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© 2002 Brian F. Schreurs
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FRANCISCO JAVIER GARZA AND GUADALUPE MARQUEZ on behalf of themselves and all others similarly situated, Plaintiffs, VS. DURA LUBE CORPORATION, CRESCENT MANUFACTURING, INC., and HOWE LABORATORIES, INC. Defendants.

IN THE DISTRICT COURT OF STARR COUNTY, TEXAS 381ST JUDICIAL DISTRICT

The parties hereto, by counsel, in consideration of the promises, terms, and conditions contained in this Stipulation of Settlement, hereby stipulate and agree as follows:

WHEREAS:

A. The above-captioned civil case and six related cases, captioned Quertermouse v. Dura Lube Corporation, et. al., 99-L-1 166, Circuit Court, Third Judicial District, Madison County, Illinois; Scarpulla v. Dura Lube Corporation, et. al., Case No. 304816, Superior Court of the State of California in and for the County of San Francisco; Shifris v. Dura Lube Corporation, Case No. 99 CH 14606, Circuit Court of Cook County, Illinois; Puziss v. Dura Lube Corporation et. al., Case No. CV-99-0155632-S consolidated with Noto v. Dura Lube Corporation et. al., Case No. CV-99-0155633-S, both in the Superior Court Complex Litigation Docket, Judicial District of Waterbury Connecticut, and Aaltonen v. Dura Lube Corporation, et. al., 99 CH 16991, in the Circuit Court of Cook County, Illinois have been filed in this Court and in other courts across the United States (the "Class Actions").

B. Named as defendants in one or more of the Class Actions are Dura Lube Corporation, Dura Lube, Inc., American Direct Marketing, Inc., Crescent Manufacturing, Inc., National Communications Corporation, The Media Group, Inc., Howe Laboratories, Inc., Herman S. Howard and Scott Howard, each individually and as an officer of one or more of the above corporations (the "Defendants").

C. All of these Defendants, except Dura Lube Inc., were also named in an administrative proceeding initiated on behalf of the federal government by the Federal Trade Commission ("FTC"), Docket Number 9292 (The "FTC Action"). In the FTC Action, the FTC alleged that Defendants: (i) distributed and marketed various after-market motor oil additives known by the product names Super Dura Lube Engine Treatment and Dura Lube Advanced Engine Treatment ("Dura Lube"); (ii) made false and misleading statements regardiung the efficacy of Dura Lube; and (iii) neither possessed nor relied upon a reasonable basis to make those statements. Defendants denied all liability and vigorously defended themselves against the FTC's charges.

D. The named plaintiffs in the Class Actions filed several class action complaints on behalf of themselves and all other consumers similarly situated, against Defendants, alleging similar facts to those propounded by the FTC, and setting forth claims of violations of statutory and common law, including breach of warranty, misrepresentation, unfair or deceptive advertising, and consumer fraud. The plaintiffs claim that they, and the class they seek to represent, were damaged as a result of Defendants' allegedly false, misleading, and/or unsubstantiated advertising claims.

E. As in the FTC Action, Defendants have denied all liability in the Class Actions and have vigorously defended themselves. Among other things, Defendants deny that they made any false, misleading, and/or unsubstantiated statements regarding the efficacy of Dura Lube or that the plaintiffs, and the class members they seek to represent, have sustained any damages recoverable from the Defendants.

F. The named plaintiffs in the Class Actions, except the named plaintiff in the action captioned Aaltoonen v. Dura Lube Corporation, et. al., 99 CH 16991, in the Circuit Court of Cook County, Illinois are hereinafter referred to as "Plaintiffs." Plaintiffs and Defendants agree that litigation of the issues between them would be protracted and expensive. Each of these parties therefore seeks to resolve and compromise the differences among and between them. To that end, the parties have negotiated a global settlement to resolve all claims and potential claims against the Defendants arising out of or in way relating to the Dura Lube advertising claims. The FTC and Defendants have entered into an agreement that resolves all claims and potential claims in the FTC Action (the "Consent Decree"). Defendants and Plaintiffs here seek to enter into this Stipulation of Settlement for the purpose of resolving all of the claims that Plaintiffs have or could have alleged against Defen! dants arising out of the allegations in the Class Actions. Certain terms of the Consent Decree entered into by Defendants and the FTC were made conditions of this Stitupation of Settlement. Defendants acknowledge that their decision to enter into a global settlement with the FTC and Plaintiffs and to pay the FTC the sum of $2,000,000 for the benefit of the members of the Settlement Class, was a direct result of the filing of the Class Actions against Defendants, and will so acknowledge to the Court at the proper time.

G. Counsel for Plaintiffs and Defendants have conducted extensive settlement negotiations. During the negotiations, Plaintiffs' counsel met with Defendants' Prior Counsel to discuss, among other things, the allegations in the Class Actions and the possible defenses to those Class Actions. The alleged damages incurred by Plaintiffs and the class members they seek to represent were discussed and analyzed among Plaintiffs' counsel and Defendants' Prior Counsel and were the subject of discovery. This process of discovery and meetings between Plaintiffs and Defendants, at which both parties vigorously presented their representative positions and dealt at arms-length, has resulted in this Stipulation of Settlement.

H. Prior to agreeing to this Stipulation of Settlement, Plaintiffs' counsel conducted an investigation into the facts and law relating to the matters set forth in the Class Actions. Defendants provided Plaintiffs with tens of thousands of pages of documents pertaining to Plaintiffs' claims which were reviewed and analyzed by Plaintiffs' counsel. In addition, Defendants provided Plaintiffs with additional confirmatory discovery including, among other things, confirmation of the financial data provided by Defendants during the negotiations which led to this Stipulation of Settlement.

I. Plaintiffs' counsel have considered that, if the claims asserted in the Class Actions are not settled by voluntary agreement among the parties, future proceedings could be protracted and expensive, involve highly complex legal and factual issues relating to liability and damages, and involve substantial uncertainties, delays, and risks inherent to litigation, and have concluded that it is desirable and in the best interests of Plaintiffs and the class they seek to represent to settle the claims asserted in the Class Actions at this time upon the terms and conditions set forth in this Stipulation of Settlement (the "Settlement"). Plaintiffs' counsel have concluded that the Settlement is fair, reasonable, adequate, and in the best interests of the Plaintiffs and the class they seek to represent.

J. Although Defendants vigorously deny all liability with respect to any and all of the claims alleged in the Class Actions, Defendants nevertheless consider it desirable that the claims asserted in the Class Actions be settled and that the Class Actions be dismissed so as to avoid the substantial expense, inconvenience and distraction of continued litigation, and to finally put to rest the claims that were or could have been raised against them by Plaintiffs and the class they seek to represent. Therefore, in order to globally resolve all claims and potential claims against them, and for the benefit of themselves and their customers, Defendants have agreed to the Settlement.

NOW THEREFORE, without any admission or concession on the part of Plaintiffs of any lack of merit of the Class Actions, and without any admission of any liability or wrongdoing by the Defendants, it is STIPULATED AND AGREED, by and amond Plaintiffs and Defendants, that the claims asserted in the Class Actions shall be compromised and settled subject to the approval of the Court, the Class Actions shall be dismissed, and Defendants shall be forever released and discharged, upon and subject to all the terms and conditions set forth in this Stipulation of Settlement.

As used in this Stipulation of Settlement the following terms shall have the following meanings:

1. "Class Actions" shall have the same meaning as defined above in Paragraph A.

2. "Class Releasors" shall mean Plaintiffs and all members of the Settlement Class who have not theretofore duly elected to be excluded therefrom, and any of their present or former officers, directors, agents, attorneys, representatives, trustees, shareholders, parents, affiliates, subsidiaries, general or limited partners, and the respective heirs, executors, administrators, predecessors, successors, and assigns of any of the foregoing persons or entities.

3. "Consent Decree" shall mean the Agreement Containing Consent Order which was agreed to and signed by all parties to the FTC Action and which settles all claims and disputes in that case.

4. "Defendants" shall have the same meaning as defined above in Paragraph B.

5. "Defendants' Counsel" shall mean the law firm of Hall Dickler Kent Goldstein & Wood LLP, New York, New York.

5(a). "Defendants' Prior Counsel" shall mean the law firm of Arent Fox Kintner Plorkin & Kahn, PLLC, Washington, D.C.

6. "Dura Lube" shall mean the various after-market motor oil additives known by the product names Super Dura Lube Engine Treatment and Dura Lube Advanced Engine Treatment, each of which were distributed and marketed by Defendants.

7. "Effective Date of the Settlement" shall mean the date determined pursuant to paragraph 41 of this Stipulation.

8. "Final Judgment of Dismissal" shall mean the order and judgment, substantially in the form attached hereto as Exhibit C, to be submitted by the Parties as part of their motion for final approval of this Stipulation of Settlement.

9. "FTC" shall have the same meaning as defined above in Paragraph C.

10. "FTC Action" shall have the same meaning as defined above in Paragraph C.

11. "Lead Plaintiffs' Counsel" shall mean the law forms of Bernstein Litowitz Berger & Grossman, LLP, New York, NY; Burr & Formann, LLP, Birmingham, AL; and Freed & Weiss, LLC, Chicago, IL.

12. "Parties" shall mean both Defendants and Plaintiffs, collectively.

13. "Plaintiffs" shall have the same meaning as defined above in Paragraph F.

13(a). "Plaintiffs' Counsel" shall mean the law firms representing Plaintiffs in the Class Actions.

14. "Preliminary Order" shall mean a preliminary order of approval of this Settlement substantially in the form of Exhibit B attached to this Stipulation.

15. "Releasees" shall mean Defendants and their respective subsidiaries, predecessors, successors, and their past and present agents, directors, officers, employees, trustees, attorneys, auditors, accountants, consultants, subsidiaries, affiliates, investment bankers, heirs, executors, stockholders, insurers and representatives, and the successors and assigns of any of the aforesaid released persons or entities.

16. "Settled Claims" shall mean any and all claims, demands, and causes of action that have been or could have been made by the Plaintiffs and the Settlement Class against Defendants arising out of, resulting from, or in any way relating to any and all Defendants' allegedly false, misleading, and/or unsubstantiated advertising claims alleged in the Class Actions, including but not limited to, claims and causes of action under any and all laws, statutes, regulations and orders of teh United States and any State or Territory thereof, including the District of Columbia, or any agency or body thereof, excepting claims for personal injury which are not encompassed by the Settlement

17. "Settlement" shall refer to the terms and conditions set forth in this Stipulation of Settlement and intended to resolve all claims and potential claims by the Plaintiffs and the class they seek to represent against Defendants arising out of allegations asserted in the Class Actions, excepting claims for personal injury as more fully provided herein.

18. "Settlement Class" shall mean all persons and entities in the United States who purchased, for their own use and not for resale, Super Dura Lube Engine Treatment and/or Dura Lube Advanced Engine Treatment. Excluded from the class are (i) Defendants in each Class Action and their subsidiaries and affiliates; and (ii) officers and directors of Defendants, their subsidiaries, and/or affiliates.

19. "Settlement Hearing" shall mean a hearing on Notice by the Court, as provided in the Preliminary Order and by Tex. R. Civ. P. 42, to determine whether the Court shall grant final approval to the Settlement and Plaintiffs' Counsel's petition for an award of attorneys' fees, costs and expenses as agreed by the Parties.

20. "Stipulation" shall mean this Stipulation of Settlement, including any Exhibits.

21. Promptly upon the execution of this Stipulation, Plaintiffs' counsel and Defendants' counsel shall submit the Stipulation to the Court for approval and shall file a motion, substantially in the form of Exhibit A attached hereto, seeking entry of a Preliminary Order substantially in the form of Exhibit B attached hereto.

22. Consistent with the terms and conditions set forth in this Stipulation, the Preliminary Order shall provide, among other things: (a) for the certification of the Settlement Class and approval of Plaintiffs as class representatives solely for purposes of settlement of the Class Actions; (b)a finding that Lead Plaintiffs' Counsel are qualified by virtue of their experience to be counsel for the Settlement Class and that they have sufficient resources to fund this action; (c) for a hearing on the fairness, reasonableness and adequacy of the Settlement effectuated by this Stipulation and Plaintiffs' Counsel's application for payment of fees and expenses; and (d) that notice to be given, substantially in the form annexed to the Preliminary Order as Exhibits 1 and 2, of: (i) the pendancy of the Class Actions; (ii) the Settlement; (iii) the hearing to consider the fairness, reasonableness and adequacy of the Settlement and to consider the application of Plaintiffs' counsel for at! torneys' feees and expenses; and (iv) the rights of members of the Settlement Class who are not named Plaintiffs in any of the Class Actions to request exclusion and to object to the terms of the Settlement.

23. Within 7 business days after entry of the Preliminary Order, all counsel for the named plaintiffs in Quertermouse v. Dura Lube Corporation, et. al., 99-L-1 166, Circuit Court, Third Judicial District, Madison County, Illinois; Scarpulla v. Dura Lube Corporation, et. al., Case No. 304816, Superior Court of the State of California in and for the County of San Francisco; Shifris v. Dura Lube Corporation, et. al., Case No. 99 CH 14606, Circuit Court of Cook County, Illinois; and Puziss v. Dura Lube Corporation et. al., Case No. CV-99-0155632-S consolidated, with Noto v. Dura Lube Corporation et. al., Case No. CV-99-0155633-S, both in the Superior Court Complex Litigation Docket, Judicial District of Waterbury Connecticut shall dismiss those actions without prejudice, such dismissals providing that the dismissals shall be deemed to be with prejudice upon the entry of Final Judgment of Dismissal in this action. Defendants agree that prior to th! e entry of Final Judgment of Dismissal, they will not object to the reinstatement of any of the Class Actions on the grounds of res judicata in the event that the Settlement is not consummated.

23(a). On June 8, 2000, Judge Jacobious of the Circuit Court of Cook County, Illinois, entered an order staying Aaltonen v. Dura Lube Corporation, et. al., 99 CH 16991, and declared that it would grant a motion to dismiss Aaltonen pursuant to § 2-619(3) of the Illinois Code of Civil Procedure at such time when a class is certified in this action. If the Circuit Court of Cook County were to fail to grant a motion dismissiong Aaltonen or if the case were not otherwise dismissed prior to the Effective Date of the Settlement, Defendants shall have the option to terminate or cancel this Settlement.

24. Plaintiffs and Defendants agree and stipulate that, pursuant to Tex. P, Civ. P. 42 and solely for the purpose of effectuating the Settlement set forth in this Stipulation, the following Settlement Class should be certified:

All persons and entities in the United States who purchased, for their own use and not for resale, Super Dura Lube Engine Treatment and/or Dura Lube Advanced Engine Treatment. Excluded from the class are (i) Defendants in the Class Actions and their subsidiaries and affiliates; and (ii) officers and directors of Defendants, their subsidiaries, and/or affiliates.

25. The best notice practicable shall be effected to all potential members of the Settlement Class in the following manner. It is a condition hereof that Defendants are required under the Consent Decree to provide the FTC with the names and addresses of all Dura Lube purchasers who are readily identifiable from Defendants' direct purchaser records (the "Known Purchasers") for the period January 1, 1994 through December 31, 1999 for the purpose of notifying and compensating those Known Purchasers. The FTC shall be providing individual notice to the Known Purchasers to inform them of their rights in connection with the Consent Decree. Irrespective of the precise form of notice provided by the FTC, notice shall also be provided to the Settlement Class -- both those who are Known Purchasers and all other persons or entities within the Settlement Class (the "Unknown Dura Lube Purchasers") -- by publication of notice (1) on at least two occasions in the national edition of USA To! day, and (2) in two consecutive issues of Car and Driver magazine, and (3) on a website maintained by Defendants at www.duralube_settlement.com (if available), all in substantially the same form as Exhibit 1 to the Preliminary Order (collectively "Published Notice"). Notice by publication in USA Today and Car and Driver shall be disseminated as soon as practicable and no later than 90 calendar days after entry of the Preliminary Order. Notice by publication on Defendants' website shall be posted no later than 30 calendar days after entry of the Preliminary Order and shall remain posted until the Effective Date of Settlement. In addition, Lead Plaintiffs' Counsel shall have the right to publish and maintain notice of the Settlement at websites belonging to their respective law firms, but at their own expense.

25(a). For those Class Members who request more detailed information regarding the Settlement, a Notice will be provided in substantially the same form as Exhibit 2 to the Preliminary Order ("Class Notice").

26. Defendants shall pay the cost of Published Notice up to $100,000. In the event the cost of Published Notice exceeds $100,000, Defendants may apply up to $25,000 of the $250,000 restitutionary relief provided for in paragraph 29(c), infra, subject to the consent of Lead Plaintiffs' Counsel, which may not be unreasonably withheld. Defendants shall be responsible for ensuring that Published Notice is properly and timely disseminated pursuant to the terms set forth in the Preliminary Order.

27. Any member of the Settlement Class who is not a named Plaintiff in one of the Class Actions and who chooses to be excluded from the Settlement Class must serve and file a request for exclusion in accordance with the procedures and the schedule established by the Court which shall be substantially in the form set forth in the proposed Preliminary Order. Any excluded member shall not receive any part of teh Settlement benefits and shall have no rights with respect to the Settlement and shall not be bound by this Settlement.

28. Any potential member of the Settlement Class and any person who may be affected by the proposed Settlement may appear at the Settlement Hearing in person or by counsel, at his or her own expense, and be heard to the extent allowed by the Court in support of or in opposition to the fairness, reasonableness, and adequacy of the Settlement, including any claim that any Settlement Class member's interests are not adequately protected by the terms of the Settlement and/or the application by Plaintiffs' counsel for an award of attorneys' fees and expenses; provided, however, that no person shall be heard in opposition to the Settlement or to the application for attorneys' fees and expenses, and no papers or briefs submitted by any such person shall be accepted or considered by the Court, unless, on or before a date to be established by the Court and which date will be no less than 21 days prior to the Settlement Hearing as described below, such person: (a) has filed with the Cle! rk of the Court a notice of such person's intention to appear, proof of membership in the Class together with a statement indicating the basis for such opposition and any supporting documentation; and (b) has served copies of such notice, statement and documentation, together with copies of any other papers or briefs which such person files with the Court, either in person or by mail on designated Class counsel and counsel for Defendants.

29. Subject to the terms and conditions herein, members of the Settlement Class will receive the following consideration as part of the Settlement:

1. Defendants have, as a condition to the Settlement with Plaintiffs, agreed in the Consent Decree to cease and desist in connection with their manufacturing, advertising, labeling, packaging, sale and distribution, from the following: (1) representing, unless accurate, that (A) Dura Lube contains no chlorinated compound; (B) Dura Lube has been tested by the U.S. Environmental Protection Agency; (C) Dura Lube meets the specifications or standards of any governmental or standard setting organization; (2) making representations regarding any motor vehicle product unless they possess appropriate substantiation at the time the representation is made, (A) that the product compared with motor oil alone reduces engine wear, prolongs engine life, reduces emissions, reduces risk of serious engine damage when oil pressure is lost, improves gas mileage, protects an engine for 50,000 miles with one treatment; (B) that the product reduces engine wear for 50,000 miles; (C) regarding the pe! rformance, efficacy, attributes, or use of the product; (3) misrepresenting the existence, contents, validity, results, conclusions, or interpretations of any test or study; (4) misrepresenting that any demonstration, experiment or test proves a material quality of any product, or the superiority of any product; and (5) representing that any motor vehicle has been endorsed by a person or group unless the endorser possesses appropriate qualifications and the endorsement is supported by appropriate substantiation.
2. Defendants have, as a condition hereto, agreed in the Consent Decree to pay the sum of $2 million to the FTC, which will use those funds, together with accrued interest, less any amount necessary to pay the costs of administration, for the purpose of providing compensation to the Known Purchasers of Dura Lube. Such persons will have the right to receive compensation only upon signing a waiver of rights and release of all claims against Defendants. Defendants shall provide Lead Plaintiffs' Counsel a copy of the notice to consumers and waiver forms to be used by the FTC as soon as they become available. Within ten (10) days of Lead Plaintiffs' Counsel's receipt of a copy of the notice and waiver forms, Plaintiffs shall have the option to terminate or cancel this Settlement by providing written notice to Defendants' Counsel of termination or cancellation; said option shall expire afterh the tenth (10th) day.
3. In addition, Defendants agree hereunder to and shall effectuate restitutionary relief to the Unknown Dura Lube Purchasers who purchased Dura Lube products prior to January 1, 2000, in an aggregate amount not to exceed $250,000, the administration and timely distribution of which shall be the responsibility of Defendants subject to the oversight and review of Lead Plaintiffs' Counsel. Unknown Dura Lube Purcahsers may claim a pro rata share of the $250,000 (not to exceed their purchase price for Dura Lube) by submitting one or more proofs of purchase for purchases of Dura Lube prior to January 1, 2000. Such proof of purchase shall be in the form of a purchase receipt or a package label accompanied by a sworn signed Proof of Claim form from the claimant in substantially the same form as included in Exhibit 3 to the Preliminary Order. After a reasonable time has passed for all claims to be submitted and reviewed, but no later than 120 calendar days after the Effective Date of ! Settlement, and upon determination that a valid claim has been made, Defendants shall pay to each valid Unknown Dura Lube Purchaser claimant his or her pro rata share of the $250,000 (not to exceed their purchase price for Dura Lube). Plaintiffs' counsel shall have the right, upon reasonable notice, to review the books and records maintaned by Defendants in administering the fund.
4. As additional compensation to all Settlement Class members, Defendants shall enclose a coupon booklet in all packages of Dura Lube sold for one year after the Effective Date of Settlement. The coupon booklet shall contain coupons good for mail-in rebates in varying amounts on future purchases of Dura Lube and other products manufactured by Defendants. Such coupons shall be valid for no less than twelve (12) months following the date of purchase of the product with which the coupon was provided. Defendants shall issue these coupons in addition to any promotional campaign Defendants mare now running or plan to run. Defendants shall provide Lead Plaintiffs' Counsel a copy of the coupon booklet as soon as they become available. Within ten (10) days of Lead Plaintiffs' Counsel's receipt of a copy of the coupon booklet, Plaintiffs shall have the option to terminate or cancel this Settlement by providing written notice to Defendants' Counsel of termination or cancellation; said ! option shall expire after the tenth (10th) day.
5. As additional benefits to the Settlement Class, Defendants have agreed, not only to pay for the cost of Notice and administration of the Settlement, but also to pay Plaintiffs' Counsel's legal fees incurred in the prosecution of the Class Actions and reimbursement of their reasonable expenses, in an amount not to exceed $942,500.

30. No later than two weeks prior to the Settlement Hearing, Lead Plaintiffs' Counsel shall file an appropriate motion for approval of an award of their reasonable attorney's fees and reimbursement expenses in an amount to be determined by the Court, but not to exceed $942,500 (the "Fee Award"). Such motion shall be filed to be heard together with the motion for final approval of the Settlement. Plaintiffs' counsel agree not to seek fees, costs and expenses from Defendants in excess of $942,500. Defendants agree not to oppose Plaintiffs' counsels' motion for the Fee Award.

31. Subject to the Court's approval, Defendants agree to pay the Fee Award in an amount not to exceed $942,500.

32. Defendants shall pay the Fee Award to Plaintiffs' counsel as follows: (a) the fist installment of 60% of the Fee Award shall be paid by Defendants within ten business days of the Effective Date of the Settlement. Defendants shall pay the remaining amount of the Fee Award to Plaintiffs' counsel no later than 120 days after the Effective Date of the Settlement or March 1, 2001, whichever is later.

33. On the Effective Date of the Settlement, the Class Releasors shall hereby be deemed to have, and by operation of the Final Judgment of Dismissal shall have, fully, finally and forever released, relinquished, settled, and discharged the Releasees from the Settled Claims.

34. With respect to any and all Settled Claims, the parties stipulate and agree that, upon the Effective Date of the Settlement, the Class Releasors shall be deemed to have, and by operation of the Final Judgment of Dismissal shall have, expressly waived and relinquished, to the fullest extent permitted by law, the provisions, rights, and benefits of § 1542 of the California Civil Code which provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.

Thus, the Class Releasors, upon the Effective Date of Settlement, shall be deemed to have, and by operation of the Final Judgment of Dismissal shall have, waived any and all provisions, rights and benefits conferred by any law of any state or territory of the United States, or principle of common law, which is similar, comparable or equivalent to § 1542 of the California Civil Code. The Class Releasors may hereafter discover facts in addition to or different from those which he, she or it now knows or believes to be true and with respect to the subject matter of the Settled Claims, but the Class Releasors, upon the Effective Date of Settlement, shall be deemed to have, and by operation of the Final Judgment of Dismissal shall have, fully, finally, and forever settled and released any and all Settled Claims, known or unknown, suspected or unsuspected, contingent or non-contingent, whether or not concealed or hidden, which now exist, or theretofore have existed upon any theo! ry of law or equity now existing or coming into existence in the future, including, but not limited to, conduct which is negligent, intentional, with or without malice, or a breach of any duty, law or rule, without regard to the subsequent discovery or existence of such different or additional facts.

35. The Court's entry of a Final Judgment of Dismissal, as described in Paragraph 37, infra, shall stand as res judicata for all Class Releasors as to any claim for damages or injunctive relief relating to the Settled Claims.

36. Upon the Effective Date of Settlement, the Class Releasors and anyone making claims through or on behalf of any of them, will be forever barred and enjoined from commencing, instituting or prosecuting any action in any court of law or equity, arbitration tribunal, administrative forum, or other tribunal, directly or representatively against the Defendants and the other Releases, arising out of or in any way related to any of the Settled Claims.

37. The Court shall hold a Settlement Hearing as provided in the Preliminary Order and by Tex. R. Civ. P. 42. If this Stipulation of Settlement is approved by the Court following the Settlement Hearing, then counsel for the Parties shall submit to the Court the Final Judgment of Dismissal, substantially in the form attached hereto as Exhibit C. The Final Judgment of Dismissal entered by the Court shall provide, among other things, for the following:

1. Approval of this Stipulation of Settlement and a finding by the Court that the terms and conditions hereof are fair, reasonable, adequate and in the best interests of the Settlement Class, and directing consummation of all of its terms and conditions;
2. A finding that notices to the members of the Settlement Class were given in accordance with the United States Constitution and the requirements of Tex. R. Civ. P. 42;
3. Dismissal on the merits and with prejudice of all Settled Claims that were or could have been asserted by or on behalf of the named Plaintiffs in the Class Actions and members of the Settlement Class who have not timely excluded themselves therefrom;
4. An order settling, discharging, relinquishing, and releasing any and all of the Settled Claims against Defendants and the other Releasees in accordance with the terms set forth in Paragraph 32, supra;
5. An order barring and permanently enjoining the institution or prosecution by the Class Releasors, either directly, representatively, or in any other capacity, of any other action against any of the Defendants or other Releasees, in this court or in any other court or forum, arising out of or in any way biased on the Settled Claims;
6. An order approving the reasonable expenditures to date and requiring that any residual amounts be off-set against Defendants' settlement fund payment obligations;
7. An order awarding reasonable attorneys' fees, expenses and costs to Plaintiffs' counsel, or deferring consideration thereof;
8. A reservation of exclusive jurisdiction as to all matters related to administration and consummation of the Settlement (exclusive of the Consent Decree), including, but not limited to, the processing, dissemination and allowance of claims from and against the settlement fund and distribution thereof to members of the Settlement Class and the entry of any further orders as may be necessary to effectuate and/or enforce the Stipulation, and the provisions of the Final Judgment of Dismissal, and a provision that such retention of jurisdiction does not affect the finality of the Final Judgment of Dismissal as to the Settled Claims;
9. Shjould the Court defer consideration on the application of Plaintiffs' counsel for attorneys' fees and expenses, a provision that the finality of the order and judgment entered on the Settlement is independent of and not conditioned on the Court's consideration of, or actions with respect to the application by Plaintiffs' counsel for attorneys' fees and expenses; and
10. A provision that, there being no just reason for delay, the Court should enter the Final Judgment of Dismissal as a final and appealable order pursuant to Tex. R. Civ. P. 301.

38. A condition of this Settlement is that it shall be approved without material change by the Court under applicable provisions of law. However, if the Court materially modifies or does not enter the Final Judgment of Dismissal provided for in paragraph 37, supra, or if the Court enters the Final Judgment of Dismissal and appellate review is sought and on such review the Final Judgment of Dismissal is materially modified or reversed, then this Stipulation shall be cancelled and terminated unless each of the parties hereto, within 14 days of receipt of such ruling or written notice, agrees in writing with all other parties to proceed with this Settlement.

39. A Fee Award which is in an amount less than that sought by Plaintiffs' counsel shall not constitute a material modification of or a material term of the Final Judgment of Dismissal or this Stipulation and shall not be cause to cancel or terminate the Settlement. Furthermore, if appellate review is sought and on such review the Fee Award is modified or reversed such modification or reversal shall not be deemed a material modification of, or a material term of the Final Judgment of Dismissal or this Stipulation and shall not be cause to cancel or terminate the Settlement.

40. If this Stipulation is canceled or terminated for any reason, all of the parties hereto shall be deemed to have reverted to their respective status prior to the execution of this Stipulation and they shall proceed in all respects as if this Stipulation have not been executed and the related orders and judgments had not been entered, preserving in that event all of their respective claims and defenses in the Class Actions, including but not limited to, their claims and defenses regarding class certification.

41. The Settlement contemplated by this Stipulation shall become effective only upon the occurrence of each of the following events:

1. The entry by the Court of the Final Judgment of Dismissal pursuant to Tex. R. Civ. P. 301; and
2. The expiration of the time in which to appeal the Final Judgment of Dismissal without any appeal having been taken therefrom, which time to appeal shall be deemed to be 30 days from the mailing of the notice of the Final Judgment of Dismissal unless the date, to take such appeal shall have been extended by court order or otherwise or, if such appeal is taken, the expiration of ten (10) days after the date upon which the right to take any further appeal has expired, provided that such appeal shall have been resolved in such manner as to permit the consummation of the Settlement effected by this Stipulation of Settlement in accordance with all of its terms and provisions.

42. The date specified in subparagraph (b) above shall be referred to as the "Effective Date of the Settlement".

43. This Stipulation merges and supercedes any and all prior settlement discussions, understandings and agreements among the Plaintiffs and Settlement Class and Defendants or between any of them and no representations, warranties, or inducements have been made to any party concerning this Stipulation and its exhibits other than the representations, warranties, and convenants contained and memorialized in those documents.

44. Neither this Stipulation nor the fact of its existence nor any of the terms hereof, nor any negotiations or proceedings hereunder, whether or not consummated, shall be:

1. Construed as or deemed to be evidence of a presumption, implication, concession, or admission by Defendants, or any of them, of the truth of any fact alleged or the validity of any claim which has or could have been asserted in the Class Actions or the deficiency of any defense which has or could have been asserted in the Class Actions;
2. Offered or received as eveidence of a presumtion, implication, concession, or admission of any fault, misrepresentation, or omission in connection with anything that is related to these Class Actions;
3. Construed as or deemed to be evidence of a presumption, implication, concession, or admission of any liability,f ault, or wrongdoing on the part of Defendants; or
4. Construed as or deemed to be evidence of a presumption, implication, concession, or admission by Defendants that the consideration to be given hereunder, or any other sum, represents the amount which could be recovered after trial.

45. Plaintiffs and Defendants agree to use their best efforts to work cooperatively in obtaining the approval of the Settlement and in effectuating the terms of the Settlement should it be approved by the Court, including without limitation Defendants' provision of data records in usable formats.

46. Without further order of the Court, the parties hereto may agree to reasonable extensions of time to carry out any of the provisions of this Stipulation.

47. This Stipulation (incluing all exhibits hereto) constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and may not be modified or amended except in a writing signed by all parties hereto.

48. This Stipulation shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, and assigns.

49. All of the exhibits to the Stipulation are an integral part of the Stipulation and the agreement of the parties to the Stipulation.

50. This Stipulation, and its exhibits, may be executed in one or more counterparts, all of which together shall be one instrument, and all of which shall be considered duplicate originals.

51. This Stipulation shall be construed according to the law of the State of Texas, without regard to its choice of law rules.

52. The Court shall retain jurisdiction with respect to enforcement of the terms of this Stipulation.

53. For the purpose of construing or interpreting this Stipulation, the Stipulation is deemed to have been drafted equally by all parties hereto, and shall not be construed strictly for or against any party.

54. Within sixty (60) days following the Effective Date of the Settlement, Plaintiffs shall, at their option, return to Defendants or destroy any and all documents produced by Defendants in the Class Actions and any notes concerning the contents of documents produced by Defendants.

IN WITNESS WHEREOF, this Stipulation has been executed by the undersigned counsel of record as of the date set forth below.

Dated: August __, 2000.

Counsel for the Plaintiffs and the Class:	Counsel for Defendants:
KITTLENMAN, THOMAS, RAMIREZ & GONZALEZ, PLLC By: Raymont L. Thomas P.O. Box 1416 McAllen, TX 78505	HALL DICKLER KENT GOLDSTEIN & WOOD LLP By: James E. Daniels 909 Third Avenue New York, NY 10022
BERNSTEIN LITOWITZ BERGER & GROSSMAN, LLP By: Seth R. Lesser 1285 Avenue of the Americas New York, NY 10019	DAVIS, CEDILLO & MENDOZA, INC. By: Ricardo G. Cedillo Harte-Hanks Tower, Suite 400 200 Concord Plaza San Antonio, TX 78216
FREED & WEISS LLC By: Paul M. Weiss 11 West Washington, Suite 1331 Chicago, IL 60602
BURR & FORMAN, LLP By: E. Clayton Lowe, Jr. P.O. Box 830719 Birmingham, AL 35293
MUCH SHELIST FREED DENENBERG AMENT & RUBENSTEIN, P.C. By: Michael J. Freed 200 N. LaSalle Street, Suite 2100 Chicago, IL 60601-1095
SCHATZ & NOBEL, P.C. By: Andrew M. Schatz Jeff Nobel 330 Main Street Hartford, CT 06106-1851
THE LAKIN LAW FIRM By: L. Thomas Lakin Bradley M. Lakin 301 Evans Avenue, P.O. Box 27 Wood River, IL 62095-1127
THE SAVERI LAW GROUP By: Guido Saveri R. Alexander Saveri One Embarcadero Center, Suite 1020 San Francisco, CA 94111-3600
SHELLER, LUDWIG & BADEY, P.C. By: Jon Shub 1528 Walnut Street, Third Floor Philadelphia, PA 19102
LAW OFFICES OF FRANCIS O. SCARPULLA By: Francis O. Scarpulla The Alcoa Building One Maritime Plaza, Suite 1040 San Francisco, CA 94111
THE CONSUMER ADVOCACY CENTER By: Lance A. Raphael 25 East Washington, Suite 1805 Chicago, IL 60602
SANDAK FREEDMAN HENNESSEY & GRECO, LLP By: Kevin Greco 970 Summer Street Stamford, CT 06905