, insurers, attorneys, representatives, shareholders, owner
associations, and any other legal or natural persons who may claim by,
through and/or on behalf of them (“Releasing Parties”), fully, finally,
irrevocably, and forever releases, remises, waives, relinquishes, settles,
surrenders, foregoes, gives up, abandons, cancels, acquits and forever
discharges and covenants not to sue Defendants and the other Released
Parties with respect to any and all Released Claims. Without in any way
limiting the foregoing or its broad scope, this release covers (by example
and without limitation) any and all claims for damages, statutory
damages, equitable relief, injunctive relief, penalties, liens, and
attorneys’, expert, consultant, or other litigation fees or costs other than
fees and costs awarded by the Court in connection with this Settlement,
but does not include Medical Monitoring and Personal Injury Claims.

4.6.2. This release is not conditional on receipt of any benefits provided under
this Settlement or otherwise, and applies as a result of membership as a
Settlement Class Member, the notice and MDL Court-approval process
herein, the ability to opt out of the Settlement, and the occurrence of the
Effective Date.

4.6.3. Settlement Class Members acknowledge and waive, and agree to waive,
on behalf of themselves and the other Releasing Parties, Section 1542
of the California Civil Code, which provides that: “A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS THAT THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME
OF EXECUTING THE RELEASE, AND THAT, IF KNOWN BY
HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED
PARTY.” Settlement Class Members expressly waive and relinquish,
on behalf of themselves and the other Releasing Parties, any and all
rights and benefits that they may have under, or that may be conferred
upon them by, the provisions of Section 1542 of the California Civil
Code, or any other law of any state or territory that is similar,
comparable or equivalent to Section 1542, to the fullest extent they may
lawfully waive such rights or benefits pertaining to the Released Claims.
In connection with such waiver and relinquishment, Settlement Class

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Section 4. Releases 24
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Members acknowledge, on behalf of themselves and the other Releasing

Parties, that they are aware that they or their attorneys may hereafter
discover claims or facts in addition to or different from those that they
now know or believe exist with respect to the Released Claims, but that
it is their intention to fully, finally, and forever settle and release all of
the Released Claims, known or unknown, suspected or unsuspected,
asserted or unasserted, or past, present or future, that they have against
the Released Parties. In furtherance of such intention, the release herein
given by the Releasing Parties to the Released Parties shall be and
remain in effect as a full and complete general release of the Released
Claims notwithstanding the discovery or existence of any such
additional or different claims or facts. Each Settlement Class Member
expressly acknowledges, on behalf of themselves and the other
Releasing Parties, that he, she, or it has been advised by their attorneys
of the contents and effect of Section 1542, and with knowledge,
expressly waives whatever benefits they may have had pursuant to such
section. Settlement Class Members acknowledge, and the Releasing
Parties shall be deemed to have acknowledged, that the foregoing
waiver was expressly bargained for and a material element of this
Settlement.

4.6.4. Settlement Class Representatives and each Settlement Class Member

who receives any benefit under the Settlement represent and warrant
that they are the sole and exclusive owners of any and all Released
Claims that they are releasing under this Settlement, and further
acknowledge that they have not assigned, pledged, or in any manner
whatsoever, sold, transferred, assigned or encumbered any right, title,
interest or claim arising out of or in any way whatsoever pertaining to
the Released Claims, and that they are not aware of anyone other than
themselves claiming any interest, in whole or in part, in any benefits,
proceeds or values to which they may be entitled.

4.6.5. In addition, pursuant to the Final Order and Judgment, all Releasing
Parties will be forever barred and enjoined from asserting against the
Released Parties any and all Released Claims.

4.7. Release by the Philips Defendants

4.7.1. As of the Effective Date, the Philips Defendants fully, finally and
forever release, remise, waive, surrender, forego, give up, abandon,
cancel, acquit, and forever discharge and covenant not to sue Plaintiffs

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Section 4. Releases 25
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and any of their heirs, executors, administrators, agents, attorneys, and

legal representatives, and any of their past or present parents,
subsidiaries, divisions, affiliates, stockholders, officers, directors, and
employees, for any claims relating to the institution, maintenance or
prosecution of the Economic Loss Claims.

5. Assignment to Philips RS of Economic Loss Claims Against Ozone Cleaning

Companies

5.1. Settlement Class Members agree to assign, and upon the Effective Date, shall be
deemed to have assigned, all of their Economic Loss Claims against Ozone
Cleaning Companies to Philips RS, including any proceeds they would otherwise
have been eligible for in any settlement with an Ozone Cleaning Company.

5.2. Without in any way limiting or narrowing the scope and effectiveness of the
foregoing assignment, Settlement Class Members also agree that by endorsing and
cashing or depositing a check or other payment from this Settlement (including
accepting payments by Zelle, ACH, or Virtual Mastercard), or otherwise
participating in the benefits of this Settlement, they thereby individually assign their
Economic Loss Claims against Ozone Cleaning Companies to Philips RS.

6. Allocation of Settlement Funds, Claims Process, and Claims Period

6.1. Settlement Administration.

6.1.1. The Philips Defendants shall be responsible for paying all reasonable
costs of Settlement Administration, including the reasonable fees and
costs of the Settlement Administrator, on a monthly basis within 30 days
of receipt of an itemized statement by the Settlement Administrator of
authorized expenses undertaken pursuant to the administration of the
Settlement.

6.1.2. The Settlement Administrator shall be responsible for the notice

administration process as set forth in Section 9 below, calculation of
payments (and withholdings) to Eligible Settlement Class Members,
creation of a settlement website, distribution of funds to Eligible
Settlement Class Members, withholding and payment of applicable
taxes, and other duties as provided in any agreement entered into with
the Settlement Administrator. The Settlement Administrator shall sign
and be bound by the Protective Order entered by the MDL Court, as
amended (ECF Nos. 104, 498, 765).
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Section 5. Assignment to Philips RS of Economic Loss Claims
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6.1.3. In conducting its duties and responsibilities, the Settlement

Administrator may make necessary adjustments to claims and notice
processes as circumstances may dictate, subject to the approval of
Settlement Class Counsel and the Philips Defendants.

6.2. Claims Period.

6.2.1. The Claims Period will (a) begin 60 days after entry of the Preliminary
Approval Order, and (b) end on the Claims Period Deadline.

6.2.2. Nothing herein precludes Users from returning Recalled Devices to

Philips RS at their own expense after the Claims Period Deadline, but
in that event, they will not be eligible for a payment under this
Settlement based on that return; provided, however, in the event that a
Recall Program for the User’s specific Recalled Device is not yet in
effect prior to the Claims Period Deadline, or Philips RS does not
provide the User with the ability under the Recall Program to return his
or her Registered Recalled Device prior to the Claims Period Deadline
(or, in the case of Trilogy 100/200 Users, the User has attempted but not
been able to make arrangements with the DME to schedule a time to
retrieve the device), that User is eligible for a Device Return Award
under this Settlement based on a return/retrieval after the Claims Period
Deadline and before the conclusion of the applicable Recall Program.

6.3. Accelerated Implementation Option.

6.3.1. Users who return their Registered or Enrolled Recalled Device pursuant
to the Recall Programs or the Settlement by the Claims Period Deadline
may elect before the Effective Date to receive a Device Payment Award
and a Device Return Award on an accelerated basis, on the terms set
forth in this Section (the Accelerated Implementation Option (“AIO”)).

6.3.1.1. In the event that a Recall Program for the User’s specific
Recalled Device is not yet in effect prior to the Claims Period
Deadline or Philips RS does not provide the User with the
ability under the Recall Program to return his or her
Registered Recalled Device prior to the Claims Period
Deadline (or, in the case of Trilogy 100/200 Users, the User
has attempted but not been able to make arrangements with
the DME to schedule a time to retrieve the device), the User
can still participate in the AIO based on a return/retrieval of
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the Registered Recalled Device by the conclusion of the

applicable Recall Program or the Effective Date, whichever
is earlier.

6.3.2. To participate in the AIO, Users must take each of the following steps:

6.3.2.1. Users must execute a signed, sworn declaration identifying

whether or not they used an Ozone Cleaning Product with
their Recalled Device.

6.3.2.2. If the User used an Ozone Cleaning Product with their

Recalled Device, the User must also execute a signed, sworn
individual assignment to Philips RS of their Economic Loss
Claims against the Ozone Cleaning Company.

6.3.2.3. Users must provide Defendants with an individual release of

their Released Claims. That individual release will remain
valid even if the Settlement does not become Final.

6.3.2.4. The form of the foregoing declaration, individual assignment,

and individual release, all to be signed by the User or the
User’s Representative Claimant, under the penalty of perjury,
is attached hereto as Exhibit 6. To be valid and effective,
these materials must be personally signed by the User or the
User’s Representative Claimant, but not by the User’s
counsel, if any, or anyone else. User Representative
Claimants must supply the Settlement Administrator with
written proof that such person has legal authority to act in a
representative capacity for the User.

6.3.3. No AIO payments will be made until after MDL Court Final Approval.
AIO payments will be made only in the event the MDL Court issues the
Final Order and Judgment.

6.3.3.1. Users who return their Registered or Enrolled Recalled

Device before MDL Court Final Approval will be paid
(a) the Device Payment Award associated with the returned
Recalled Device and (b) a Device Return Award, within 60
days after the later of (i) MDL Court Final Approval, and (ii)
the completion of each of the steps identified in Section 6.3.2
above.
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6.3.3.2. Users who return their Registered or Enrolled Recalled

Device after MDL Court Final Approval but by the Claims
Period Deadline, unless a later deadline applies pursuant to
Section 6.3.1.1 above, will be paid (a) the Device Payment
Award associated with the returned Recalled Device and
(b) a Device Return Award, within 60 days after the later of
(i) receipt of the Recalled Device by Philips RS (or, for
Trilogy 100/200, retrieval of the Recalled Device), and (ii)
the completion of each of the steps identified in Section 6.3.2
above.

6.3.4. Payers are not eligible to elect the AIO.

6.4. Device Payment Awards.

6.4.1. Automatic Payment to Users Who Return a Registered or Enrolled

Recalled Device Prior to the Claims Period Deadline

6.4.1.1. Users who return their Registered or Enrolled Recalled

Device pursuant to the Recall Programs or the Settlement by
the Claims Period Deadline will be paid the Device Payment
Award associated with the returned Recalled Device within
60 days after the later of (i) the Effective Date and (ii) receipt
of the Recalled Device by Philips RS (or, for Trilogy
100/200, retrieval of the Recalled Device), without the need
to submit a claim form.

6.4.2. Claims Process for Users Who Registered Their Recalled Device
Prior to the Execution Date But Have Not Already Returned Their
Recalled Device and Have Decided Not to or Cannot Return Their
Recalled Device

6.4.2.1. In the event a User registered his or her Recalled Device

prior to the Execution Date but (i) has not returned the
Registered Recalled Device and (ii) has decided not to, or
cannot, return the Registered Recalled Device, the User will
still be paid the Device Payment Award associated with their
Registered Recalled Device if, prior to the Claims Period
Deadline, the User completes a confirmation process, which
may be done online, of the User’s name, current mailing
address, telephone number, email (if any), electronic
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payment information (if the User elects electronic payment),

and also the Serial Number for the Registered Recalled
Device and the Recall Registration Number, if the
Settlement Class Member has that information. In the event
the User is not able to complete the confirmation process
online, a User Confirmation Form in the form attached
hereto as Exhibit 7 will be made available to the User by the
Settlement Administrator at the User’s request. The User
will not be required to submit any documentation as part of
this process. The Settlement Administrator will attempt to
confirm the registration based on the information provided
by the User, and will not reject a claim based on the User’s
failure to provide the Serial Number and/or the Recall
Registration Number if the registration can be confirmed
based on other information provided by the User. Payment
of the Device Payment will be made within 60 days after the
later of (i) the Effective Date, and (ii) completion of the
confirmation process described in this Section, including
confirmation by Philips RS of the User’s registration.

6.4.3. Claims Process for All Other Users.

6.4.3.1. All other Users must submit a completed Device Payment

Award Claim Form, in the form attached hereto as Exhibit
4, by the Claims Period Deadline, supported by sufficient
documentation that the User purchased, leased, rented, or
paid for one or more Recalled Devices, along with the
Recalled Device’s Serial Number.

6.4.3.2. All valid claims will be paid after the Effective Date by the
Settlement Administrator within 60 days after they are
processed and approved by the Settlement Administrator.
To be valid and effective, the Device Payment Award Claim
Form must be complete and must be personally signed by
the User or the User’s Representative Claimant, but not by
the User’s counsel, if any, or anyone else. Representative
Claimants must supply the Settlement Administrator with
written proof that such person has legal authority to act in a
representative capacity for the User.

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6.4.4. Rental Recalled Devices.

6.4.4.1. With respect to rental Recalled Devices, the Device Payment

Award for that device will be allocated by the Settlement
Administrator (after the Claims Period Deadline) among
Eligible Users on a pro rata basis, taking into consideration
the number of Eligible Users for the rental Recalled Device
and the associated Device Payment Award for that rental
Recalled Device.

6.4.4.2. Notwithstanding anything in this Agreement to the contrary,

in light of the allocation that must be made with respect to
rental Recalled Devices, no Device Payment Award shall be
made with respect to rental Recalled Devices until after the
Claims Period Deadline or after the Effective Date,
whichever is later.

6.5. Device Return Awards.

6.5.1. Users who return their Registered or Enrolled Recalled Device pursuant
to the Recall Programs or the Settlement by the Claims Period Deadline
will be paid their Device Return Award, without the need to take further
steps, within 60 days after the later of (i) the Effective Date or (ii) receipt
of the Recalled Device by Philips RS (or, for Trilogy 100/200, retrieval
of the Recalled Device); provided, however, that in the event that a
Recall Program for the User’s specific Recalled Device is not yet in
effect prior to the Claims Period Deadline, or Philips RS does not
provide the User with the ability under the Recall Program to return his
or her Registered Recalled Device to Philips RS prior to the Claims
Period Deadline (or, in the case of Trilogy 100/200 Users, the User has
attempted but not been able to make arrangements with the DME to
schedule a time to retrieve the device), that User is eligible for a Device
Return Award under this Settlement based on a return/retrieval after the
Claims Period Deadline and before the conclusion of the applicable
Recall Program.

6.5.2. Receipt of a Device Return Award may impact the amount of a User’s
Device Replacement Award for the associated Recalled Device, as set
forth in Sections 3.4.6 and 3.4.6.1 above.

6.6. Device Replacement Awards.

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6.6.1. Users seeking a Device Replacement Award must submit a completed

Device Replacement Award Claim Form, in the form attached hereto as
Exhibit 5, before the Claims Period Deadline, supported by the required
documentation, as set forth in Section 3.4.2.1 above.

6.6.2. No Device Replacement Awards will be paid until after the Claims
Period Deadline. After the Claims Period Deadline, the Settlement
Administrator will calculate the total valid Replacement Device Claim
Amounts submitted in connection with claims for Device Replacement
Awards during the Claims Period (the “Total Replacement Device
Claim Amounts”).

6.6.2.1. Within 14 days of the Settlement Administrator’s calculation

of the Total Replacement Device Claim Amounts, the
Philips Defendants shall pay, or have paid on their behalf, up
to $10,000,000 (the “Device Replacement Amount”) into the
User Settlement Fund to pay the Total Replacement Device
Claim Amounts, as provided in Section 2.8.1 above.

6.6.2.2. In the event the Total Replacement Device Claim Amounts

are less than $10,000,000, the Philips Defendants’ payment
obligation is limited to the amount of the Total Replacement
Device Claim Amounts.

6.6.2.3. In the event the Total Replacement Device Claim Amounts

exceed $10,000,000, the balance, if any, of any other funds
remaining in the User Settlement Fund after the Device
Payment Awards and Device Return Awards have been made
to all Eligible Users (the “Balance of Funds in User
Settlement Fund”) may be used to make Device Replacement
Awards.

6.6.2.4. In the event the Device Replacement Amount plus the

Balance of Funds in User Settlement Fund are insufficient to
pay at least 50% of the Total Replacement Device Claim
Amounts, the Philips Defendants shall pay, or cause to be
paid, additional monies sufficient to pay 50% of the Total
Replacement Device Claim Amounts, but in no event shall
the Philips Defendants’ additional such payment obligation
exceed $5,000,000.

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6.6.3. The resulting net Device Replacement Awards, after taking into
consideration the Total Replacement Device Claim Amounts, the
Device Replacement Amount, the Balance of Funds in User Settlement
Fund in the event the Total Replacement Device Claim Amounts exceed
$10,000,000, and if necessary, any additional payment by, or on behalf
of, the Philips Defendants (up to $5,000,000), will be paid to Eligible
Users within 60 days after the Settlement Administrator calculates the
Total Replacement Device Claim Amounts.

6.7. Payer Awards.

6.7.1. Payers must submit a completed Payer Declaration and Claim Form
attached hereto as Exhibit 8 by the Claims Period Deadline, supported
by (a) sufficient information and documentation as to the number of
insured lives in the United States covered by the Payer in the calendar
years 2021 and 2022 (“Payer Covered Lives”), (b) the dollar amount of
direct premiums written by the Payer in the United States in the calendar
years 2021 and 2022, and (c) a preferred payment option with
instructions for payment.

6.7.2. All Payer Awards will be paid by the Settlement Administrator within
180 days after the Claims Period Deadline or the Effective Date,
whichever is later, following processing and approval by the Settlement
Administrator and an opportunity for appeals of Payer Claims
Determinations as set forth in Section 6.8 below. To be valid and
effective, the Payer Declaration and Claim Form must be complete and
must be signed by a person with legal authority to do so on behalf of the
Payer, but not by the Payer’s counsel, if any, or anyone else. Payers
must supply the Settlement Administrator with written proof that the
person signing their Declaration and Claim Form has legal authority to
act on behalf of the Payer.

6.7.3. Payer Eligibility, Market Share Percentage, and Preliminary Payer

Award Determinations. The Settlement Administrator shall review the
Payer Declarations and Claim Forms and supporting information and
documentation following the Claims Period Deadline and, within 30
days of the Claims Period Deadline, make the following determinations
for each submitting entity: (a) an Eligibility Determination, (b) if
eligible, a Market Share Percentage Determination as set forth in
Section 6.7.5 below for all Eligible Payers, and (c) a Preliminary Payer

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Award Determination as set forth in Section 6.7.6 below for all Eligible
Payers.

6.7.4. For Eligibility Determinations, the Settlement Administrator shall

consider whether the submitting entity meets the definition of a Payer
under the Settlement and whether the Payer Declaration and Claim
Form is complete and timely.

6.7.5. For Market Share Percentage Determinations, the Settlement

Administrator shall consider insurance industry data available through,
including but not limited to, the National Association of Insurance
Commissioners and the AIS Directory of Health Plans, as well as the
information provided in the Payer Declarations and Claim Forms, and
determine for each Eligible Payer the Eligible Payer’s appropriate
proportion of the universe of its insurance market segment in the United
States in calendar years 2021 and 2022.

6.7.6. For Preliminary Payer Award Determinations, the Settlement

Administrator shall conduct the following steps:

6.7.6.1. First, calculate the Aggregate Market Share Percentage by

totaling the Market Share Percentages of all Eligible Payers.
By way of example only, assuming Payer A has a Market
Share Percentage of 2%, Payer B has a Market Share
Percentage of 10%, and Payer C has a Market Share
Percentage of 8%, the Aggregate Market Share Percentage
is 20% (2% + 10% + 8% = 20%).

6.7.6.2. Second, the Settlement Administrator shall divide 100% (the

universe of Payer Covered Lives) by the Aggregate Market
Share Percentage to determine the multiplying factor to be
used to calculate the Payer Award for each Eligible Payer.
By way of the above example, assuming the Aggregate
Market Share Percentage is 20%, the multiplying factor is 5
(100%/20% = 5).

6.7.6.3. Third, the Settlement Administrator shall multiply the

multiplying factor to each Eligible Payer’s Market Share
Percentage to determine the percentage of the Payer Amount
to which each Eligible Payer is entitled (“Adjusted Payer
Share Percentage”). By way of the above example, the
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Adjusted Payer Share Percentage for Payer A is 10% (2%

Market Share Percentage * 5 = 10%), the Adjusted Payer
Share Percentage for Payer B is 50% (10% Market Share
Percentage * 5 = 50%), and the Adjusted Payer Share
Percentage for Payer C is 40% (8% Market Share Percentage
* 5 = 40%).

6.7.6.4. Fourth, the Settlement Administrator will determine the

Preliminary Payer Award for each Eligible Payer by
multiplying their Adjusted Payer Share Percentage by the
Payer Amount. By way of the above example, assuming the
Payer Amount is $500, the Preliminary Payer Award for
Payer A will be $50 (10% Adjusted Payer Share Percentage
* $500 = $50), the Preliminary Payer Award for Payer B will
be $250 (50% Adjusted Payer Share Percentage * $500 =
$250), and the Preliminary Payer Award for Payer C will be
$200 (40% Adjusted Payer Share Percentage * $500 = $200).

6.7.7. Upon completion of the steps required to make Payer Eligibility, Market
Share Percentage, and Preliminary Payer Award Determinations, the
Settlement Administrator shall issue those determinations, setting forth
the calculations made by the Settlement Administrator, to each
submitting entity and inform Eligible Payers that their Preliminary
Payer Award Determination may be adjusted following the conclusion
of any and all appeals to the Claims Appeals Special Master.

6.7.8. Final Payer Award Determinations. Within 30 days following the

conclusion of any and all appeals to the Claims Appeals Special Master
from Claims Determinations as provided for and set forth in Section 6.8
below, the Settlement Administrator shall make Final Payer Award
Determinations by following the steps set forth in Section 6.7.6 above,
taking into consideration the results of the appeals process from Section
6.8 below. The Settlement Administrator shall distribute the Payer
Awards to Eligible Payers based on the Final Payer Award
Determinations within 30 days after making those determinations.

6.8. Appeals from Determinations of the Settlement Administrator.

6.8.1. Any Settlement Class Member whose claim is denied (in whole or in
part) by the Settlement Administrator for any reason shall be provided

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with a written notice explaining the deficiency and a period of 30 days

to resubmit the claim to attempt to cure the deficiency.

6.8.2. Any Settlement Class Member or Defendant that believes that a

Settlement Class Member’s claim for a payment under the Settlement
has not been processed in accordance with this Agreement or any
applicable orders of the MDL Court shall have 30 days from the date of
the Settlement Administrator’s issuance of a determination on that claim
(“Claims Determination”) to present a written appeal, no longer than
three-pages, double-spaced, to the Claims Appeals Special Master.

6.8.3. In support of any appeal from a Claims Determination, the Settlement

Class Member shall be limited to presenting solely documents, evidence,
or information submitted by the Settlement Class Member in connection
with that Settlement Class Member’s Claim for a payment under the
Settlement or under the Section 6.8.1 cure provision above. Absent a
request from the Claims Appeals Special Master for additional
information or documentation, Settlement Class Members may not
submit any new or additional evidence for purposes of appealing a
Claims Determination.

6.8.4. Settlement Class Members, by their decision not to opt out of the
Settlement Class, knowingly and intentionally waive any right of appeal
from any decision of the Claims Appeals Special Master regarding
appeals from Claims Determinations by the Settlement Administrator.

6.8.5. The decision of the Claims Appeals Special Master with respect to
appeals from Claims Determinations shall be final and binding, and
there shall be no appeal to any court, including the MDL Court or the
U.S. Court of Appeals for the Third Circuit.

6.9. Uncashed Checks or Other Payments. In the event a Settlement Class Member
does not cash his, her or its check or other payment after a period of 180 days from
issuance, the check or other payment will be declared “void.” The voidance shall
not impact in any way the Release provided by that Settlement Class Member to
the Released Parties. The funds associated with that check or other payment may
be used to make other payments under the Settlement, including to other Settlement
Class Members, and the Settlement Administrator will take sufficient steps to
cancel the check or other payment; provided, however, that the Settlement Class
Member shall have 30 days to request that the check or other payment be reissued,
with no further requests permitted except for good cause shown within one year of
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the original check’s or other payment’s issuance. In the event of a dispute between
the Parties on whether good cause has been shown, the matter will be decided by
the Claims Appeals Special Master, whose decision on the matter shall be final and
unappealable by any Party or the Class Member.

6.10. Remaining Funds.

6.10.1. Subject to Section 6.10.2 below, in the event any funds remain in the
User Settlement Fund after the Claims Period Deadline and after all
Settlement payments have been made, including Device Replacement
Awards (“Remaining Funds”), the Remaining Funds will be distributed
by the Settlement Administrator pro rata to all Eligible Users based on
the amount of each Eligible User’s payment(s) under the Settlement. To
the extent any funds still remain after the pro rata distribution, or in the
event it would be economically inefficient to distribute Remaining
Funds pro rata to Eligible Users, the Parties agree to consult with the
Settlement Administrator in an effort to reach agreement on a fair and
equitable distribution of those funds, subject to MDL Court approval,
but in no event will the Parties seek approval from the MDL Court for
cy pres distribution of Remaining Funds of more than $20,000 to
persons or entities other than Eligible Users.

6.10.2. In the event the Philips Defendants paid any Additional Amounts
necessary to make Device Payment and/or Device Return Awards
beyond the Initial Device Payment Amount and the Initial Device
Return Amount, and checks or other payments to Users qualifying for
Awards remain uncashed or uncollected after 180 days from issuance,
pursuant to Section 6.9 above, the checks or other payments will be
declared “void,” and provided those Users do not timely request that the
checks or other payments be reissued, the monies will be returned to the
Philips Defendants within 14 days after the last day on which any such
request for reissuance can be made. The total amount of money that
may be returned to the Philips Defendants under this provision is limited
to the Additional Amounts paid by them.

7. Settlement Class Certification

7.1. The Parties hereby stipulate, for purposes of this Settlement only, that the
requirements of Rule 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure are
satisfied, and, subject to MDL Court approval, the Settlement Class set forth in
Section 1.51 shall be certified for settlement purposes only (with the understanding
that, by stipulating to the proposed Settlement Class, the Philips Defendants do not
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agree that Rule 23 requirements are met for purposes of a litigation class and
reserve all rights to oppose class certification in the event the Settlement is not
approved).

8. Preliminary Approval of Settlement Pursuant to Federal Rule of Civil Procedure

23(e) and Related Motions

8.1. This Settlement shall be subject to both preliminary and final approval of the MDL
Court.

8.2. Within 10 days of the Execution Date, Settlement Class Counsel will move the
MDL Court for the Preliminary Approval Order, in substantially the form annexed
hereto as Exhibit 1, seeking, among other things, to:

8.2.1. conditionally certify the Settlement Class;

8.2.2. preliminarily approve the Settlement;

8.2.3. determine that the Settlement appears fair, reasonable, and adequate
within the meaning of Rule 23 of the Federal Rules of Civil Procedure
and thus sufficient to promulgate notice of the Settlement to the
Settlement Class;

8.2.4. order that notice be provided to the Settlement Class pursuant to Section
9;

8.2.5. give Settlement Class Members the right to object to or be excluded

from the Settlement, as set forth in Sections 11 and 12;

8.2.6. inform Settlement Class Members that they will be bound by the Final
Order and Judgment unless such Settlement Class Member validly
requests exclusion;

8.2.7. stay and enjoin the continued pursuit of all Economic Loss Claims of
Settlement Class Members against Defendants and the other Released
Parties, whether in the MDL Court or in any other court or tribunal, until
such time as the MDL Court has determined whether to enter the Final
Order and Judgment;

8.2.8. schedule the Final Fairness Hearing not earlier than 6 months following
entry of the Preliminary Approval Order;
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8.2.9. appoint Angeion Group as the Settlement Administrator;

8.2.10. appoint the Honorable Thomas J. Rueter (Ret.) as the Claims Appeals
Special Master;

8.2.11. find that the Settlement Funds are to be a “Qualified Settlement Fund”
as defined in Section 468B-1(c) of the Treasury Regulations; and

8.2.12. provide that any objections by any Settlement Class Member to the
Settlement shall be heard and any papers submitted in support of said
objections shall be considered by the MDL Court at the Final Fairness
Hearing only if, on or before the conclusion of the Opt-Out/Objection
Period specified in the Settlement Notice and the Preliminary Approval
Order, such Settlement Class Member follows the required procedures.

8.3. Settlement Class Counsel shall request that the MDL Court hold a hearing on the
motion for the Preliminary Approval Order on a date to be determined by the MDL
Court.

8.4. The Philips Defendants shall cooperate to the extent reasonably necessary in
connection with Settlement Class Counsel’s motions for Preliminary and MDL
Court Final Approval of the Settlement and related documents necessary to
effectuate and implement the terms and conditions of this Agreement.

8.5. The Philips Defendants shall have the right to withdraw from the Settlement if the
MDL Court does not issue the Preliminary Approval Order in substantially the form
attached hereto as Exhibit 1.

9. Notice to Settlement Class Members

9.1. Type of Notice Required

9.1.1. The Class Notice Period shall commence upon the entry of the
Preliminary Approval Order.

9.1.2. Within 60 days after entry of the Preliminary Approval Order, the
Settlement Administrator will cause Class Settlement Notice (“Notice”),
in the forms attached hereto as Exhibit 3, to be disseminated in the
specific forms and manner set forth in the Notice Plan attached hereto
as Exhibit 2, by:

9.1.2.1. First class mail, postage prepaid, and email (if an email
address is available) to the last known address of all known
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Users based on information in the Philips RS registration

database used for the Recall Programs, User information
collected from DMEs and other sources as part of the Recall,
User information obtained from DMEs in discovery, and
User data from the Census Registry Program and Plaintiff
Fact Sheets filed in support of Personal Injury Complaints
pursuant to Pretrial Order #26, as amended in Pretrial Order
#26(a) (ECF Nos. 766, 871);

9.1.2.2. First-class mail, postage prepaid, to those known hospitals

and sleep labs in the United States to whom Philips RS
previously sold, rented, supplied, or otherwise provided
Recalled Devices;

9.1.2.3. First-class mail, postage prepaid (and via email, where

available) to known Payers identified in the Settlement
Administrator’s proprietary database of insurers, self-funded
employers, and other third-party payers;

9.1.2.4. First-class mail, postage prepaid, to those known DMEs in

the United States that sold, rented, supplied, or otherwise
provided Recalled Devices to Users, requesting that the
DMEs notify their Users of the Settlement;

9.1.2.5. Posting a copy of the Notice on the Settlement website

maintained by the Settlement Administrator;

9.1.2.6. Electronic upload to all Users who elected to receive

messages through DreamMapper, which will refer them to
the Settlement website only;

9.1.2.7. Providing a copy of the Notice and requesting that it be

posted on the MDL Court’s website for the MDL,
https://www.pawd.uscourts.gov/mdl-3014-re-philips-
recalled-cpap-bi-level-pap-and-mechanical-ventilator-
products-litigation;

9.1.2.8. Publishing the Notice in media pursuant to the media notice

program developed by the Settlement Administrator, as set
forth in the Notice Plan attached hereto as Exhibit 2; and

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Section 9. Notice to Settlement Class Members 40
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9.1.2.9. As the MDL Court may otherwise direct, in accordance with

the requirements of Federal Rule of Civil Procedure 23(c)(2).

9.2. Payment of Costs of Notice: The Philips Defendants shall be responsible for
paying the reasonable costs of Class Notice agreed to by the Parties or required by
the MDL Court. Any disputes regarding the reasonable cost of Class Notice shall
be presented for resolution to the Settlement Mediator.

9.3. The Philips Defendants shall provide notice of the Settlement to the appropriate
state and federal officials pursuant to 28 U.S.C. § 1715(b).

10. Right to Opt Out of or Object to the Settlement; Opt-Out/Objection Period

10.1. Settlement Class Members have the right to opt out of or object to the Settlement,
but not both. Opting out from or objecting to the Settlement are mutually exclusive
options. Any Settlement Class Member who elects to opt out pursuant to Section
11 below may not also object to the Settlement. Any Settlement Class Member
who elects to object pursuant to Section 12 below may not also opt out of the
Settlement. In the event a Settlement Class Member submits both an objection and
an opt out request, the Settlement Administrator shall notify the Settlement Class
Member that they can only elect one of those options, and must inform the
Settlement Administrator of their decision. If the Settlement Class Member does
not thereafter take corrective action within 10 days, the submission shall be invalid.

10.2. Settlement Class Members will have 120 days from entry of the Preliminary
Approval Order (“Opt-Out/Objection Period”) to opt out of or object to the
Settlement in accordance with Sections 11 and 12 below. The last day of the Opt-
Out/Objection Period (the “Opt-Out/Objection Deadline”) will be included in the
Notice and posted on the Settlement website and the MDL Court’s website for the
MDL.

11. Opt-Outs

11.1. Settlement Class Members who wish to opt out of the Settlement must mail a
written request to opt out stating that they seek exclusion from the Settlement.
Settlement Class Members shall include their contact information, including name,
address, telephone number, and email, if any, as well as the same information
regarding their counsel (if applicable). Incomplete opt-outs are invalid.

11.1.1. In addition, Users must include in their opt-out request the following
information regarding their Recalled Device(s): Serial Number(s), if

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Section 10. Right to Opt Out of or Object to the Settlement;
Opt-Out/Objection Period 41
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known; the type of Recalled Device; the approximate date(s) of

acquisition; and the type of acquisition (e.g., purchase, rental, etc.).

11.1.2. In addition, Payers must include in their opt-out request the following
information: full name of Payer plan and whether the Payer reimbursed
(in whole or part) Users’ payments to purchase, lease, rent, or otherwise
pay for Recalled Devices; number of lives insured by the Payer in each
of the calendar years 2008 to 2022; and number of direct premiums
written in each of the calendar years 2008 to 2022.

11.2. An original request to opt out signed by the Settlement Class Member must be
mailed to the Settlement Administrator at:

Respironics CPAP Settlement

Attn: Exclusions
P.O. Box 58220
Philadelphia, PA 19102

The opt-out request must be postmarked no later than the Opt-Out/Objection

Deadline. Untimely opt-outs are invalid.

11.3 To be valid and effective, the request to opt out must be personally signed by the
Settlement Class Member or the Settlement Class Member’s Representative
Claimant, but not by the Settlement Class Member’s counsel, if any, or anyone else.
Representative Claimants must supply the Settlement Administrator with written
proof that such person has legal authority to act in a representative capacity for the
Settlement Class Member. A pleading or any other request to opt out made or
signed only by counsel for the Settlement Class Member shall not be sufficient.
Mass opt-outs also are not permitted, and each Settlement Class Member may only
opt out on behalf of himself, herself, or itself. Electronic signatures (other than
DocuSign) are not valid and effective, whether for Settlement Class Members or
Representative Claimants.

11.4. The Settlement Administrator shall provide a copy by email of all requests to opt
out to Counsel within 48 hours of receipt.

11.5. Settlement Class Counsel shall file all validated requests to opt out with the MDL
Court as an attachment to the proposed Final Order and Judgment in support of
their motion for MDL Court Final Approval of the Settlement.

11.6. If a Settlement Class Member submits both a Claim Form and a request to opt out
prior to MDL Final Court Approval, the Settlement Class Member will be deemed

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to have waived and withdrawn the request to opt out and shall be treated as a
Settlement Class Member for all purposes, irrespective of the sequencing of the
submission of the Claim Form and the request to opt out.

11.7. Valid requests to opt out from the Settlement will become effective only upon MDL
Court Final Approval.

11.8. Settlement Class Members may revoke their opt-out request in writing at any time
prior to MDL Court Final Approval.

11.9. Settlement Class Members who opt out of the Settlement Class and do not revoke
their opt out request in writing prior to MDL Court Final Approval will be deemed
to no longer be members of the Settlement Class.

11.10. Settlement Class Members who opt out of the Settlement Class may not receive
benefits under the Settlement and may not object to any aspect of the Settlement or
to an award of Attorneys’ Fees and Expenses or payment of Service Awards to the
Settlement Class Representatives.

11.11. The Parties agree and acknowledge that because any opt-out may be detrimental to
the Settlement, the Philips Defendants will have the right, exercised in good faith,
to terminate the Settlement on account of the existence of any opt-out by written
notice to the MDL Court and Settlement Class Counsel 14 days after the conclusion
of the Opt-Out/Objection Period.

11.12. Upon the Effective Date, all Settlement Class Members who have not timely and
validly opted out will be bound by the Settlement, and the relief provided by the
Settlement will be their sole and exclusive remedy for their Released Claims against
the Released Parties.

12. Objections

12.1. Any Settlement Class Member who objects to the Settlement (in whole or in part),
any terms hereof, or the approval process must make that objection by the following
procedure:

12.1.1. The objection must be in writing.

12.1.2. The objection must state whether it applies only to the objector, to a
specific subset of the Settlement Class, or to the entire Settlement Class,
and also state with specificity the grounds for the objection. The
objection must also include a statement whether the Settlement Class
Member intends to appear at the Final Fairness Hearing either with or
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Section 12. Objections 43
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without the objector’s counsel (who shall be identified). The objection

must identify any witnesses intended to be called, the subject area of the
witnesses’ testimony, and identify and attach a copy of all documents to
be used or offered into evidence at the Final Fairness Hearing.

12.1.3. The objection must be signed by the Settlement Class Member and his,
her or its counsel, if any. An objection signed by counsel alone shall be
invalid.

12.1.4. The objection must contain the caption of the MDL and the caption of
any other litigation, arbitration or proceeding involving the Recalled
Devices in which the Settlement Class Member is a named party, and
include the name, mailing address, email address, if any (an email
address is not required), and telephone number of the objecting
Settlement Class Member and his, her or its counsel (if any).

12.1.5. The objection must provide information regarding the Recalled

Device(s) to which the Settlement Class Member’s Economic Loss
Claims relate. For Users, their Objection must include the Serial
Number(s), if known, and the type of Recalled Device(s). For Payers,
their Objection must include whether the Payer reimbursed (in whole or
part) Users’ payments to purchase, lease, rent, or otherwise pay for
Recalled Devices; the number of lives insured by the Payer in each of
the calendar years 2008 to 2022; and the number of direct premiums
written in each of the calendar years 2008 to 2022.

12.1.6. The objection must state if the objector or the objector’s counsel have
objected to a class action settlement during the past 5 years, and if so,
identify all cases in which the objector or the objector’s counsel have
filed an objection by caption, court and case number, and for each case,
the disposition of the objection, including whether any payments were
made to the objector or the objector’s counsel, and if so, the incremental
benefits, if any, that were achieved for the class in exchange for such
payments.

12.1.7. The objection must be mailed to the Settlement Administrator at:

Respironics CPAP Settlement

Attn: Objections
P.O. Box 58220
Philadelphia, PA 19102

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Section 12. Objections 44
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The objection must be postmarked no later than the Opt-Out/Objection

Deadline. Untimely objections are invalid.

12.1.8. The Settlement Administrator shall provide a copy of all objections to

Counsel by email within 48 hours of receipt.

12.1.9. Settlement Class Counsel shall file the objections, if any, received by
the Settlement Administrator with the MDL Court no later than 21 days
before the Final Fairness Hearing.

12.2. Any objection not submitted in full compliance with these terms and procedures
are invalid and deemed waived.

12.3. Settlement Class Members who fail to file and serve timely written objections in
accordance with Section 12.1 above shall be deemed to have waived any objections,
shall not be heard at the Final Fairness Hearing, and shall be foreclosed from
making any objection (whether by appeal or otherwise) to the Settlement.

12.4. Settlement Class Counsel and/or Counsel for the Philips Defendants shall file any
response(s) to the objections with the MDL Court no later than 7 days before the
Final Fairness Hearing.

13. Final Fairness Hearing

13.1. After the close of the Class Notice Period and the Opt-Out/Objection Period, but
no later than 21 days before the Final Fairness Hearing, Settlement Class
Representatives and Settlement Class Counsel shall move for MDL Court Final
Approval of the Settlement and to enter the Final Order and Judgment, substantially
in the form of Exhibit 9 hereto, which shall do each of the following, among other
things:

13.1.1. Approve finally this Agreement and its terms as being a fair, reasonable,
and adequate settlement as to the Settlement Class Members within the
meaning of Rule 23 of the Federal Rules of Civil Procedure and
directing its consummation according to its terms and conditions;

13.1.2. Determine that the Class Notice constituted the best notice that was
practicable under the circumstances, and constituted due and sufficient
notice for all other purposes for all persons entitled to receive notice;

13.1.3. Certify the Settlement Class and confirm the appointment of the
Settlement Class Representatives and Settlement Class Counsel;

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Section 13. Final Fairness Hearing 45
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13.1.4. Direct that the Economic Loss Complaint be dismissed with prejudice
as to all Defendants, without costs;

13.1.5. Reserve to the MDL Court exclusive jurisdiction over the Settlement,
this Agreement, including the interpretation, implementation,
administration, consummation, and enforcement of this Settlement and
this Agreement, and the “qualified settlement funds,” as defined under
§1.468B-1 of the Treasury Regulations promulgated under Sections
461(h) and 468B of the Internal Revenue Code of 1986, as amended,
created under the Agreement;

13.1.6. Determine under Federal Rule of Civil Procedure 54(b) that there is no
just reason for delay, and direct that the Final Order and Judgment be
entered;

13.1.7. Enjoin and finally and forever bar any and all Settlement Class Members
from maintaining, continuing, pursuing and/or prosecuting the Released
Claims in any action, arbitration or other proceeding, whether pending
or filed in the future, against Defendants or the Released Parties, as well
as entitling the Released Party or Parties to recover any and all
reasonable costs and expenses from that Settlement Class Member
arising from that Settlement Class Member’s violation of the injunction;
and

13.1.8. Enjoin and forever bar the Philips Defendants and any successors to the
Philips Defendants’ rights or interests under the Settlement from
challenging or opposing a Settlement Class Member’s Medical
Monitoring and Personal Injury Claims or ability to recover for those
claims on the basis of this Settlement, any payments under this
Settlement, or the Releases provided herein, other than to prevent
double recovery for economic losses related to the Recalled Devices or
to prevent against the increase of an exemplary or punitive damages
award on account of economic losses.

13.2. The Philips Defendants shall have the right to withdraw from the Settlement if the
MDL Court does not enter a Final Order and Judgment substantially in the form of
Exhibit 9 hereto.

13.3. At the Final Fairness Hearing, the MDL Court shall also be requested to, inter alia,
(i) consider any timely and properly filed objections to the Settlement, (ii) certify
the Settlement Class pursuant to Fed. R. Civ. P. 23(a) and (b)(3), (iii) determine
whether the Settlement is fair, reasonable, and adequate, was entered into in good
__________________
Section 13. Final Fairness Hearing 46
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faith and negotiated by the Parties at arm’s length, and should be approved,
(iv) provide findings in connection therewith, (v) enter the Final Order and
Judgment, (vi) consider Service Awards to the Settlement Class Representatives,
as described in Section 18.2 below, and (vii) consider Settlement Class Counsel’s
motion for Attorneys’ Fees and Expenses, as described in Section 18.1 below.

14. Termination of this Settlement

14.1. This Settlement shall be terminated and cancelled upon any of the following events:

14.1.1. The MDL Court declines to enter the Preliminary Approval Order
substantially in the form of Exhibit 1 hereto;

14.1.2. The MDL Court declines to enter the Final Order and Judgment
substantially in the form of Exhibit 9 hereto; or

14.1.3. The Final Order and Judgment is reversed by a higher court.

14.2. The Philips Defendants may, at their sole and exclusive discretion and option,
withdraw from and cancel their obligations under this Settlement, upon any of the
following events:

14.2.1. The Notice does not comply with the Preliminary Approval Order;

14.2.2. Settlement Class Counsel, on behalf of the Settlement Class, materially

breaches the Settlement and such breach materially frustrates the
purposes of this Settlement;

14.2.3. The Economic Loss Complaint is not dismissed with prejudice as to all
Defendants;

14.2.4. The Released Claims of the Releasing Parties against Defendants and
the other Released Parties are not released on the terms set forth herein;

14.2.5. The MDL Court does not enter the preliminary injunction described in
Section 8.2.7 above;

14.2.6. The MDL Court does not enter the permanent injunctions described in
Sections 13.1.7 and 13.1.8 above; or

14.2.7. This Settlement is changed in any material respect, except by written

agreement of the Parties.

__________________
Section 14. Termination of this Settlement 47
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14.3. In the event of a breach of the Agreement by the Philips Defendants, the Settlement
Class Representatives may, at their sole discretion, seek to enforce the Settlement
in the MDL Court (or, if the MDL Court does not have jurisdiction, any other court
with jurisdiction to hear the matter).

14.4. In the event of a breach of the Agreement by the Settlement Class Representatives,
the Philips Defendants may, at their sole discretion, seek to enforce the Settlement
in the MDL Court (or, if the MDL Court does not have jurisdiction, any other court
with jurisdiction to hear the matter).

15. MDL Court Retains Jurisdiction to Implement, Interpret and Enforce Agreement
and Settlement

15.1. The MDL Court shall retain continuing and exclusive jurisdiction over the Philips
Defendants, the Settlement Class, the Settlement Class Members, this Agreement,
and the Settlement for the purposes of administering, supervising, implementing,
interpreting, construing, consummating, and enforcing this Agreement and the
Settlement, and the MDL Court shall also retain continuing and exclusive
jurisdiction over the “qualified settlement funds,” as defined under §1.468B-1 of
the Treasury Regulations promulgated under Sections 461(h) and 468B of the
Internal Revenue Code of 1986, as amended, created under the Agreement, and the
distribution of same to Eligible Settlement Class Members.

16. Choice of Law

16.1. This Agreement shall be governed by and construed in accordance with the laws of
the Commonwealth of Pennsylvania, including all matters of construction, validity,
performance, and enforcement, and without giving effect to the principles of
conflict of laws.

17. Recall Programs

17.1. Settlement Class Counsel and the Philips Defendants shall cooperate with each
other, and with governmental regulatory officials (where and if appropriate), with
respect to implementing the relief provided for in this Settlement in coordination
with any Recall Programs and to ensure that the Recall Programs are carried out to
completion in an efficient manner; provided, however, that Settlement Class
Counsel shall not have standing to participate directly or indirectly in any Recall
Programs, except to the extent necessary to enforce the terms of this Settlement and
the rights of Settlement Class Members under this Settlement.

__________________
Section 15. MDL Court Retains Jurisdiction to Implement,
Interpret and Enforce Agreement and Settlement 48
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18. Attorneys’ Fees and Expenses, and Service Awards

18.1. The Parties, with the assistance of the Settlement Mediator, will attempt to reach
agreement on the amount of attorneys’ fees and costs that Settlement Class Counsel
will seek from the Court and which the Philips Defendants will not oppose. If the
Parties reach agreement, Settlement Class Counsel will submit the negotiated
amount to the Court for approval, either as part of, or subsequent to, the Final
Fairness Hearing, and the Philips Defendants will not oppose the application of
Settlement Class Counsel. If the Parties do not reach agreement, the Parties will
litigate the matter, and each Party will present its respective position to the Court
for determination. In that event, the determination of the fee and cost issues will
be subject to the Parties’ agreement that: (1) the attorneys’ fees and costs will be
paid by, or on behalf of, the Philips Defendants in addition to the compensation
provided to Settlement Class Members under this Settlement; (2) any award of
attorneys’ fees or costs shall not diminish the recovery of Settlement Class
Members under the Settlement; (3) while fees will be based on the percentage of
recovery methodology, with a lodestar cross-check, the Parties reserve all
arguments as to how that recovery should be calculated, what the percentage should
be, and the extent to which Settlement Class Counsel’s prosecution of the Economic
Loss Claims caused some or all of the recovery; and (4) the Parties shall have the
right to appeal the Court’s determination as to the amount of attorneys’ fees and
costs. Settlement Class Counsel represent they will not seek an award of attorneys’
fees in excess of $175,000,000, which Settlement Class Counsel contend represents
a fair percentage of the value of the Settlement in terms of cash recoveries and other
benefits to the Settlement Class. The Philips Defendants fully reserve the right to
challenge that amount, any percentage upon which it is based, and the items
comprising the claimed value of the Settlement. Settlement Class Counsel’s motion
for attorneys’ fees and costs will be due 30 days before the Opt-Out/Objection
Deadline, and the deadline for the motion will be provided in the Notice.
Settlement Class Members shall have the opportunity to submit objections.

18.2. Service Awards: Settlement Class Counsel will recommend to the MDL Court
that service awards be made, subject to MDL Court approval, to the Settlement
Class Representatives in the amount of $5,000 each in recognition for their service
as a Settlement Class Representative, and the Philips Defendants agree not to
oppose such request. Settlement Class Representatives certify and agree that they
had no expectation of a service award when agreeing to this Settlement, and that
the decision of whether or not to award a service award will be left to the discretion
of the Court. With that understanding, the Philips Defendants agree to pay Service
Awards, if any, within 30 days of the date of a final order awarding Service Awards
or within 30 days of the Effective Date, whichever is later. These payments are in
__________________
Section 18. Attorneys’ Fees and Expenses, and Service Awards 49
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addition to the compensation provided to Settlement Class Members under this

Settlement and shall not diminish the recovery of Settlement Class Members under
the Settlement. The Parties agree that the Philips Defendants shall not pay, or be
obligated to pay or cause to be paid, any amounts in excess of $5,000 for each
Settlement Class Representative for Service Awards. Settlement Class
Representatives shall provide W-9 Forms prior to such payment.

18.3. The Parties agree that the amount of any award of attorneys’ fees and expenses and
the amount of any service awards are intended to be considered by the Court
separately from the Court’s consideration of the fairness, reasonableness, and
adequacy of the Settlement. No order of the Court, or modification, reversal, or
appeal of any order of the Court, concerning the amount(s) of attorneys’ fees and
expenses or service awards shall affect whether the Final Order and Judgment is
entered, or constitute grounds for termination of the Settlement.

19. Dispute Resolution.

19.1. Any dispute between the Parties relating to the interpretation or application of any
provision of the Settlement will be discussed between Settlement Class Counsel
and Counsel for the Philips Defendants in the first instance in an effort to resolve
the matter. If they reach an impasse, the matter shall be presented to and discussed
with the Claims Appeals Special Master. In the event an impasse remains after
presenting the dispute to the Claims Appeals Special Master, the dispute will be
resolved by appeal to the MDL Court (with the potential for further appeal to the
U.S. Court of Appeals for the Third Circuit).

19.2. This appeal process applies only to disputes between the Parties relating to the
interpretation or application of a provision of the Settlement and does not apply to
decisions by the Claims Appeals Special Master concerning disputes by Settlement
Class Members regarding their claims or Claims Determinations as set forth in
Section 6.8 above.

20. Miscellaneous

20.1. The headings in this Agreement are included for convenience only and shall not be
deemed to constitute part of this Agreement or to affect its construction.

20.2. If the last day of any period mentioned in this Settlement falls on a weekend or
legal holiday, the period shall include the next business day. To the extent any
timeframe set out in this Settlement Agreement is ambiguous, said ambiguity shall
be resolved by applying the convention contained in Rule 6 of the Federal Rules of
Civil Procedure.
__________________
Section 19. Dispute Resolution. 50
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20.3. All persons shall be on notice of their continuing duty to monitor the MDL Court’s
docket for the most current filings and information. The MDL Court, in its
discretion, may alter, postpone or amend any deadlines or hearing dates scheduled
by the MDL Court in connection with the approval of this Settlement without
additional formal notice. Orders concerning any such changes are expected to be
docketed on the MDL Court’s website:

https://www.pawd.uscourts.gov/mdl-3014-re-philips-recalled-cpap-bi-level-pap-
and-mechanical-ventilator-products-litigation.

20.4. The Settlement Administrator shall post on the Settlement website this Agreement
(including all of its exhibits), as well as relevant pleadings by the Parties and orders
entered by the MDL Court in connection with the Settlement, including relevant
scheduling orders.

20.5. Nothing expressed or implied in this Agreement is intended to or shall be construed

to confer upon or give any person or entity, other than Settlement Class Members,
the Philips Defendants, and the other Released Parties, any right or remedy under
or by reason of this Agreement.

20.6. Settlement Class Members (or their counsel, if any) who submit false or
intentionally misleading information, through any form of deception, dishonesty or
fraud, shall be subject to appropriate sanctions (including monetary sanctions and
costs).

20.7. Unless otherwise specified, any written notices and other communications under
this Settlement shall be in writing and shall be sent to Settlement Class Counsel and
Counsel for the Philips Defendants. Routine communications may be made by
email. Communications asserting a breach of this Settlement shall be made by
email and by hand delivery or overnight courier (e.g., Express Mail, Overnight UPS,
or FedEx).

20.8. Other than as provided for in Orders of the MDL Court, there are no restrictions
upon the Philips Defendants with respect to any returned Recalled Devices,
including, but not limited to, whether or how they can be retained, used, tested,
remediated, and/or discarded.

20.9. This Settlement is the product of arms’-length negotiations between Settlement

Class Counsel, the Philips Defendants, and Counsel for the Philips Defendants.
None of the Parties or their Counsel shall be deemed to be the drafter of this
Agreement or any provision thereof. No presumption shall be deemed to exist in

__________________
Section 20. Miscellaneous 51
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favor of or against anyone on account of who drafted any particular portion of this
Agreement.

20.10. This Settlement constitutes the entire agreement between the Parties with respect
to the matters set forth herein and supersedes any and all prior and
contemporaneous undertakings in connection therewith, including any prior term
sheets. In entering into this Agreement, the Parties have not received or relied upon
any agreements or promises other than as contained in writing in this Agreement.

20.11. This Settlement may not be modified or amended unless such modification or
amendment is in writing executed by all Parties, and (upon the Final Order and
Judgment) approved by the MDL Court.

20.12. This Settlement may be executed in multiple counterparts, all of which taken
together shall constitute one and the same Settlement.

20.13. If there is any conflict as between the Agreement and any exhibits, the language
and terms in the Agreement shall prevail.

20.14. In the event this Agreement is not preliminarily or finally approved by the MDL
Court, or in the event that the Order and Final Judgment approving the Settlement
is entered but later reversed or vacated, or the Philips Defendants exercise their
right to terminate the Agreement pursuant to Section 11.11, the pre-settlement
status of this MDL shall be restored (including without limitation any applicable
tolling of any statute of limitations), and the Agreement shall have no effect on the
rights of the Parties to prosecute or defend the Economic Loss Claims in the MDL
or elsewhere in any respect, including without limitation the right to fully litigate
the issues related to class certification, raise personal jurisdiction defenses, or any
other defenses. The Parties will negotiate and submit to the MDL Court for Court
approval a modified case schedule at such time.

20.15. Settlement Class Members should consult their personal tax advisor for assistance
regarding any tax ramifications of this Settlement. Settlement Class Counsel, the
Philips Defendants, and their Counsel are not providing any opinion, representation
or advice as to the tax consequences or liabilities of Settlement Class Members as
a result of any payments or benefits under this Settlement. Nothing in this
Agreement should be relied upon by any Settlement Class Member as the provision
of tax advice. Settlement Class Members shall hold the Philips Defendants and
their Counsel harmless from any federal, state, or foreign tax assessments, interest,
and/or penalties that result for any amounts paid or benefits provided under this
Agreement, and the Philips Defendants shall not be liable for the payment of any

__________________
Section 20. Miscellaneous 52
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additional amounts now or in the future for any amount related to a Settlement Class
Member’s tax consequences

20.16. Each of the undersigned signatories represents that he or she is fully authorized to
enter into the terms and conditions of, and to execute this Agreement, subject to
Court approval.

21. Federal Rule of Evidence 408

21.1. The Parties specifically acknowledge and agree that this Settlement, along with all
related drafts, motions, pleadings, conversations, negotiations and correspondence,
shall be considered a compromise within the meaning of Federal Rules of Evidence
Rule 408, and any equivalent rule of evidence or procedure of any state, and shall
not (i) constitute, be construed, be offered, or be received into evidence as an
admission of the validity of any claim or defense, or the truth of any fact alleged or
other allegation in the MDL, or in any other pending or subsequently filed action,
arbitration or other proceeding, or of any wrongdoing, fault, violation of law, or
liability of any kind on the part of any Party, except as permitted in Sections 4.2
and 21.3 of this Settlement; or (ii) be used to establish a waiver of any defense or
right, or to establish or contest jurisdiction or venue. As set forth in Section 2.2
above, the Philips Defendants submit to the jurisdiction of the MDL Court solely
for purposes of the Settlement and the enforcement of the payment and performance
obligations thereunder.

21.2. The Parties agree that this Settlement, any orders, pleadings, or other documents
entered in furtherance of this Settlement, and any acts in the performance of this
Settlement are not intended to be, nor shall they in fact be, admissible, discoverable,
or relevant in any case or other proceeding against the Defendants as evidence of
any obligation that any Party hereto has or may have to anyone, except with regard
to the obligations and rights under the Settlement.

21.3. The provisions of this Settlement, and any orders, pleadings or other documents
entered in furtherance of this Settlement, may be offered or received in evidence
solely (i) to enforce the terms and provisions hereof or thereof, (ii) as may be
specifically authorized by a court of competent jurisdiction after a hearing upon
application of a Party hereto, (iii) in order to establish payment, prior payment for
a claimed loss, set-off, counterclaim or an affirmative defense of exception in a
subsequent case, including res judicata, collateral estoppel, release, good faith
settlement, judgment bar or reduction, or any other theory of claim preclusion or
issue preclusion or similar defense or counterclaim, (iv) in connection with any
motion to dismiss, enjoin or stay a Released Claim, (v) to establish an assignment

__________________
Section 21. Federal Rule of Evidence 408 53
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 57 of 168

to Philips RS of Economic Loss Claims against Ozone Cleaning Companies, or (vi)

to obtain MDL Court approval of the Settlement.

[intentionally left blank]

__________________
Section 21. Federal Rule of Evidence 408 54
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 58 of 168

The Parties have executed this Settlement Agreement, by their duly authorized representatives,
on the Execution Date.

PHILIPS RS NORTH AMERICA, LLC: PLAINTIFFS’ CO-LEAD COUNSEL:

/s/ John P. Lavelle, Jr. /s/ Christopher A. Seeger
John P. Lavelle, Jr. Christopher A. Seeger
Lisa C. Dykstra SEEGER WEISS LLP
MORGAN, LEWIS & BOCKIUS LLP 55 Challenger Road, 6th Floor
1701 Market Street Ridgefield Park, NJ 07660
Philadelphia, PA 19103-2921 (973) 639-9100 (phone)
(215) 963-5000 [email protected]
[email protected]
[email protected] /s/ Sandra L. Duggan
Sandra L. Duggan
/s/ Erik T. Koons LEVIN SEDRAN & BERMAN LLP
Erik T. Koons 510 Walnut Street, Suite 500
Andrew T. George Philadelphia, PA 19106
BAKER BOTTS LLP (215) 592-1500 (phone)
700 K St. NW (215) 592-4633 (fax)
Washington, DC 20001 [email protected]
(202) 639-7973 (phone)
[email protected]
/s/ Steven A. Schwartz
[email protected]
Steven A. Schwartz
KONINKLIJKE PHILIPS N.V., PHILIPS CHIMICLES SCHWARTZ KRINER &
NORTH AMERICA LLC, PHILIPS DONALDSON-SMITH LLP
HOLDING USA INC., AND PHILIPS RS 361 West Lancaster Avenue
NORTH AMERICA HOLDING Haverford, PA 19041
CORPORATION: (610) 642-8500 (phone)
[email protected]
/s/ William B. Monahan
Michael H. Steinberg /s/ Kelly K. Iverson
SULLIVAN & CROMWELL LLP Kelly K. Iverson
1888 Century Park East Gary Lynch
Los Angeles, CA 90067 LYNCH CARPENTER, LLP
(310) 712-6670 (phone) 1133 Penn Avenue, 5th Floor
[email protected] Pittsburgh, PA 15222
(412) 322-9243 (phone)
Tracy Richelle High [email protected]
William B. Monahan [email protected]
Elizabeth N. Olsen
SULLIVAN & CROMWELL LLP
125 Broad Street
55
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 59 of 168

New York, NY 10004 PLAINTIFFS’ SETTLEMENT

(212) 558-4000 (phone) COMMITTEE:
[email protected]
[email protected] /s/ Roberta D. Liebenberg
[email protected] Roberta D. Liebenberg (Chair)
FINE, KAPLAN AND BLACK, R.P.C.
One South Broad Street, 23rd Floor
Philadelphia, PA 19107
(215) 567-6565 (phone)
[email protected]

/s/ Lisa Ann Gorshe

Lisa Ann Gorshe (Vice Chair)
JOHNSON BECKER PLLC
444 Cedar Street, Suite 1800
Saint Paul, MN 55101
(612) 436-1852 (phone)
[email protected]

/s/ Arthur H. Stroyd, Jr.

Arthur H. Stroyd, Jr. (Vice Chair)
DEL SOLE CAVANAUGH STROYD LLC
3 PPG Place, Suite 600
Pittsburgh, PA 15222
(412) 261-2172 (phone)
[email protected]

56
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SETTLEMENT AGREEMENT

EXHIBIT 1
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 61 of 168

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE PHILIPS RECALLED CPAP, :

BI-LEVEL PAP, AND MECHANICAL : Master Docket: Misc. No. 21-mc-1230-JFC
VENTILATOR PRODUCTS :
LITIGATION : MDL No. 3014
:
This Document Relates to: All Actions :
Asserting Economic Loss Claims :
:
:

[PROPOSED] ORDER PRELIMINARILY APPROVING PROPOSED CLASS

SETTLEMENT AGREEMENT AND RELEASE OF ECONOMIC LOSS CLAIMS

WHEREAS, on October 10, 2022, Plaintiffs filed a Consolidated Third Amended Class

Action Complaint for Economic Losses (“Economic Loss Complaint”) (ECF No. 785), on behalf

of themselves and all others similarly situated;

WHEREAS, Defendants Philips RS North America LLC (“Philips RS”), Koninklijke

Philips N.V., Philips North America LLC, Philips Holding USA, Inc., and Philips RS North

America Holding Corporation (collectively, the “Philips Defendants”) have entered into a Class

Settlement Agreement and Release of Economic Loss Claims with the Settlement Class

Representatives, dated September 7, 2023, in full and final settlement of the Economic Loss

Claims against the Philips Defendants and the other Released Parties (the “Agreement” and the

“Settlement”), the terms of which are set forth in the Agreement and have the same meanings when

used in this Order;

WHEREAS, the Parties engaged in extensive good faith, arm’s-length negotiations, over a

period of a year, to resolve the Economic Loss Claims, with the assistance and oversight of the

Settlement Mediator appointed by the Court, Hon. Diane M. Welsh (Ret.);

Settlement Agreement Exhibit 1: [Proposed] Preliminary Approval Order

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 62 of 168

WHEREAS, on September 7, 2023, the Settlement Class Representatives filed a Motion

for Preliminary Approval of Proposed Class Action Settlement Agreement and to Direct Notice to

the Proposed Settlement Class pursuant to Rule 23(e) of the Federal Rules of Civil Procedure (the

“Motion”); and

WHEREAS, on _______, 2023, the Court held a hearing on the Motion and heard argument

on whether to preliminarily approve the Settlement.

NOW, THEREFORE, THIS ___ DAY OF ____, 2023, IT IS HEREBY ORDERED AS

FOLLOWS:

A. The Settlement Is Preliminarily Approved

1. The Court has conducted a preliminary assessment of the fairness, reasonableness,

and adequacy of the Settlement pursuant to Rule 23(e)(1)(B) of the Federal Rules of Civil

Procedure. The Court hereby finds that the Settlement falls within the range of reasonableness

meriting possible final approval and has key indicia of fairness, including that (1) the Parties have

reached the Settlement after investigating the strengths and weaknesses of the Economic Loss

Claims and the defenses thereto, (2) the extensive settlement negotiations were arm’s-length and

consisted of multiple mediation sessions overseen by the Settlement Mediator, (3) there is no

evidence of collusion in reaching this Settlement, and (4) the proponents of the Settlement are

experienced in similar litigation.

2. The Court therefore preliminarily approves the Settlement on the terms set forth in

the Agreement, subject to further consideration at the Final Fairness Hearing. Settlement Class

Members shall have the right to object to, or be excluded from, the Settlement, as set forth in the

Agreement and this Order.

-2-
Settlement Agreement Exhibit 1: [Proposed] Preliminary Approval Order
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 63 of 168

3. Pursuant to Rule 23(e)(1)(B), the Court orders that Notice be provided to the

Settlement Class Members pursuant to the terms of the Agreement and as set forth herein. The

Notice shall inform Settlement Class Members that they will be bound by the Settlement and Final

Order and Judgment unless, on or before the end of the Opt-Out/Objection Period specified in the

Notice and this Order (“Opt-Out/Objection Deadline”), they follow the required procedures to

make a written request for exclusion as set forth in the Agreement and Notice, which procedures

are hereby approved.

4. Any objections by any Settlement Class Member to the Settlement (in whole or in

part) shall be heard and any papers submitted in support of said objections shall be considered by

the Court at the Final Fairness Hearing only if, on or before the Opt-Out/Objection Deadline, such

Settlement Class Member follows the required objection procedures set forth in the Agreement

and Notice, which procedures are hereby approved.

5. The Court preliminarily approves the plan of allocation of Settlement funds set

forth in the Agreement, subject to further consideration at the Final Fairness Hearing.

B. Appointments of Settlement Administrator, Settlement Funds Escrow Agent, and

Claims Appeals Special Master

6. The Court hereby appoints Angeion Group LLC as the Settlement Administrator.

It shall be responsible for the duties set forth in the Settlement Agreement assigned to the

Settlement Administrator, including, but not limited to, (a) the notice dissemination process set

forth in the Agreement; (b) calculation of payments to Settlement Class Members; (c) creation of

a Settlement website; (d) processing and reviewing Claim Forms; (e) collecting and forwarding to

Settlement Class Counsel and Counsel for the Philips Defendants any requests to be excluded from

the Settlement Class; (f) collecting and forwarding to Settlement Class Counsel and Counsel for

the Philips Defendants any objections to the Settlement or to requests for attorneys’ fees or Service

-3-
Settlement Agreement Exhibit 1: [Proposed] Preliminary Approval Order
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Awards; and (g) any other duties as provided in any agreement entered into between Counsel and

the Settlement Administrator. The Settlement Administrator shall sign and be bound by the

Protective Order entered by this Court, as amended (ECF Nos. 104, 498, 765).

7. Pursuant to the Agreement, the Philips Defendants shall deposit, or cause to be

deposited, the Initial Payments for Class Notice and Settlement Administration into the Settlement

Funds within 14 days of execution of the Settlement Agreement. The Philips Defendants shall be

responsible for paying all reasonable costs of Settlement Administration, including the reasonable

fees and costs of the Settlement Administrator, Settlement Funds Escrow Agent, Settlement

Mediator, and Claims Appeals Special Master, as set forth in the Settlement Agreement.

8. The Court approves Huntington Bank as the Settlement Funds Escrow Agent

pursuant to the Settlement Agreement.

9. The Court hereby appoints Hon. Thomas J. Rueter (Ret.) as the Claims Appeals

Special Master and authorizes him to perform the duties assigned to the Claims Appeals Special

Master specified in the Settlement Agreement.

C. The Settlement Notice and Notice Plan Are Approved

10. The Court approves the forms of Notice, substance, and requirements attached as

Exhibit 3 to the Settlement Agreement (the “Settlement Notice”).

11. The Court finds that the method of giving notice to the Settlement Class (“Notice

Plan”), attached to the Settlement Agreement as Exhibit 2, and the forms and content of notice,

attached to the Settlement Agreement as Exhibit 3, as described in the Settlement Agreement,

(a) constitute the best notice practicable under the circumstances, (b) are reasonably calculated,

under the circumstances, to apprise the Settlement Class Members of the pendency of the Action,

the terms and benefits of the proposed Settlement, including automatic payments under certain

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Settlement Agreement Exhibit 1: [Proposed] Preliminary Approval Order
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circumstances, how to file a claim and the deadline for filing a claim, and their rights under the

proposed Settlement, including, but not limited to, their rights to object to or exclude themselves

from the proposed Settlement, as well as of the scope of the release of the Philips Defendants and

other Released Parties and the binding effect of a Final Judgment, (c) are reasonable and constitute

due, adequate, and sufficient notice to all Settlement Class Members and any other persons entitled

to receive notice, (d) meet all applicable requirements of law, including, but not limited to, 28

U.S.C. § 1715, Rule 23(c), the Due Process Clause(s) of the United States Constitution, and any

other applicable laws, and (e) fairly and adequately inform Settlement Class Members that if they

do not comply with the specified procedures and the deadline for objections, they will lose any

opportunity to have any objection considered at the Final Fairness Hearing or to otherwise contest

approval of the Settlement or appeal from any order or judgment entered by the Court in connection

with the Settlement.

12. The Parties will attempt to reach agreement on the amount of attorneys’ fees and

costs that Settlement Class Counsel will seek to be awarded by this Court and which the Philips

Defendants will not oppose. If the Parties reach an agreement, Settlement Class Counsel will file

an unopposed motion with the Court seeking an award in this amount to be considered as part of

the Final Fairness Hearing. If the Parties do not reach agreement, Settlement Class Counsel will

file their motion seeking an award of attorneys’ fees and costs, and the Philips Defendants will

submit their opposition. In that event, the litigation of the fee and cost issues will be subject to the

Parties’ agreement that: (1) the attorneys’ fees and costs will be paid by, or on behalf of, the

Philips Defendants in addition to the compensation provided to Settlement Class Members under

the Settlement Agreement; (2) any award of attorneys’ fees or costs shall not diminish the recovery

of Settlement Class Members under the Settlement; (3) while fees will be based on the percentage

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of recovery methodology, with a lodestar cross-check, the Parties reserve all arguments as to how

that recovery should be calculated, what the percentage should be, and the extent to which

Settlement Class Counsel’s prosecution of the Economic Loss Claims caused some or all of the

recovery; (4) the Court will issue an Order setting forth the amount of attorneys’ fees and costs to

be paid by the Philips Defendants; and (5) the Parties shall have the right to appeal the Court’s

determination as to the amount of attorneys’ fees and costs.

13. The Parties have agreed that the Philips Defendants will pay Service Awards of

$5,000 to each of the five Settlement Class Representatives, subject to approval of this Court after

the Final Fairness Hearing. The Settlement Notice shall apprise Settlement Class Members of

these requested Service Awards.

14. Within 60 days after entry of this Order, the Settlement Notice will be disseminated

to Settlement Class Members pursuant to the terms of the Settlement Agreement.

D. The Settlement Class

15. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court conditionally

certifies, for settlement purposes only, the following Settlement Class:

Settlement Class or Settlement Class Members shall include Plaintiffs and all
other individuals or entities in the United States, including its Territories (American
Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin
Islands), and the District of Columbia, including individuals who are United States
citizens, residents, United States military, diplomatic personnel and employees
living or stationed overseas, who or which, prior to the announcement of the
Recalls, either (a) purchased, leased, rented, or paid for (in whole or part), or were
prescribed a Recalled Device (“Users”), or (b) reimbursed (in whole or part) a
User’s payment to purchase, lease, rent, or otherwise pay for a Recalled Device,
including insurers, self-funded employers, and other third-party payers (“Payers”).
Individuals or entities whose payment obligations with respect to a particular
Recalled Device preceded the announcement of the relevant Recall are part of the
Settlement Class even if certain of their payment obligations post-dated the Recall
(e.g., certain renters and lessees).

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EXCLUDED from the Settlement Class are: (a) Defendants and their officers,
directors, and employees; (b) the MDL Court, Settlement Mediator, Claims Appeals
Special Master, and Special Masters assigned to the MDL; (c) individuals who have
already released Released Claims against one or more of the Defendants pursuant
to individual settlements or other resolutions; (d) Durable Medical Equipment
providers; (e) the federal government and any federal government payers, including
the United States Department of Health and Human Services Centers for Medicare
& Medicaid Services, the Department of Defense, and the U.S. Department of
Veterans Affairs; and (f) Settlement Class Counsel.

16. The Court finds that, for settlement purposes only, the Settlement Class meets all

prerequisites for class certification under Rules 23(a) and 23(b)(3) of the Federal Rules of Civil

Procedure, including that: (a) the Settlement Class is so numerous that joinder of all members is

impracticable; (b) there are questions of law and fact common to the Settlement Class; (c) the

Settlement Class Representatives’ claims are typical of the claims of the Settlement Class

Members they seek to represent for purposes of the Settlement; (d) Settlement Class

Representatives and their counsel are capable of fairly and adequately protecting the interests of

the Settlement Class; (e) common questions of law and fact predominate over questions affecting

only individual Settlement Class Members; (f) certification of the Settlement Class is superior to

other available methods for the fair and efficient resolution of the Economic Loss Claims of

Settlement Class Members; and (g) the Settlement Class is ascertainable.

17. For settlement purposes only, the Court appoints Elizabeth Heilman; Ivy Creek of

Tallapoosa LLC d/b/a/ Lake Martin Community Hospital; Peter Barrett; Julie Barrett; and

ASEA/AFSCME Local 52 Health Benefits Trust as the five Settlement Class Representatives.

18. The Court appoints the following as Settlement Class Counsel:

a. Christopher A. Seeger, Seeger Weiss, 55 Challenger Road, 6th Floor, Ridgefield

Park, NJ 07660;

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b. Sandra L. Duggan, Levin Sedran & Berman, 510 Walnut Street, Suite 500,

Philadelphia, PA 19106;

c. Steven A. Schwartz, Chimicles Schwartz Kriner & Donaldson-Smith LLP, 361

West Lancaster Avenue, Haverford, PA 19041;

d. Kelly K. Iverson, Lynch Carpenter, LLP, 1133 Penn Avenue, 5th Floor,

Pittsburgh, PA 15222;

e. Roberta D. Liebenberg, Fine, Kaplan and Black, R.P.C., One South Broad

Street, 23rd Floor, Philadelphia, PA 19107;

f. Lisa Ann Gorshe, Johnson Becker PLLC, 444 Cedar Street, Suite 1800, Saint

Paul, MN 55101; and

g. Arthur H. Stroyd, Jr., Del Sole Cavanaugh Stroyd LLC, 3 PPG Place, Suite 600,

Pittsburgh, PA 15222.

19. The Court hereby approves the establishment of the Settlement Funds. The

Settlement Funds shall be governed by Section 468B-1 through 468B-5 of the Treasury

Regulations and maintained as a “qualified settlement fund.” The Parties agree to work in good

faith to maintain such status. The Court shall retain continuing jurisdiction over the Settlement

Funds, pursuant to Section 468B-1I(1) of the Treasury Regulations.

E. Schedule for Motion for Final Approval and Final Fairness Hearing

20. Settlement Class Counsel shall file their motion for attorneys’ fees, reimbursement

of costs and expenses incurred in connection with prosecuting the Economic Loss Claims, and for

Service Awards of no more than $5,000 for each of the five Settlement Class Representatives, at

least 30 days prior to the Opt-Out/Objection Deadline. The Settlement Administrator shall publish

the motion and supporting materials on the Settlement website.

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21. The deadline for Settlement Class Members to submit claims is 120 days after the

Final Fairness Hearing.

22. The deadline for Settlement Class Members to opt out of the Settlement, or object

to the Settlement, the proposed plan for allocating Settlement funds, the proposed Service Awards,

or the request for an award of attorneys’ fees and reimbursement of costs and expenses shall be

120 days after entry of this Order. Opt-out requests and objections must be made in writing and

must be made in accordance with the requirements set forth in the Settlement Agreement and

Notices, and must be postmarked no later than Opt-Out/Objection Deadline.

23. Settlement Class Counsel shall file a list of all timely and valid opt-outs as an

attachment to their motion for final approval of the Settlement.

24. No later than 21 days before the Final Fairness Hearing, Settlement Class Counsel

shall file with the Court the objections, if any, received by the Settlement Administrator.

25. At least 7 days prior to the Final Fairness Hearing, Settlement Class Counsel and/or

Counsel for the Philips Defendants shall file any response to the objections with the Court.

26. At least 21 days prior to the Final Fairness Hearing, Settlement Class Counsel shall

file a Motion for Final Approval of the Settlement and to enter the Final Order and Judgment. The

Settlement Administrator shall publish the motion and supporting materials on the Settlement

website.

27. At least 21 days prior to the Final Fairness Hearing, Settlement Class Counsel shall

file with the Court proof that Notice was provided in accordance with the plan of Notice set forth

in the Agreement, the terms of this Order, and any other Order regarding Notice that the Court

shall have issued.

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28. At least 21 days prior to the Final Fairness Hearing, the Philips Defendants shall

file with the Court proof of their compliance with the provisions of the Class Action Fairness Act,

28 U.S.C. § 1715(b).

29. If the last day of any period mentioned hereto falls on a weekend or legal holiday,

the period shall include the next business day.

30. The Court will hold a hearing on _____________, 2024 at ____ a.m./p.m. at the

United States District Court for the Western District of Pennsylvania, 700 Grant Street, Pittsburgh,

PA 15219, in Courtroom 5A (the “Final Fairness Hearing”) for the following purposes:

a. To finally determine whether the proposed Settlement is a fair, reasonable, and

adequate settlement as to the Settlement Class Members within the meaning of

Rule 23I(2) of the Federal Rules of Civil Procedure;

b. To determine whether a Final Judgment should be entered dismissing the

Economic Loss Claims of the Settlement Class against the Defendants with

prejudice, as required by the Settlement Agreement;

c. To consider the proposed plan of allocation of Settlement funds;

d. To consider Settlement Class Counsel’s Motion for Award of Attorneys’ Fees

and Litigation Expenses;

e. To consider the Petition for Service Awards to the Settlement Class

Representatives;

f. To consider timely, written objections that conform to the requirements set forth

in the Settlement Agreement;

g. To enter the injunctions contemplated by Sections 13.1.7 and 13.1.8 of the

Settlement Agreement; and

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h. To consider such other matters as the Court may deem appropriate.

31. The Final Fairness Hearing may be continued without further notice to Settlement

Class Members, other than an update posted on the MDL 3014 Court docket and Settlement

website.

F. Miscellaneous

32. This Preliminary Approval Order shall become null and void and shall not prejudice

the rights of the Parties, all of whom shall be restored to their respective positions existing

immediately before this Court entered this Order, if the Settlement is not finally approved by the

Court, or does not become final and effective for any reason. In such event, the Settlement

Agreement shall become null and void and be of no further force and effect, and neither the

Settlement Agreement nor the Court’s orders relating to the Settlement, including this Preliminary

Approval Order, shall be used or referred to for any purpose. The conditional certification of the

Settlement Class provided for herein for settlement purposes only will be vacated, and the

Economic Loss Claims shall proceed as though the Settlement Class had never been conditionally

certified, without prejudice to any party’s position on the issues of class certification, personal

jurisdiction or any other issue. In such event, the Philips Defendants retain all rights to assert that

the Economic Loss Claims may not be certified as a class action.

33. Pending the Final Fairness Hearing, the Court hereby stays the continued pursuit or

prosecution of all Released Claims, in this Court or in any other court, tribunal or proceeding, other

than those proceedings necessary to carry out or enforce the terms and conditions of the Settlement.

Pursuant to 28 U.S.C. §§ 1651(a) and 2283, the Court finds that issuance of this preliminary

injunction is necessary and appropriate in aid of the Court’s continuing jurisdiction and authority.

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Such injunction shall remain in force until the Final Fairness Hearing or until such time as the

Parties notify the Court that the Settlement has been terminated.

34. This Court shall maintain continuing jurisdiction over these settlement proceedings

to assure the effectuation thereof for the benefit of the Settlement Class. For purposes only of this

Settlement, the Philips Defendants have submitted to the jurisdiction and venue of this Court.

35. Settlement Class Counsel and Counsel for the Philips Defendants are hereby

authorized to use all reasonable procedures in connection with approval and administration of the

Settlement that are not materially inconsistent with this Preliminary Approval Order or the

Settlement Agreement, including making, without further approval of the Court, minor changes to

the Settlement Agreement, to the form or content of the Settlement Notice, or to the form or content

of any other exhibits attached to the Settlement Agreement, that the Parties jointly agree are

reasonable or necessary, and which do not limit the rights of Settlement Class Members under the

Settlement Agreement.

IT IS SO ORDERED. BY THE COURT:

The Honorable Joy Flowers Conti

Senior United States District Judge

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SETTLEMENT AGREEMENT

EXHIBIT 2
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NOTICE PLAN
I. GENERAL

A. The Settlement Administrator shall have discretion to employ best practices in

carrying out its responsibilities in a manner consistent with the Settlement
Agreement, 1 this Notice Plan, and the Declaration of Steven Weisbrot, Esq. of
Angeion Group, LLC Re: Proposed Notice Plan, and with its experience to provide
the best notice that is practicable under the circumstances, consistent with Federal
Rule of Civil Procedure 23.

B. The Parties shall provide reasonable cooperation with the Settlement Administrator
and shall make all reasonable efforts to accept recommendations from the
Settlement Administrator with respect to the Notice Plan.

C. Consistent with the Settlement Agreement, the Philips Defendants shall be

responsible for paying reasonable notice-related costs and other reasonable
administrative expenses that may be incurred by the Settlement Administrator.

D. In conducting its duties and responsibilities, the Settlement Administrator may

make necessary adjustments to the notice processes as circumstances may dictate,
subject to the approval of Settlement Class Counsel and the Philips Defendants and,
as necessary, the MDL Court.

E. The Settlement Administrator shall ensure that all notices and communications it
sends are HIPAA-compliant.

II. NOTICE TO SETTLEMENT CLASS MEMBERS

A. Compilation of Notice List: The Settlement Administrator shall compile and

integrate information in its database and web portal regarding Users from the
sources identified in Sections 9.1.2.1 and 9.1.2.2 of the Settlement Agreement, and
shall cross-check, update and supplement that information by employing best
practices using, among other things, the National Change of Address (“NCOA”)
database and other methods, including, as appropriate, skip tracing.

B. Direct Notice: Within 60 days after entry of the Preliminary Approval Order, the
Settlement Administrator shall disseminate notice, in forms approved by the MDL
Court, as follows:

1. First-class postal mail of the long-form FAQ Notice to all known Users with
postal addresses.

a. For Users who Registered for a Philips Respironics Recall Program

but did not return their Recalled Device(s) before the Execution

1
Unless otherwise noted, capitalized terms have the same meaning herein that they have in the
Class Settlement Agreement and Release of Economic Loss Claims (the “Settlement Agreement”).

Settlement Agreement Exhibit 2: Notice Plan

Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 75 of 168

Date, the mailing referenced above will include an additional

targeted notice in the form agreed to by the Parties.

2. Emails of the summary notice form to all known Users with email
addresses.

3. First-class postal mail of the long-form FAQ Notice to known Payers on the
Settlement Administrator’s proprietary database of insurers, self-funded
employers, and other third-party payers.

4. Emails of the summary notice form to known Payers on the Settlement

Administrator’s proprietary database of insurers, self-funded employers,
and other third-party payers.

C. Notice to Users through DMEs:

1. First-class postal mail (and email, if available) of a summary notice form

for DMEs, in the form agreed to by the Parties, to those known DMEs in
the United States that sold, rented, supplied, or otherwise provided Recalled
Devices to Users.

D. Media Plan:

1. The Parties jointly selected Angeion Group to serve as the Settlement

Administrator. Based on extensive discussions and consultation between
and among Settlement Class Counsel, the Philips Defendants and the
Settlement Administrator, the Parties have agreed to accept the
recommendation of the Settlement Administrator to supplement the direct
notice (outlined above) with a comprehensive Media Plan developed by the
Settlement Administrator that is designed to reach approximately 86.70%
of the target audience.

2. The Parties agree that the Settlement Administrator shall have discretion to
implement its Media Plan in a manner consistent with best practices and
designed to provide the best notice that is practicable under the
circumstances, consistent with Federal Rule of Civil Procedure 23.

E. Other Forms of Notice:

1. The Settlement Administrator shall post the long-form FAQ Notice on the
Settlement website along with the Settlement Agreement (including all of
its exhibits), as well as relevant pleadings of the Parties and orders entered
by the MDL Court in connection with the Settlement, including relevant
scheduling orders relating to the Settlement.

2. The Settlement Administrator shall issue press releases via PR Newswire at

the outset of the Notice program and at least once thereafter as a claims
filing reminder.
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 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 76 of 168

3. The Settlement Administrator shall maintain a toll-free call center (English

and Spanish) with live operators trained with respect to the Settlement and
conversant with scripts prepared by the Parties in consultation with the
Settlement Administrator.

4. Philips RS shall provide an electronic upload through DreamMapper to all

Users who elected to receive messages through DreamMapper, which will
refer them to the Settlement website for more information about the
Settlement.

5. The Parties shall take the steps necessary so that a copy of the FAQ Notice
is posted on the MDL Court’s website for the MDL,
https://www.pawd.uscourts.gov/mdl-3014-re-philips-recalled-cpap-bi-
level-pap-and-mechanical-ventilator-products-litigation.

6. The Settlement Administrator and the Parties shall provide any additional
Notice as the MDL Court may otherwise direct, in accordance with the
requirements of Federal Rule of Civil Procedure 23(c)(2).

7. The Settlement Administrator shall provide any additional Notice that may
be agreed to by the Parties.

F. Reminder Email Notice to Users with Email Addresses: Prior to the Claims
Period Deadline, the Settlement Administrator shall send one reminder email notice
to known Users with email addresses consistent with best practices about claims
deadlines and other relevant information, as determined by the Settlement
Administrator.

III. SETTLEMENT WEBSITE/CLAIMS PORTAL

A. The Settlement Administrator shall develop a state-of-the-art Settlement Website

(including a Spanish language version) which includes a custom claims portal with
Search Engine Optimization that is ADA-compliant.

B. The claims portal on the Settlement Website shall, among other things:

1. permit Users to input their assigned unique Claim ID number and/or the
Serial Number of their Recalled Devices to facilitate the submission of
claims, continuation of claims submissions, verify and monitor the status of
their claims and receive status and other notifications;

2. provide a process to provide or confirm information/documentation and to

choose their preferred method of payment and, if they qualify, sign up for
the Accelerated Implementation Option, enroll any unregistered Recalled
Devices (other than Trilogy 100 or 200 devices), and the ability to get free

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return labels for Registered or Enrolled devices to be returned to Philips

Respironics (other than Trilogy 100 or 200 devices);

3. provide a dedicated Tab for Payers that provides the information and
instructions necessary for Payers to submit claims consistent with the
Settlement Agreement, as well as access to the Payer Declaration and Claim
Form attached to the Settlement Agreement as Exhibit 8;

4. provide a dedicated Tab for information about Device Replacement Awards,

as well as access to the Device Replacement Award Claim Form attached to
the Settlement Agreement as Exhibit 5;

5. provide Settlement Class Members with the ability to download paper

claims forms;

6. to the extent not yet already in the Settlement Administrator’s database,

provide prompts to collect Serial Number and Recall Registration Number
information from Users submitting claims;

7. for those Users who have not yet registered their Recalled Device(s) for a
Philips Respironics Recall Program and still have their Recalled Device,
provide a link to the page on which they can register their Recalled Device
in order to obtain the separate and distinct benefits provided under the
applicable Recall Program (e.g., a Remanufactured Device); and

8. otherwise provide for all processes consistent with best practices and as
required or contemplated by the MDL Court’s Preliminary Approval Order,
the Settlement Agreement, the plan for allocating Settlement funds and
claims processing, and the Notice Plan, and as necessary to provide
Settlement Class Members with information about the Settlement and the
ability to efficiently submit claims and satisfy the standards for payment.

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SETTLEMENT AGREEMENT

EXHIBIT 3
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FORMS OF NOTICE

Settlement Agreement Exhibit 3: Forms of Notice

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SETTLEMENT AGREEMENT

EXHIBIT 3(a)
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 81 of 168
NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
United States District Court for the Western District of Pennsylvania
A court authorized this Notice. This is not a solicitation from a lawyer.

If you paid for a Philips Respironics CPAP, BiPAP

or Ventilator that was recalled, you may be eligible
for a cash award from a proposed class action settlement.

● A proposed Settlement has been reached in a U.S. class action lawsuit alleging Economic Loss
Claims related to the purchase, lease, or rental of recalled CPAPs, BiPAPs, and ventilators
manufactured by Philips Respironics between 2008 and 2021. Philips Respironics recalled
these devices in the United States beginning in June 2021.
● Under the proposed Settlement:
o a minimum of $445 million will be paid to “Users” who purchased, leased, or rented a
Recalled Device;
o up to an additional $15 million will be paid to “Users” who paid out of pocket for a
Replacement Device; and
o $34 million will be paid to “Payers” who reimbursed a payment for a Recalled Device,
including insurers, self-funded employers, and other third-party payers.
● The Settlement does not affect or release any claims for alleged personal injuries or
medical monitoring relief, which continue to be litigated.
● Users may qualify for:
o a Device Payment Award for each Recalled Device they purchased, leased, or
rented;
o a Device Return Award of $100 for each Recalled Device they return (or already
returned) to Philips Respironics by Claims Period Deadline; and/or
o a Device Replacement Award for money Users paid to purchase a Replacement
Device on or after June 14, 2021 and before September 7, 2023 to replace a
Recalled Device with a comparable CPAP, BiPAP, or ventilator.
● If you are a User and still have your Recalled Device but have not yet returned it to
Philips Respironics, visit www.RespironicsCPAP-ELSettlement.com for instructions on
how to get a prepaid label to return your Recalled Device. Doing so will help you
maximize your payment from the proposed Settlement.
● You have several choices to make depending on the options available to you. Review the
Chart on the ensuing pages and go to www.RespironicsCPAP-ELSettlement.com for
more information.
● Payers may qualify for a Payer Award by submitting a claim with the required
information and documentation.

QUESTIONS? CALL 1-855-912-3432 OR VISIT:

www.RespironicsCPAP-ELSettlement.com
Settlement Agreement Exhibit 3(a): Long Form Notice and FAQ’s 1
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 82 of 168
● Your rights are affected whether you act or don’t act. If the proposed Settlement is approved,
and you do not opt out, you will release your Economic Loss Claims against the Philips
Defendants and the other Released Parties and assign to Philips Respironics your Economic
Loss Claims against manufacturers of ozone cleaners. Please read this Notice carefully.

QUESTIONS? CALL 1-855-912-3432 OR VISIT:

www.RespironicsCPAP-ELSettlement.com
Settlement Agreement Exhibit 3(a): Long Form Notice and FAQ’s 2
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SUMMARY OF YOUR LEGAL RIGHTS AND OPTIONS

This table summarizes the forms of relief available and your other rights and options,
depending on whether you are a User or a Payer, whether you Registered your Recalled
Device(s) in a Philips Respironics Recall Program prior to September 7, 2023, whether you
have already returned your Recalled Device(s) to Philips Respironics, and whether you
wish to participate in, opt out of, or object to the Settlement. Please read each option
carefully to see which one applies to you.
You will be bound by the Settlement unless you opt out.

IF YOU ARE A: THEN:

You are eligible for an automatic Device Payment

User who registered your Award and a $100 Device Return Award for each
Recalled Device in a Recall Recalled Device you returned, without the need to submit
Program and you already a claim (“Automatic Payment”).
returned it to Philips Go to www.RespironicsCPAP-ELSettlement.com:
Respironics
• to verify your eligibility for payment;
-AND-
• confirm or update your contact information; and
You wish to participate in the
Settlement • choose your preferred payment option.
By this Deadline: Claims Period Deadline

You are eligible for a Device Payment Award and $100

User who registered your Device Return Award, without the need to submit a
Recalled Device in a Recall claim, if you return your Recalled Device to Philips
Program, but you have not yet Respironics.
returned it to Philips
Respironics, and you would like Go to www.RespironicsCPAP-ELSettlement.com:
to do so now to get a $100 Device • get a prepaid label to return your Recalled Device
Return Award to Philips Respironics for free;
-AND- • confirm or update your contact information; and
You wish to participate in the • choose your preferred payment option.
Settlement
By this Deadline: Claims Period Deadline

QUESTIONS? CALL 1-855-912-3432 OR VISIT:

www.RespironicsCPAP-ELSettlement.com
Settlement Agreement Exhibit 3(a): Long Form Notice and FAQ’s 3
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 84 of 168
You are eligible for a Device Payment Award and $100
Device Return Award, without the need to submit a
User who did not register your claim, if you Enroll in the Settlement and return your
Recalled Device in a Recall Recalled Device to Philips Respironics.
Program and you still have your
Recalled Device and would like Go to www.RespironicsCPAP-ELSettlement.com:
to return it to Philips • Enroll in the Settlement, including by identifying
Respironics to get a $100 Device the Serial Number of the Recalled Device and
Return Award providing your contact information;
-AND- • get a prepaid label to return your Recalled Device
You wish to participate in the to Philips Respironics for free; and
Settlement • choose your preferred payment option.
By this Deadline: Claims Period Deadline

User who registered your You are eligible for a Device Payment Award without
Recalled Device in a Recall the need to submit a claim if you confirm or update
Program before September 7, your contact information.
2023, but you have not returned
it and you do not intend to (or This option is only available for Recalled Device(s)
you cannot) return your registered before September 7, 2023.
Recalled Device to Philips Go to www.RespironicsCPAP-ELSettlement.com:
Respironics
• confirm or update your contact information; and
-AND-
• choose your preferred payment option.
You wish to participate in the
Settlement By this Deadline: Claims Period Deadline

User who did not register your You are eligible for a Device Payment Award if you
Recalled Device in a Recall submit a valid claim.
Program before September 7,
2023 and you do not intend to Go to www.RespironicsCPAP-ELSettlement.com:
(or you cannot) return your • complete a Device Payment Award Claim Form;
Recalled Device to Philips
Respironics • provide the Serial Number of the Recalled Device
and the required documentation; and
-AND-
• choose your preferred payment option.
You wish to participate in the
Settlement. By this Deadline: Claims Period Deadline

QUESTIONS? CALL 1-855-912-3432 OR VISIT:

www.RespironicsCPAP-ELSettlement.com
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You are eligible for a Device Replacement Award if you
User who spent your own money submit a valid claim.
to purchase a comparable
Replacement CPAP, BiPAP or Go to www.RespironicsCPAP-ELSettlement.com:
ventilator to replace a Recalled • complete a Device Replacement Award Claim
Device on or after June 14, 2021 Form;
and before September 7, 2023
• provide the required documentation and complete
-AND- the required steps; and
You wish to participate in the • choose your preferred payment option.
Settlement.
By this Deadline: Claims Period Deadline

You are eligible for a Payer Award if you submit a valid

claim.
Payer
Go to www.RespironicsCPAP-ELSettlement.com:
-AND-
• complete a Payer Declaration and Claim Form; and
You wish to participate in the
Settlement. • provide the required documentation.
By this Deadline: Claims Period Deadline

You must mail to the Settlement Administrator a valid

request to opt out of the Settlement.
User or Payer Follow the instructions below in Question 27 or go to
www.RespironicsCPAP-ELSettlement.com for more
-AND- information.
You wish to exclude yourself If you opt out of the Settlement, you will get no
from the Settlement. Settlement payment or other Settlement benefits. You
also cannot object to the Settlement.
By this Deadline: Opt-Out/Objection Deadline

You must mail to the Settlement Administrator a valid

objection to the Settlement.
User or Payer
Follow the instructions below in Question 31 or go to
-AND-
www.RespironicsCPAP-ELSettlement.com for more
You wish to object to the information.
Settlement.
If you object to the Settlement, you cannot also opt out of
the Settlement.
By this Deadline: Opt-Out/Objection Deadline

QUESTIONS? CALL 1-855-912-3432 OR VISIT:

www.RespironicsCPAP-ELSettlement.com
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If you take no action at all, you will get no Settlement
payment unless you are a User and you qualify for an
User or Payer Automatic Payment.
-AND- If the Settlement is approved by the Court, you will still
be bound by the Settlement and be giving up your
You want to do nothing.
Economic Loss Claims against the Philips Defendants
and the other Released Parties and assigning to Philips
Respironics your Economic Loss Claims against
manufacturers of ozone cleaners.

ACCELERATED IMPLEMENTATION OPTION

IF YOU ARE A: THEN:

If you return your Recalled Device to Philips Respironics

by Claims Period Deadline, you are also eligible for the
Accelerated Implementation Option (“AIO”) to get
your Device Payment Award and $100 Device Return
Award quicker and without having to wait for the
completion or outcome of any appeals.

User who enrolls in the Go to www.RespironicsCPAP-ELSettlement.com:

Settlement or registered your • elect the AIO;
Recalled Device and you already
returned it to Philips • sign the sworn attestation regarding whether you
Respironics or you return it used ozone cleaning with your Recalled Device;
before Claims Period Deadline • if you used ozone cleaning, sign the assignment to
-AND- Philips Respironics of your Economic Loss Claims
against the manufacturer of your ozone cleaner;
You wish to participate in the
Settlement and get paid quicker. • sign the individual release of your Economic Loss
Claims against the Philips Defendants and the other
Released Parties; and
• choose your preferred payment option.
AIO Election By this Deadline: Claims Period
Deadline or the completion of any appeals, whichever
is later

● These rights and options—and the deadlines to exercise them—are explained in more
detail in the rest of this Notice and in the Settlement Agreement.
● The proposed Settlement benefits are separate and distinct from any benefits provided
under the Philips Respironics Recall Programs. If you are a User who did not register your
Recalled Device in a Recall Program and you still have your Recalled Device, you may be
eligible to receive a free Remanufactured Device or other benefits from Philips Respironics

QUESTIONS? CALL 1-855-912-3432 OR VISIT:

www.RespironicsCPAP-ELSettlement.com
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under the Recall Programs. Go to www.philips.com/src-update for more information
about the Recall Programs and instructions on how to register under the Recall Programs.
● The Court in charge of this case still has to decide whether to approve the Settlement.
Payments will be made if the Court approves it and (except for the AIO) after any appeals
are denied. This process can take time. Please be patient.

QUESTIONS? CALL 1-855-912-3432 OR VISIT:

www.RespironicsCPAP-ELSettlement.com
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WHAT THIS NOTICE CONTAINS
SUMMARY OF YOUR LEGAL RIGHTS AND OPTIONS ...................................................................3
ACCELERATED IMPLEMENTATION OPTION ................................................................................6
BASIC INFORMATION.....................................................................................................................10
1. Why did I get this Notice?.....................................................................................................10
2. What is this lawsuit about?....................................................................................................10
3. What is a class action? ..........................................................................................................11
4. Why is there a proposed Settlement? ....................................................................................11
WHO IS IN THE PROPOSED SETTLEMENT CLASS? ........................................................................11
5. How do I know if I am in the Settlement Class? ...................................................................11
6. What should I do if I am still not sure whether I am included in the Class? ........................11
THE PROPOSED SETTLEMENT BENEFITS AND HOW TO GET A PAYMENT...................................12
7. How much will the Philips Defendants pay under the proposed Settlement?.......................12
8. What is the easiest way for Users who still have their Recalled Devices to maximize their
Settlement payment? ..................................................................................................................12
9. How much are the Device Payment Awards for Users? .......................................................12
10. How much are the Device Return Awards for Users? ........................................................13
11. How much are the Device Replacement Awards for Users? ..............................................14
12. What is the Extended Warranty on Remanufactured Devices? ..........................................14
13. What is the Accelerated Implementation Option for Users? ...............................................14
14. What are the Settlement Benefits for Payers? (Payer Awards) ...........................................15
15. How can I get a payment? What steps do I need to take? ..................................................15
16. I already registered my Recalled Device in a Recall Program. Do I also need to enroll in
the Settlement for that Recalled Device? ...................................................................................15
17. Where can I obtain more information about the Settlement and obtain a Claim Form? .....15
18. What is the deadline for submitting a claim? ......................................................................16
19. When will I get my payment? .............................................................................................16
20. What am I giving up if I stay in the Class? .........................................................................16
WHAT OTHER STEPS CAN I TAKE? ..............................................................................................16
21. How can I monitor the progress of the proposed Settlement? ............................................16
22. How can I verify or update my contact information and choose my payment option? ......17
THE LAWYERS REPRESENTING THE CLASS .................................................................................17
23. Do I have a lawyer in connection with the Economic Loss Claims that are the subject of this
Settlement? .................................................................................................................................17
24. How will the lawyers who served as Class Counsel be paid? .............................................17
25. Should I get my own lawyer? ..............................................................................................18
QUESTIONS? CALL 1-855-912-3432 OR VISIT:
www.RespironicsCPAP-ELSettlement.com
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26. Who are the Settlement Class Representatives and what will they get from the Settlement?
....................................................................................................................................................18
EXCLUDING YOURSELF FROM THE SETTLEMENT ........................................................................18
27. How do I get out of the Settlement? ....................................................................................18
28. If I don’t opt out, can I sue the Philips Defendants for Economic Loss Claims later? .......19
29. If I don’t opt out, can I sue Ozone Cleaning Companies for Economic Loss Claims? .......19
30. What happens if I opt out? ..................................................................................................19
OBJECTING TO THE SETTLEMENT ................................................................................................19
31. How do I tell the Court that I have an objection to the Settlement? ...................................19
32. What’s the difference between objecting and opting out? ..................................................21
THE COURT’S FINAL APPROVAL HEARING ..................................................................................21
33. When and where will the Court decide whether to approve the proposed Settlement? ......21
34. Do I have to come to the Final Approval Hearing? ............................................................21
35. May I speak at the hearing?.................................................................................................21
IF I DO NOTHING ...........................................................................................................................22
36. What happens if I do nothing at all? ...................................................................................22
GETTING MORE INFORMATION ....................................................................................................22
37. Are more details about the Settlement available? ...............................................................22
38. How do I get more information? .........................................................................................22

QUESTIONS? CALL 1-855-912-3432 OR VISIT:

www.RespironicsCPAP-ELSettlement.com
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BASIC INFORMATION
1. Why did I get this Notice?

A court authorized this Notice because individuals and entities residing in the United States (including its
Territories and the District of Columbia), including military and diplomatic personnel stationed overseas,
who either (a) purchased, leased, rented, paid for (in whole or in part), or were prescribed a Recalled
Device (“Users”), or (b) reimbursed (in whole or part) a payment to purchase, lease, rent, or otherwise
pay for a Recalled Device, including insurers, self-funded employers, and third-party payers (“Payers”),
have the right to know about a proposed legal Settlement affecting them. The Recalled Devices are the
CPAP, BiPAP, ventilator, and/or other devices sold, leased, rented or otherwise distributed in the United
States identified in Question 9 below.
This Notice explains the lawsuit, the Settlement, your legal rights, what benefits are available, who is
eligible for those benefits, and how to get them. A full copy of the Settlement Agreement (along with
other relevant documents) is available at www.RespironicsCPAP-ELSettlement.com. Capitalized terms
in this Notice have the same meaning as defined in the Settlement Agreement.
Judge Joy Flowers Conti of the United States District Court for the Western District of Pennsylvania is
presiding over this litigation. The litigation is called: In re Philips Recalled CPAP, BI-LEVEL PAP, and
Mechanical Ventilator Products Litigation, Master Docket No. 21-mc-1230-JFC, MDL No. 3014 (W.D.
Pa.).
If the Settlement is approved, Judge Conti (or her successor) will retain jurisdiction over the Settlement,
including the interpretation, implementation, administration, consummation, and enforcement of the
Settlement and the Settlement Agreement.

2. What is this lawsuit about?

Plaintiffs assert Economic Loss Claims relating to the approximately 10.8 million Continuous Positive
Airway Pressure (“CPAP”) devices, Bi-Level Positive Airway Pressure (“BiPAP”) devices, ventilators,
and other devices sold or otherwise distributed in the United States (including its Territories and the
District of Columbia) that were subsequently recalled (the “Recalled Devices”) by Philips RS North
America LLC (“Philips Respironics”). Plaintiffs allege that the particular type of noise-reducing foam
used in the Recalled Devices was defective. Philips Respironics announced the Recall on June 14, 2021
and began the “Recall Programs” in September 2021 to replace certain of the Recalled Devices with
remanufactured CPAPs, BiPAPs and ventilators that do not include the challenged foam (the
“Remanufactured Devices”) and/or to provide other compensation.
This proposed Settlement is about the Recalled Devices, not the Remanufactured Devices.
This Settlement does not resolve claims for personal injury or medical monitoring. Those claims
continue to be litigated.
The Philips Defendants (Philips Respironics, Koninklijke Philips N.V., Philips North America LLC,
Philips Holding USA, Inc., and Philips RS North America Holding Corporation) deny all of the allegations
made in the litigation. They have also asserted numerous defenses to the claims in this case. The proposed
Settlement is not an admission of liability or wrongdoing of any kind by the Philips Defendants. The
Court also has not decided that the Philips Defendants have done anything wrong.

QUESTIONS? CALL 1-855-912-3432 OR VISIT:

www.RespironicsCPAP-ELSettlement.com
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3. What is a class action?

In a class action, one or more individuals and/or entities called “class representatives” sue on behalf of
themselves and others who have similar claims. This group of individuals and/or entities is called the
“class,” and the individuals and/or entities in the class are called “class members.” The resolution of the
class representatives’ lawsuit resolves the claims for all class members, except those who exclude
themselves from (i.e., opt out of) the class.

4. Why is there a proposed Settlement?

Both sides agreed to a proposed Settlement after extensive litigation and negotiations before a Court-
appointed mediator with substantial experience mediating economic loss claims. Both sides agreed to this
Settlement to avoid the costs, delays, and risks of a trial. Settlement Class Members can get compensation
or other benefits from the Settlement. The class representatives and their attorneys think the Settlement
is a good result for the Class. The Court did not decide in favor of the Plaintiffs or the Philips Defendants.
There has been no determination that the Philips Defendants did anything wrong, and the Philips
Defendants continue to deny any wrongdoing, liability or damage to class members. The Settlement is
subject to approval by the Court.

WHO IS IN THE PROPOSED SETTLEMENT CLASS?

5. How do I know if I am in the Settlement Class?

You are a member of the Settlement Class if you are a natural person or entity residing in the United States
(including its Territories and the District of Columbia), including military and diplomatic personnel
stationed overseas, who either: (a) purchased, leased, rented, paid for (in whole or in part), or were
prescribed a Recalled Device (“Users”), or (b) reimbursed (in whole or in part) a payment to purchase,
lease, rent, or otherwise pay for a Recalled Device, including insurers, self-funded employers, and third-
party payers. The Recalled Devices are listed below at Question 9 and defined in the Settlement
Agreement at Section 1.37.
Excluded from the Settlement Class are: (a) the Philips Defendants and their employees, officers, and
directors; (b) the Judge, mediator and Special Masters assigned to the case; (c) individuals who have
already released the Released Claims against one or more of the Philips Defendants pursuant to individual
settlements or other resolutions; (d) Durable Medical Equipment (“DME”) providers; (e) federal
government payers; and (f) Settlement Class Counsel.

6. What should I do if I am still not sure whether I am included in the Class?

If you are not sure whether you are included in the Settlement Class, you can ask for free help by calling
the Settlement Administrator at 1-855-912-3432 for more information. You can also visit
www.RespironicsCPAP-ELSettlement.com for more information or send an email to
[email protected]. You can also look at the sticker with the Serial Number
and other identifying information on your CPAP device, BiPAP device, or ventilator to see if it is one of
the Recalled Devices.

QUESTIONS? CALL 1-855-912-3432 OR VISIT:

www.RespironicsCPAP-ELSettlement.com
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THE PROPOSED SETTLEMENT BENEFITS AND HOW TO GET A PAYMENT

7. How much will the Philips Defendants pay under the proposed Settlement?

The Philips Defendants have agreed to pay a minimum of $445 million to compensate eligible Users for
Device Payment Awards and Device Return Awards. To the extent this amount is not sufficient to pay all
Device Payment Awards and Device Return Awards required by the Settlement, the Philips Defendants will
make additional payments to pay all eligible Users who qualify for those payments under the Settlement.
The Philips Defendants will also pay Users up to an additional $15 million for Device Replacement
Awards.
The Philips Defendants have agreed to pay $34 million for Payer Awards to eligible Payers.
In addition to making the payments described above, the Philips Defendants will also separately pay the
reasonable costs to administer the Settlement, the amount the Court awards with respect to the motion for
attorneys’ fees and litigation expenses that will be filed by Settlement Class Counsel in connection with
the Settlement, and any Service Awards the Court approves for the five Settlement Class Representatives.
These payments will not reduce the amounts paid to Settlement Class Members.
The benefits provided by the proposed Settlement are separate and distinct from any relief provided under
the Philips Respironics Recall Programs. However, if the financial compensation to a particular User
under the Settlement is greater than the financial compensation provided under the Recall Programs to the
same User, or vice versa, nothing precludes that User from recovering the larger of the two but not both.
Go to www.RespironicsCPAP-ELSettlement.com for further information and details.

8. What is the easiest way for Users who still have their Recalled Devices to maximize their
Settlement payment?

The easiest way for Users who still have their Recalled Devices to get a payment and maximize their
payment is to return their Recalled Devices to Philips Respironics. If you return your Recalled Device,
you will get an automatic Device Payment Award and a $100 Device Return Award. Go to
www.RespironicsCPAP-ELSettlement.com to enroll in the Settlement and receive a prepaid label to
return your Recalled Device to Philips Respironics for free.
The Enrollment Process is available for all Recalled Devices except the Trilogy 100/200 Recalled Devices;
for those Users who still possess their Trilogy 100/200 Recalled Devices and wish to receive a Device
Return Award, they should register their Trilogy 100/200 with Philips Respironics pursuant to a Recall
Program and follow the process under the Recall Program. The User’s DME will reach out to the User to
schedule a time to pick up the Trilogy 100/200 and install a Remanufactured Device.

9. How much are the Device Payment Awards for Users?

If you are a User, you may be eligible for a Device Payment Award for each Recalled Device you
purchased, leased, or rented. The amount of the award depends on the specific model of your Recalled
Device:

User Device Payment

Recalled Device
Award (Per Device)

QUESTIONS? CALL 1-855-912-3432 OR VISIT:

www.RespironicsCPAP-ELSettlement.com
Settlement Agreement Exhibit 3(a): Long Form Notice and FAQ’s 12
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System One 50 Series ASV4 (Auto SV4) $469.14

System One 50 Series Base $69.14
System One 50 Series BiPAP $159.46
System One 60 Series ASV4 (Auto SV4) $424.32
System One 60 Series Base $68.24
System One 60 Series BiPAP $152.70
C-series S/T, AVAPS (C-series and C-series HT) $394.37
DreamStation CPAP $55.63
DreamStation ASV $379.50
DreamStation ST, AVAPS $329.05
DreamStation BiPAP $130.63
DreamStation Go $107.43
E30 $453.83
OmniLab Advanced Plus $165.99
Trilogy 100/200, Garbin Plus, Aeris LifeVent $1,552.25
V30 auto $67.12

If more than one User makes a claim for a Device Payment Award with respect to the same Recalled
Device (e.g., a rental Recalled Device), the Device Payment Award will be allocated among those Users
by the Settlement Administrator on a pro rata basis following the Claims Period Deadline.
If a User returned their Recalled Device to Philips Respironics under warranty (outside of a Recall
Program) and received another Recalled Device for free pursuant to that warranty, the User is only eligible
for a Device Payment Award for the Recalled Device provided to the User for free under warranty, not
the original Recalled Device returned to Philips Respironics under warranty.
If a User returned his or her Recalled Device under warranty (outside of a Recall Program) and received
his or her full payment back, the User is not eligible for a Device Payment Award for the Recalled Device
the User returned.
Please keep in mind that if you returned a Recalled Device to Philips Respironics and received a
Remanufactured Device from Philips Respironics, your potential claim for Settlement benefits is
for the Recalled Device, not the Remanufactured Device.

10. How much are the Device Return Awards for Users?

If you are a User, you are eligible for a $100 Device Return Award for each Recalled Device you return
(or already returned) to Philips Respironics. The return deadline is Claims Period Deadline. The amount
of the Device Return Award does not depend on the specific model of the Recalled Device.

QUESTIONS? CALL 1-855-912-3432 OR VISIT:

www.RespironicsCPAP-ELSettlement.com
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11. How much are the Device Replacement Awards for Users?

If you are a User, you may be eligible for a Device Replacement Award for money you spent to replace
a Recalled Device with a comparable CPAP, BiPAP, or ventilator Replacement Device on or after June
14, 2021 and before September 7, 2023. To qualify, you had to purchase the Replacement Device before
you received, or without receiving, a Remanufactured Device from Philips Respironics.
To receive a Device Replacement Award, you must submit a claim supported by the required information
and documentation. Go to www.RespironicsCPAP-ELSettlement.com to obtain and complete a copy
of the Device Replacement Award Claim Form and submit the required information and documentation.
You must also return your Recalled Device (if you still have it) to Philips Respironics, and if you received
a Remanufactured Device from Philips Respironics, you must return that as well.
The amount of a Device Replacement Award will depend on the amount paid by the User (not any payment
made by insurance or a third-party payer) to purchase, lease, or rent the Replacement Device, the value of
a device that is comparable to the replaced Philips Respironics Recalled Device, as well as the number of
valid Device Replacement Award claims submitted.
Users who receive Device Replacement Awards are also eligible for Device Payment Awards. However,
except in certain circumstances, Users who receive Device Replacement Awards are not eligible for
Device Return Awards.
Visit the Device Replacement Award Tab at www.RespironicsCPAP-ELSettlement.com for more
details.

12. What is the Extended Warranty on Remanufactured Devices?

If you are a User and you received or receive a Remanufactured Device as part of a Philips Respironics
Recall Program, you will receive the following extended warranty from Philips Respironics:
• 2 years for materials and workmanship for Remanufactured Devices that have a different Serial
Number from the associated Recalled Device; or
• 2 years for materials and workmanship on the repair work that was performed by Philips
Respironics pursuant to the Recall Programs (not the entire Remanufactured Device) on
Remanufactured Devices that have the same Serial Number as the associated Recalled Device.
The extended warranty begins (i) for Remanufactured Devices shipped by Philips Respironics directly to
the User, on the date of shipment to the User, and (ii) for Remanufactured Devices shipped by Philips
Respironics to the DME, on the date the Remanufactured Device was set up by the DME for the User.

13. What is the Accelerated Implementation Option for Users?

Users who return (or already returned) their Recalled Devices to Philips Respironics by Claims Period
Deadline can get paid more quickly – i.e., before the completion and outcome of any appeals – if they
complete the necessary forms for the Accelerated Implementation Option (“AIO”). To get an accelerated
payment, go to www.RespironicsCPAP-ELSettlement.com and complete the necessary AIO forms. The
deadline to elect the AIO is the Claims Period Deadline or the completion of any appeals from MDL Court
Final Approval, whichever is later. To be eligible for the AIO, you must return your Recalled Device to
Philips Respironics by Claims Period Deadline.

QUESTIONS? CALL 1-855-912-3432 OR VISIT:

www.RespironicsCPAP-ELSettlement.com
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In exchange for an accelerated Device Payment and Device Return Award, Users will be required to
(a) provide the Philips Defendants and the other Released Parties with an individual release of their Economic
Loss Claims, including both known and unknown claims, (b) make a sworn attestation as to whether they
used ozone cleaning with their Recalled Device, and (c) if they used ozone cleaning, submit a signed
individual assignment to Philips Respironics of all their Economic Loss Claims against the manufacturer of
their ozone cleaner.
Users who rented a Recalled Device are not eligible for accelerated payments. Device Replacement Awards
are also not subject to an accelerated payment option.

14. What are the Settlement Benefits for Payers? (Payer Awards)

If you are a Payer, you may qualify for a Payer Award from the $34 million fund established for Payer
Awards. Payer Awards will be calculated based on each Eligible Payer’s relative market share (aggregated
among all Eligible Payers) based on the number of insured lives covered by the Eligible Payer and the
dollar amount of direct premiums written by the Eligible Payer in the Calendar Years 2021 and 2022
(“Market Share Percentage”). The Settlement Administrator will determine each Eligible Payer’s Market
Share Percentage based on industry data and the information provided in the Eligible Payer’s Declaration
and Claim Form.
Payers are not eligible for Device Payment, Device Return or Device Replacement Awards, and are not
eligible for accelerated payments.
Go to www.RespironicsCPAP-ELSettlement.com and click on the Payer Tab, or call 1-855-912-3432,
for more details.

15. How can I get a payment? What steps do I need to take?

The chart on pages 3-6 above summarizes the steps that must be taken by Users, and the deadlines, to get
a Device Payment Award, Device Return Award, and/or Device Replacement Award under the
Settlement. Go to www.RespironicsCPAP-ELSettlement.com for more information and to submit a
claim, if necessary. The easiest way for Users who still have their Recalled Devices to get a payment
and maximize that payment is to return their Recalled Devices(s) to Philips Respironics.
Payers must submit a Declaration and Claim Form supported by the required information and
documentation to get a payment. Visit the Payer Tab at www.RespironicsCPAP-ELSettlement.com
for details.

16. I already registered my Recalled Device in a Recall Program. Do I also need to enroll in the
Settlement for that Recalled Device?

No. If you already registered your Recalled Device in a Philips Respironics Recall Program, you do not
separately need to enroll that device in this Settlement. The information from your registration will be
provided to the Settlement Administrator. However, please go to www.RespironicsCPAP-
ELSettlement.com to confirm or update your contact information, as well as to choose your preferred
payment option.

17. Where can I obtain more information about the Settlement and obtain a Claim Form?

QUESTIONS? CALL 1-855-912-3432 OR VISIT:

www.RespironicsCPAP-ELSettlement.com
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You can obtain more information about the Settlement and submit a claim, if necessary, by going to
www.RespironicsCPAP-ELSettlement.com. You can also submit a paper claim by downloading a
claim form from www.RespironicsCPAP-ELSettlement.com and mailing it, along with any necessary
supporting documentation, to Respironics CPAP Settlement, c/o Settlement Administrator, 1650 Arch
Street, Suite 2210, Philadelphia, PA 19103. You can also call the Settlement Administrator at 1-855-912-
3432 and they will mail you a paper claim form.

18. What is the deadline for submitting a claim?

The deadline for taking any steps required under the Settlement to receive a payment is Claims Period
Deadline.

19. When will I get my payment?

It is too early to answer this question. The Court will hold a hearing on _____, 2024 at ___ a.m., to decide
whether to approve the Settlement. The Court may move the Final Approval Hearing to a different date
or time without providing further notice to the Settlement Class. The date and time of the Final Approval
Hearing can be confirmed at www.RespironicsCPAP-ELSettlement.com. Please check it regularly for
updates.
However, even if the Court approves the Settlement, there may be appeals that further delay payments
unless you are a User who qualifies for and elects the Accelerated Implementation Option. Please be
patient.

20. What am I giving up if I stay in the Class?

Unless you timely exclude yourself from the Settlement Class with a valid opt-out request (see Questions
27-30), your Economic Loss Claims will be released, and you cannot sue, continue to sue, or be part of
any other lawsuit against the Philips Defendants or the other Released Parties seeking to recover for
Economic Loss Claims. Any such Economic Loss Claims by you will be barred whether or not you
complete the steps necessary to receive a payment under the proposed Settlement. You may, however,
pursue claims for personal injury or medical monitoring; those claims are not released by this
proposed Settlement.
In addition, if you do not timely and validly opt out of the Settlement, you will assign to Philips
Respironics any Economic Loss Claims you may have against Ozone Cleaning Companies.
Details regarding the “Releases” and “Assignment” are in Sections 4 and 5 of the Settlement Agreement,
which can be viewed at www.RespironicsCPAP-ELSettlement.com.

WHAT OTHER STEPS CAN I TAKE?

21. How can I monitor the progress of the proposed Settlement?

Updates regarding the proposed Settlement, including the timing of the Final Fairness Hearing, will be
posted at www.RespironicsCPAP-ELSettlement.com. If you visit that website and input your Claim ID
number (which can be found on the Notice you received via postal mail and/or email notifying you about
the Settlement), you will get automatic updates regarding the proposed Settlement.

QUESTIONS? CALL 1-855-912-3432 OR VISIT:

www.RespironicsCPAP-ELSettlement.com
Settlement Agreement Exhibit 3(a): Long Form Notice and FAQ’s 16
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 97 of 168

22. How can I verify or update my contact information and choose my payment option?

All Settlement Class Members can update their contact information and choose their preferred payment
option by visiting www.RespironicsCPAP-ELSettlement.com, or by sending an email to
[email protected], or by calling 1 855-912-3432.
Payment options for Users are Zelle, Virtual Mastercard, or paper check. Payers may choose ACH
payment or paper check. Processing times for paper check will be longer.

THE LAWYERS REPRESENTING THE CLASS

23. Do I have a lawyer in connection with the Economic Loss Claims that are the subject of this
Settlement?

Yes. The Court appointed the following lawyers to represent you and the other Settlement Class Members:
Christopher A. Seeger of Seeger Weiss; Sandra L. Duggan of Levin Sedran & Berman; Steven A.
Schwartz of Chimicles Schwartz Kriner & Donaldson-Smith LLP; Kelly K. Iverson of Lynch Carpenter,
LLP; Roberta D. Liebenberg of Fine, Kaplan and Black, R.P.C.; Lisa Ann Gorshe of Johnson Becker
PLLC; and Arthur H. Stroyd, Jr. of Del Sole Cavanaugh Stroyd LLC.
These firms are called Settlement Class Counsel. You will not be charged for their services.

24. How will the lawyers who served as Class Counsel be paid?

In addition to the payments described above to Settlement Class Members, the Philips Defendants have
agreed to pay the amount the Court awards with respect to the motion for attorneys’ fees and costs that
will be filed by Settlement Class Counsel, with the attorneys’ fees being calculated based on the
percentage of recovery methodology, with a lodestar cross-check, and paid apart from and in addition to
the payments to Settlement Class Members. Settlement Class Counsel will not seek an award of attorneys’
fees in excess of $175,000,000, which Settlement Class Counsel contend represents a fair percentage of
the value of the Settlement in terms of cash recoveries and other benefits to the Settlement Class. The
Philips Defendants fully reserve the right to challenge that amount, any percentage upon which it is based,
and the items comprising the claimed value of the Settlement. Settlement Class Counsel will also ask the
Court for an award of litigation expense reimbursements of up to $2,500,000. The Philips Defendants
fully reserve the right to challenge that amount.
The Philips Defendants have not agreed to pay these amounts. Instead, Settlement Class Counsel and the
Philips Defendants, with the assistance of the Settlement Mediator appointed by the Court, will attempt to
reach agreement on the amount of attorneys’ fees and costs that Settlement Class Counsel will submit for
approval from the Court. If Settlement Class Counsel and the Philips Defendants do not reach agreement
on the amount of attorneys’ fees and costs, they will litigate the matter and will present their respective
positions to the Court. Whether the parties are able to reach agreement or not, the Court will determine
what is the fair and reasonable amount of attorneys’ fees and costs.
The final amount of attorneys’ fees and costs awarded by the Court will not reduce the payments to
Settlement Class Members.
A copy of Settlement Class Counsel’s Motion for Attorneys’ Fees and Expenses will be available 30 days
prior to the Opt-Out/Objection Deadline at www.RespironicsCPAP-ELSettlement.com.

QUESTIONS? CALL 1-855-912-3432 OR VISIT:

www.RespironicsCPAP-ELSettlement.com
Settlement Agreement Exhibit 3(a): Long Form Notice and FAQ’s 17
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 98 of 168

25. Should I get my own lawyer?

You do not need to hire your own lawyer because Settlement Class Counsel are working on your behalf
in connection with the Economic Loss Claims. If you want your own lawyer, you may hire one at your
own expense. For example, you can ask your own lawyer to appear in Court if you want someone other
than Settlement Class Counsel to speak for you, and you follow the necessary steps to appear. You may
also appear for yourself without a lawyer if you follow the necessary steps to do so discussed in Question
35 below.

26. Who are the Settlement Class Representatives and what will they get from the Settlement?

The Settlement Class Representatives are: Elizabeth Heilman, Peter and Julie Barrett, and Ivy Creek of
Tallapoosa LLC d/b/a Lake Martin Community Hospital, who are Users; and ASEA/AFSCME Local 52
Health Benefits Trust, which is a Payer. Settlement Class Counsel will ask the Court to award each
Settlement Class Representative $5,000 as a Service Award for their efforts in serving as a class
representative in connection with this proposed Settlement. Other than this potential award, the Settlement
Class Representatives will be eligible for the same Settlement benefits as every other Settlement Class
Member in the same situation. Settlement Class Counsel will assert to the Court that the Service Awards
are reasonable because the Settlement Class Representatives agreed to serve in that capacity and spent
significant time consulting with counsel in connection with this proposed Settlement.

The Service Awards approved by the Court will be paid by the Philips Defendants separate and apart from
the other Settlement payments described in this notice and will not reduce the payments to Settlement
Class Members.

EXCLUDING YOURSELF FROM THE SETTLEMENT

If you don’t want a payment or any other benefits from the Settlement and you want to keep your ability
to sue the Philips Defendants or the other Released Parties or Ozone Cleaning Companies for any
Economic Loss Claims, then you must take steps to get out of the Settlement. This is called excluding
yourself from—or “opting out” of—the Settlement Class.

27. How do I get out of the Settlement?

You may opt out of the Settlement by mailing an opt out request to the Claims Administrator at:
Respironics CPAP Settlement
Attn: Exclusions
P.O. Box 58220
Philadelphia, PA 19102
Users who desire to opt out of the Settlement must mail a written request to opt out stating that they seek
exclusion from the Settlement and identifying their Recalled Device(s) by Serial Number, if known, and
including information regarding the type of Recalled Device, the approximate date of acquisition, and the
type of acquisition (e.g., purchase, rental, etc.). The Settlement Class Member shall also include their
contact information, including name, address, telephone number, and email, if any, as well as the same

QUESTIONS? CALL 1-855-912-3432 OR VISIT:

www.RespironicsCPAP-ELSettlement.com
Settlement Agreement Exhibit 3(a): Long Form Notice and FAQ’s 18
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information regarding the Settlement Class Member’s counsel (if applicable). Incomplete opt-outs are
invalid.
Payers who desire to opt out of the Settlement must mail a written request to opt out stating that they seek
exclusion from the Settlement and must include the full name of Payer plan and whether the Payer made
payments to reimburse (in whole or part) Users’ payments to purchase, lease, rent, or otherwise pay for
Recalled Devices; number of lives insured by the Payer in each of the calendar years 2008 to 2021; and
number of direct premiums written in each of the calendar years 2008 to 2021.
To be valid and effective, an original request to opt-out must be signed by the Settlement Class Member
or the Settlement Class Member’s Representative Claimant, but not by the Settlement Class Member’s
counsel, if any, or anyone else. Representative Claimants must supply the Settlement Administrator with
written proof that such person has legal authority to act in a representative capacity for the Settlement
Class Member. A pleading or any other request to opt out made or signed only by counsel for the
Settlement Class Member shall not be sufficient. Mass opt-outs also are not permitted, and each
Settlement Class Member may only opt out on behalf of himself, herself, or itself. Electronic signatures
(other than DocuSign) are not valid and effective, whether for Settlement Class Members or
Representative Claimants.
The opt-out request must be postmarked no later than Opt-Out/Objection Deadline or it will be
denied as untimely and invalid.

28. If I don’t opt out, can I sue the Philips Defendants for Economic Loss Claims later?

No. Unless you submit a timely and valid opt out, if the Settlement is approved, you give up the right to
bring any Economic Loss Claims against the Philips Defendants or the other Released Parties. Any such
Economic Loss Claims by you will be barred whether or not you complete the steps necessary to receive
a settlement payment. You must exclude yourself from the Settlement Class if you want to try to pursue
your own lawsuit for Economic Loss Claims against the Philips Defendants or the other Released Parties.
Remaining in the Settlement Class does not affect any personal injury or medical monitoring claims
you may have.

29. If I don’t opt out, can I sue Ozone Cleaning Companies for Economic Loss Claims?

No. If you do not opt out and the Settlement is approved, you will assign to Philips Respironics your
Economic Loss Claims against Ozone Cleaning Companies.

30. What happens if I opt out?

If you submit a timely and valid request to opt out of the Settlement, you will not have any rights as a
member of the Settlement Class under the Settlement; you will not receive any payment or other benefits
provided by the Settlement; you will not be able to object to the Settlement; and you will keep the right,
if any, to sue on any Economic Loss Claims.

OBJECTING TO THE SETTLEMENT

31. How do I tell the Court that I have an objection to the Settlement?

QUESTIONS? CALL 1-855-912-3432 OR VISIT:

www.RespironicsCPAP-ELSettlement.com
Settlement Agreement Exhibit 3(a): Long Form Notice and FAQ’s 19
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 100 of 168

If you are a Settlement Class Member and do not opt out of the Settlement, you can object to the Settlement
(or any aspect of it) by mailing an objection to the Settlement Administrator. You can also object to the
amount sought in the motion for attorneys’ fees and costs that will be filed by Settlement Class Counsel,
or the proposed Service Awards to the Settlement Class Representatives. The Court will consider your
views. You can’t ask the Court to compel the parties to agree to a different Settlement; the Court can only
approve or reject the proposed Settlement as presented and explain its reasons for doing so. If the Court
denies approval, no Settlement payments will be made, and the lawsuit will continue unless the parties
negotiate a revised Settlement.
Any objection to the proposed Settlement must be in writing and mailed to the Settlement Administrator
at the following address: Respironics CPAP Settlement, Attn: Objections, P.O. Box 58220, Philadelphia,
PA 19102. The postmark deadline for any objection is Opt-Out/Objection Deadline. Any objections
that are not postmarked by Opt-Out/Objection Deadline are untimely and invalid.
All objections must state that you object to the proposed Settlement in In re Philips Recalled CPAP, BI-
LEVEL PAP, and Mechanical Ventilator Products Litigation, Master Docket No. 21-mc-1230-JFC, MDL
No. 3014 (W.D. Pa.).
All objections also must state whether the objection asserted applies only to the objector, to a specific
subset of the Settlement Class, or to the entire Settlement Class, and must also state with specificity the
grounds for the objection and include all supporting evidence and documentation. Any objection must
include a statement whether the Settlement Class Member intends to appear at the Final Fairness Hearing
either with or without the objector’s counsel (who must be identified). Any objection must also identify
any witnesses intended to be called, the subject area of the witnesses’ testimony, and identify and attach
a copy of all documents to be used or offered into evidence at the Final Fairness Hearing. Failure to do
so may result in the exclusion of such appearances, documents, witnesses, and/or evidence from the Final
Fairness Hearing.
Any objection must provide information sufficient to show the objector’s membership in the Settlement
Class. Users must include in their objection the Serial Number(s), if known, and the type of their Recalled
Device(s). Payers must include in their objection whether the Payer reimbursed (in whole or part) Users’
payments to purchase, lease, or rent Recalled Devices; the number of lives insured by the Payer in each
of the calendar years 2008 to 2022; and the number of direct premiums written in each of the calendar
years 2008 to 2022.
The objection must state if the objector or the objector’s counsel have objected to a class action Settlement
during the past 5 years, and if so, identify all cases in which the objector or the objector’s counsel have
filed an objection by caption, court and case number, and for each case, the disposition of the objection,
including whether any payments were made to the objector or the objector’s counsel, and if so, the
incremental benefits, if any, that were achieved for the class in exchange for such payments.
The objection must be signed by the Settlement Class Member and his, her, or its counsel, if any. An
objection signed by counsel alone is not valid. Any objection not submitted in full compliance with these
terms and procedures are invalid and deemed waived.
If you make a timely and valid written objection, you may (but are not required to) appear at the Final
Approval Hearing, either in person or through your own attorney, provided that you state that intention to
appear in the objection itself. If you appear through your own attorney, you are responsible for hiring and
paying that attorney.

QUESTIONS? CALL 1-855-912-3432 OR VISIT:

www.RespironicsCPAP-ELSettlement.com
Settlement Agreement Exhibit 3(a): Long Form Notice and FAQ’s 20
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 101 of 168

32. What’s the difference between objecting and opting out?

Objecting is telling the Court that you don’t like something about the proposed Settlement. You can object
to the proposed Settlement only if you do not exclude yourself from the Settlement Class. You can still
get the Settlement benefits if it is approved over your objection.
Excluding yourself from the proposed Settlement is opting out and telling the Court that you don’t want
to be part of the Settlement. If you opt out of the Settlement, you cannot object to it because it no longer
affects you.
You cannot opt out of the Settlement and object to it.

THE COURT’S FINAL APPROVAL HEARING

33. When and where will the Court decide whether to approve the proposed Settlement?

The Court will hold a Final Approval Hearing on ____________, 2024 at ____m., in Courtroom 5A of
the Joseph F. Weiss, Jr. U.S. Courthouse, 700 Grant Street, Pittsburgh, PA 15219.
At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. If there
are objections, the Court will consider them. The Court will listen to Settlement Class Members (or their
counsel) who have timely and properly asked to speak at the hearing. The Court will then decide whether
to approve the Settlement.
The Court may also decide how much should be awarded with respect to the motion for attorneys’ fees
and costs that will be filed by Settlement Class Counsel, and how much the Settlement Class
Representatives should receive in Service Awards.
The Court may reschedule the Final Approval Hearing or change any of the deadlines described in this
Notice. The date of the Final Approval Hearing may change without further notice to Settlement Class
Members. Be sure to check the website, www.RespironicsCPAP-ELSettlement.com, for news of any
such changes. You can also access the case docket 21-mc-1230 via the Court’s Public Access to Court
Electronic Records (PACER) system at https://ecf.pawd.uscourts.gov or access the Court’s public
information website for the litigation at: https://www.pawd.uscourts.gov/mdl-3014-re-philips-
recalled-cpap-bi-level-pap-and-mechanical-ventilator-products-litigation.

34. Do I have to come to the Final Approval Hearing?

No. Settlement Class Counsel will answer any questions the Court may have. You may attend at your
own expense if you wish. If you mail an objection to the Settlement Administrator, you do not have to
come to the hearing to talk about it. As long as you meet the requirements for objections, the Court will
consider it. You may also pay your own lawyer to attend, but that is not necessary.

35. May I speak at the hearing?

You may ask the Court for permission for you or your own lawyer (hired at your own expense) to speak
at the Final Approval Hearing. To do so, you must include a statement in your written objection (see
Question 31) that you and/or your lawyer intend to appear at the hearing. Be sure to meet all the objection
requirements (see Question 31).

QUESTIONS? CALL 1-855-912-3432 OR VISIT:

www.RespironicsCPAP-ELSettlement.com
Settlement Agreement Exhibit 3(a): Long Form Notice and FAQ’s 21
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 102 of 168

You cannot speak at the hearing or send your own lawyer to speak on your behalf if you exclude yourself
from the Settlement Class.

IF I DO NOTHING
36. What happens if I do nothing at all?

If you take no action at all, you will get no Settlement payment unless you are a User and you qualify for
an Automatic Payment. If you are a User who qualifies for an Automatic Payment, you will be sent a
check for your automatic Device Payment Award and Device Return Award to your last known address
if you do nothing further. But to ensure your information is up to date, please go to
www.RespironicsCPAP-ELSettlement.com to verify or update your contact information, provide the
Serial Number of your Recalled Device and Recall Registration Number to expedite your payment, and
confirm your preferred payment option.
All other Settlement Class Members must take further action to receive a payment. See Question 15
above. If you do nothing, you’ll be a Settlement Class Member but you won’t get a payment from this
Settlement.
If you are a Settlement Class Member and you do not exclude yourself as explained in Question 27, you
will give up your right to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against
the Philips Defendants, the other Released Parties, and/or Ozone Cleaning Companies for Economic Loss
Claims. Any such Economic Loss Claims by you will be barred whether or not you complete the steps
necessary to receive a Settlement payment. However, any claim you may have for personal injury or
medical monitoring will not be affected even if you do nothing.

GETTING MORE INFORMATION

37. Are more details about the Settlement available?

Yes. This Notice simply summarizes the proposed Settlement. The specific details are in the Settlement
Agreement and other case documents. You can get a copy of these and other documents at
www.RespironicsCPAP-ELSettlement.com, by emailing Info@RespironicsCPAP-
ELSettlement.com, by calling 1-855-912-3432, by accessing the docket in this case through the Court’s
Public Access to Court Electronic Records (PACER) system at: https://ecf.pawd.uscourts.gov or access
the Court’s public information website for the litigation at: https://www.pawd.uscourts.gov/mdl-3014-
re-philips-recalled-cpap-bi-level-pap-and-mechanical-ventilator-products-litigation, or by visiting
the office of the Clerk of the Court for the United States District Court for the Western District of
Pennsylvania located at Joseph F. Weiss, Jr. U.S. Courthouse, 700 Grant Street, Pittsburgh, PA 15219
between 8:30 a.m. and 4:30 p.m., Monday through Friday, excluding Court holidays.

PLEASE DO NOT CALL THE COURT OR THE COURT CLERK’S OFFICE TO INQUIRE
ABOUT THIS SETTLEMENT OR THE CLAIM PROCESS.

38. How do I get more information?

The Settlement Website, www.RespironicsCPAP-ELSettlement.com, has relevant information about

the Settlement, including claim forms, answers to questions about the Settlement and relevant pleadings
QUESTIONS? CALL 1-855-912-3432 OR VISIT:
www.RespironicsCPAP-ELSettlement.com
Settlement Agreement Exhibit 3(a): Long Form Notice and FAQ’s 22
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 103 of 168

filed with the Court. These documents will tell you more about the Settlement and help you determine
whether you are eligible for a payment.
You can also call 1-855-912-3432 or write to the Claims Administrator at:
Respironics CPAP Settlement
c/o Settlement Administrator
1650 Arch Street, Suite 2210
Philadelphia, PA 19103
Settlement Class Counsel can also be reached using the following contact information:
[email protected].

QUESTIONS? CALL 1-855-912-3432 OR VISIT:

www.RespironicsCPAP-ELSettlement.com
Settlement Agreement Exhibit 3(a): Long Form Notice and FAQ’s 23
Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 104 of 168

SETTLEMENT AGREEMENT

EXHIBIT 3(b)
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 105 of 168

A PROPOSED CLASS ACTION SETTLEMENT WILL PAY YOU

$100 TO RETURN YOUR CPAP, BIPAP, OR VENTILATOR
RECALLED BY PHILIPS RESPIRONICS

As explained in more detail in the enclosed Notice of Proposed Class Action

Settlement, a proposed settlement has been submitted for approval by the Court.

You are receiving this additional notification because you have already registered
your CPAP, BiPAP or Ventilator device in the Philips Respironics Recall Program, but you
have not yet returned your Recalled Device.

If the proposed settlement is approved, in addition to receiving a Device Payment

Award, you can also receive a $100 Device Return Award if you return your Recalled
Device before [Claims Period Deadline].

Please visit www.RespironicsCPAP-ELSettlement.com or call toll-free 1-855-912-

3432 for more information about the proposed settlement and instructions on how to get a
prepaid label to return your Recalled Device so that you qualify for the $100 Device Return
Award.

Settlement Agreement Exhibit 3(b): Targeted Paper Notice to Non-Trilogy Users (Enclosed with FAQs)
Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 106 of 168

SETTLEMENT AGREEMENT

EXHIBIT 3(c)
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 107 of 168

A PROPOSED CLASS ACTION SETTLEMENT WILL PAY YOU

$100 AFTER YOUR DME REPLACES YOUR RECALLED
TRILOGY 100/200 VENTILATOR WITH A FREE
REMANUFACTURED VENTILATOR

As explained in more detail in the enclosed Notice of Proposed Class Action

Settlement, a proposed settlement has been submitted for approval by the Court.

You are receiving this additional notification because you have already registered
your Trilogy 100/200 Ventilator in the Philips Respironics Recall Program. At the
appropriate time, your DME will be reaching out to you to schedule a time to retrieve
your Trilogy 100/200 and install a Remanufactured Device. If you allow the DME to do
this, and the proposed settlement is approved, you will receive a $100 Device Return
Award and also a Device Payment Award.

Please visit www.RespironicsCPAP-ELSettlement.com or call toll-free 1-855-

912-3432 for more information about the proposed settlement.

Settlement Agreement Exhibit 3(c): Targeted Paper Notice to Trilogy Users (Enclosed with FAQs)
Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 108 of 168

SETTLEMENT AGREEMENT

EXHIBIT 3(d)
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 109 of 168

To: User Email Address

From: Settlement Administrator
Subject: Notice of Proposed Class Action Settlement – In re Philips Recalled CPAP, BI-
LEVEL PAP, and Mechanical Ventilator Products Litigation

Claim ID: <<Claim ID>>

Confirmation Code: <<Confirmation Code>>

NOTICE OF PROPOSED CLASS ACTION SETTLEMENT

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
A court authorized this Notice. This is not a solicitation from a lawyer.

If you paid for a Philips Respironics CPAP, BiPAP or Ventilator that was recalled, you
may be eligible for a cash award from a proposed class action settlement.
● A proposed Settlement has been reached in a U.S. class action lawsuit alleging Economic Loss
Claims related to the purchase, lease, or rental of recalled CPAPs, BiPAPs, and ventilators
manufactured by Philips Respironics between 2008 and 2021. Philips Respironics recalled
these devices in the United States beginning in June 2021.
● Under the proposed Settlement:
o a minimum of $445 million will be paid to “Users” who purchased, leased, or rented a
Recalled Device;
o up to an additional $15 million will be paid to “Users” who paid out of pocket for a
Replacement Device.
● The Settlement does not affect or release any claims for alleged personal injuries or
medical monitoring relief, which continue to be litigated.
● Users may qualify for:
o a Device Payment Award for each Recalled Device they purchased, leased, or
rented. The amount for each specific device model is listed in the table below;
o a Device Return Award of $100 for each Recalled Device they return (or already
returned) to Philips Respironics by Claims Period Deadline; and/or
o a Device Replacement Award for money Users paid to purchase a Replacement
Device on or after June 14, 2021 and before September 7, 2023 to replace a
Recalled Device with a comparable CPAP, BiPAP, or ventilator.
● If you are a User and you still have your Recalled Device but have not yet returned it to
Philips Respironics, visit www.RespironicsCPAP-ELSettlement.com for instructions on
how to get a prepaid label to return your Recalled Device. Doing so will help you maximize
your payment from the proposed Settlement.

Settlement Agreement Exhibit 3(d): Summary Email Notice for Users

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 110 of 168

● The chart below summarizes your rights and options. More details, including a full copy
of the Notice, which has Frequently Asked Questions (“FAQs”), the full Settlement
Agreement, and other relevant documents, are available at www.RespironicsCPAP-
ELSettlement.com. Capitalized terms in this Notice have the same meaning as defined in the
Settlement Agreement.
IF YOU ARE A USER WHO : THEN:
You are eligible for an automatic Device Payment
Award and a $100 Device Return Award for each
Registered your Recalled Device Recalled Device you returned, without the need to submit
in a Recall Program and you a claim (“Automatic Payment”).
already returned it to Philips Go to www.RespironicsCPAP-ELSettlement.com:
Respironics
-AND- • to verify your eligibility for payment;
You wish to participate in the • confirm or update your contact information; and
Settlement
• choose your preferred payment option.
By this Deadline: Claims Period Deadline

You are eligible for a Device Payment Award and a

$100 Device Return Award, without the need to submit
Registered your Recalled Device a claim, if you return your Recalled Device to Philips
in a Recall Program, but you Respironics.
have not yet returned it to
Philips Respironics, and you Go to www.RespironicsCPAP-ELSettlement.com:
would like to do so now to get a • get a prepaid label to return your Recalled Device
$100 Device Return Award to Philips Respironics for free;
-AND-
You wish to participate in the • confirm or update your contact information; and
Settlement • choose your preferred payment option.
By this Deadline: Claims Period Deadline

Settlement Agreement Exhibit 3(d): Summary Email Notice for Users

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 111 of 168

You are eligible for a Device Payment Award and a

$100 Device Return Award, without the need to submit
a claim, if you Enroll in the Settlement and return
Did not register your Recalled your Recalled Device to Philips Respironics.
Device in a Recall Program and
you still have your Recalled Go to www.RespironicsCPAP-ELSettlement.com:
Device and would like to return • Enroll in the Settlement, including by identifying
it to Philips Respironics to get a the Serial Number of the Recalled Device and
$100 Device Return Award providing your contact information;
-AND-
You wish to participate in the • get a prepaid label to return your Recalled Device
Settlement to Philips Respironics for free; and
• choose your preferred payment option.
By this Deadline: Claims Period Deadline

You are eligible for a Device Payment Award without

Registered your Recalled Device the need to submit a claim if you confirm or update
in a Recall Program before your contact information.
September 7, 2023, but you have
not returned it and you do not This option is only available for Recalled Devices that
intend to (or you cannot) return were registered before September 7, 2023.
your Recalled Device to Philips Go to www.RespironicsCPAP-ELSettlement.com:
Respironics
-AND- • confirm or update your contact information; and
You wish to participate in the • choose your preferred payment option.
Settlement
By this Deadline: Claims Period Deadline

You are eligible for a Device Payment Award if you

Did not register your Recalled submit a valid claim.
Device in a Recall Program
before September 7, 2023 and Go to www.RespironicsCPAP-ELSettlement.com:
you do not intend to (or you • complete a Device Payment Award Claim Form;
cannot) return your Recalled
Device to Philips Respironics • provide the Serial Number of the Recalled Device
-AND- and the required documentation; and
You wish to participate in the • choose your preferred payment option.
Settlement.
By this Deadline: Claims Period Deadline

Settlement Agreement Exhibit 3(d): Summary Email Notice for Users

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 112 of 168

You are eligible for a Device Replacement Award if you

submit a valid claim.
Spent your own money to
purchase a comparable Go to www.RespironicsCPAP-ELSettlement.com:
Replacement CPAP, BiPAP or
• complete a Device Replacement Award Claim
ventilator to replace a Recalled
Form;
Device on or after June 14, 2021
and before September 7, 2023 • provide the required documentation and complete
-AND- the required steps; and
You wish to participate in the
• choose your preferred payment option.
Settlement.
By this Deadline: Claims Period Deadline

You must mail to the Settlement Administrator a valid

request to opt out of the Settlement.
Follow the instructions in Question 27 of the FAQs or go
to www.RespironicsCPAP-ELSettlement.com for more
Wishes to exclude yourself from information.
the Settlement.
If you opt out of the Settlement, you will get no
Settlement payment or other Settlement benefits. You
also cannot object to the Settlement.
By this Deadline: Opt-Out/Objection Deadline

You must mail to the Settlement Administrator a valid

objection to the Settlement.
Follow the instructions in Question 31 of the FAQs or go
Wishes to object to the to www.RespironicsCPAP-ELSettlement.com for more
Settlement. information.
If you object to the Settlement, you cannot also opt out of
the Settlement.
By this Deadline: Opt-Out/Objection Deadline

If you take no action at all, you will get no Settlement

payment unless you are a User and you qualify for an
Automatic Payment.
Wants to do nothing. If the Settlement is approved by the Court, you will still
be bound by the Settlement and be giving up your
Economic Loss Claims against the Philips Defendants
and the other Released Parties and assigning to Philips
Respironics your Economic Loss Claims against
manufacturers of ozone cleaners.

Settlement Agreement Exhibit 3(d): Summary Email Notice for Users

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 113 of 168

• Your rights are affected whether you act or don’t act. If the proposed Settlement is
approved, and you do not opt out, you will release your Economic Loss Claims against
the Philips Defendants and the other Released Parties and assign to Philips Respironics
your Economic Loss Claims against manufacturers of ozone cleaners. Please read this
Notice carefully.

Why am I receiving this Notice?

A court authorized this Notice because individuals and entities in the United States (including its
Territories and the District of Columbia), including military and diplomatic personnel stationed
overseas, who purchased, leased, rented, paid for (in whole or in part), or were prescribed a
Recalled Device (called “Users”) have the right to know about a proposed legal Settlement
affecting them. The Recalled Devices are the CPAP, BiPAP, ventilator, and/or other devices sold,
leased, rented or otherwise distributed in the United States identified in the chart below.

If you are a User, you can get a payment if you meet the standards to qualify for a payment.

What are the Settlement Benefits?

Users may be eligible for a Device Return Award, a Device Payment Award, and/or a Device
Replacement Award.

The Device Return Awards are $100 for each Recalled Device a User returns to Philips
Respironics by Claims Period Deadline. The amount of the Device Return Award does not depend
on the specific model of the Recalled Device. You can get a prepaid label at
www.RespironicsCPAP-ELSettlement.com to return your Recalled Devices for free. That is the
easiest way to get paid and maximize your payment because you will qualify for both a Device
Payment Award and a Device Return Award for each Recalled Device you return.

Please note that for those Users who still possess their Trilogy 100/200 Recalled Devices and wish
to get a $100 Device Return Award, they should register their Trilogy 100/200 with Philips
Respironics pursuant to its Recall Program and follow the process under the Recall Program. The
User’s DME will reach out to the User to schedule a time to pick up the Trilogy 100/200 and install
a Remanufactured Device.

The amount of the Device Payment Awards for Users depends on the specific model of the
Recalled Device, as reflected in the following table:

User Device Payment

Recalled Device
Award (Per Device)
System One 50 Series ASV4 (Auto SV4) $469.14
System One 50 Series Base $69.14
System One 50 Series BiPAP $159.46
System One 60 Series ASV4 (Auto SV4) $424.32
System One 60 Series Base $68.24

Settlement Agreement Exhibit 3(d): Summary Email Notice for Users

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 114 of 168

System One 60 Series BiPAP $152.70

C-series S/T, AVAPS (C-series and C-series HT) $394.37
DreamStation CPAP $55.63
DreamStation ASV $379.50
DreamStation ST, AVAPS $329.05
DreamStation BiPAP $130.63
DreamStation Go $107.43
E30 $453.83
OmniLab Advanced Plus $165.99
Trilogy 100/200, Garbin Plus, Aeris LifeVent $1,552.25
V30 auto $67.12

Users who paid out of pocket for a CPAP, BiPAP, or ventilator device to replace a Recalled Device
on or after June 14, 2021 and prior to September 7, 2023 and either (a) did not obtain a
Remanufactured Device from a Philips Respironics Recall Program, or (b) replaced a Recalled
Device prior to receiving a Remanufactured Device from a Philips Respironics Recall Program,
may qualify for a Device Replacement Award. Visit the Device Replacement Award Tab at
www.RespironicsCPAP-ELSettlement.com for details.

In addition to making the payments described above, the Philips Defendants will also separately
pay the reasonable costs to administer the Settlement, the amount the Court awards with respect
to the motion for attorneys’ fees and litigation expenses that will be filed by Settlement Class
Counsel, and any Service Awards the Court approves for the five Settlement Class
Representatives.

The Court in charge of this case still has to decide whether to approve the proposed Settlement.
Payments will be made if the Court approves the proposed Settlement and after any appeals are
resolved in favor of upholding the Settlement. This process can take time. Please be patient.

What are My Other Options?

You may Opt-Out of or Object to the Settlement by Opt-Out/Objection Deadline. Please visit
www.RespironicsCPAP-ELSettlement.com for more information on how to Opt-Out of or Object
to the Settlement. You cannot both Opt-Out of and Object to the Settlement.

If you submit a timely and valid request to opt out of the Settlement, you will not have any rights
as a member of the Settlement Class under the proposed Settlement; you will not receive any
payment or other benefits provided by the Settlement; you will not be able to object to the
Settlement; and you will keep the right, if any, to sue for any Economic Loss Claims.

Settlement Agreement Exhibit 3(d): Summary Email Notice for Users

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 115 of 168

If you Do Nothing, you will be legally bound by the terms of the Settlement, and you will release
your Economic Loss Claims against the Philips Defendants and the other Released Parties. In
addition, you will also assign to Philips Respironics any Economic Loss Claims you may have
against Ozone Cleaning Companies.

Do I have a Lawyer for these Economic Loss Claims?

Yes. The Court appointed the following lawyers to represent you and the other Users: Christopher
A. Seeger of Seeger Weiss LLP; Sandra L. Duggan of Levin Sedran & Berman LLP; Steven A.
Schwartz of Chimicles Schwartz Kriner & Donaldson-Smith LLP; Kelly K. Iverson of Lynch
Carpenter, LLP; Roberta D. Liebenberg of Fine, Kaplan and Black, R.P.C.; Lisa Ann Gorshe of
Johnson Becker PLLC; and Arthur H. Stroyd, Jr. of Del Sole Cavanaugh Stroyd LLC.

These firms are called Settlement Class Counsel. You will not be charged for their services.

The Court’s Final Approval Hearing.

The Court will hold a Final Approval Hearing on ____________, 2024 at ____m., in Courtroom
5A of the Joseph F. Weiss, Jr. U.S. Courthouse, 700 Grant Street, Pittsburgh, PA 15219.

At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate.
If there are objections, the Court will consider them. The Court will listen to Users who have
timely and properly asked to speak at the hearing. The Court will then decide whether to approve
the Settlement.

The Court may also decide how much should be awarded with respect to the motion for attorneys’
fees and costs that will be filed by Settlement Class Counsel, and how much the Settlement Class
Representatives should receive in Service Awards.

The Court may reschedule the Final Approval Hearing or change any of the deadlines described
in this Notice. Be sure to check the website, www.RespironicsCPAP-ELSettlement.com, for news
of any such changes.

This notice is only a summary.

For more information, visit www.RespironicsCPAP-ELSettlement.com or call toll-free

1 (855) 912-3432.

Unsubscribe

Settlement Agreement Exhibit 3(d): Summary Email Notice for Users

Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 116 of 168

SETTLEMENT AGREEMENT

EXHIBIT 3(e)
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 117 of 168

To: Payer Email Address

From: Settlement Administrator
Subject: Notice of Proposed Class Action Settlement – In re Philips Recalled CPAP, BI-
LEVEL PAP, and Mechanical Ventilator Products Litigation

Claim ID: <<Claim ID>>

Confirmation Code: <<Confirmation Code>>

NOTICE OF PROPOSED CLASS ACTION SETTLEMENT

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
A court authorized this Notice. This is not a solicitation from a lawyer.

If you reimbursed (in whole or in part) a payment for a Philips Respironics CPAP, BiPAP
or Ventilator that was recalled, you may be eligible for a cash award from a proposed class
action settlement.
● A proposed Settlement has been reached in a class action lawsuit alleging Economic Loss
Claims related to the purchase, lease, or rental of recalled CPAPs, BiPAPs, and ventilators
manufactured by Philips Respironics between 2008 and 2021. Philips Respironics recalled
these devices beginning in June 2021.
● The Settlement Class includes insurers, self-funded employers, and other third-party payers
(but not federal government payers) (“Payers”) that paid for or reimbursed (in whole or in part)
a payment to purchase, lease, rent, or otherwise pay for a Recalled Device sold, leased, rented
or otherwise distributed in the United States.
● Under the proposed Settlement, the Philips Defendants will pay $34 million into a Payer
Settlement Fund to settle and resolve all Economic Loss Claims by Payers.
● In order to receive a payment (called a “Payer Award”) from the Settlement, Payers must
complete and submit a Payer Declaration and Claim Form. The deadline to submit a
claim is Claims Period Deadline.
● Payer Awards will be determined based on each Eligible Payer’s relative market share
(aggregated among all Eligible Payers) based on the number of insured lives in the United
States covered by the Eligible Payer and the dollar amount of direct premiums written by the
Eligible Payer in the United States for Calendar Years 2021 and 2022.
● Payers can submit their Payer Declaration and Claim Form with supporting information and
documentation electronically on the Settlement website, www.RespironicsCPAP-
ELSettlement.com, or by downloading a copy of the Claim Form from the website and mailing
to the Settlement Administrator at: Respironics CPAP Settlement, c/o Settlement
Administrator, 1650 Arch Street, Suite 2210, Philadelphia, PA 19103.
More details, including information regarding the claims submission process, a full copy of the
Notice, which has Frequently Asked Questions (“FAQs”), the full Settlement Agreement, and
other relevant documents, are available at www.RespironicsCPAP-ELSettlement.com.

Settlement Agreement Exhibit 3(e): Summary Email Notice to Payers

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 118 of 168

• Your rights are affected whether you act or don’t act. If the proposed Settlement is
approved, and you do not opt out, you will release your Economic Loss Claims against
the Philips Defendants and the other Released Parties and assign to Philips Respironics
your Economic Loss Claims against manufacturers of ozone cleaners. Please read this
Notice carefully and visit www.RespironicsCPAP-ELSettlement.com.

Why am I receiving this Notice?

A court authorized this Notice because Payers, including insurers, self-funded employers, and
other third-party payers, who reimbursed (in whole or in part) a payment for a Recalled Device,
have the right to know about a proposed legal Settlement affecting them.

What are the Recalled Devices?

The Recalled Devices are the following CPAP, BiPAP, ventilator, and/or other devices sold,
leased, rented or otherwise distributed in the United States:

Recalled Devices
System One 50 Series ASV4 (Auto SV4)
System One 50 Series Base
System One 50 Series BiPAP
System One 60 Series ASV4 (Auto SV4)
System One 60 Series Base
System One 60 Series BiPAP
C-series S/T, AVAPS (C-series and C-series HT)
DreamStation CPAP
DreamStation ASV
DreamStation ST, AVAPS
DreamStation BiPAP
DreamStation Go
E30
OmniLab Advanced Plus
Trilogy 100/200, Garbin Plus, Aeris LifeVent
V30 auto

With respect to Payers, in addition to paying $34 million into the Payer Settlement Fund, the
Philips Defendants will also separately pay the reasonable costs to administer the Settlement, the

Settlement Agreement Exhibit 3(e): Summary Email Notice to Payers

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 119 of 168

amount the Court awards with respect to the motion for attorneys’ fees and litigation expenses that
will be filed by Settlement Class Counsel, and any Service Awards the Court approves for the
Settlement Class Representatives.

The Court in charge of this case still has to decide whether to approve the proposed Settlement.
Payments will be made if the Court approves the proposed Settlement and after any appeals are
resolved in favor of upholding the Settlement. This process can take time. Please be patient.

What are My Other Options?

You may Opt-Out of or Object to the Settlement by Claims Period Deadline. Please visit
www.RespironicsCPAP-ELSettlement.com for more information on how to Opt-Out of or Object
to the Settlement. You cannot both Opt-Out of and Object to the Settlement.

If you submit a timely and valid request to opt out of the Settlement, you will not have any rights
as a member of the Settlement Class under the proposed Settlement; you will not receive any
payment or other benefits provided by the Settlement; you will not be able to object to the
Settlement; and you will keep the right, if any, to sue for any Economic Loss Claims.

If you Do Nothing, you will be legally bound by the terms of the Settlement, and you will release
your Economic Loss Claims against the Philips Defendants and the other Released Parties. In
addition, you will also assign to Philips Respironics any Economic Loss Claims you may have
against Ozone Cleaning Companies.

Do I have a Lawyer for these Economic Loss Claims?

Yes. The Court appointed the following lawyers to represent you and the other Settlement Class
Members: Christopher A. Seeger of Seeger Weiss LLP; Sandra L. Duggan of Levin Sedran &
Berman LLP; Steven A. Schwartz of Chimicles Schwartz Kriner & Donaldson-Smith LLP; Kelly
K. Iverson of Lynch Carpenter, LLP; Roberta D. Liebenberg of Fine, Kaplan and Black, R.P.C.;
Lisa Ann Gorshe of Johnson Becker PLLC; and Arthur H. Stroyd, Jr. of Del Sole Cavanaugh
Stroyd LLC.

These firms are called Settlement Class Counsel. You will not be charged for their services.

The Court’s Final Approval Hearing.

The Court will hold a Final Approval Hearing on ____________, 2024 at ____m., in Courtroom
5A of the Joseph F. Weiss, Jr. U.S. Courthouse, 700 Grant Street, Pittsburgh, PA 15219.

At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate.
If there are objections, the Court will consider them. The Court will listen to Settlement Class
Members who have timely and properly asked to speak at the hearing. The Court will then decide
whether to approve the Settlement.

The Court may also decide how much should be awarded with respect to the motion for attorneys’
fees and costs that will be filed by Settlement Class Counsel, and how much the Settlement Class
Representatives should receive in Service Awards.

Settlement Agreement Exhibit 3(e): Summary Email Notice to Payers

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 120 of 168

The Court may reschedule the Final Approval Hearing or change any of the deadlines described
in this Notice. Be sure to check the website, www.RespironicsCPAP-ELSettlement.com, for news
of any such changes.

This notice is only a summary.

For more information, visit www.RespironicsCPAP-ELSettlement.com or call toll-free

1 (855) 912-3432.

Unsubscribe

Settlement Agreement Exhibit 3(e): Summary Email Notice to Payers

Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 121 of 168

SETTLEMENT AGREEMENT

EXHIBIT 3(f)
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 122 of 168

To: DME Address (Postal or Email)

From: Settlement Administrator
Subject: Notice of Proposed Class Action Settlement – In re Philips Recalled CPAP, BI-
LEVEL PAP, and Mechanical Ventilator Products Litigation

NOTICE OF PROPOSED CLASS ACTION SETTLEMENT

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
A court authorized this Notice. This is not a solicitation from a lawyer.
You are not being sued.

Your patients who purchased, leased or rented a Philips Respironics CPAP,

BiPAP, or Ventilator that was Recalled may be eligible for a cash award and
other benefits from a proposed class action Settlement

DMEs are NOT eligible for benefits under the proposed Settlement

The terms of the proposed Settlement are available at

www.RespironicsCPAP-ELSettlement.com

If you previously provided patient contact information to Philips Respironics

as part of its recall programs, the Settlement Administrator will be notifying
those patients directly

If you did not, please notify your patients about the proposed Settlement and
ask them to visit www.RespironicsCPAP-ELSettlement.com, email
[email protected], and/or call 1-(855) 912-3432 if
they have any questions

DMEs may email the Settlement Administrator at DME@RespironicsCPAP-

ELSettlement.com or call the Settlement Administrator at 1-(855) 779-0331 if
DMEs have any questions

Unsubscribe

Settlement Agreement Exhibit 3(f): DME Notice

Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 123 of 168

SETTLEMENT AGREEMENT

EXHIBIT 3(g)
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 124 of 168

To: Targeted Non-Trilogy User Email Address

From: Settlement Administrator
Subject: $100 Device Return Award Reminder –
Philips Recalled CPAP, BiPAP, and Ventilator Class Action Settlement

Claim ID: <<Claim ID>>

Confirmation Code: <<Confirmation Code>>

PHILIPS RESPIRONICS WILL PAY YOU $100 CASH FOR

YOUR RECALLED CPAP, BIPAP OR VENTILATOR
MACHINE

We are the court-appointed Settlement Administrator. Our records indicate that you registered your
CPAP, BiPAP or Ventilator machine in the Philips Respironics Recall Program, but you have not
yet returned your Recalled Device to Philips Respironics. You will get a $100 Device Return Award
if you return your Recalled Device before [Claims Period Deadline]. Please visit
www.RespironicsCPAP-ELSettlement.com or call toll-free 1-855-912-3432 for instructions on
how to get a prepaid label to return your Recalled Device to Philips Respironics so that you qualify
for the $100 payment, as well as more information about the class action settlement.

Unsubscribe

Settlement Agreement Exhibit 3(g): Targeted Email Reminder (Non-Trilogy Users)

Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 125 of 168

SETTLEMENT AGREEMENT

EXHIBIT 3(h)
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 126 of 168

To: Targeted Trilogy User Email Address

From: Settlement Administrator
Subject: $100 Device Return Award Reminder –
Philips Recalled CPAP, BiPAP, and Ventilator Class Action Settlement

Claim ID: <<Claim ID>>

Confirmation Code: <<Confirmation Code>>

PHILIPS RESPIRONICS WILL PAY YOU $100 CASH FOR

YOUR RECALLED TRILOGY 100/200 VENTILATOR
MACHINE

We are the court-appointed Settlement Administrator. Our records indicate that you registered your
Trilogy 100/200 Ventilator machine in the Philips Respironics Recall Program, but you have not yet
had your Trilogy 100/200 replaced by your DME. You will get a $100 Device Return Award if you
allow your DME to retrieve your Trilogy 100/200 and replace it with a free Remanufactured Device
before [Claims Period Deadline]. Please visit www.RespironicsCPAP-ELSettlement.com or call
toll-free 1-855-912-3432 if you need any assistance or additional information.

Unsubscribe

Settlement Agreement Exhibit 3(h): Targeted Email Reminder (Trilogy Users)

Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 127 of 168

SETTLEMENT AGREEMENT

EXHIBIT 4
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 128 of 168

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE: PHILIPS RECALLED CPAP, )

BI-LEVEL PAP, AND MECHANICAL )
VENTILATOR PRODUCTS LITIGATION ) Master Docket: Misc. No. 21-mc-1230-JFC
)
This Document Relates to: All Actions
)
Asserting Economic Loss Claims MDL No. 3014
)

DEVICE PAYMENT AWARD CLAIM FORM

If you are a User who purchased, leased, rented or paid for (in whole or part) a Recalled
Device (“User”) and you have not returned your Recalled Device to Philips Respironics and you
do not intend to (or cannot) return it, you can receive a Device Payment Award if you submit this
Claim Form and provide all required documentation to the Settlement Administrator by no later
than Claims Period Deadline.

To obtain more information regarding the eligibility criteria and the Device Payment
Award amounts, please see the Class Notice, the Settlement website, www.RespironicsCPAP-
ELSettlement.com, or call toll-free 1-855-912-3432.

You can receive a separate Device Payment Award for each Recalled Device you
purchased, leased, rented or paid for (in whole or in part). Fill out and timely submit this Claim
Form for each Recalled Device and provide the required documentation for each Recalled
Device. Failure to submit all required documentation will result in the denial of your claim.
You can submit your Claim Form and documentation electronically on the Settlement
website, or by mail to the Settlement Administrator at: Respironics CPAP Settlement, c/o
Settlement Administrator, 1650 Arch Street, Suite 2210, Philadelphia, PA 19103. If you are the
User’s guardian, estate, administrator, or other legal representative, or you are acting pursuant to
a power of attorney for a User, and you are submitting this Claim on behalf of that User, you must
also supply the Settlement Administrator with written proof that you have legal authority to act in
a representative capacity for the User.

This Claim Form and all required documentation must be submitted electronically
or postmarked by [Claims Period Deadline]. Untimely or incomplete submissions are invalid
and will not result in a payment.

It is your responsibility to notify the Settlement Administrator of any change of address

that occurs after you submit your Claim Form.

Settlement Agreement Exhibit 4: Device Payment Award Claim Form

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 129 of 168

1. Your name:

2. Your Claim ID (if available):

Claim IDs were included on the top of
emailed or mailed notices
3. Your current mailing address:

4. Your current telephone number:

5. Your current email:

6. Would you like your payment to be sent by

Zelle or Virtual Mastercard, instead of by
paper check? [Processing times for paper Zelle
checks will be longer.]

Virtual Mastercard

Paper Check

[Please circle your preferred payment

method]
7. For Zelle

Email or Mobile Phone Number:

8. For Virtual Mastercard

Email:

Settlement Agreement Exhibit 4: Device Payment Award Claim Form 2

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 130 of 168

If you are submitting this Device Payment Award Claim Form for multiple Recalled Devices,
please complete this chart separately for each Recalled Device and provide the required
documentation for each Recalled Device. If you need additional copies of this chart, please
contact the Settlement Administrator or print additional copies.
You must submit sufficient documentation showing that you purchased, leased, rented or
paid for (in whole or part) the Recalled Device, as well as the date you acquired the Recalled
Device. Sufficient documentation can include a combination of the following, so long as all
required information is provided:
• Materials you received from the DME at the time of acquisition, such as the
invoice, purchase agreement, lease agreement, or rental agreement; and
• Statement of claim from your insurance company showing your payment(s) and
date(s) of payment.
9. Serial Number of Recalled Device:

[You must provide the Serial Number. If

you do not still have your Recalled
Device, you can obtain the Serial
Number by referring to the paperwork
you received when you obtained the
Recalled Device, or contact the DME or
other company from which you obtained
the Recalled Device to ask for the Serial
Number.]

10. Did you rent your Recalled Device?

[If you rented your Recalled Device,

please provide the dates of rental and Yes or No
also attach a copy of the rental
agreement or other evidence showing [Please circle one]
dates and amount of payment of the
rent.]

11. Did you receive your Recalled Device for

free pursuant to a warranty from Philips Yes or No
Respironics before June 14, 2021?
[Please circle one]
[If so, please identify when
(approximately) you received this Approximate Date: (MM/DD/YYYY :
Recalled Device prior to June 14, 2021.]
__ __/ __ __ /__ __ __ __

Settlement Agreement Exhibit 4: Device Payment Award Claim Form 3

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 131 of 168

12. Did you return the Recalled Device

identified above in #8 to Philips
Respironics pursuant to a warranty before Yes or No
June 14, 2021 and receive a free
replacement from Philips Respironics? [Please circle one]

13. Did you return the Recalled Device

identified above in #8 to Philips
Respironics pursuant to a warranty before Yes or No
June 14, 2021 and receive your full
payment back? [Please circle one]

I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.

Date: ___________________ ___________________________________

Signature

___________________________________
Name

___________________________________
Address

___________________________________
Email address

___________________________________
Telephone number

Settlement Agreement Exhibit 4: Device Payment Award Claim Form 4

Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 132 of 168

SETTLEMENT AGREEMENT

EXHIBIT 5
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 133 of 168

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE: PHILIPS RECALLED CPAP, )

BI-LEVEL PAP, AND MECHANICAL )
VENTILATOR PRODUCTS LITIGATION ) Master Docket: Misc. No. 21-mc-1230-JFC
)
This Document Relates to: All Actions
)
Asserting Economic Loss Claims MDL No. 3014
)

DEVICE REPLACEMENT AWARD CLAIM FORM

If you are a User who used your own money to purchase, lease, or rent a comparable
replacement CPAP, BiPAP or ventilator to replace your Philips Respironics Recalled Device on
or after June 14, 2021 and before September 7, 2023, you can receive a Device Replacement
Award if you complete this Claim Form and Declaration, provide all required documentation, and
return all of the paperwork to the Settlement Administrator by no later than [Claims Period
Deadline]. The Class Notice and Settlement website describe the criteria you must meet to be
eligible for a Device Replacement Award. To obtain more information regarding the Settlement,
please visit the Settlement website at www.RespironicsCPAP-ELSettlement.com, or call toll-free
1-855-912-3432.
Failure to submit all required documentation will result in the denial of your claim. You
will also need to sign and return the attached sworn Declaration with your Claim Form.

Only one Replacement Device (and associated Device Replacement Award) is available
for each Philips Respironics Recalled Device that you replaced using your own money.

You are eligible for a Device Replacement Award only if:

• You were using a Philips Respironics Recalled Device as of June 14, 2021 (i.e., if
you had previously been using a Philips Respironics Recalled Device, but had
stopped using it prior to June 14, 2021, you are not eligible for a Device
Replacement Award);

• You paid out of pocket (in whole or in part) to buy, lease, or rent a comparable
CPAP, BiPAP, ventilator or similar device to replace your Philips Respironics
Recalled Device on or after June 14, 2021 and before September 7, 2023;

• At the time you purchased, leased, rented or otherwise paid out of pocket for the
Replacement Device, you had not received a repaired, refurbished, remanufactured,
and/or new replacement device from Philips Respironics pursuant to a Philips
Respironics Recall Program (“Remanufactured Device”);

Settlement Agreement Exhibit 5: Device Replacement Award Claim Form

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 134 of 168

• You return the Recalled Device to Philips Respironics if you still have it (a pre-
paid return label is available on the Settlement website); and

• You return to Philip Respironics any Remanufactured Device you received from
Philips Respironics, if you received one (a pre-paid return label is available on the
Settlement website).

You can submit your Claim Form and documentation electronically on the Settlement
website at www.RespironicsCPAP-ELSettlement.com, by email to info@RespironicsCPAP-
ELSettlement.com, or by mail to the Settlement Administrator at: Respironics CPAP Settlement,
c/o Settlement Administrator, 1650 Arch Street, Suite 2210, Philadelphia, PA 19103. If you are
the User’s guardian, estate, administrator, or other legal representative, or you are acting pursuant
to a power of attorney for a User, and you are submitting this claim for a Device Replacement
Award on behalf of that User, you must also supply the Settlement Administrator with written
proof that you have legal authority to act in a representative capacity for the User.

Claim Forms must be submitted electronically or postmarked by [Claims Period

Deadline]. Untimely or incomplete Claim Forms are invalid and will not result in a payment.

Settlement Agreement Exhibit 5: Device Replacement Award Claim Form 2

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 135 of 168

In the chart below, please identify the Replacement Device that you purchased, leased,
rented or otherwise paid out of pocket for on or after June 14, 2021 and before September 7, 2023
to replace your Philips Respironics Recalled Device. If you replaced two (or more) Philips
Respironics Recalled Devices with two (or more) Replacement Devices, please complete separate
charts and separate declarations for each replacement.

Required Information – Please Fill In

1. Your name

2. Your Claim ID (if available):

Claim IDs were included on the top of
emailed or mailed notices

3. Your current mailing address

4. Your current telephone number

5. Your current email:

6. The manufacturer and model of the

Replacement Device.
7. The date you purchased, leased, rented, or
otherwise paid out of pocket for the __ __/ __ __ /__ __ __ __
Replacement Device. (MM/DD/YYYY)
8. The amount actually incurred and paid by
you out-of-pocket to purchase, lease, or rent
the Replacement Device.

Do not include any amounts paid by

insurance or another third-party payer
on your behalf.

You must submit sufficient

documentation of (1) your out-of-pocket
expense(s) and (2) the date(s) you
incurred those out-of-pocket expense(s).
Sufficient documentation can include a
combination of the following, so long as
all required information is provided:
• Invoice, lease, or rental agreement
for the Replacement Device

Settlement Agreement Exhibit 5: Device Replacement Award Claim Form 3

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 136 of 168

• Credit card statement showing

payment and payment date(s)
• Bank account statement showing
payment and payment date(s)
9. Identification of the Philips Respironics
Recalled Device that you replaced.
• If you have the Serial Number,
you must include it.
• If you do not have the Serial
Number, you must include the
model of the Philips Respironics
Recalled Device.
10. Did you receive a Remanufactured Device
from Philips Respironics as part of its
Recall Program? [If yes, continue to
question 6. If no, skip to question 9.]

11. Identify date of receipt of the Philips

Respironics Remanufactured Device, if __ __/ __ __ /__ __ __ __
known. (MM/DD/YYYY)

12. Do you still possess the Philips Respironics

Remanufactured Device? [If yes, you must
return it to Philips Respironics to be
eligible for a Device Replacement Award.
A prepaid return label is available on the
Settlement website.]

13. If you do not still possess the Philips

Respironics Remanufactured Device, did
you previously return it to Philips
Respironics? [If the Remanufactured
Device is not returned to Philips
Respironics, you are not eligible for a
Device Replacement Award.]

14. Do you still possess your Philips

Respironics Recalled Device? [If yes, you
must return it to Philips Respironics to be
eligible for a Device Replacement Award.
A prepaid return label is available on the
Settlement website.]

Settlement Agreement Exhibit 5: Device Replacement Award Claim Form 4

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 137 of 168

15. If applicable and if known, identify

approximate date of return of your Philips __ __/ __ __ /__ __ __ __
Respironics Recalled Device to Philips
Respironics. (MM/DD/YYYY)

16. Would you like your payment to be sent by

Zelle or Virtual Mastercard, instead of by Zelle
paper check? [Processing times for paper
checks will be longer.]
Virtual Mastercard

Paper Check

[Please circle your preferred payment

method]
17. For Zelle:

Email or Mobile Phone Number

18. For Virtual Mastercard:

Email

Settlement Agreement Exhibit 5: Device Replacement Award Claim Form 5

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 138 of 168

Sworn Declaration For Device Replacement Award

I _____________________________________________________ [fill in your name]

declare the following under penalty of perjury:

1. I am over the age of eighteen.

2. I was using a Philips Respironics Recalled Device as of June 14, 2021.

3. I used the Replacement Device that is identified in the Claim Form as a replacement
for my Philips Respironics Recalled Device.

4. I □ have / □ do not have my Philips Respironics Recalled Device. [check the

correct answer]

5. I □ have / □ have not returned my Philips Respironics Recalled Device to

Philips Respironics. [check the correct answer]

6. I □ did / □ did not receive a Remanufactured Device from Philips Respironics

pursuant to its Recall Program. [check the correct answer]

7. (Answer No. 7 only if you received a Remanufactured Device from Philips Respironics)
I □ have / □ have not returned the Remanufactured Device to Philips
Respironics in reasonable working condition. [check the correct answer]

I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.

Date: ___________________ ___________________________________

Signature

___________________________________
Name

___________________________________
Address

___________________________________
Email address

___________________________________
Telephone number
Settlement Agreement Exhibit 5: Device Replacement Award Claim Form 6
Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 139 of 168

SETTLEMENT AGREEMENT

EXHIBIT 5(a)
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 140 of 168

Comparable Replacement Devices List

Recalled Device Type Comparable Replacement Device(s)

System One 50 Series ASV4 (Auto SV4) ResMed Aircurve 10 ASV

System One 50 Series Base ResMed Airsense 10, ResMed AirSense 11,
React Health Luna II CPAP, React Health
Luna G3 CPAP, Philips DreamStation 2
System One 50 Series BiPAP ResMed Aircurve 10 S, ResMed AirCurve 10
VAuto, React Health Luna G3 BiLevel 25A
System One 60 Series ASV4 (Auto SV4) ResMed Aircurve 10 ASV
System One 60 Series Base ResMed Airsense 10, ResMed AirSense 11,
React Health Luna II CPAP, React Health
Luna G3 CPAP, Philips DreamStation 2
System One 60 Series BiPAP ResMed Aircurve 10 S, ResMed AirCurve 10
VAuto, React Health Luna G3 BiLevel 25A
C-series S/T, AVAPS (C-series and C- ResMed Aircurve 10 ST, ResMed Aircurve 10
series HT) ST-A, React Health Luna II CPAP, React
Health Luna G3 BiLevel ST30VT
DreamStation CPAP ResMed Airsense 10, ResMed AirSense 11,
React Health Luna G3 CPAP, Philips
DreamStation 2
DreamStation ASV ResMed Aircurve 10 ASV
DreamStation ST, AVAPS ResMed Aircurve 10 ST, ResMed Aircurve 10
ST-A, React Health Luna G3 BiLevel ST30VT
DreamStation BiPAP ResMed Aircurve 10 S, ResMed AirCurve 10
VAuto, React Health Luna G3 BiLevel 25A
DreamStation Go ResMed AirMini, Z1/Z2 Travel CPAP,
Transcend Travel CPAP
E30 ResMed Astral, Lowenstein LUISA
OmniLab Advanced Plus ResMed S9 VPAP Tx Lab System
Trilogy 100/200, Garbin Plus, Aeris ResMed Astral 100, React VOCSN
LiveVent
V30 auto ResMed Astral, ResMed S9 VPAP Tx Lab
System

Settlement Agreement Exhibit 5(a): Comparable Replacement Devices List

Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 141 of 168

SETTLEMENT AGREEMENT

EXHIBIT 6
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 142 of 168

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE: PHILIPS RECALLED CPAP, BI- )

LEVEL PAP, AND MECHANICAL )
VENTILATOR PRODUCTS LITIGATION ) Master Docket: Misc. No. 21-mc-1230-JFC
)
This Document Relates to: All Actions
)
Asserting Economic Loss Claims MDL No. 3014
)

ACCELERATED IMPLEMENTATION OPTION FOR USERS

To be eligible to participate in the Accelerated Implementation Option, or “AIO,” to

receive an accelerated Device Payment Award and Device Return Award, you must return (or have
returned) your registered or enrolled Philips Respironics Recalled Device to Philips Respironics
by Claims Period Deadline, and you must also complete the following forms:

(1) Sworn Declaration Regarding Use of an Ozone Cleaning Product or Products with
My Philips Respironics Recalled Device or Devices;

(2) Individual Release of My Economic Loss Claims Against the Released Parties; and

(3) Accelerated Implementation Option Payment Preference Form.

In addition, if you used an Ozone Cleaning Product or Products with your Recalled Device or
Devices, you must also complete the following form in order to be eligible to participate in the
AIO:

(4) Individual Assignment to Philips Respironics of My Economic Loss Claims

Against Ozone Cleaning Company(ies). [This form does not need to be completed
if you did not use an Ozone Cleaning Product with your Recalled Device or
Devices.]

These forms must be completed and sent to the Settlement Administrator at: Respironics
CPAP Settlement, c/o Settlement Administrator, 1650 Arch Street, Suite 2210, Philadelphia, PA
19103 by the Claims Period Deadline or the completion of any appeals, whichever is later. The
Settlement website will be updated periodically to provide information concerning the date of
MDL Court Final Approval and the status of any appeals.

Please note that for those Users who wish to participate in the AIO for their Trilogy 100/200
Recalled Devices, they should register their Trilogy 100/200 with Philips Respironics pursuant to
a Recall Program and follow the device retrieval process under the Recall Program. The User’s
DME will reach out to the User to schedule a time to pick up the Trilogy 100/200 and install a
Remanufactured Device.

Settlement Agreement Exhibit 6: AIO Forms

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 143 of 168

Please refer to the Settlement website, www.RespironicsCPAP-ELSettlement.com,

the Class Notice, or call toll free 1-855-912-3432 for additional information regarding AIO
eligibility criteria, the Release, the Assignment, and the terms used in the Release and the
Assignment.
Please note that to be valid and effective, these AIO forms must be personally signed by
you, not by your counsel (if any). If you are the User’s guardian, estate, administrator, or other
legal representative, or you are acting pursuant to a power of attorney for a User, and you are
electing the AIO and submitting the required forms on behalf of that User, you must supply the
Settlement Administrator with written proof that you have legal authority to act in a representative
capacity for the User.

Untimely or incomplete submissions are invalid and will not result in an accelerated
payment.

-2-

Settlement Agreement Exhibit 6: AIO Forms

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 144 of 168

Sworn Declaration Regarding Use of an Ozone Cleaning Product or Products

with My Philips Respironics Recalled Device or Devices

I _________________________________________ [fill in your name] declare the

following under penalty of perjury:

1. I am over the age of eighteen.

2. I □ did □ did not [please check one] use an Ozone Cleaning Product
with my Philips Respironics Recalled Device(s).

[If you answered “Did Not” to No. 2, you should skip to the end of this form
and provide your signature, name, address, telephone number, email
address, and date. You do not need to complete the attached Individual
Assignment form. However, you still need to complete the attached
Individual Release form and Payment Preference form.]

[If you answered “Did” to No. 2, please complete the chart in No. 3 below
and the rest of this form. In addition, you also need to complete the attached
Individual Assignment form, Individual Release form, and Payment
Preference form.]

3. In the chart below, please identify the Ozone Cleaning Product and your Philips
Respironics Recalled Device (by Serial Number, if available to you; if not, by
Model) on which you used the Ozone Cleaning Product.

[If you used more than one Ozone Cleaning Product, or more than one
Philips Respironics Recalled Device, please identify that information
separately in the chart below.]

Ozone Cleaning Product Philips Respironics Recalled Device On

and Manufacturer Which I Used the Ozone Cleaning Product

Settlement Agreement Exhibit 6: AIO Forms

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 145 of 168

I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.

Date: ___________________ ___________________________________

Signature

___________________________________
Name

___________________________________
Address

___________________________________
Email address

___________________________________
Telephone number

-2-

Settlement Agreement Exhibit 6: AIO Forms

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 146 of 168

Individual Assignment to Philips Respironics of My Economic Loss Claims

Against Ozone Cleaning Company(ies)

[To be completed only if you used an Ozone Cleaning Product or Products

with Your Philips Respironics Recalled Device or Devices]

I _________________________________________ [fill in your name] hereby assign to

Philips RS North America LLC any Economic Loss Claims I may have against the Ozone Cleaning
Company(ies) whose product(s) I used with my Philips Respironics Recalled Device(s), including
any proceeds I would otherwise have been eligible for in any settlement with that Ozone Cleaning
Company(ies).

I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.

Date: ___________________ ___________________________________

Signature

___________________________________
Name

___________________________________
Address

___________________________________
Email address

___________________________________
Telephone number

Settlement Agreement Exhibit 6: AIO Forms

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 147 of 168

Individual Release of My Economic Loss Claims Against the Released Parties

I _______________________________________ [fill in your name], on behalf of myself

and my agents, heirs, executors, administrators, successors, assigns, insurers, attorneys,
representatives, shareholders, owner associations, and any other legal or natural persons who may
claim by, through and/or on behalf of me (“Releasing Parties”), fully, finally, irrevocably, and
forever release, remise, waive, relinquish, settle, surrender, forego, give up, abandon, cancel,
acquit and forever discharge and covenant not to sue Defendants and the other Released Parties
with respect to any and all Released Claims. Without in any way limiting the foregoing or its
broad scope, this release covers (by example and without limitation) any and all claims for
damages, statutory damages, equitable relief, injunctive relief, penalties, liens, and attorneys’,
expert, consultant, or other litigation fees or costs other than fees and costs awarded by the Court
in connection with the Settlement, but does not include Medical Monitoring and Personal Injury
Claims.

I acknowledge and waive, and agree to waive, on behalf of myself and the other Releasing
Parties, Section 1542 of the California Civil Code, which provides that: “A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING
PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE
TIME OF EXECUTING THE RELEASE, AND THAT, IF KNOWN BY HIM OR HER,
WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR OR RELEASED PARTY.” I expressly waive and relinquish, on behalf of myself and
the other Releasing Parties, any and all rights and benefits that I and they may have under, or that
may be conferred upon me or them by, the provisions of Section 1542 of the California Civil Code,
or any other law of any state or territory that is similar, comparable or equivalent to Section 1542,
to the fullest extent I may lawfully waive such rights or benefits pertaining to the Released Claims.
In connection with such waiver and relinquishment, I hereby acknowledge, on behalf of myself
and the other Releasing Parties, that I and they are aware that my or their attorneys may hereafter
discover claims or facts in addition to or different from those that I or they now know or believe
exist with respect to the Released Claims, but that it is my and their intention to fully, finally, and
forever settle and release all of the Released Claims, known or unknown, suspected or unsuspected,
asserted or unasserted, or past, present or future, that I or they have against the Released Parties.
In furtherance of such intention, the release herein shall be and remain in effect as a full and
complete general release of the Released Claims notwithstanding the discovery or existence of any
such additional different claims or facts. I expressly acknowledge, on behalf of myself and the
other Releasing Parties, that I and they have been advised by my and/or their attorneys of the
contents and effect of Section 1542, and with knowledge, expressly waive whatever benefits I or
they may have had pursuant to such section. I acknowledge, on behalf of myself and the other
Releasing Parties, that the foregoing waiver was expressly bargained for and a material element of
this Settlement.

I represent and warrant that I am the sole and exclusive owner of any and all Released
Claims, and further acknowledge that I and the other Releasing Parties have not assigned, pledged,
or in any manner whatsoever, sold, transferred, assigned or encumbered any right, title, interest or
claim arising out of or in any way whatsoever pertaining to the Released Claims, and that I am not

Settlement Agreement Exhibit 6: AIO Forms

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 148 of 168

aware of anyone other than myself claiming any interest, in whole or in part, in any benefits,
proceeds or values.

I understand that, unless otherwise specified herein, the defined terms in this Individual
Release have the meaning set forth in the Settlement Agreement.

I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.

Date: ___________________ ___________________________________

Signature

___________________________________
Name

___________________________________
Address

___________________________________
Email address

___________________________________
Telephone number

-2-

Settlement Agreement Exhibit 6: AIO Forms

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 149 of 168

Accelerated Implementation Option Payment Preference Form

1. Your name:

2. Your Claim ID (if available):

Claim IDs were included on the top of
emailed or mailed notices

3. Serial Number for your Philips Respironics

Recalled Device (providing this will
expedite your payment):

4. Would you like your payment to be sent by

Zelle or Virtual Mastercard, instead of by
paper check? [Processing times for paper Zelle
checks will be longer.]

Virtual Mastercard

Paper Check

[Please circle your preferred payment

method]
5. For Zelle:

Email or Mobile Phone Number:

6. For Virtual Mastercard:

Email:

Settlement Agreement Exhibit 6: AIO Forms

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 150 of 168

Date: ___________________ ___________________________________

Signature

___________________________________
Name

___________________________________
Address

___________________________________
Email address

___________________________________
Telephone number

-2-

Settlement Agreement Exhibit 6: AIO Forms

Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 151 of 168

SETTLEMENT AGREEMENT

EXHIBIT 7
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 152 of 168

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE: PHILIPS RECALLED CPAP, )

BI-LEVEL PAP, AND MECHANICAL )
VENTILATOR PRODUCTS LITIGATION ) Master Docket: Misc. No. 21-mc-1230-JFC
)
This Document Relates to: All Actions
)
Asserting Economic Loss Claims MDL No. 3014
)

CONFIRMATION FOR DEVICE PAYMENT AWARD

(Only For Recalled Devices Registered in a Philips Respironics Recall Program Prior to
September 7, 2023, But the User Has Not Returned, and Has Decided Not to or Cannot
Return, the Recalled Device to Philips Respironics)

Please complete this Confirmation Form only if, for a particular Philips Respironics
Recalled Device:

1. You registered that Recalled Device for a Recall Program prior to September 7,
2023;

2. You did not previously return that Recalled Device to Philips Respironics; and

3. You have decided not to or cannot return that Recalled Device to Philips
Respironics.

If you have already returned your Recalled Device to Philips Respironics, or will be
returning your Recalled Device to Philips Respironics by the [Claims Period Deadline], do
not complete this form. If you return your Recalled Device to Philips Respironics by the
[Claims Period Deadline], you will automatically receive an additional payment of $100 as a
Device Return Award.

If you did not register your Recalled Device in a Philips Respironics Recall Program
prior to September 7, 2023, do not complete this form.

Consult the Class Notice, Settlement website, www.RespironicsCPAP-

ELSettlement.com, or call toll-free 1-855-912-3432 to learn more information.

You can receive a separate Device Payment Award for each Recalled Device you
purchased, leased, rented or paid for (in whole or in part).

You can submit this form electronically on the Settlement website at

www.RespironicsCPAP-ELSettlement.com, or by mail to the Settlement Administrator at:
Respironics CPAP Settlement, c/o Settlement Administrator, 1650 Arch Street, Suite 2210,
Settlement Agreement Exhibit 7: User Confirmation Form
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 153 of 168

Philadelphia, PA 19103. This Confirmation Form must be submitted electronically or

postmarked by the [Claims Period Deadline]. Untimely or incomplete forms are invalid and
will not result in a payment.

1. Your name:

2. Your Claim ID (if available):

Claim IDs were included on the top of
emailed or mailed notices
3. Serial Number for your Philips Respironics
Recalled Device (providing this will
expedite your payment):

4. Recall Registration Number for your

Philips Respironics Recalled Device
(providing this will expedite your
payment):

5. Your current mailing address (it is your

responsibility to notify the Settlement
Administrator of any change of address
that occurs after you return this form):

6. Your current telephone number:

7. Your current email:

8. Would you like your payment to be sent by

Zelle or Virtual Mastercard, instead of by
paper check? [Processing times for paper Zelle
checks will be longer.]

Virtual Mastercard

Paper Check

[Please circle your preferred payment

method]

-2-

Settlement Agreement Exhibit 7: User Confirmation Form

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 154 of 168

9. For Zelle:

Email or Mobile Phone Number:

10. For Virtual Mastercard:

Email:

Date: ___________________ ___________________________________

Signature

___________________________________
Name

___________________________________
Address

___________________________________
Email address

___________________________________
Telephone number

-3-

Settlement Agreement Exhibit 7: User Confirmation Form

Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 155 of 168

SETTLEMENT AGREEMENT

EXHIBIT 8
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 156 of 168

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE: PHILIPS RECALLED CPAP, )

BI-LEVEL PAP, AND MECHANICAL )
VENTILATOR PRODUCTS LITIGATION ) Master Docket: Misc. No. 21-mc-1230-JFC
)
This Document Relates to: All Actions
)
Asserting Economic Loss Claims MDL No. 3014
)

PAYER DECLARATION AND CLAIM FORM

If you are an insurer, a self-funded employer, or other third-party payer that reimbursed (in
whole or in part) a payment for a Philips Respironics Recalled Device (“Payer”), you can receive
a Payer Award if you submit this Declaration and Claim Form and provide all required
documentation and information to the Settlement Administrator by no later than Claims Period
Deadline. Failure to submit all required documentation will result in the denial of your claim.
To obtain more information regarding the eligibility criteria and the Settlement, please see
the Class Notice, the Settlement website, www.RespironicsCPAP-ELSettlement.com, or call toll-
free 1-855-912-3432.

You can submit your Payer Declaration and Claim Form with supporting documentation
electronically on the Settlement website, or by mail to the Settlement Administrator at: Respironics
CPAP Settlement, c/o Settlement Administrator, 1650 Arch Street, Suite 2210, Philadelphia, PA
19103.
You must also supply the Settlement Administrator with written proof that you have legal
authority to act on behalf of the Payer to sign the Payer Declaration and Claim Form.
The Payer Declaration and Claim Form and all required documentation and
information must be submitted electronically or postmarked by Claims Period Deadline.
Untimely or incomplete forms are invalid and will not result in a payment.
It is your responsibility to notify the Settlement Administrator of any change of address
that occurs after you submit your Declaration and Claim Form.

Settlement Agreement Exhibit 8: Payer Declaration and Claim Form

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 157 of 168

I, ___________________________ [fill in your name], declare the following under

penalty of perjury:

1. I am over the age of eighteen.

2. I am submitting this Payer Declaration and Claim Form on behalf of a [select one]:

(a) Payer

(b) Third-Party Recovery Agent

(c) Other (including assignee with irrevocable assignment of Economic Loss Claims
of a Payer)

3. Provide the name, address, email and phone number of the entity on whose behalf you
are submitting this Declaration and Claim Form:
_______________________________________

_______________________________________

_______________________________________

_______________________________________

4. My title and/or position is as follows: ______________________________________.

5. I have the legal authority to make this Declaration and Claim Form on behalf of the
entity identified above in # 3.

[Provide written proof of your legal authority to act on behalf of the entity identified
above in # 3].

6. Provide the Federal Tax Identification Number of the entity identified above in # 3:
_______________________________________

7. Would you like your payment to be sent by electronic payment (ACH deposit to your
bank account), instead of by paper check? [ACH deposit will expedite your payment]

a) Please state your preferred payment option:

_________________________________________________

8. For ACH deposit to your bank account:

Name of Bank: _____________________

Account Number: ___________________

-2-

Settlement Agreement Exhibit 8: Payer Declaration and Claim Form

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 158 of 168

Routing Number: ___________________

If you are submitting this Declaration and Claim Form based on information and
documentation for multiple Payers, please complete this chart separately for each Payer and
provide the required documentation for each Payer. If you need additional copies of this
chart, please contact the Settlement Administrator or print additional copies.

9. Payer Plan name and address is: _______________________________________

_______________________________________

_______________________________________

_______________________________________

10. The Payer reimbursed (in

whole or in part) a payment to
Yes or No
purchase, lease, rent, or otherwise
pay for a Philips Respironics
[Please circle one]
Recalled Device.

11. The number of insured lives in 2021: __________________

the United States covered by the
Payer in Calendar Years 2021 and 2022: __________________
2022 (“Payer Covered Lives”) was:
[Please provide supporting documentation of Payer
Covered Lives for each Calendar Year]

12. The number of Direct 2021: __________________

Premiums written by the Payer in
the United States in Calendar Years 2022: __________________
2021 and 2022 (“Direct
Premiums”) was: [Please provide supporting documentation of Direct
Premiums for each Calendar Year]

I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.

Date: ___________________ ___________________________________

Signature

___________________________________
Name

-3-

Settlement Agreement Exhibit 8: Payer Declaration and Claim Form

Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 159 of 168

___________________________________
Address

___________________________________
Email address

___________________________________
Telephone number

-4-

Settlement Agreement Exhibit 8: Payer Declaration and Claim Form

Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 160 of 168

SETTLEMENT AGREEMENT

EXHIBIT 9
 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 161 of 168

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE PHILIPS RECALLED CPAP, :

BI-LEVEL PAP, AND MECHANICAL : Master Docket: Misc. No. 21-mc-1230-JFC
VENTILATOR PRODUCTS :
LITIGATION : MDL No. 3014
:
This Document Relates to: All Actions :
Asserting Economic Loss Claims :
:
:

[PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT

AGREEMENT AND RELEASE OF ECONOMIC LOSS CLAIMS, FINAL JUDGMENT,
INJUNCTION AND ORDER OF DISMISSAL

Upon consideration of the Settlement Class Representatives’ Motion for Final Approval of

Class Settlement of Economic Loss Claims, and after dissemination of Notice to Settlement Class

Members and a Final Fairness Hearing held on ________, 2024, it is hereby ORDERED,

ADJUDGED AND DECREED, AND FINAL JUDGMENT IS ENTERED, as follows:

1. The Court has subject-matter jurisdiction over the above-captioned actions and

jurisdiction over all members of the Settlement Class, and Defendants Philips RS North America

LLC, Koninklijke Philips N.V., Philips North America LLC, Philips Holding USA, Inc., and

Philips RS North America Holding Corporation (collectively, the “Philips Defendants”) have

submitted to the jurisdiction and venue of this Court for purposes only of this Settlement and the

enforcement of the payment and performance obligations and injunctive relief thereunder.

2. All terms in initial capitalization used in this Final Judgment and Order shall have

the same meanings as set forth in the Settlement Agreement.

3. On ________, 2023, the Court entered an Order in which it, inter alia, preliminarily

approved the Settlement, conditionally certified the Settlement Class for settlement purposes only,

Settlement Agreement Exhibit 9: Proposed Final Approval Order and Judgment

 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 162 of 168

directed Notice to Settlement Class Members, and approved the retention of Angeion Group LLC

as Settlement Administrator, Huntington Bank as Settlement Fund Escrow Agent, and Hon.

Thomas J. Rueter (Ret.) as Claims Appeals Special Master (ECF No. _____).

4. On ___________, 2024, the Settlement Class Representatives filed a Motion for

Final Approval of Class Settlement of Economic Loss Claims[, and on ____________, 2024, they

filed a brief in response to the objections to the Settlement filed by certain Settlement Class

Members].

5. On ________, 2024, the Court held a Final Fairness Hearing to consider whether

the Settlement should be finally approved under Rule 23(e)(2) as fair, reasonable and adequate.

6. The Court has reviewed the terms and conditions set forth in the Settlement

Agreement, including all exhibits thereto, and finds that they are fair, reasonable, and adequate

under Rule 23(e)(2) of the Federal Rules of Civil Procedure. The Court finds that the Settlement

is in full compliance with all requirements of the Federal Rules of Civil Procedure, the Class

Action Fairness Act, the United States Constitution (including the Due Process Clause), and any

other applicable law.

7. The Court finds that the Settlement was negotiated at arm’s-length before the

Court-appointed Settlement Mediator, Hon. Diane M. Welsh (Ret.) (ECF No. ____); there was

sufficient formal and informal discovery; the Parties and counsel were knowledgeable about the

facts relevant to the Economic Loss Claims and potential risks of continued litigation of the

Economic Loss Claims; and the Parties were represented by highly capable counsel with

substantial experience in class action and products liability litigation.

8. The Court also specifically considered the Girsh factors, including the complexity,

expense, and likely duration of litigation of the Economic Loss Claims; [the favorable reaction of

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 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 163 of 168

the Settlement Class]; the stage of proceedings; the risks of establishing liability, damages, and

class certification; and the range of reasonableness of the Settlement in light of the best possible

recovery and attendant risks of litigation. Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir. 1975). The

Court finds that these factors weigh in favor of approving the Settlement.

9. [The Court has carefully considered the objections to the Settlement filed by certain

Settlement Class Members, and hereby finds that none of those objections is meritorious.]

10. The Court finds that the dissemination of Notice as set forth in the Declaration of

Steven Weisbrot was in compliance with the Court’s __________, 2023 Preliminary Approval

Order, and that notice has been given in an adequate and sufficient manner, constitutes the best

notice practicable under the circumstances, and satisfies Federal Rule of Civil Procedure 23(e) and

due process.

11. A full opportunity has been offered to Settlement Class Members to object to or opt

out of the Settlement and to participate in the Final Fairness Hearing.

12. The Philips Defendants properly and timely notified the appropriate officials of the

Settlement pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1715. More than

ninety (90) days have elapsed since the Philips Defendants provided notice of the Settlement

pursuant to CAFA. (ECF No. ____.)

13. Pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure, the Court

grants final class certification, for settlement purposes only, of the Settlement Class that it

conditionally certified in its ___________, 2023 Preliminary Approval Order.

14. The Court finds that the requirements of Rule 23 are satisfied, solely for the purpose

of effectuating the Settlement, as follows:

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 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 164 of 168

a. Pursuant to Rule 23(a)(1), the Court determines that the members of the Settlement

Class are so numerous that their joinder before the Court would be impracticable;

b. Pursuant to Rule 23(a)(2), the Court determines that there are questions of law and

fact that are common to the Settlement Class;

c. Pursuant to Rule 23(a)(3), the Court determines that the Settlement Class

Representatives’ claims are typical of the claims of the Settlement Class Members;

d. Pursuant to Rule 23(a)(4), the Court determines that Settlement Class

Representatives and Settlement Class Counsel have fairly and adequately

represented the interests of the Settlement Class and will continue to do so;

e. Pursuant to Rule 23(b)(3), the Court determines that common questions of law and

fact predominate over questions affecting any individual Settlement Class Member;

f. Pursuant to Rule 23(b)(3), the Court determines that a class resolution provides a

fair and efficient method for settling the Economic Loss Claims and is superior to

other available methods; and

g. Pursuant to Rule 23(b)(3), the Court determines that the Settlement Class is

ascertainable.

15. The Court confirms the appointment of Elizabeth Heilman; Ivy Creek of Tallapoosa

LLC d/b/a/ Lake Martin Community Hospital; Peter Barrett; Julie Barrett; and ASEA/AFSCME

Local 52 Health Benefits Trust as Settlement Class Representatives.

16. The Court confirms the appointment of the following as Settlement Class Counsel:

a. Christopher A. Seeger, Seeger Weiss, 55 Challenger Road, 6th Floor,

Ridgefield Park, NJ 07660;

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 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 165 of 168

b. Sandra L. Duggan, Levin Sedran & Berman, 510 Walnut Street, Suite 500,

Philadelphia, PA 19106;

c. Steven A. Schwartz, Chimicles Schwartz Kriner & Donaldson-Smith LLP, 361

West Lancaster Avenue, Haverford, PA 19041;

d. Kelly K. Iverson, Lynch Carpenter, LLP, 1133 Penn Avenue, 5th Floor,

Pittsburgh, PA 15222;

e. Roberta D. Liebenberg, Fine, Kaplan and Black, R.P.C., One South Broad

Street, 23rd Floor, Philadelphia, PA 19107;

f. Lisa Ann Gorshe, Johnson Becker PLLC, 444 Cedar Street, Suite 1800, Saint

Paul, MN 55101; and

g. Arthur H. Stroyd, Jr., Del Sole Cavanaugh Stroyd LLC, 3 PPG Place, Suite 600,

Pittsburgh, PA 15222.

17. The list of persons and entities who timely and properly opted out of the Settlement

Class was filed by Settlement Class Counsel on __________, 2024. (ECF No. ____). The release

and other provisions of the Settlement Agreement shall not apply to them, and they shall not be

entitled to any compensation or other relief or benefits provided by the Settlement.

18. The Court grants final approval of the plan for allocating Settlement funds as being

fair, reasonable, adequate, and in the best interest of the Settlement Class. The Court further finds

that the plan of allocation of Settlement funds treats Class Members equitably relative to each other

as required by Federal Rule of Civil Procedure 23(e)(2)(D).

19. Accordingly, the Court hereby grants the Settlement Class Representatives’ Motion

for Final Approval of Class Settlement of Economic Loss Claims.

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 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 166 of 168

20. The Court hereby dismisses the Economic Loss Complaint (ECF No. 785) and any

other Economic Loss Claims as to all Released Parties, on the merits, with prejudice and, except

as explicitly provided for in the Settlement Agreement, without costs.

21. The Court finds and confirms that the Settlement Funds are a “qualified settlement

fund” as defined in Section 1.468B-1 through 1.468B-5 of the Treasury Regulations.

22. The Settlement Administrator shall perform the duties and responsibilities set forth

in the Settlement Agreement, including, but not limited to, making monthly determinations of any

Additional Amounts that need to be paid by, or on behalf of, the Philips Defendants into the User

Settlement Fund, and distributing settlement funds to Eligible Settlement Class Members.

23. The Philips Defendants shall make all payments required by the Settlement

Agreement in the amounts and at the times set forth in the Settlement Agreement. All valid and

timely claims shall be paid by the Settlement Administrator in the amounts and at the times set

forth in the Settlement Agreement. Disputes over the validity and sufficiency of claims shall be

resolved by the Settlement Administrator and the Claims Appeals Special Master pursuant to the

terms set forth in the Settlement Agreement, with no further right of appeal.

24. The Claims Period shall end on ______________, 2024, i.e., 120 days after the

Final Fairness Hearing.

25. All of the Released Claims of the Settlement Class Members and the other

Releasing Parties against Defendants and the other Released Parties are hereby fully, finally,

irrevocably, and forever released, remised, waived, relinquished, settled, dismissed, surrendered,

and forever discharged.

26. Settlement Class Members and the other Releasing Parties are hereby enjoined and

finally and forever barred from filing, commencing, maintaining, continuing, pursuing and/or

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 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 167 of 168

prosecuting the Released Claims in any action, arbitration or other proceeding, whether pending

or filed in the future, against Defendants and the other Released Parties. Defendants and the other

Released Parties may recover any and all reasonable costs and expenses from a Settlement Class

Member arising from that Settlement Class Member’s violation of this injunction. Pursuant to 28

U.S.C. §§ 1651(a) and 2283, the Court finds that issuance of this permanent injunction is necessary

and appropriate in aid of its continuing jurisdiction and authority over the Settlement.

27. The Court hereby approves the assignment of Economic Loss Claims by the

Settlement Class Members against Ozone Cleaning Companies to Philips RS North America LLC,

pursuant to the Settlement Agreement, including any proceeds Settlement Class Members would

otherwise have been eligible for in any settlement with an Ozone Cleaning Company.

28. The Philips Defendants and any successors to the Philips Defendants’ rights or

interests under the Settlement are hereby enjoined and finally and forever barred from challenging

or opposing a Settlement Class Member’s Medical Monitoring and Personal Injury Claims or

ability to recover for those claims on the basis of the Settlement, any payments under the

Settlement, or the Releases provided therein, other than to prevent double recovery for economic

losses related to the Recalled Devices or to prevent against the increase of an exemplary or punitive

damages award on account of economic losses.

29. The finality of this Final Order and Judgment shall not be affected by any order

entered regarding the Settlement Class Counsel’s motion for an award of attorneys’ fees and

reimbursement of expenses and/or any order entered regarding the Service Awards to the

Settlement Class Representatives, which shall be considered separate from this Final Order and

Judgment.

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 Case 2:21-mc-01230-JFC Document 2213-1 Filed 09/07/23 Page 168 of 168

30. The Court shall retain continuing and exclusive jurisdiction over the Settlement

Funds and the distribution of same to Eligible Settlement Class Members.

31. Without affecting the finality of this Final Order and Judgment, and solely for

purposes of this Settlement, the Philips Defendants and each Settlement Class Member hereby

irrevocably submit to the exclusive jurisdiction of the Court for any suit, action, proceeding, or

dispute arising out of or relating to the Settlement Agreement and/or the applicability,

interpretation, administration, validity or enforcement of the Settlement Agreement.

32. The Parties are hereby directed to implement and consummate the Settlement

according to the terms and provisions of the Settlement Agreement, which are hereby approved

and incorporated herein by reference.

33. Without further order of the Court, the Parties may agree to reasonably necessary

extensions of time to carry out any of the provisions of the Settlement Agreement.

34. This is the Final Order and Judgment as defined in the Settlement Agreement. In

the event that this Final Judgment is not otherwise final and appealable, pursuant to Federal Rule

of Civil Procedure 54(b), the Court finds and directs that there is no just reason for delaying

enforcement or appeal, and judgment should be entered.

IT IS SO ORDERED. BY THE COURT:

The Honorable Joy Flowers Conti

Senior United States District Judge

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Case 2:21-mc-01230-JFC Document 2213-2 Filed 09/07/23 Page 1 of 7

BRIEF IN SUPPORT OF
PRELIMINARY APPROVAL

EXHIBIT B
 Case 2:21-mc-01230-JFC Document 2213-2 Filed 09/07/23 Page 2 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE PHILIPS RECALLED CPAP, Master Docket: Misc. No. 21-mc-1230-JFC

BI-LEVEL PAP, AND MECHANICAL
:
VENTILATOR PRODUCTS
LITIGATION : MDL No. 3014
:
This Document Relates to: All Actions :
Asserting Economic Loss Claims

DECLARATION OF HON. DIANE M. WELSH (RET.)

IN SUPPORT OF PROPOSED ECONOMIC LOSS CLAIMS SETTLEMENT

I, Diane M. Welsh, hereby declare as follows:

1. I submit this Declaration in my capacity as the Court-appointed Settlement

Mediator in this litigation. In that capacity, I mediated a proposed class settlement of the

Economic Loss Claims in the above-captioned putative class action against Defendants Philips

RS North America LLC, Koninklijke Philips N.V., Philips North America LLC, Philips Holding

USA, Inc., and Philips RS North America Holding Corporation (collectively, the “Philips

Defendants”).

2. I have been asked to provide this Declaration in support of preliminary approval

of the proposed class action settlement that was negotiated under my supervision between the

representatives of Settlement Class Counsel1 and the Philips Defendants. As will be described in

more detail below, the negotiations between the parties were protracted, hard fought, and

conducted at arm’s-length and in good faith. Based on my extensive experience as a mediator

and as a former Magistrate Judge, I believe the proposed settlement is fair, reasonable and

adequate.

1
Representatives of Settlement Class Counsel involved in the mediation process were comprised
of Christopher Seeger and David Buchanan; Sandra Duggan; Steve Schwartz; Kelly Iverson and
Gary Lynch; Roberta Liebenberg; Arthur Stroyd; and Lisa Gorshe (“Settlement Class Counsel”).
 Case 2:21-mc-01230-JFC Document 2213-2 Filed 09/07/23 Page 3 of 7

3. I have personal knowledge of the facts stated herein from my role as mediator of

the settlement negotiations between the Settlement Class Counsel and the Philips Defendants

concerning the Economic Loss Claims, and I am competent to testify to the matters set forth in

this Declaration.

4. I served as a Magistrate Judge in the U.S. District Court for the Eastern District of

Pennsylvania from 1994-2005. Thereafter, I became a mediator with JAMS. As a Magistrate

Judge and JAMS neutral, I have successfully resolved over 5,000 matters covering virtually

every type of complex dispute. Most relevant here, I have substantial experience resolving class

actions and MDL litigation of all types, including consumer class actions, product liability

actions, mass torts, and economic loss claims.

5. I set forth my background to provide context for the statements that follow, and to

demonstrate that my perspective on the settlement in this matter is based upon significant

experience in the resolution of complex litigation of this type.

6. On May 26, 2022, I was appointed by the Court to serve as a Settlement Mediator

in this case (Dkt. No. 588, Pretrial Order No. 16). Shortly after I was appointed and before the

first remote mediation session on June 24, 2022, I had a Zoom call with the parties’ counsel and

subsequently corresponded with them to discuss the general issues in the case, discovery in aid

of mediation, and the logistics for the mediation.

7. The parties worked cooperatively to negotiate and exchange initial targeted

discovery that would help in the mediation process. At my request, the parties exchanged

detailed mediation statements in advance of the first mediation. Their submissions addressed the

factual issues pertaining to the Economic Loss Claims; key legal issues, including standing,

damages, class certification, and precedent in this Circuit and beyond; and the parties’ settlement

proposals. I closely reviewed the mediation statements and the Consolidated Third Amended

2
 Case 2:21-mc-01230-JFC Document 2213-2 Filed 09/07/23 Page 4 of 7

Class Action Complaint, and became familiar with the nature of the claims and defenses

asserted.

8. The first in-person mediation session took place on September 15, 2022. The

mediation was attended by Settlement Class Counsel and outside counsel for the Philips

Defendants, as well as senior client representatives with settlement authority. Throughout the day

I conducted joint sessions with all participants, as well as individual breakout sessions with the

parties. During the sessions, counsel made multiple presentations regarding various factual and

legal issues. There were extensive discussions of the strengths and weaknesses of the parties’

respective positions concerning the merits, damages, and a possible structure for a settlement of

the Economic Loss Claims.

9. In addition, the parties discussed how to prioritize additional targeted discovery to

facilitate the mediation discussions. As a result, subsequent to the first mediation there were

numerous further exchanges of documents, and information was provided in response to specific

interrogatories and other requests in order to ensure that the parties were fully informed of the

relevant facts.

10. Prior to the second mediation session, Settlement Class Counsel drafted a

proposed settlement term sheet that focused on a structure for a class settlement and exchanged

numerous drafts with the Philips Defendants.

11. A second in-person mediation session was held on November 15, 2022. The

parties continued to discuss the structure of a proposed settlement and revisions to a draft term

sheet. The parties also continued to exchange information and documents.

12. Two more in-person mediation sessions were conducted on February 23 and 24,

2023. The session on February 23rd lasted until 7:30 pm and involved resolving outstanding

3
 Case 2:21-mc-01230-JFC Document 2213-2 Filed 09/07/23 Page 5 of 7

issues, including with respect to payments to class members. On February 24, the parties

continued to finalize certain outstanding issues.

13. Apart from the four in-person mediation sessions, the parties negotiated

extensively over the phone and by e-mail, and I became involved from time-to-time to help

resolve disputes as they arose.

14. Thereafter, the parties continued to work on negotiating a term sheet. There was

extensive back and forth, and a term sheet setting forth some of the terms of the settlement was

ultimately signed on May 24, 2023.

15. The parties then engaged in extensive negotiations for several months over the

terms of the Settlement Agreement, and once again I was called upon by the parties periodically

to help them resolve disputes over certain issues.

16. The parties’ negotiations during the mediation sessions and in connection with the

settlement were focused exclusively on benefits for the Settlement Class, and there was no

discussion or negotiation of attorneys’ fees for Settlement Class Counsel.

17. In sum, the negotiations of the Economic Loss Claims entailed numerous

competing offers and demands between the parties. Throughout the mediation process, the

parties engaged in extensive adversarial negotiations over all core issues. The facilitated

negotiations were lengthy, principled, exhaustive, informed, and sometimes contentious but

always professional.

18. The negotiations were conducted by highly qualified attorneys with extensive

experience and expertise in complex class actions in general, and economic loss, product

liability, and consumer litigation in particular. At all times, Settlement Class Counsel zealously

represented the interests of the proposed Settlement Class. They demonstrated a commitment to

provide meaningful and substantial benefits to the Settlement Class while at the same time

4
 Case 2:21-mc-01230-JFC Document 2213-2 Filed 09/07/23 Page 6 of 7

recognizing the significant risks they faced if they proceeded with the litigation of Economic

Loss Claims, as well as the substantial costs and delays in pursuing the matter through fact and

expert discovery, class certification, trial, and appeal. Internal and external counsel for the

Philips Defendants likewise zealously represented their clients. They pushed back on many of

the demands advanced by Settlement Class Counsel and articulated the obstacles Plaintiffs and

the putative class would face in litigation, while at the same time recognizing the risks, expenses,

and burdens of such litigation for their clients.

19. As a result of the extensive negotiations that I mediated, the parties reached a

comprehensive compromise and settlement, which confers significant benefits upon the

Settlement Class. In my opinion, the proposed settlement was the result of good faith, fair,

thorough, and fully-informed arm’s-length negotiations between highly capable and experienced

parties and counsel with a strong command of relevant facts and legal principles. The settlement

represents the parties’ and counsel’s best efforts and judgments after thoroughly investigating the

case, considering the risks, strengths, and weaknesses of their respective positions on the myriad

factual and legal issues; the substantial risks, burdens, delays and costs of continued litigation;

and the best interests of their respective clients.

20. Based on my extensive experience in mediating complex litigation of this type, I

believe that the proposed settlement fairly reflects the strengths and weaknesses of the Economic

Loss Claims being settled. Although the Court will need to make its own determination as to the

proposed settlement’s fairness under Fed. R. Civ. P. 23(e)(2), I can attest that, from an

experienced mediator’s perspective, the negotiated settlement produced by the extensive

mediation process represents a thorough, deliberative, and comprehensive resolution that will

benefit Settlement Class Members through meaningful and timely relief, and avoids the

considerable risks, delays, and costs inherent in class action litigation.

5
 Case 2:21-mc-01230-JFC Document 2213-2 Filed 09/07/23 Page 7 of 7

I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct to be best of my knowledge.

Executed on July 26th, 2023.

6
Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 1 of 43

BRIEF IN SUPPORT OF
PRELIMINARY APPROVAL

EXHIBIT C
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 2 of 43

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF PENNSYLVANIA

IN RE: PHILIPS RECALLED CPAP,

BI-PAP, AND MECHANICAL Master Docket No. 21-mc-1230-JFC
VENTILATOR PRODUCTS MDL No. 3014
LITIGATION

This Document Relates to:

All Actions Asserting Economic Loss Claims

DECLARATION OF STEVEN WEISBROT, ESQ. OF ANGEION GROUP, LLC

RE: PROPOSED NOTICE PLAN
I, Steven Weisbrot, hereby declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the

following is true and correct:

1. I am the President and Chief Executive Officer at the class action notice and claims

administration firm Angeion Group, LLC (“Angeion”). Angeion specializes in designing,

developing, analyzing, and implementing large-scale, un-biased, legal notification plans.

2. I have personal knowledge of the matters stated herein. In forming my opinions regarding

notice in this action, I have drawn from my extensive class action experience, as described below.

3. I have been responsible in whole or in part for the design and implementation of hundreds

of court-approved notice and administration programs, including some of the largest and most

complex notice plans in recent history. I have taught numerous accredited Continuing Legal
Education courses on the Ethics of Legal Notification in Class Action Settlements, using Digital

Media in Due Process Notice Programs, as well as Claims Administration, generally. I am the

author of multiple articles on Class Action Notice, Claims Administration, and Notice Design in

publications such as Bloomberg, BNA Class Action Litigation Report, Law360, the ABA Class

Action and Derivative Section Newsletter, and I am a frequent speaker on notice issues at

conferences throughout the United States and internationally.

4. I was certified as a professional in digital media sales by the Interactive Advertising Bureau
(“IAB”) and I am co-author of the Digital Media section of Duke Law’s Guidelines and Best

Declaration of Steven Weisbrot re: Proposed Notice Plan

1
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 3 of 43

Practices—Implementing 2018 Amendments to Rule 23 and the soon to be published George

Washington Law School Best Practices Guide to Class Action Litigation.

5. I have given public comment and written guidance to the Judicial Conference Committee

on Rules of Practice and Procedure on the role of direct mail, email, broadcast media, digital media,

and print publication, in effecting Due Process notice, and I have met with representatives of the

Federal Judicial Center to discuss the 2018 amendments to Rule 23 and offered an educational

curriculum for the judiciary concerning notice procedures.

6. Prior to joining Angeion’s executive team, I was employed as Director of Class Action

Services at Kurtzman Carson Consultants, an experienced notice and settlement administrator.

Prior to my notice and claims administration experience, I was employed in private law practice.

7. My notice work comprises a wide range of class actions that include product defect and

false advertising matters, data breach, mass disasters, employment discrimination, antitrust,

tobacco, banking, firearm, insurance, and bankruptcy cases.

8. I have been at the forefront of infusing digital media, as well as big data and advanced

targeting, into class action notice programs. Courts have repeatedly recognized and approved of

my work in the design of class action notice programs. A comprehensive summary of judicial

recognition Angeion has received is attached hereto as Exhibit A.

9. By way of background, Angeion is an experienced class action notice and claims

administration company formed by a team of executives that have had extensive tenures at five

other nationally recognized claims administration companies. Collectively, the management team

at Angeion has overseen the notice and administration of more than 2,000 class action settlements

and distributed over $15 billion to class members. The executive profiles as well as the company

overview are available at www.angeiongroup.com.

10. Angeion has regularly been approved by both federal and state courts throughout the

United States and abroad to provide notice of class actions and claims processing services.

Declaration of Steven Weisbrot re: Proposed Notice Plan

2
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 4 of 43

11. Angeion has extensive experience administering landmark settlements involving some of

the world’s most prominent companies, including:

In re: Facebook, Inc Consumer Privacy User Profile Litigation

Case No. 3:18-md-02843-VC
Meta agreed to pay $725 million to settle allegations that the social media company
allowed third parties, including Cambridge Analytica, to access personal
information. Angeion is currently undertaking an integrated in-app notification and
media campaign to a class in the hundreds of millions of individuals and businesses.

In re Apple Inc. Device Performance Litigation

Case No. 3:18-cv-02843 (N.D. Cal.)
Apple agreed to pay $310 million to settle allegations of diminished performance
in iPhone 6’s and 7’s. Angeion’s direct notification efforts were recognized as
satisfying due process for a settlement class consisting of the current and former
owners of 129 million class devices. Millions of claims were processed.

City of Long Beach, et al. v. Monsanto, et al.

Case No. 2:16-cv-03492-FMO-AS
Bayer agreed to pay $650 million to settle allegations of waterbodies impaired by
PCBs. Angeion’s notice administration was extraordinarily successful. The claims
administration includes multiple complex claims filing workflows for different
funding allocations, including separate fund for “special needs” claimants.

Beckett v. Aetna Inc.

Case No. 2:17- CV-3864-JS (E.D. Pa.)
A consolidated data breach class action that arose from the alleged improper
disclosure of Protected Health Information by a health insurer and previous claims
administrator, including confidential HIV-related information. Angeion provided
specialized training to our support team concerning the sensitive nature of the case
and underlying health information. Angeion implemented robust privacy protocols
to communicate with and verify the claims of the affected class members, including
anonymized notice packets and allowing claimants to lodge objections under
pseudonyms.

12. Relevant product defect, product recall, and matters involving medical products for which

Angeion has been appointed or retained are included in the chart below:

Declaration of Steven Weisbrot re: Proposed Notice Plan

3
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 5 of 43

Case Name Case No. Court

In re: Chrysler-Dodge-Jeep EcoDiesel Marketing, Sales Practices, and
Products Liability Litigation 3:17-cv-02777 N.D. Cal.
In re: Novartis and Par Antitrust Litigation 1:18-cv-04361 SD.N.Y.
Cole et al. v. NIBCO Inc. 3:13-cv-07871 D.N.J.
Matson et al. v. NIBCO Inc. 5:19-cv-00717 W.D. Tex.
In re: Glumetza Antitrust Litigation 3:19-cv-05822 N.D. Cal.
Baker v. Sorin Group Duetschland GMBH and Sorin Group USA, Inc. 1:16-cv-00260 M.D. Pa.
In re: Solodyn (Minocycline Hydrochloride) Antitrust Litigation 1:14-md-02503 D. Mass.
Corcoran v. CVS Pharmacy, Inc. 4:15-cv-03504 N.D. Cal.
In re: Surescripts Antitrust Litigation 1:19-cv-06627 N.D. Ill.
Delcid et al. v. TCP Hot Acquisition LLC & Idelle Labs, LTD. 1:21-cv-09569 S.D.N.Y.
Bangoura et al. v. Beiersdorf Inc. and Bayer Healthcare LLC 1:22-cv-00291 E.D.N.Y.
Goldstein v. Henkel Corporation and Thriving Brands LLC 3:22-cv-00164 D. Conn.

13. This declaration will describe the Notice Plan for the Settlement Class that, if approved

by the Court, Angeion will implement in this matter, including the considerations that informed

the development of the plan and why we believe it will provide due process to members of the

Settlement Class. In my professional opinion, the proposed Notice Plan described herein is the

best practicable notice under the circumstances and fulfills all due process requirements, fully

comporting with Fed. R. Civ. P. 23.

SETTLEMENT CLASS

14. The Settlement Agreement defines the Settlement Class as: All persons or entities in the

United States (including its Territories and the District of Columbia) who either (a) purchased,

leased, rented, paid for (in whole or part), or were prescribed a Recalled Device (“Users”), or (b)

reimbursed (in whole or part) a payment to purchase, lease, rent, or otherwise pay for a Recalled

Device, including insurers, self-funded employers, and third-party payers (“Payers”) (the

“Settlement Class”).

15. Excluded from the Settlement Class are: (a) Defendants and their officers, directors, and

employees; (b) the MDL Court, Settlement Mediator, Claims Appeals Special Master, and Special

Masters assigned to the MDL; (c) individuals who have already released Released Claims against
one or more of the Defendants pursuant to individual settlements or other resolutions; (d) Durable

Declaration of Steven Weisbrot re: Proposed Notice Plan

4
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 6 of 43

Medical Equipment (“DME”) providers; (e) the federal government and any federal government

payers, including the United States Department of Health and Human Services Centers for

Medicare & Medicaid Services, the Department of Defense, and the U.S. Department of Veterans

Affairs, and (f) Settlement Class Counsel.

16. Angeion has been informed that the Settlement Class is comprised of Users and Payers

who have purchased, leased, rented, or otherwise paid for (in whole or in part) approximately 10.8

million Recalled Devices.

OVERVIEW OF THE NOTICE PLAN

17. The parties have agreed that, as Settlement Administrator, we shall have discretion to

employ best practices in carrying out responsibilities in a manner consistent with the Settlement

Agreement including all of its Exhibits, this Declaration, and with our experience to provide the

best notice that is practicable under the circumstances, consistent with Federal Rule of Civil

Procedure 23 and the MDL Court’s Preliminary Approval Order.

18. The proposed Notice Plan provides for direct notice via both pre-paid first class mail and

email to all User and Payer Settlement Class Members with available addresses or email

addresses, combined with a robust media campaign consisting of state-of-the-art targeted internet

notice, social media notice utilizing some of the largest social media platforms in the United

States, a paid search campaign via Google, an extensive print publication campaign, video
advertising, streaming radio advertisements, and Sirius XM radio advertisements designed to

reach Users in the Settlement Class. The proposed Notice Plan also contemplates one reminder

email (prior to the expiration of the Claims Period) to all known Users with email addresses, as

well as email updates to Users in Angeion’s discretion in the event of material updates to the

Settlement. The Notice Plan provides for additional media notice tactics specifically designed to

reach Payers in the Settlement Class, and includes two (2) press releases, notice to known

hospitals and sleep labs contained in the contact records produced by Philips, and media

monitoring. The Notice Plan further provides for the implementation of a dedicated settlement

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website and toll-free telephone line where Settlement Class Members can learn more about their

rights and options pursuant to the terms of the Settlement. I also understand that pursuant to

Section 9.1.2.6 of the Settlement Agreement, Philips RS will refer Users on the DreamMapper

App to the Settlement website maintained by Angeion.

19. As discussed in greater detail below, the media campaign component of the Notice Plan

is designed to deliver an approximate 86.70% reach separate and apart from a comprehensive

direct notice campaign, settlement website, and toll-free telephone hotline. What this means in

practice is that 86.70% of our Target Audience will see a digital advertisement concerning the

Settlement. The direct notice efforts (discussed in greater detail below), dedicated website, and

toll-free telephone line are difficult to measure in terms of reach percentage but will nonetheless

provide awareness and further diffuse news of the Settlement to members of the Settlement Class.

Based on sophisticated media software and calculation engines that cross reference which media

is being purchased with the media habits of our specific Target Audience (defined in paragraph

30 below), the media campaign is designed and expected to reach 86.70% of the Target Audience

multiple times each.

20. The Federal Judicial Center states that a publication notice plan that reaches 70% of class

members is one that reaches a “high percentage” and is within the “norm.” Barbara J. Rothstein

& Thomas E. Willging, Federal Judicial Center, “Managing Class Action Litigation: A Pocket
Guide or Judges,” at 27 (3d Ed. 2010).

DIRECT NOTICE

Class List & Noticing Data

21. Angeion has or will receive extensive contact information for members of the Settlement

Class (collectively, the “Class List”). We have already received data from Philips Respironics for

Users who registered in its Recall Programs, as well as other User information collected by Philips

Respironics from DME providers as part of the Recall. We expect to also receive data relating to

hospitals and sleep labs in the United States to whom one or more of the Philips Defendants

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previously sold, rented, supplied, or otherwise provided Recalled Devices. Moreover, we are

expecting to receive information obtained by Plaintiffs from DMEs in discovery, and User data

from the Census Registry Program and Plaintiff Fact Sheets filed in support of Personal Injury

Complaints. Subject to receipt of additional data sources, Angeion has received contact

information for approximately 5 million potential members of the Settlement Class.

22. As part of the direct notice efforts, the Class List will be supplemented by Angeion’s

proprietary third-party payer database that consists of drug stores, pharmacies, insurance

companies, and health, welfare, and pension funds, that Angeion has obtained and manages.

23. Angeion will perform a thorough analysis to identify duplicative records, as well as

missing/incomplete data fields. Angeion will then assign an identification number to each unique

record.

Mailed Notice

24. As part of the Notice Plan, Angeion will send the notice via first class U.S. mail, postage

pre-paid to all Users included on the Class List provided to Angeion with available addresses, as

well as all entities contained in Angeion’s proprietary third-party payer database. The notice

mailed to Users on the Class List will consist of the long form Notice and will be mailed in a

HIPAA-compliant security envelope, which contains a pattern printed on the inside to shield the

contents of the envelope. Users on the Class List who have registered their Recalled Device for a
Recall Program, but not yet returned their device, will also receive an additional, targeted

notification as part of the same mailing. The notice mailed to Payers from Angeion’s proprietary

third-party payer database will consist of the long form Notice.

25. Angeion will employ best practices to increase the deliverability rate of the mailed notices.

Angeion will cause all mailing address information to be updated utilizing the United States Postal

Service’s (“USPS”) National Change of Address database, which provides updated address

information for individuals or entities who have moved during the previous four years and filed a

change of address with the USPS. In addition, the addresses will be certified via the Coding

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Accuracy Support System to ensure the quality of the zip code and verified through Delivery Point

Validation to verify the accuracy of the addresses.

26. Notices returned to Angeion by the USPS with a forwarding address will be re-mailed to

the new address provided by the USPS. Notices returned to Angeion by the USPS without

forwarding addresses will be subjected to an address verification search (commonly referred to as

“skip tracing”) utilizing a wide variety of data sources, including public records, real estate records,

electronic directory assistance listings, etc., to locate updated addresses. Notices will be re-mailed

to the updated addresses obtained via the skip tracing process.

Email Notice

27. As part of the Notice Plan, Angeion will send direct email notice to Users who have valid

email addresses included on the Class List and to Payers for whom Angeion has email addresses.

Angeion follows best practices to both validate emails and increase deliverability.

28. Specifically, prior to distributing the email notice, Angeion subjects the email addresses on

the Class List to a cleansing and validation process. The email cleansing process removes extra

spaces, fixes common typographical errors in ___domain names, and corrects insufficient ___domain

suffixes (e.g., gmal.com to gmail.com, gmail.co to gmail.com, yaho.com to yahoo.com, etc.). The

email addresses will then be subjected to an email validation process whereby each email address

will be compared to known bad email addresses.1 Email addresses that are not designated as a
known bad address will then be further verified by contacting the Internet Service Provider (“ISP”)

to determine if the email address exists.

29. Further, Angeion designs the email notice to avoid many common “red flags” that might

otherwise cause an email recipient’s spam filter to block or identify the email notice as spam. For

example, Angeion does not include attachments like the Long Form Notice to the email notice,

because attachments are often interpreted by various Internet Service Providers (“ISP”) as spam.

1
Angeion maintains a database of email addresses that were returned as permanently undeliverable, commonly
referred to as a hard bounce, from prior campaigns. Where an address has been returned as a hard bounce within the
last year, that email is designated as a known bad email address.

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30. Angeion also accounts for the real-world reality that some emails will inevitably fail to be

delivered during the initial delivery attempt. Therefore, after the initial noticing campaign is

complete, Angeion, after an approximate 24- to 72-hour rest period (which allows any temporary

block at the ISP level to expire) causes a second round of email noticing to continue to any email

addresses that were previously identified as soft bounces and not delivered. In our experience, this

minimizes emails that may have erroneously failed to deliver due to sensitive servers and optimizes

delivery.

31. Before the Final Approval Hearing, Angeion will submit a supplemental declaration

providing the Court with, among other things, a detailed, verified account of the success rate of

the direct email notice campaign.

MEDIA NOTICE - USERS

Programmatic Display Advertising

32. Angeion will utilize a form of internet advertising known as Programmatic Display

Advertising, which is the leading method of buying digital advertisements in the United States.2

In laymen’s terms, programmatic advertising uses demographic profiles and advanced technology

to place advertisements on the websites where members of the audience are most likely to visit

(these websites are accessible on computers, mobile phones and tablets). The media notice outlined

below is strategically designed to provide notice of the Settlement to these individuals (“Users”)
by driving them to the dedicated website where they can learn more about the Settlement, including

their rights and options.

33. To develop the media notice campaign and to verify its effectiveness, our media team

analyzed data from 2022 comScore Multi-Platform/MRI Simmons USA Fusion3 to profile the

2
Programmatic Display Advertising is a trusted method specifically utilized to reach defined target audiences. In
2023, programmatic digital display ad spending is expected to reach nearly 142 billion U.S. dollars.
https://www.insiderintelligence.com/chart/255070/us-programmatic-digital-display-ad-spending-2019-2023-
billions-of-total-digital-display-ad-spending
3
GfK MediaMark Research and Intelligence LLC (“GfK MRI”) provides demographic, brand preference and media-
use habits, and captures in-depth information on consumer media choices, attitudes, and consumption of products and

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class and arrive at an appropriate Target Audience based on criteria pertinent to this Settlement.

Specifically, the following syndicated research definition was used to profile potential Settlement

Class Members: Individuals that have been or are diagnosed with sleep apnea.

34. Based on the target definition used, the size of the Target Audience for the media notice

campaign is approximately 15,833,000 individuals. Digital media platforms provide numerous

data segments dedicated to consumer package goods brands. We will rely heavily on that data to

help us ensure we are reaching users of machines of the types at issue.

35. It is important to note that the Target Audience is distinct from the class definition, as is

commonplace in class action notice plans. Utilizing an overinclusive proxy audience maximizes

the efficacy of the notice plan and is considered a best practice among media planners and class

action notice experts alike. Using proxy audiences is also commonplace in both class action

litigation and advertising generally4.

36. Additionally, the Target Audience is based on objective syndicated data, which is routinely

used by advertising agencies and experts to understand the demographics, shopping habits and

attitudes of the consumers that they are seeking to reach. Using this form of objective data will

allow the parties to report the reach to the Court, with the confidence that the reach percentage and

the number of exposure opportunities complies with due process and exceeds the Federal Judicial

Center’s threshold as to reasonableness in notification programs. Virtually all professional

advertising agencies and commercial media departments use objective syndicated data tools, like

the ones described above, to quantify net reach. Sources like these guarantee that advertising

placements can be measured against an objective basis and confirm that reporting statistics are not

services in nearly 600 categories. comSCORE, Inc. (“comSCORE”) is a leading cross-platform measurement and
analytics company that precisely measures audiences, brands, and consumer behavior, capturing 1.9 trillion global
interactions monthly. comSCORE’s proprietary digital audience measurement methodology allows marketers to
calculate audience reach in a manner not affected by variables such as cookie deletion and cookie blocking/rejection,
allowing these audiences to be reach more effectively. comSCORE operates in more than 75 countries, including the
United States, serving over 3,200 clients worldwide.
4
Duke Law School, GUIDELINES AND BEST PRACTICES IMPLEMENTING 2018 AMENDMENTS TO RULE
23 CLASS ACTION SETTLEMENT PROVISIONS, at 56.

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overstated. They are ubiquitous tools in a media planner’s arsenal and are regularly accepted by

courts in evaluating the efficacy of a media plan, or its component parts. Understanding the socio-

economic characteristics, interests and practices of a target group aids in the proper selection of

media to reach that target. Here, the Target Audience has been reported to have the following

characteristics:

• 73.79% are ages 45+, with a median age of 57.9 years old;

• 57.40% are male;

• 56.56% are married;

• 24.99% have children;

• 34.81% have received a bachelor’s or post-graduate degree;

• 41.11% are currently employed full time;

• The average household income is $80,890; and

• 83.93% have used social media in the last 30 days.

37. To identify the best vehicles to deliver messaging to the Target Audience, the media

quintiles, which measure the degree to which an audience uses media relative to the general

population were reviewed. Here, the objective syndicated data shows that members of the Target

Audience spend an average of approximately 28.1 hours per week on the internet.

38. Given the strength of digital advertising, as well as our Target Audience’s consistent
internet use, we plan to utilize a robust internet advertising campaign to reach Settlement Class

Members. This media schedule will allow us to deliver an effective reach level and a vigorous

frequency, which will provide due and proper notice to the Settlement Class.

39. Multiple targeting layers will be implemented into the programmatic campaign to help

ensure delivery to the most appropriate users, inclusive of the following tactics:

• Look-a-like Modelling: This technique uses data methods to build a look-a-like audience
against known members of the Settlement Class.

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• Predictive Targeting: This technique allows technology to “predict” which users will be
best served by advertisements about the Settlement.
• Site Retargeting: This technique is a targeting method used to reach potential members of
the Settlement Class who have already visited the dedicated case website while they browse
other pages. This allows for sufficient exposure to an advertisement about the Settlement.
• Geotargeting: The campaign will be targeted nationwide. If sufficient data is available,
the campaign will use a weighted delivery based on the geographic spread of the Target
Audience throughout the country.
• Site Targeting: The programmatic strategy will also focus activity on key sites such as
Nextdoor.com and WebMD.com.

40. To combat the possibility of non-human viewership of digital advertisements and to verify

effective unique placements, Angeion employs Oracle’s BlueKai, Adobe’s Audience Manger

and/or Lotame, which are demand management platforms (“DMP”). DMPs allow Angeion to learn

more about the online audiences that are being reached. Further, online ad verification and security

providers such as Comscore Content Activation, DoubleVerify, Grapeshot, Peer39 and Moat will

be deployed to provide a higher quality of service to ad performance.

Social Media Advertising

41. The social media campaign component of the proposed Notice Plan will utilize several of

the leading social media platforms in the United States: Facebook, Instagram, Twitter, and Reddit.5

The social media campaign uses an interest-based approach which focuses on the interests that

users exhibit while on the social media platforms, capitalizing on the Target Audience’s propensity

to engage in social media (83.93% of the Target Audience have used social media in the last 30

5
In the United States in 2023, Facebook has a reported 243.58 million users, and Instagram has a reported 150.99
million users, Twitter has a reported 64.9 million users, and Reddit has a reported 190.77 million users. See
https://www.statista.com/statistics/408971/number-of-us-facebook-users
https://www.statista.com/statistics/293771/number-of-us-instagram-users
https://www.statista.com/forecasts/1145591/reddit-users-in-the-united-states
https://www.oberlo.com/statistics/number-of-twitter-users-by-country.

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days), while specifically targeting users who demonstrate an interest in sleep apnea and/or the

types of devices at issue in this litigation.

42. The social media campaign will utilize specific tactics to further qualify and deliver

impressions6 to the Target Audience. For example, we will use Facebook Marketing platform and

its technology to serve ads on both Facebook and Instagram against the Target Audience. Look-a-

like modeling allows the use of consumer characteristics to serve ads. Based on these

characteristics, we can build different consumer profile segments to ensure the notice plan

messaging is delivered to the proper audience. The social media ads will be targeted nationwide.

If sufficient data is available, the campaign will leverage a weighted delivery based on the

geographic spread of the Target Audience throughout the country.

43. The social media campaign will engage with the Target Audience via Facebook, Instagram,

Twitter, and Reddit on desktop sites, mobile sites, and mobile apps. Additionally, Angeion will

monitor these social media platforms (“active listening”) for discussion of the Settlement, and will,

where appropriate, provide the official Settlement Website URL and/or provide answers to

frequently asked questions.

44. The digital and social media advertising is designed to deliver an approximate 91 million

impressions.

Search Engine Marketing

45. The Notice Plan also includes a paid search campaign on Google to help drive members

of the Settlement Class who are actively searching for information about the Settlement to the

dedicated Settlement Website. Paid search ads will complement the programmatic and social

media campaigns, as search engines are frequently used to locate a specific website, rather than a

person typing in the URL. Search terms would relate to not only the Settlement itself but also the

subject-matter of the litigation. In other words, the paid search ads are driven by the individual

user’s search activity, such that if that individual searches for (or has recently searched for) the

6
An impression is when an advertisement reaches a user’s screen

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Settlement, litigation or other terms related to the Settlement, that individual could be served with

an advertisement directing them to the Settlement Website.

Publication

46. To complement the digital advertising notice efforts and to reach Settlement Class

Members who ingest news via print, the Notice Plan includes publication notice in titles such as

People magazine, Readers Digest and Southern Living. The chart below demonstrates the

circulation, total audience size and number of insertions per publication.7

Publication Circulation Total Audience # of Insertions

People 2.5 Million 26.2 Million 2
Reader's Digest 2.5 Million 14.2 Million 1
Southern Living 2.8 Million 12.6 Million 1

47. These publications were specifically selected due to the overlap between the Target

Audience and each publication’s audience.

Video Advertising

48. Digital video advertising will also be used to disseminate notice of the Settlement. Video

advertisements help increase web traffic by 87% and have a 30% higher audience reach than static

digital advertisements.8

49. The video advertisement campaign will feature thirty (30) second advertisements displayed

on YouTube and programmatically across websites contextually targeting members of our Target
Audience. The advertisements will be accessible on computers, mobile phones, and tablets. The

video campaign is designed to deliver nearly 2,777,000 impressions.

Streaming Radio Advertising

50. Top streaming radio services such as Spotify and Pandora will be used to further provide

notice of the Settlement and complement the digital advertising efforts, as radio has been shown

7
Alternative, similar titles may be utilized for publication based on timing, availability, and content acceptance by the
publications.
8
https://www.brid.tv/video-vs-image-ads/

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to stimulate increased online browsing for the subject matter of the advertisement.9 Radio

advertisements of fifteen (15) and thirty (30) seconds will be used to deliver an approximate

1,785,000 impressions.

Sirius XM Advertising

51. Advertisement of the Settlement in thirty (30) and sixty (60) second spots will air on Sirius

XM satellite radio throughout news and entertainment stations. Sirius XM advertisements are

designed to deliver approximately 16,923,000 impressions.

MEDIA NOTICE - PAYERS

52. The Notice Plan includes tactics specific to the Payer members of the Settlement Class.

The Payer media plan consists of digital advertisements, social media advertising via Facebook

and LinkedIn, and an additional paid search campaign via Googles, specific to Payers.

53. Additionally, publication in HR Magazine or a similar title will be used to further

disseminate news of the Settlement.

INDUSTRY OUTREACH

54. Angeion will also send notice of the Settlement via first-class mail, postage prepaid, to

known DMEs in the United States that sold, rented, supplied, or otherwise provided Recalled

Devices to Users, requesting that the DMEs notify their Users of the Settlement, to further promote

dissemination of news and notice of the Settlement.

PRESS RELEASE

55. The Notice Plan includes issuing two press releases, once at the outset of the notice

program and once as a claim filing reminder, to be distributed over PR Newswire (or a similar

press release distribution service) to further diffuse news of the Settlement. The press releases will

help garner “earned media” (i.e., other media outlets and/or publications will report the story) to

supplement the comprehensive notice efforts outlined herein, which will lead to increased

awareness and participation amongst members of the Settlement Class.

9
https://www.radiocentre.org/our-research/radio-the-online-multiplier/

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MEDIA MONITORING

56. Angeion will also aggregate data across multiple platforms and systems to quantify the

output of print, online, and broadcast coverage of this Settlement. Before the Final Approval

Hearing, Angeion will submit a supplemental declaration that quantifies and assigns a value to

garnered press coverage.

SETTLEMENT WEBSITE & TOLL-FREE TELEPHONE SUPPORT

57. The Notice Plan will also implement the creation of a case-specific website in English and

Spanish, where Settlement Class Members can easily view general information about this

Settlement, review relevant Court documents, and view important dates and deadlines pertinent to

the Settlement. The Settlement Website will be designed to be user-friendly and make it easy for

members of the Settlement Class to securely submit a claim form and upload documentation online

via the Settlement Website. The Settlement Website will also include a chat bot to stream

Settlement Class member questions. Additionally, members of the Settlement Class can send an

email with any additional questions to a dedicated email address. The Settlement Website will be

customized to include serial number lookup functionality for the Recalled Devices.

58. The Settlement Website will be ADA-compliant and optimized for mobile visitors so that

information loads quickly on mobile devices. Additionally, the Settlement Website will be

designed to maximize search engine optimization through Google and other search engines.
Keywords and natural language search terms will be included in the Settlement Website’s metadata

to maximize search engine rankings.

59. A toll-free hotline devoted to this case will be implemented to further apprise Settlement

Class Members of their rights and options pursuant to the terms of the Settlement in both English

and Spanish. The toll-free hotline will utilize an interactive voice response (“IVR”) system to

provide members of the Settlement Class with responses to frequently asked questions and provide

essential information regarding the Settlement. This hotline will be accessible 24 hours a day, 7

days a week. Additionally, members of the Settlement Class will be able to request a copy of the

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Notice or Claim Form via the toll-free hotline. Live operators will be available during normal

business hours, Monday through Friday.

NOTICE PURSUANT TO THE CLASS ACTION FAIRNESS ACT OF 2005

60. Within ten days of the filing of the Class Action Settlement Agreement and Release with

this Court, Angeion will cause notice to be disseminated to the appropriate state and federal

officials pursuant to the requirements of the Class Action Fairness Act, 28 U.S.C. §1715.

PLAIN LANGUAGE NOTICE DESIGN

61. The proposed Notice forms used in this matter are designed to be “noticed,” reviewed, and

by presenting the information in plain language, understood by members of the Settlement Class.

The design of the notices follows the principles embodied in the Federal Judicial Center’s

illustrative “model” notices posted at www.fjc.gov. The Notice forms contain plain-language

summaries of key information about the rights and options of members of the Settlement Class

pursuant to the terms of the Settlement. Consistent with normal practice, prior to being delivered

and published, all notice documents will undergo a final edit for accuracy.

62. Rule 23(c)(2) of the Federal Rules of Civil Procedure requires class action notices to be

written in “plain, easily understood language.” Angeion Group maintains a strong commitment to

adhering to this requirement, drawing on its experience and expertise to craft notices that

effectively convey the necessary information to Settlement Class Members in plain language.
DATA SECURITY & INSURANCE

63. Angeion recognizes the critical need to secure our physical and network environments and

protect data in our custody. It is our commitment to these matters that has made us the go-to

administrator for many of the most prominent data security matters of this decade. We are ever

improving upon our robust policies, procedures, and infrastructure by periodically updating data

security policies as well as our approach to managing data security in response to changes to

physical environment, new threats and risks, business circumstances, legal and policy implications,

and evolving technical environments.

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64. Angeion’s privacy practices are compliant with the California Consumer Privacy Act, as

currently drafted. Consumer data obtained for the delivery of each project is used only for the

purposes intended and agreed in advance by all contracted parties, including compliance with

orders issued by State or Federal courts as appropriate. Angeion imposes additional data security

measures for the protection of Personally Identifiable Information (PII) and Personal Health

Information (PHI), including redaction, restricted network and physical access on a need-to-know

basis, and network access tracking. Angeion requires background checks of all employees, requires

background checks and ongoing compliance audits of its contractors, and enforces standard

protocols for the rapid removal of physical and network access in the event of an employee or

contractor termination.

65. Data is transmitted using Transport Layer Security (TLS) 1.3 protocols. Network data is

encrypted at rest with the government and financial institution standard of AES 256-bit encryption.

Angeion maintains an offline, air-gapped backup copy of all data, ensuring that projects can be

administered without interruption.

66. Further, our team stays on top of latest compliance requirements, such as GDPR, HIPAA,

PCI DSS, and others, to ensure that our organization is meeting all necessary regulatory obligations

as well as aligning to industry best practices and standards set forth by frameworks like CIS and

NIST. Angeion is cognizant of the ever-evolving digital landscape and continually improves its
security infrastructure and processes, including partnering with best-in-class security service

providers. Angeion’s robust policies and processes cover all aspects of information security to form

part of an industry leading security and compliance program, which is regularly assessed by

independent third parties. Angeion is also committed to a culture of security mindfulness. All

employees routinely undergo cybersecurity training to ensure that safeguarding information and

cybersecurity vigilance is a core practice in all aspects of the work our teams complete.

67. Angeion currently maintains a comprehensive insurance program, including sufficient

Errors & Omissions coverage.

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REACH

68. This declaration describes the reach evidence which courts systemically rely upon in

reviewing class action publication notice programs for adequacy. The reach percentage exceeds

the guidelines as set forth in the Federal Judicial Center’s Judges’ Class Action Notice and Claims

Process Checklist and Plain Language Guide to effectuate a notice program which reaches a high

degree of class members.

69. Specifically, the User media campaign of the Notice Plan are designed to reach 86.70% of

the Target Audience multiple times each. The 86.70% reach approximation is independent from

direct notice efforts, Payer media efforts, outreach efforts, press releases, Settlement Website, and

the toll-free hotline.

CONCLUSION

70. The Notice Plan outlined above includes direct notice via email combined with a robust

media campaign consisting of state-of-the-art internet advertising, a comprehensive social media

campaign and a search engine marketing campaign. Further, the Notice Plan provides for the

implementation of a dedicated settlement website and toll-free hotline to further inform members

of the Settlement Class of their rights and options in the Settlement.

71. It is my opinion that the Notice Plan described herein meets the requirements of due

process, and Fed. R. Civ. P. 23, and will provide the best notice practicable under the
circumstances, incorporating contemporary media and best practices to alert and engage the

participation of Settlement Class Members in the proposed Settlement. Moreover, it is my opinion

that this multi-faceted and innovative Notice Plan will provide full and proper notice to Settlement

Class Members before the claims, opt-out and objection deadlines.

I hereby declare under penalty of perjury that the foregoing is true and correct.

Dated: September 5, 2023

____________________
STEVEN WEISBROT

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Exhibit A
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Judicial Recognition

© Angeion Group, LLC

 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 23 of 43

IN RE: FACEBOOK, INC. CONSUMER PRIVACY USER PROFILE LITIGATION

Case No. 3:18-md-02843
The Honorable Vincent Chhabria, United States District Court, Northern District of California
(March 29, 2023): The Court approves the Settlement Administration Protocol & Notice Plan,
amended Summary Notice (Dkt. No. 1114-8), second amended Class Notice (Dkt. No. 1114-
6), In-App Notice, amended Claim Form (Dkt. No. 1114-2), Opt-Out Form (Dkt. No. 1122-1),
and Objection Form (Dkt. No. 1122-2) and finds that their dissemination substantially in the
manner and form set forth in the Settlement Agreement and the subsequent filings
referenced above meets the requirements of Federal Rule of Civil Procedure 23 and due
process, constitutes the best notice practicable under the circumstances, and is reasonably
calculated, under the circumstances, to apprise members of the Settlement Class of the
pendency of the Action, the effect of the proposed Settlement (including the releases
contained therein), the anticipated motion for Attorneys’ Fees and Expenses Award and for
Service Awards, and their rights to participate in, opt out of, or object to any aspect of the
proposed Settlement.

LUNDY v. META PLATFORMS, INC.

Case No. 3:18-cv-06793
The Honorable James Donato, United States District Court, Northern District of California
(April 26, 2023): For purposes of Rule 23(e), the Notice Plan submitted with the Motion for
Preliminary Approval and the forms of notice attached thereto are approved…The form,
content, and method of giving notice to the Settlement Class as described in the Notice Plan
submitted with the Motion for Preliminary Approval are accepted at this time as practicable
and reasonable in light of the rather unique circumstances of this case.

IN RE: APPLE INC. DEVICE PERFORMANCE LITIGATION

Case No. 5:18-md-02827
The Honorable Edward J. Davila, United States District Court, Northern District of California
(March 17, 2021): Angeion undertook a comprehensive notice campaign…The notice
program was well executed, far-reaching, and exceeded both Federal Rule of Civil Procedure
23(c)(2)(B)’s requirement to provide the “best notice that is practicable under the
circumstances” and Rule 23(e)(1)(B)’s requirement to provide “direct notice in a reasonable
manner.”

IN RE: TIKTOK, INC., CONSUMER PRIVACY LITIGATION

Case No. 1:20-cv-04699
The Honorable John Z. Lee, United States District Court, Northern District of Illinois (August
22, 2022): The Class Notice was disseminated in accordance with the procedures required
by the Court’s Order Granting Preliminary Approval…in accordance with applicable law,
satisfied the requirements of Rule 23(e) and due process, and constituted the best notice
practicable…
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 24 of 43

IN RE: GOOGLE PLUS PROFILE LITIGATION

Case No. 5:18-cv-06164
The Honorable Edward J. Davila, United States District Court, Northern District of California
(January 25, 2021): The Court further finds that the program for disseminating notice to
Settlement Class Members provided for in the Settlement, and previously approved and
directed by the Court (hereinafter, the “Notice Program”), has been implemented by the
Settlement Administrator and the Parties, and such Notice Program, including the approved
forms of notice, is reasonable and appropriate and satisfies all applicable due process and
other requirements, and constitutes best notice reasonably calculated under the
circumstances to apprise Settlement Class Members…

MEHTA v. ROBINHOOD FINANCIAL LLC

Case No. 5:21-cv-01013
The Honorable Susan van Keulen, United States District Court, Northern District of California
(August 29, 2022): The proposed notice plan, which includes direct notice via email, will
provide the best notice practicable under the circumstances. This plan and the Notice are
reasonably calculated, under the circumstances, to apprise Class Members of the nature and
pendency of the Litigation, the scope of the Settlement Class, a summary of the class claims,
that a Class Member may enter an appearance through an attorney, that the Court will grant
timely exclusion requests, the time and manner for requesting exclusion, the binding effect
of final approval of the proposed Settlement, and the anticipated motion for attorneys’ fees,
costs, and expenses and for service awards. The plan and the Notice constitute due,
adequate, and sufficient notice to Class Members and satisfy the requirements of Rule 23 of
the Federal Rules of Civil Procedure, due process, and all other applicable laws and rules.

ADTRADER, INC. v. GOOGLE LLC

Case No. 5:17-cv-07082
The Honorable Beth L. Freeman, United States District Court, Northern District of California
(May 13, 2022): The Court approves, as to form, content, and distribution, the Notice Plan
set forth in the Settlement Agreement, including the Notice Forms attached to the Weisbrot
Declaration, subject to the Court’s one requested change as further described in Paragraph
8 of this Order, and finds that such Notice is the best notice practicable under the
circumstances, and that the Notice complies fully with the requirements of the Federal Rules
of Civil Procedure. The Court further finds that the Notice is reasonably calculated to, under
all circumstances, reasonably apprise members of the AdWords Class of the pendency of
this Action, the terms of the Settlement Agreement, and the right to object to the Settlement
and to exclude themselves from the AdWords Class. The Court also finds that the Notice
constitutes valid, due and sufficient notice to all persons entitled thereto, and meets the
requirements of Due Process. The Court further finds that the Notice Plan fully complies with
the Northern District of California’s Procedural Guidance for Class Action Settlements.
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 25 of 43

IN RE: FACEBOOK INTERNET TRACKING LITIGATION

Case No. 5:12-md-02314
The Honorable Edward J. Davila, United States District Court, Northern District of California
(November 10, 2022): The Court finds that Plaintiffs’ notice meets all applicable requirements
of due process and is particularly impressed with Plaintiffs’ methodology and use of
technology to reach as many Class Members as possible. Based upon the foregoing, the
Court finds that the Settlement Class has been provided adequate notice.

CITY OF LONG BEACH v. MONSANTO COMPANY

Case No. 2:16-cv-03493
The Honorable Fernando M. Olguin, United States District Court, Central District of California
(March 14, 2022): The court approves the form, substance, and requirements of the class
Notice, (Dkt.278-2, Settlement Agreement, Exh. I). The proposed manner of notice of the
settlement set forth in the Settlement Agreement constitutes the best notice practicable
under the circumstances and complies with the requirements of due process.

STEWART v. LEXISNEXIS RISK DATA RETRIEVAL SERVICES, LLC

Case No. 3:20-cv-00903
The Honorable John A. Gibney Jr., United States District Court, Eastern District of Virginia
(February 25, 2022): The proposed forms and methods for notifying the proposed Settlement
Class Members of the Settlement and its terms and conditions meet the requirements of
Fed. R. Civ. P. 23(c)(2)(B) and due process, constitute the best notice practicable under the
circumstances, and shall constitute due and sufficient notice to all persons and entities
entitled to notice…Based on the foregoing, the Court hereby approves the notice plans
developed by the Parties and the Settlement Administrator and directs that they be
implemented according to the Agreement and the notice plans attached as exhibits.

WILLIAMS v. APPLE INC.

Case No. 3:19-cv-0400
The Honorable Laurel Beeler, United States District Court, Northern District of California
(February 24, 2022): The Court finds the Email Notice and Website Notice (attached to the
Agreement as Exhibits 1 and 4, respectively), and their manner of transmission, implemented
pursuant to the Agreement (a) are the best practicable notice, (b) are reasonably calculated,
under the circumstances, to apprise the Subscriber Class of the pendency of the Action and
of their right to object to or to exclude themselves from the proposed settlement, (c) are
reasonable and constitute due, adequate and sufficient notice to all persons entitled to
receive notice, and (d) meet all requirements of applicable law.

CLEVELAND v. WHIRLPOOL CORPORATION

Case No. 0:20-cv-01906
The Honorable Wilhelmina M. Wright, United States District Court, District of Minnesota
(December 16, 2021): It appears to the Court that the proposed Notice Plan described herein,
and detailed in the Settlement Agreement, comports with due process, Rule 23, and all other
applicable law. Class Notice consists of email notice and postcard notice when email
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 26 of 43

addresses are unavailable, which is the best practicable notice under the circumstances…The
proposed Notice Plan complies with the requirements of Rule 23, Fed. R. Civ. P., and due
process, and Class Notice is to be sent to the Settlement Class Members as set forth in the
Settlement Agreement and pursuant to the deadlines above.

RASMUSSEN v. TESLA, INC. d/b/a TESLA MOTORS, INC.

Case No. 5:19-cv-04596
The Honorable Beth Labson Freeman, United States District Court, Northern District of
California (December 10, 2021): The Court has carefully considered the forms and methods
of notice to the Settlement Class set forth in the Settlement Agreement (“Notice Plan”). The
Court finds that the Notice Plan constitutes the best notice practicable under the
circumstances and fully satisfies the requirements of Rule 23 of the Federal Rules of Civil
Procedure, the requirements of due process, and the requirements of any other applicable
law, such that the terms of the Settlement Agreement, the releases provided for therein, and
this Court’s final judgment will be binding on all Settlement Class Members.

CAMERON v. APPLE INC.

Case No. 4:19-cv-03074
The Honorable Yvonne Gonzalez Rogers, United States District Court, Northern District of
California (November 16, 2021): The parties’ proposed notice plan appears to be
constitutionally sound in that plaintiffs have made a sufficient showing that it is: (i) the best
notice practicable; (ii) reasonably calculated, under the circumstances, to apprise the Class
members of the proposed settlement and of their right to object or to exclude themselves
as provided in the settlement agreement; (iii) reasonable and constitute due, adequate, and
sufficient notice to all persons entitled to receive notice; and (iv) meet all applicable
requirements of due process and any other applicable requirements under federal law.

RISTO v. SCREEN ACTORS GUILD-AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS

Case No. 2:18-cv-07241
The Honorable Christina A. Snyder, United States District Court, Central District of California
(November 12, 2021): The Court approves the publication notice plan presented to this Court
as it will provide notice to potential class members through a combination of traditional and
digital media that will consist of publication of notice via press release, programmatic display
digital advertising, and targeted social media, all of which will direct Class Members to the
Settlement website…The notice plan satisfies any due process concerns as this Court
certified the class under Federal Rule of Civil Procedure 23(b)(1)…

JENKINS v. NATIONAL GRID USA SERVICE COMPANY, INC.

Case No. 2:15-cv-01219
The Honorable Joanna Seybert, United States District Court, Eastern District of New York
(November 8, 2021): Pursuant to Fed. R. Civ. P. 23(e)(1) and 23(c)(2)(B), the Court approves
the proposed Notice Plan and procedures set forth at Section 8 of the Settlement, including
the form and content of the proposed forms of notice to the Settlement Class attached as
Exhibits C-G to the Settlement and the proposed procedures for Settlement Class Members
to exclude themselves from the Settlement Class or object. The Court finds that the proposed
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 27 of 43

Notice Plan meets the requirements of due process under the United States Constitution
and Rule 23, and that such Notice Plan—which includes direct notice to Settlement Class
Members sent via first class U.S. Mail and email; the establishment of a Settlement Website
(at the URL, www.nationalgridtcpasettlement.com) where Settlement Class Members can
view the full settlement agreement, the detailed long-form notice (in English and Spanish),
and other key case documents; publication notice in forms attached as Exhibits E and F to
the Settlement sent via social media (Facebook and Instagram) and streaming radio (e.g.,
Pandora and iHeart Radio). The Notice Plan shall also include a paid search campaign on
search engine(s) chosen by Angeion (e.g., Google) in the form attached as Exhibits G and the
establishment of a toll-free telephone number where Settlement Class Members can get
additional information—is the best notice practicable under the circumstances and shall
constitute due and sufficient notice to all persons entitled thereto.

NELLIS v. VIVID SEATS, LLC

Case No. 1:20-cv-02486
The Honorable Robert M. Dow, Jr., United States District Court, Northern District of Illinois
(November 1, 2021): The Notice Program, together with all included and ancillary documents
thereto, (a) constituted reasonable notice; (b) constituted notice that was reasonably
calculated under the circumstances to apprise members of the Settlement Class of the
pendency of the Litigation…(c) constituted reasonable, due, adequate and sufficient notice
to all Persons entitled to receive notice; and (d) met all applicable requirements of due
process and any other applicable law. The Court finds that Settlement Class Members have
been provided the best notice practicable of the Settlement and that such notice fully
satisfies all requirements of law as well as all requirements of due process.

PELLETIER v. ENDO INTERNATIONAL PLC

Case No. 2:17-cv-05114
The Honorable Michael M. Baylson, United States District Court, Eastern District of
Pennsylvania (October 25, 2021): The Court approves, as to form and content, the Notice of
Pendency and Proposed Settlement of Class Action (the “Notice”), the Proof of Claim and
Release form (the “Proof of Claim”), and the Summary Notice, annexed hereto as Exhibits A-
1, A-2, and A-3, respectively, and finds that the mailing and distribution of the Notice and
publishing of the Summary Notice, substantially in the manner and form set forth in ¶¶7-10
of this Order, meet the requirements of Rule 23 and due process, and is the best notice
practicable under the circumstances and shall constitute due and sufficient notice to all
Persons entitled thereto.

BIEGEL v. BLUE DIAMOND GROWERS

Case No. 7:20-cv-03032
The Honorable Cathy Seibel, United States District Court, Southern District of New York
(October 25, 2021): The Court finds that the Notice Plan, set forth in the Settlement
Agreement and effectuated pursuant to the Preliminary Approval Order: (i) was the best
notice practicable under the circumstances; (ii) was reasonably calculated to provide, and did
provide, due and sufficient notice to the Settlement Class regarding the existence and nature
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 28 of 43

of the Action…and (iii) satisfied the requirements of the Federal Rules of Civil Procedure, the
United States Constitution, and all other applicable law.

QUINTERO v. SAN DIEGO ASSOCIATION OF GOVERNMENTS

Case No. 37-2019-00017834-CU-NP-CTL
The Honorable Eddie C. Sturgeon, Superior Court of the State of California, County of San
Diego (September 27, 2021): The Court has reviewed the class notices for the Settlement
Class and the methods for providing notice and has determined that the parties will employ
forms and methods of notice that constitute the best notice practicable under the
circumstances; are reasonably calculated to apprise class members of the terms of the
Settlement and of their right to participate in it, object, or opt-out; are reasonable and
constitute due, adequate, and sufficient notice to all persons entitled to receive notice; and
meet all constitutional and statutory requirements, including all due process requirements
and the California Rules of Court.

HOLVE v. MCCORMICK & COMPANY, INC.

Case No. 6:16-cv-06702
The Honorable Mark W. Pedersen, United States District Court for the Western District of
New York (September 23, 2021): The Court finds that the form, content and method of giving
notice to the Class as described in the Settlement Agreement and the Declaration of the
Settlement Administrator: (a) will constitute the best practicable notice; (b) are reasonably
calculated, under the circumstances, to apprise the Settlement Class Members of the
pendency of the Action…(c) are reasonable and constitute due, adequate, and sufficient
notice to all Settlement Class Members and other persons entitled to receive notice; and (d)
meet all applicable requirements of law, including but not limited to 28 U.S.C. § 1715, Rule
23(c) and (e), and the Due Process Clause(s) of the United States Constitution.

CULBERTSON T AL. v. DELOITTE CONSULTING LLP

Case No. 1:20-cv-03962
The Honorable Lewis J. Liman, United States District Court, Southern District of New York
(August 27, 2021): The notice procedures described in the Notice Plan are hereby found to
be the best means of providing notice under the circumstances and, when completed, shall
constitute due and sufficient notice of the proposed Settlement Agreement and the Final
Approval Hearing to all persons affected by and/or entitled to participate in the Settlement
Agreement, in full compliance with the notice requirements of Rule 23 of the Federal Rules
of Civil Procedure and due process of law.

PULMONARY ASSOCIATES OF CHARLESTON PLLC v. GREENWAY HEALTH, LLC

Case No. 3:19-cv-00167
The Honorable Timothy C. Batten, Sr., United States District Court, Northern District of
Georgia (August 24, 2021): Under Rule 23(c)(2), the Court finds that the content, format, and
method of disseminating Notice, as set forth in the Motion, the Declaration of Steven
Weisbrot filed on July 2, 2021, and the Settlement Agreement and Release, including notice
by First Class U.S. Mail and email to all known Class Members, is the best notice practicable
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 29 of 43

under the circumstances and satisfies all requirements provided in Rule 23(c)(2)(B) and due
process.

IN RE: BROILER CHICKEN GROWER ANTITRUST LITIGATION (NO II)

Case No. 6:20-md-02977
The Honorable Robert J. Shelby, United States District Court, Eastern District of Oklahoma
(August 23, 2021): The Court approves the method of notice to be provided to the Settlement
Class as set forth in Plaintiffs’ Motion and Memorandum of Law in Support of Motion for
Approval of the Form and Manner of Class Notice and Appointment of Settlement
Administrator and Request for Expedited Treatment and the Declaration of Steven Weisbrot
on Angeion Group Qualifications and Proposed Notice Plan…The Court finds and concludes
that such notice: (a) is the best notice that is practicable under the circumstances, and is
reasonably calculated to reach the members of the Settlement Class and to apprise them of
the Action, the terms and conditions of the Settlement, their right to opt out and be excluded
from the Settlement Class, and to object to the Settlement; and (b) meets the requirements
of Federal Rule of Civil Procedure 23 and due process.

ROBERT ET AL. v. AT&T MOBILITY, LLC

Case No. 3:15-cv-03418
The Honorable Edward M. Chen, United States District Court, Northern District of California
(August 20, 2021): The Court finds that such Notice program, including the approved forms
of notice: (a) constituted the best notice that is practicable under the circumstances; (b)
included direct individual notice to all Settlement Class Members who could be identified
through reasonable effort, as well as supplemental notice via a social media notice campaign
and reminder email and SMS notices; (c) constituted notice that was reasonably calculated,
under the circumstances, to apprise Settlement Class Members of the nature of this Action
…(d) constituted due, adequate and sufficient notice to all persons entitled to notice; and (e)
met all applicable requirements of Federal Rule of Civil Procedure 23, Due Process under the
U.S. Constitution, and any other applicable law.

PYGIN v. BOMBAS, LLC

Case No. 4:20-cv-04412
The Honorable Jeffrey S. White, United States District Court, Northern District of California
(July 12, 2021): The Court also concludes that the Class Notice and Notice Program set forth
in the Settlement Agreement satisfy the requirements of due process and Rule 23 and
provide the best notice practicable under the circumstances. The Class Notice and Notice
Program are reasonably calculated to apprise Settlement Class Members of the nature of
this Litigation, the Scope of the Settlement Class, the terms of the Settlement Agreement, the
right of Settlement Class Members to object to the Settlement Agreement or exclude
themselves from the Settlement Class and the process for doing so, and of the Final Approval
Hearing. Accordingly, the Court approves the Class Notice and Notice Program and the Claim
Form.
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 30 of 43

WILLIAMS ET AL. v. RECKITT BENCKISER LLC ET AL.

Case No. 1:20-cv-23564
The Honorable Jonathan Goodman, United States District Court, Southern District of Florida
(April 23, 2021): The Court approves, as to form and content, the Class Notice and Internet
Notice submitted by the parties (Exhibits B and D to the Settlement Agreement or Notices
substantially similar thereto) and finds that the procedures described therein meet the
requirements of Rule 23 of the Federal Rules of Civil Procedure and due process, and provide
the best notice practicable under the circumstances. The proposed Class Notice Plan --
consisting of (i) internet and social media notice; and (ii) notice via an established a
Settlement Website -- is reasonably calculated to reach no less than 80% of the Settlement
Class Members.

NELSON ET AL. v. IDAHO CENTRAL CREDIT UNION

Case No. CV03-20-00831, CV03-20-03221
The Honorable Robert C. Naftz, Sixth Judicial District, State of Idaho, Bannock County (January
19, 2021): The Court finds that the Proposed Notice here is tailored to this Class and
designed to ensure broad and effective reach to it…The Parties represent that the operative
notice plan is the best notice practicable and is reasonably designed to reach the settlement
class members. The Court agrees.

IN RE: HANNA ANDERSSON AND SALESFORCE.COM DATA BREACH LITIGATION

Case No. 3:20-cv-00812
The Honorable Edward M. Chen, United States District Court, Northern District of California
(December 29, 2020): The Court finds that the Class Notice and Notice Program satisfy the
requirements of due process and Rule 23 of the Federal Rules of Civil Procedure and provide
the best notice practicable under the circumstances.

IN RE: PEANUT FARMERS ANTITRUST LITIGATION

Case No. 2:19-cv-00463
The Honorable Raymond A. Jackson, United States District Court, Eastern District of Virginia
(December 23, 2020): The Court finds that the Notice Program…constitutes the best notice
that is practicable under the circumstances and is valid, due and sufficient notice to all
persons entitled thereto and complies fully with the requirements of Rule 23(c)(2) and the
due process requirements of the Constitution of the United States.

BENTLEY ET AL. v. LG ELECTRONICS U.S.A., INC.

Case No. 2:19-cv-13554
The Honorable Madeline Cox Arleo, United States District Court, District of New Jersey
(December 18, 2020): The Court finds that notice of this Settlement was given to Settlement
Class Members in accordance with the Preliminary Approval Order and constituted the best
notice practicable of the proceedings and matters set forth therein, including the Litigation,
the Settlement, and the Settlement Class Members’ rights to object to the Settlement or opt
out of the Settlement Class, to all Persons entitled to such notice, and that this notice
satisfied the requirements of Federal Rule of Civil Procedure 23 and of due process.
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 31 of 43

IN RE: ALLURA FIBER CEMENT SIDING PRODUCTS LIABILITY LITIGATION

Case No. 2:19-mn-02886
The Honorable David C. Norton, United States District Court, District of South Carolina
(December 18, 2020): The proposed Notice provides the best notice practicable under the
circumstances. It allows Settlement Class Members a full and fair opportunity to consider
the proposed settlement. The proposed plan for distributing the Notice likewise is a
reasonable method calculated to reach all members of the Settlement Class who would be
bound by the settlement. There is no additional method of distribution that would be
reasonably likely to notify Settlement Class Members who may not receive notice pursuant
to the proposed distribution plan.

ADKINS ET AL. v. FACEBOOK, INC.

Case No. 3:18-cv-05982
The Honorable William Alsup, United States District Court, Northern District of California
(November 15, 2020): Notice to the class is “reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford them
an opportunity to present their objections.” Mullane v. Central Hanover Bank & Tr. Co., 399 U.S.
306, 314 (1650).

IN RE: 21ST CENTURY ONCOLOGY CUSTOMER DATA SECURITY BREACH LITIGATION

Case No. 8:16-md-02737
The Honorable Mary S. Scriven, United States District Court, Middle District of Florida
(November 2, 2020): The Court finds and determines that mailing the Summary Notice and
publication of the Settlement Agreement, Long Form Notice, Summary Notice, and Claim
Form on the Settlement Website, all pursuant to this Order, constitute the best notice
practicable under the circumstances, constitute due and sufficient notice of the matters set
forth in the notices to all persons entitled to receive such notices, and fully satisfies the of
due process, Rule 23 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1715, and all other
applicable laws and rules. The Court further finds that all of the notices are written in plain
language and are readily understandable by Class Members.

MARINO ET AL. v. COACH INC.

Case No. 1:16-cv-01122
The Honorable Valerie Caproni, United States District Court, Southern District of New York
(August 24, 2020): The Court finds that the form, content, and method of giving notice to the
Settlement Class as described in paragraph 8 of this Order: (a) will constitute the best
practicable notice; (b) are reasonably calculated, under the circumstances, to apprise the
Settlement Class Members of the pendency of the Action, the terms of the proposed
Settlement, and their rights under the proposed Settlement, including but not limited to their
rights to object to or exclude themselves from the proposed Settlement and other rights
under the terms of the Settlement Agreement; (c) are reasonable and constitute due,
adequate, and sufficient notice to all Settlement Class Members and other persons entitled
to receive notice; and (d) meet all applicable requirements of law, including but not limited
to 28 U.S.C. § 1715, Rule 23(c) and (e), and the Due Process Clause(s) of the United States
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 32 of 43

Constitution. The Court further finds that all of the notices are written in plain language, are
readily understandable by Settlement Class Members, and are materially consistent with the
Federal Judicial Center’s illustrative class action notices.

BROWN v. DIRECTV, LLC

Case No. 2:13-cv-01170
The Honorable Dolly M. Gee, United States District Court, Central District of California (July
23, 2020): Given the nature and size of the class, the fact that the class has no geographical
limitations, and the sheer number of calls at issue, the Court determines that these methods
constitute the best and most reasonable form of notice under the circumstances.

IN RE: SSA BONDS ANTITRUST LITIGATION

Case No. 1:16-cv-03711
The Honorable Edgardo Ramos, United States District Court, Southern District of New York
(July 15, 2020): The Court finds that the mailing and distribution of the Notice and the
publication of the Summary Notice substantially in the manner set forth below meet the
requirements of Rule 23 of the Federal Rules of Civil Procedure and due process and
constitute the best notice practicable under the circumstances, and shall constitute due and
sufficient notice to all Persons entitled to notice.

KJESSLER ET AL. v. ZAAPPAAZ, INC. ET AL.

Case No. 4:18-cv-00430
The Honorable Nancy F. Atlas, United States District Court, Southern District of Texas (July
14, 2020): The Court also preliminarily approves the proposed manner of communicating
the Notice and Summary Notice to the putative Settlement Class, as set out below, and finds
it is the best notice practicable under the circumstances, constitutes due and sufficient notice
to all persons and entities entitled to receive such notice, and fully satisfies the requirements
of applicable laws, including due process and Federal Rule of Civil Procedure 23.

HESTER ET AL. v. WALMART, INC.

Case No. 5:18-cv-05225
The Honorable Timothy L. Brooks, United States District Court, Western District of Arkansas
(July 9, 2020): The Court finds that the Notice and Notice Plan substantially in the manner
and form set forth in this Order and the Agreement meet the requirements of Federal Rule
of Civil Procedure 23 and due process, is the best notice practicable under the circumstances,
and shall constitute due and sufficient notice to all Persons entitled thereto.

CLAY ET AL. v. CYTOSPORT INC.

Case No. 3:15-cv-00165
The Honorable M. James Lorenz, United States District Court, Southern District of California
(June 17, 2020): The Court approves the proposed Notice Plan for giving notice to the
Settlement Class through publication, both print and digital, and through the establishment
of a Settlement Website, as more fully described in the Agreement and the Claims
Administrator’s affidavits (docs. no. 222-9, 224, 224-1, and 232-3 through 232-6). The Notice
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 33 of 43

Plan, in form, method, and content, complies with the requirements of Rule 23 and due
process, and constitutes the best notice practicable under the circumstances.

GROGAN v. AARON’S INC.

Case No. 1:18-cv-02821
The Honorable J.P. Boulee, United States District Court, Northern District of Georgia (May 1,
2020): The Court finds that the Notice Plan as set forth in the Settlement Agreement meets
the requirements of Fed. R. Civ. P. 23 and constitutes the best notice practicable under the
circumstances, including direct individual notice by mail and email to Settlement Class
Members where feasible and a nationwide publication website-based notice program, as
well as establishing a Settlement Website at the web address of
www.AaronsTCPASettlement.com, and satisfies fully the requirements the Federal Rules of
Civil Procedure, the U.S. Constitution, and any other applicable law, such that the Settlement
Agreement and Final Order and Judgment will be binding on all Settlement Class Members.

CUMMINGS v. BOARD OF REGENTS OF THE UNIVERSITY OF NEW MEXICO, ET AL.

Case No. D-202-CV-2001-00579
The Honorable Carl Butkus, Second Judicial District Court, County of Bernalillo, State of New
Mexico (March 30, 2020): The Court has reviewed the Class Notice, the Plan of Allocation and
Distribution and Claim Form, each of which it approves in form and substance. The Court
finds that the form and methods of notice set forth in the Agreement: (i) are reasonable and
the best practicable notice under the circumstances; (ii) are reasonably calculated to apprise
Settlement Class Members of the pendency of the Lawsuit, of their rights to object to or opt-
out of the Settlement, and of the Final Approval Hearing; (iii) constitute due, adequate, and
sufficient notice to all persons entitled to receive notice; and (iv) meet the requirements of
the New Mexico Rules of Civil Procedure, the requirements of due process under the New
Mexico and United States Constitutions, and the requirements of any other applicable rules
or laws.

SCHNEIDER, ET AL. v. CHIPOTLE MEXICAN GRILL, INC.

Case No. 4:16-cv-02200
The Honorable Haywood S. Gilliam, Jr., United States District Court, Northern District of
California (January 31, 2020): Given that direct notice appears to be infeasible, the third-
party settlement administrator will implement a digital media campaign and provide for
publication notice in People magazine, a nationwide publication, and the East Bay Times. SA
§ IV.A, C; Dkt. No. 205-12 at ¶¶ 13–23. The publication notices will run for four consecutive
weeks. Dkt. No. 205 at ¶ 23. The digital media campaign includes an internet banner notice
implemented using a 60-day desktop and mobile campaign. Dkt. No. 205-12 at ¶ 18. It will
rely on “Programmatic Display Advertising” to reach the “Target Audience,” Dkt. No. 216-1 at
¶ 6, which is estimated to include 30,100,000 people and identified using the target definition
of “Fast Food & Drive-In Restaurants Total Restaurants Last 6 Months [Chipotle Mexican
Grill],” Dkt. No. 205-12 at ¶ 13. Programmatic display advertising utilizes “search targeting,”
“category contextual targeting,” “keyword contextual targeting,” and “site targeting,” to place
ads. Dkt. No. 216-1 at ¶¶ 9–12. And through “learning” technology, it continues placing ads
on websites where the ad is performing well. Id. ¶ 7. Put simply, prospective Class Members
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 34 of 43

will see a banner ad notifying them of the settlement when they search for terms or websites
that are similar to or related to Chipotle, when they browse websites that are categorically
relevant to Chipotle (for example, a website related to fast casual dining or Mexican food),
and when they browse websites that include a relevant keyword (for example, a fitness
website with ads comparing fast casual choices). Id. ¶¶ 9–12. By using this technology, the
banner notice is “designed to result in serving approximately 59,598,000 impressions.” Dkt.
No. 205-12 at ¶ 18.

The Court finds that the proposed notice process is “‘reasonably calculated, under all the
circumstances,’ to apprise all class members of the proposed settlement.” Roes, 944 F.3d at
1045 (citation omitted).

HANLEY v. TAMPA BAY SPORTS AND ENTERTAINMENT LLC

Case No. 8:19-cv-00550
The Honorable Charlene Edwards Honeywell, United States District Court, Middle District of
Florida (January 7, 2020): The Court approves the form and content of the Class notices and
claim forms substantially in the forms attached as Exhibits A-D to the Settlement. The Court
further finds that the Class Notice program described in the Settlement is the best
practicable under the circumstances. The Class Notice program is reasonably calculated
under the circumstances to inform the Settlement Class of the pendency of the Action,
certification of a Settlement Class, the terms of the Settlement, Class Counsel’s attorney’s
fees application and the request for a service award for Plaintiff, and their rights to opt-out
of the Settlement Class or object to the Settlement. The Class notices and Class Notice
program constitute sufficient notice to all persons entitled to notice. The Class notices and
Class Notice program satisfy all applicable requirements of law, including, but not limited to,
Federal Rule of Civil Procedure 23 and the Constitutional requirement of Due Process.

CORCORAN, ET AL. v. CVS HEALTH, ET AL.

Case No. 4:15-cv-03504
The Honorable Yvonne Gonzalez Rogers, United States District Court, Northern District of
California (November 22, 2019): Having reviewed the parties’ briefings, plaintiffs’
declarations regarding the selection process for a notice provider in this matter and
regarding Angeion Group LLC’s experience and qualifications, and in light of defendants’
non-opposition, the Court APPROVES Angeion Group LLC as the notice provider. Thus, the
Court GRANTS the motion for approval of class notice provider and class notice program on
this basis.

Having considered the parties’ revised proposed notice program, the Court agrees that the
parties’ proposed notice program is the “best notice that is practicable under the
circumstances.” The Court is satisfied with the representations made regarding Angeion
Group LLC’s methods for ascertaining email addresses from existing information in the
possession of defendants. Rule 23 further contemplates and permits electronic notice to
class members in certain situations. See Fed. R. Civ. P. 23(c)(2)(B). The Court finds, in light of
the representations made by the parties, that this is a situation that permits electronic
notification via email, in addition to notice via United States Postal Service. Thus, the Court
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 35 of 43

APPROVES the parties’ revised proposed class notice program, and GRANTS the motion for
approval of class notice provider and class notice program as to notification via email and
United States Postal Service mail.

PATORA v. TARTE, INC.

Case No. 7:18-cv-11760
The Honorable Kenneth M. Karas, United States District Court, Southern District of New York
(October 2, 2019): The Court finds that the form, content, and method of giving notice to the
Class as described in Paragraph 9 of this Order: (a) will constitute the best practicable notice;
(b) are reasonably calculated, under the circumstances, to apprise the Settlement Class
Members of the pendency of the Action, the terms of the Proposed Settlement, and their
rights under the Proposed Settlement, including but not limited to their rights to object to or
exclude themselves from the Proposed Settlement and other rights under the terms of the
Settlement Agreement; (c) are reasonable and constitute due, adequate, and sufficient notice
to all Settlement Class Members and other persons entitled to receive notice; and (d) meet
all applicable requirements of law, including but not limited to 28 U.S.C. § 1715, Rule 23(c)
and (e), and the Due Process Clauses of the United States Constitution. The Court further
finds that all of the notices are written in simple terminology, are readily understandable by
Settlement Class Members, and are materially consistent with the Federal Judicial Center's
illustrative class action notices.

CARTER, ET AL. v. GENERAL NUTRITION CENTERS, INC., and GNC HOLDINGS, INC.
Case No. 2:16-cv-00633
The Honorable Mark R. Hornak, United States District Court, Western District of Pennsylvania
(September 9, 2019): The Court finds that the Class Notice and the manner of its
dissemination described in Paragraph 7 above and Section VII of the Agreement constitutes
the best practicable notice under the circumstances and is reasonably calculated, under all
the circumstances, to apprise proposed Settlement Class Members of the pendency of this
action, the terms of the Agreement, and their right to object to or exclude themselves from
the proposed Settlement Class. The Court finds that the notice is reasonable, that it
constitutes due, adequate and sufficient notice to all persons entitled to receive notice, and
that it meets the requirements of due process, Rule 23 of the Federal Rules of Ci vii
Procedure, and any other applicable laws.

CORZINE v. MAYTAG CORPORATION, ET AL.

Case No. 5:15-cv-05764
The Honorable Beth L. Freeman, United States District Court, Northern District of California
(August 21, 2019): The Court, having reviewed the proposed Summary Notice, the proposed
FAQ, the proposed Publication Notice, the proposed Claim Form, and the proposed plan for
distributing and disseminating each of them, finds and concludes that the proposed plan will
provide the best notice practicable under the circumstances and satisfies all requirements
of federal and state laws and due process.
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 36 of 43

MEDNICK v. PRECOR, INC.

Case No. 1:14-cv-03624
The Honorable Harry D. Leinenweber, United States District Court, Northern District of
Illinois (June 12, 2019): Notice provided to Class Members pursuant to the Preliminary Class
Settlement Approval Order constitutes the best notice practicable under the circumstances,
including individual email and mail notice to all Class Members who could be identified
through reasonable effort, including information provided by authorized third-party retailers
of Precor. Said notice provided full and adequate notice of these proceedings and of the
matter set forth therein, including the proposed Settlement set forth in the Agreement, to all
persons entitled to such notice, and said notice fully satisfied the requirements of F.R.C.P.
Rule 23 (e) and (h) and the requirements of due process under the United States and
California Constitutions.

GONZALEZ v. TCR SPORTS BROADCASTING HOLDING LLP, ET AL.

Case No. 1:18-cv-20048
The Honorable Darrin P. Gayles, United States District Court, Southern District of Florida (May
24, 2019): The Court finds that notice to the class was reasonable and the best notice
practicable under the circumstances, consistent with Rule 23(e)(1) and Rule 23(c)(2)(B).

ANDREWS ET AL. v. THE GAP, INC., ET AL.

Case No. CGC-18-567237
The Honorable Richard B. Ulmer Jr., Superior Court of the State of California, County of San
Francisco (May 10, 2019): The Court finds that (a) the Full Notice, Email Notice, and
Publication constitute the best notice practicable under the circumstances, (b) they
constitute valid, due, and sufficient notice to all members of the Class, and (c) they comply
fully with the requirements of California Code of Civil Procedure section 382, California Rules
of Court 3.766 and 3.769, the California and United States Constitutions, and other applicable
law.

COLE, ET AL. v. NIBCO, INC.

Case No. 3:13-cv-07871
The Honorable Freda L. Wolfson, United States District Court, District of New Jersey (April 11,
2019): The record shows, and the Court finds, that the Notice Plan has been implemented
in the manner approved by the Court in its Preliminary Approval Order. The Court finds that
the Notice Plan constitutes: (i) the best notice practicable to the Settlement Class under the
circumstances; (ii) was reasonably calculated, under the circumstances, to apprise the
Settlement Class of the pendency of this…, (iii) due, adequate, and sufficient notice to all
Persons entitled to receive notice; and (iv) notice that fully satisfies the requirements of the
United States Constitution (including the Due Process Clause), Fed. R. Civ. P. 23, and any
other applicable law.
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 37 of 43

DIFRANCESCO, ET AL. v. UTZ QUALITY FOODS, INC.

Case No. 1:14-cv-14744
The Honorable Douglas P. Woodlock, United States District Court, District of Massachusetts
(March 15, 2019): The Court finds that the Notice plan and all forms of Notice to the Class as
set forth in the Settlement Agreement and Exhibits 2 and 6 thereto, as amended (the "Notice
Program"), is reasonably calculated to, under all circumstances, apprise the members of the
Settlement Class of the pendency of this action, the certification of the Settlement Class, the
terms of the Settlement Agreement, and the right of members to object to the settlement or
to exclude themselves from the Class. The Notice Program is consistent with the
requirements of Rule 23 and due process, and constitutes the best notice practicable under
the circumstances.

IN RE: CHRYSLER-DODGE-JEEP ECODIESEL MARKETING, SALES PRACTICES, AND PRODUCTS

LIABILITY LITIGATION
Case No. 3:17-md-02777
The Honorable Edward M. Chen, United States District Court, Northern District of California
(February 11, 2019): Also, the parties went through a sufficiently rigorous selection process
to select a settlement administrator. See Proc. Guidance for Class Action Sett. ¶ 2; see also
Cabraser Decl. ¶¶ 9-10. While the settlement administration costs are significant – an
estimated $1.5 million – they are adequately justified given the size of the class and the relief
being provided.

In addition, the Court finds that the language of the class notices (short and long-form) is
appropriate and that the means of notice – which includes mail notice, electronic notice,
publication notice, and social media “marketing” – is the “best notice…practicable under the
circumstances.” Fed. R. Civ. P. 23(c)(2)(B); see also Proc. Guidance for Class Action Sett. ¶¶ 3-
5, 9 (addressing class notice, opt-outs, and objections). The Court notes that the means of
notice has changed somewhat, as explained in the Supplemental Weisbrot Declaration filed
on February 8, 2019, so that notice will be more targeted and effective. See generally Docket
No. 525 (Supp. Weisbrot Decl.) (addressing, inter alia, press release to be distributed via
national newswire service, digital and social media marketing designed to enhance notice,
and “reminder” first-class mail notice when AEM becomes available).

Finally, the parties have noted that the proposed settlement bears similarity to the
settlement in the Volkswagen MDL. See Proc. Guidance for Class Action Sett. ¶ 11.

RYSEWYK, ET AL. v. SEARS HOLDINGS CORPORATION and SEARS, ROEBUCK AND COMPANY
Case No. 1:15-cv-04519
The Honorable Manish S. Shah, United States District Court, Northern District of Illinois
(January 29, 2019): The Court holds that the Notice and notice plan as carried out satisfy the
requirements of Rule 23(e) and due process. This Court has previously held the Notice and
notice plan to be reasonable and the best practicable under the circumstances in its
Preliminary Approval Order dated August 6, 2018. (Dkt. 191) Based on the declaration of
Steven Weisbrot, Esq. of Angeion Group (Dkt. No. 209-2), which sets forth compliance with
the Notice Plan and related matters, the Court finds that the multi-pronged notice strategy
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 38 of 43

as implemented has successfully reached the putative Settlement Class, thus constituting
the best practicable notice and satisfying due process.

MAYHEW, ET AL. v. KAS DIRECT, LLC, and S.C. JOHNSON & SON, INC.
Case No. 7:16-cv-06981
The Honorable Vincent J. Briccetti, United States District Court, Southern District of New York
(June 26, 2018): In connection with their motion, plaintiffs provide the declaration of Steven
Weisbrot, Esq., a principal at the firm Angeion Group, LLC, which will serve as the notice and
settlement administrator in this case. (Doc. #101, Ex. F: Weisbrot Decl.) According to Mr.
Weisbrot, he has been responsible for the design and implementation of hundreds of class
action administration plans, has taught courses on class action claims administration, and
has given testimony to the Judicial Conference Committee on Rules of Practice and
Procedure on the role of direct mail, email, and digital media in due process notice. Mr.
Weisbrot states that the internet banner advertisement campaign will be responsive to
search terms relevant to “baby wipes, baby products, baby care products, detergents,
sanitizers, baby lotion, [and] diapers,” and will target users who are currently browsing or
recently browsed categories “such as parenting, toddlers, baby care, [and] organic products.”
(Weisbrot Decl. ¶ 18). According to Mr. Weisbrot, the internet banner advertising campaign
will reach seventy percent of the proposed class members at least three times each. (Id. ¶
9). Accordingly, the Court approves of the manner of notice proposed by the parties as it is
reasonable and the best practicable option for confirming the class members receive notice.

IN RE: OUTER BANKS POWER OUTAGE LITIGATION

Case No. 4:17-cv-00141
The Honorable James C. Dever III, United States District Court, Eastern District of North
Carolina (May 2, 2018): The court has reviewed the proposed notice plan and finds that the
notice plan provides the best practicable notice under the circumstances and, when
completed, shall constitute fair, reasonable, and adequate notice of the settlement to all
persons and entities affected by or entitled to participate in the settlement, in full compliance
with the notice requirements of Fed. R. Civ. P. 23(c)(2)(B) and due process. Thus, the court
approves the proposed notice plan.

GOLDEMBERG, ET AL. v. JOHNSON & JOHNSON CONSUMER COMPANIES, INC.

Case No. 7:13-cv-03073
The Honorable Nelson S. Roman, United States District Court, Southern District of New York
(November 1, 2017): Notice of the pendency of the Action as a class action and of the
proposed Settlement, as set forth in the Settlement Notices, was given to all Class Members
who could be identified with reasonable effort, consistent with the terms of the Preliminary
Approval Order. The form and method of notifying the Class of the pendency of the Action
as a class action and of the terms and conditions of the proposed Settlement met the
requirements of Rule 23 of the Federal Rules of Civil Procedure, due process, and any other
applicable law in the United States. Such notice constituted the best notice practicable under
the circumstances, and constituted due and sufficient notice to all persons and entities
entitled thereto.
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 39 of 43

HALVORSON v. TALENTBIN, INC.

Case No. 3:15-cv-05166
The Honorable Joseph C. Spero, United States District Court, Northern District of California
(July 25, 2017): The Court finds that the Notice provided for in the Order of Preliminary
Approval of Settlement has been provided to the Settlement Class, and the Notice provided
to the Settlement Class constituted the best notice practicable under the circumstances,
and was in full compliance with the notice requirements of Rule 23 of the Federal Rules of
Civil Procedure, due process, the United States Constitution, and any other applicable law.
The Notice apprised the members of the Settlement Class of the pendency of the litigation;
of all material elements of the proposed settlement, including but not limited to the relief
afforded the Settlement Class under the Settlement Agreement; of the res judicata effect on
members of the Settlement Class and of their opportunity to object to, comment on, or opt-
out of, the Settlement; of the identity of Settlement Class Counsel and of information
necessary to contact Settlement Class Counsel; and of the right to appear at the Fairness
Hearing. Full opportunity has been afforded to members of the Settlement Class to
participate in the Fairness Hearing. Accordingly, the Court determines that all Final
Settlement Class Members are bound by this Final Judgment in accordance with the terms
provided herein.

IN RE: ASHLEY MADISON CUSTOMER DATA SECURITY BREACH LITIGATION

MDL No. 2669/Case No. 4:15-md-02669
The Honorable John A. Ross, United States District Court, Eastern District of Missouri (July 21,
2017): The Court further finds that the method of disseminating Notice, as set forth in the
Motion, the Declaration of Steven Weisbrot, Esq. on Adequacy of Notice Program, dated July
13, 2017, and the Parties’ Stipulation—including an extensive and targeted publication
campaign composed of both consumer magazine publications in People and Sports
Illustrated, as well as serving 11,484,000 highly targeted digital banner ads to reach the
prospective class members that will deliver approximately 75.3% reach with an average
frequency of 3.04 —is the best method of notice practicable under the circumstances and
satisfies all requirements provided in Rule 23(c)(2)(B) and all Constitutional requirements
including those of due process.

The Court further finds that the Notice fully satisfies Rule 23 of the Federal Rules of Civil
Procedure and the requirements of due process; provided, that the Parties, by agreement,
may revise the Notice, the Claim Form, and other exhibits to the Stipulation, in ways that are
not material or ways that are appropriate to update those documents for purposes of
accuracy.

TRAXLER, ET AL. v. PPG INDUSTRIES INC., ET AL.

Case No. 1:15-cv-00912
The Honorable Dan Aaron Polster, United States District Court, Northern District of Ohio
(April 27, 2017): The Court hereby approves the form and procedure for disseminating notice
of the proposed settlement to the Settlement Class as set forth in the Agreement. The Court
finds that the proposed Notice Plan contemplated constitutes the best notice practicable
under the circumstances and is reasonably calculated, under the circumstances, to apprise
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 40 of 43

Settlement Class Members of the pendency of the Action and their right to object to the
proposed settlement or opt out of the Settlement Class in full compliance with the
requirements of applicable law, including the Due Process Clause of the United States
Constitution and Rules 23(c) and (e). In addition, Class Notice clearly and concisely states in
plain, easily understood language: (i) the nature of the action; (ii) the definition of the certified
Settlement Class; (iii) the claims and issues of the Settlement Class; (iv) that a Settlement
Class Member may enter an appearance through an attorney if the member so desires; (v)
that the Court will exclude from the Settlement Class any member who requests exclusion;
(vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class
judgment on members under Rule 23(c)(3).

IN RE: THE HOME DEPOT, INC., CUSTOMER DATA SECURITY BREACH LITIGATION
Case No. 1:14-md-02583
The Honorable Thomas W. Thrash Jr., United States District Court, Northern District of
Georgia (March 10, 2017): The Court finds that the form, content, and method of giving
notice to the settlement class as described in the settlement agreement and exhibits: (a)
constitute the best practicable notice to the settlement class; (b) are reasonably calculated,
under the circumstances, to apprise settlement class members of the pendency of the
action, the terms of the proposed settlement, and their rights under the proposed
settlement; (c) are reasonable and constitute due, adequate, and sufficient notice to those
persons entitled to receive notice; and (d) satisfy the requirements of Federal Rule of Civil
Procedure 23, the constitutional requirement of due process, and any other legal
requirements. The Court further finds that the notice is written in plain language, uses simple
terminology, and is designed to be readily understandable by settlement class members.

ROY v. TITEFLEX CORPORATION t/a GASTITE and WARD MANUFACTURING, LLC

Case No. 384003V
The Honorable Ronald B. Rubin, Circuit Court for Montgomery County, Maryland (February
24, 2017): What is impressive to me about this settlement is in addition to all the usual
recitation of road racing litanies is that there is going to be a) public notice of a real nature
and b) about a matter concerning not just money but public safety and then folks will have
the knowledge to decide for themselves whether to take steps to protect themselves or not.
And that’s probably the best thing a government can do is to arm their citizens with
knowledge and then the citizens can make decision. To me that is a key piece of this deal. I
think the notice provisions are exquisite [emphasis added].

IN RE: LG FRONT LOADING WASHING MACHINE CLASS ACTION LITIGATION

Case No. 2:08-cv-00051
The Honorable Madeline Cox Arleo, United States District Court, District of New Jersey (June
17, 2016): This Court further approves the proposed methods for giving notice of the
Settlement to the Members of the Settlement Class, as reflected in the Settlement
Agreement and the joint motion for preliminary approval. The Court has reviewed the
notices attached as exhibits to the Settlement, the plan for distributing the Summary Notices
to the Settlement Class, and the plan for the Publication Notice's publication in print
periodicals and on the internet, and finds that the Members of the Settlement Class will
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 41 of 43

receive the best notice practicable under the circumstances. The Court specifically approves
the Parties' proposal to use reasonable diligence to identify potential class members and an
associated mailing and/or email address in the Company's records, and their proposal to
direct the ICA to use this information to send absent class members notice both via first class
mail and email. The Court further approves the plan for the Publication Notice's publication
in two national print magazines and on the internet. The Court also approves payment of
notice costs as provided in the Settlement. The Court finds that these procedures, carried
out with reasonable diligence, will constitute the best notice practicable under the
circumstances and will satisfy.

FENLEY v. APPLIED CONSULTANTS, INC.

Case No. 2:15-cv-00259
The Honorable Mark R. Hornak, United States District Court, Western District of Pennsylvania
(June 16, 2016): The Court would note that it approved notice provisions of the settlement
agreement in the proceedings today. That was all handled by the settlement and
administrator Angeion. The notices were sent. The class list utilized the Postal Service's
national change of address database along with using certain proprietary and other public
resources to verify addresses. the requirements of Fed.R.Civ.P. 23(c)(2), Fed.R.Civ.P. 23(e) (l),
and Due Process....

The Court finds and concludes that the mechanisms and methods of notice to the class as
identified were reasonably calculated to provide all notice required by the due process
clause, the applicable rules and statutory provisions, and that the results of the efforts of
Angeion were highly successful and fulfilled all of those requirements [emphasis added].

FUENTES, ET AL. v. UNIRUSH, LLC d/b/a UNIRUSH FINANCIAL SERVICES, ET AL.

Case No. 1:15-cv-08372
The Honorable J. Paul Oetken, United States District Court, Southern District of New York
(May 16, 2016): The Court approves, as to form, content, and distribution, the Claim Form
attached to the Settlement Agreement as Exhibit A, the Notice Plan, and all forms of Notice
to the Settlement Class as set forth in the Settlement Agreement and Exhibits B-D, thereto,
and finds that such Notice is the best notice practicable under the circumstances, and that
the Notice complies fully with the requirements of the Federal Rules of Civil Procedure. The
Court also finds that the Notice constitutes valid, due and sufficient notice to all persons
entitled thereto, and meets the requirements of Due Process. The Court further finds that
the Notice is reasonably calculated to, under all circumstances, reasonably apprise members
of the Settlement Class of the pendency of the Actions, the terms of the Settlement
Agreement, and the right to object to the settlement and to exclude themselves from the
Settlement Class. The Parties, by agreement, may revise the Notices and Claim Form in ways
that are not material, or in ways that are appropriate to update those documents for
purposes of accuracy or formatting for publication.
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 42 of 43

IN RE: WHIRLPOOL CORP. FRONTLOADING WASHER PRODUCTS LIABILITY LITIGATION

MDL No. 2001/Case No. 1:08-wp-65000
The Honorable Christopher A. Boyko, United States District Court, Northern District of Ohio
(May 12, 2016): The Court, having reviewed the proposed Summary Notices, the proposed
FAQ, the proposed Publication Notice, the proposed Claim Form, and the proposed plan for
distributing and disseminating each of them, finds and concludes that the proposed plan for
distributing and disseminating each of them will provide the best notice practicable under
the circumstances and satisfies all requirements of federal and state laws and due process.

SATERIALE, ET AL. v. R.J. REYNOLDS TOBACCO CO.

Case No. 2:09-cv-08394
The Honorable Christina A. Snyder, United States District Court, Central District of California
(May 3, 2016): The Court finds that the Notice provided to the Settlement Class pursuant to
the Settlement Agreement and the Preliminary Approval Order has been successful, was the
best notice practicable under the circumstances and (1) constituted notice that was
reasonably calculated, under the circumstances, to apprise members of the Settlement Class
of the pendency of the Action, their right to object to the Settlement, and their right to appear
at the Final Approval Hearing; (2) was reasonable and constituted due, adequate, and
sufficient notice to all persons entitled to receive notice; and (3) met all applicable
requirements of the Federal Rules of Civil Procedure, Due Process, and the rules of the Court.

FERRERA, ET AL. v. SNYDER’S-LANCE, INC.

Case No. 0:13-cv-62496
The Honorable Joan A. Lenard, United States District Court, Southern District of Florida
(February 12, 2016): The Court approves, as to form and content, the Long-Form Notice and
Short- Form Publication Notice attached to the Memorandum in Support of Motion for
Preliminary Approval of Class Action Settlement as Exhibits 1 and 2 to the Stipulation of
Settlement. The Court also approves the procedure for disseminating notice of the proposed
settlement to the Settlement Class and the Claim Form, as set forth in the Notice and Media
Plan attached to the Memorandum in Support of Motion for Preliminary Approval of Class
Action Settlement as Exhibits G. The Court finds that the notice to be given constitutes the
best notice practicable under the circumstances, and constitutes valid, due, and sufficient
notice to the Settlement Class in full compliance with the requirements of applicable law,
including the Due Process Clause of the United States Constitution.

IN RE: POOL PRODUCTS DISTRIBUTION MARKET ANTITRUST LITIGATION

MDL No. 2328/Case No. 2:12-md-02328
The Honorable Sarah S. Vance, United States District Court, Eastern District of Louisiana
(December 31, 2014): To make up for the lack of individual notice to the remainder of the
class, the parties propose a print and web-based plan for publicizing notice. The Court
welcomes the inclusion of web- based forms of communication in the plan. The Court finds
that the proposed method of notice satisfies the requirements of Rule 23(c)(2)(B) and due
process. The direct emailing of notice to those potential class members for whom Hayward
and Zodiac have a valid email address, along with publication of notice in print and on the
web, is reasonably calculated to apprise class members of the settlement. Moreover, the
 Case 2:21-mc-01230-JFC Document 2213-3 Filed 09/07/23 Page 43 of 43

plan to combine notice for the Zodiac and Hayward settlements should streamline the
process and avoid confusion that might otherwise be caused by a proliferation of notices for
different settlements. Therefore, the Court approves the proposed notice forms and the plan
of notice.

SOTO, ET AL. v. THE GALLUP ORGANIZATION, INC.

Case No. 0:13-cv-61747
The Honorable Marcia G. Cooke, United States District Court, Southern District of Florida
(June 16, 2015): The Court approves the form and substance of the notice of class action
settlement described in ¶ 8 of the Agreement and attached to the Agreement as Exhibits A,
C and D. The proposed form and method for notifying the Settlement Class Members of the
settlement and its terms and conditions meet the requirements of Fed. R. Civ. P. 23(c)(2)(B)
and due process, constitute the best notice practicable under the circumstances, and shall
constitute due and sufficient notice to all persons and entities entitled to the notice. The
Court finds that the proposed notice is clearly designed to advise the Settlement Class
Members of their rights.

OTT v. MORTGAGE INVESTORS CORPORATION OF OHIO, INC.

Case No. 3:14-cv-00645
The Honorable Janice M. Stewart, United States District Court, District of Oregon (July 20,
2015): The Notice Plan, in form, method, and content, fully complies with the requirements
of Rule 23 and due process, constitutes the best notice practicable under the circumstances,
and is due and sufficient notice to all persons entitled thereto. The Court finds that the Notice
Plan is reasonably calculated to, under all circumstances, reasonably apprise the persons in
the Settlement Class of the pendency of this action, the terms of the Settlement Agreement,
and the right to object to the Settlement and to exclude themselves from the Settlement
Class.