exhibit 1 stipulation and agreement of settlement

EXHIBIT 1

STIPULATION AND AGREEMENT OF SETTLEMENT

Case 1:20-cv-11492-LTS Document 52-4 Filed 03/29/21 of 52

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

JAMES BARR, MARY BIRDOES, JEFF BOWLIN, and RYAN LANDIS, on behalf of themselves all other persons similarly situated,

Plaintiffs, vs.

DRIZLY, LLC f/k/a DRIZLY, INC., and THE DRIZLY GROUP, INC.

Defendants.

Case No. 1:20-CV-11492 The Honorable Leo T. Sorokin Magistrate Judge Donald L. Cabell



TABLE OF CONTENTS

RECITALS ..................................................................................................................................... 1

1. TERMS USED IN THIS AGREEMENT ........................................................................... 3

2. SETTLEMENT CLASS ................................................................................................... 10

3. CLAIM PAYMENTS TO AUTHORIZED CLAIMANTS .............................................. 11

4. INJUNCTIVE RELIEF ..................................................................................................... 13

5. PAYMENT OF ATTORNEYS’ FEES, REIMBURSEMENT OF EXPENSES, AND APPLICATION FOR INCENTIVE AWARD ................................................................. 13

6. ADMINISTRATION OF CLAIMS .................................................................................. 16

7. ADMINISTRATION/MAINTENANCE OF THE ESCROW ACCOUNT..................... 18

8. RELEASE AND COVENANT NOT TO SUE ................................................................ 19

9. OPT-OUT PROCEDURES .............................................................................................. 20

10. OBJECTION PROCEDURES .......................................................................................... 21

11. MOTION FOR PRELIMINARY APPROVAL ............................................................... 23

12. CLASS NOTICE .............................................................................................................. 23

13. MOTION FOR FINAL APPROVAL AND ENTRY OF FINAL JUDGMENT ............. 24

14. BEST EFFORTS TO EFFECTUATE THIS SETTLEMENT.......................................... 26

15. OCCURRENCE OF EFFECTIVE DATE ........................................................................ 26

16. TERMINATION ............................................................................................................... 27

17. EFFECT OF TERMINATION ......................................................................................... 28

18. CONFIDENTIALITY PROTECTION AND PUBLIC STATEMENTS ......................... 30

19. BINDING EFFECT .......................................................................................................... 31

20. NO ADMISSIONS ........................................................................................................... 31

21. INTEGRATED AGREEMENT........................................................................................ 32

22. HEADINGS ...................................................................................................................... 32


ii

23. NO PARTY IS THE DRAFTER ...................................................................................... 32

24. CHOICE OF LAW ........................................................................................................... 33

25. EXECUTION IN COUNTERPARTS .............................................................................. 33

26. SUBMISSION TO AND RETENTION OF JURISDICTION ......................................... 33

27. NOTICES .......................................................................................................................... 33

28. AUTHORITY ................................................................................................................... 34

29. STAY ................................................................................................................................ 34

30. DISPUTES OR CONTROVERSIES ................................................................................ 34



THIS STIPULATION AND AGREEMENT OF SETTLEMENT is made and entered

into on March 26, 2021. This Settlement Agreement is entered into on behalf of Plaintiffs James

Barr, Mary Birdoes, Jeff Bowlin, and Ryan Landis, individually and on behalf of the Settlement

Class, by and through Plaintiffs’ Co-Counsel, and on behalf of Defendants Drizly, LLC f/k/a

Drizly, Inc., and The Drizly Group, Inc., by and through Drizly’s Counsel in this Action.

Capitalized shall have the meanings ascribed to them in Section 1 or as otherwise specified

herein.

RECITALS

WHEREAS, on July 28, 2020, Drizly notified customers, including Plaintiffs, that it had

recently identified suspicious activity involving customer data and determined through its

investigation that an unauthorized party had accessed certain personally identifiable customer

information stored in Drizly’s data;

WHEREAS, as a result of the Data Beach, certain personally identifiable customer

information, including but not limited to email addresses, dates of birth, hashed passwords, and

(for a subset of users) historical delivery addresses, were accessed;

WHEREAS, Plaintiffs filed a putative class action, Barr et al. v. Drizly, LLC f/k/a

Drizly, Inc., et al., Case No. 1:20-cv-11492 (D. Mass.);

WHEREAS, Plaintiffs alleged, among other things, that Drizly acted unlawfully by,

inter alia, failing to safeguard and protect its customers’ highly sensitive and personal

information in violation of the Massachusetts Consumer Protection Act, Mass. Gen. Laws Ann.

ch. 93A § 1, et seq.; the New York General Business Law, N.Y. Gen. Bus. Law § 349, et seq.;

the Arizona Consumer Fraud Act, Ariz. Rev. Stat. § 44-1521, et seq.; the California Unfair


2

Competition Law, Cal. Bus. & Prof. Code § 17200, et seq.; the California Consumer Legal

Remedies Act, Cal. Civ. Code § 1750, et seq.; the California Consumer Privacy Act, Cal. Civ.

Code § 1798.100, et seq.; and state common law;

WHEREAS, Plaintiffs further contend that they and the Settlement Class are entitled to

monetary damages as a result of Drizly’s conduct;

WHEREAS, Drizly denies each and all of the claims and allegations of wrongdoing in

Plaintiffs’ pleadings, and maintains that it has good and meritorious defenses to the claims of

liability and damages made by Plaintiffs;

WHEREAS, arm’s length settlement negotiations have taken place between Plaintiffs,

Plaintiffs’ Co-Counsel, Drizly, and Drizly’s Counsel, including a full-day mediation session

before the Honorable Diane M. Welsh (Ret.), U.S. Magistrate Judge (E.D. Pa.), resulting in this

Settlement Agreement, subject to the final approval of the Court;

WHEREAS, prior to mediation, the Parties engaged in certain discovery during which

Drizly provided documents and data to Plaintiffs’ Co-Counsel;

WHEREAS, Plaintiffs’ Co-Counsel conducted an investigation of the facts and the law

regarding the Action, considered the Settlement set forth herein to be fair, reasonable, adequate

and in the best interests of Plaintiffs and the Settlement Class, and determined that it is in the

best interests of the Settlement Class to enter into this Settlement Agreement in order to avoid

the uncertainties of complex litigation and to assure a benefit to the Settlement Class;

WHEREAS, Drizly, while continuing to deny that it committed any wrongful act or that

is liable for the claims asserted against it in the Action and believing that it has good and

meritorious defenses thereto, has nevertheless agreed to enter into this Settlement Agreement to

avoid further expense, inconvenience, and distraction of burdensome and protracted litigation,


3

thereby putting this controversy to rest and avoiding the risks inherent in complex litigation;

WHEREAS, Plaintiffs, for themselves individually and on behalf of each Settlement

Class Member, and Drizly agree that neither this Settlement Agreement nor any statement made

in negotiation thereof shall be deemed or construed to be an admission or evidence by Released

Parties of any violation of any statute or law or of any liability or wrongdoing by Drizly or of the

truth of any of the claims or allegations in the Action, and that this Settlement Agreement nor

any statement made in negotiation thereof may not be used or offered in any proceeding for any

purpose, except to enforce the terms of this Settlement; and

WHEREAS, the Parties enter into the Settlement with full knowledge that adverse or

favorable court decisions and/or other events may take place in the future that might affect the

positions of the Parties, including prior to the entry of the Final Approval Order and Final

Judgment, and they intend to be bound by this Settlement, subject to final approval of the Court,

notwithstanding the possibility or occurrence of any such future events or changes in position;

NOW, THEREFORE, Plaintiffs, on behalf of themselves and the Settlement Class by

and through Plaintiffs’ Co-Counsel, and Drizly, by and through Drizly’s Counsel, agree that the

Action and Released Claims be settled, compromised, and dismissed on the merits and with

prejudice as to Drizly and the Released Parties and without costs as to Plaintiffs, the Settlement

Class, or Drizly except as provided herein, subject to the approval of the Court, on the following

terms and conditions:

1. Terms Used in This Agreement

The words and terms used in this Settlement Agreement, which are expressly defined

below, shall have the meaning ascribed to them.

(A) “Action” means Barr et al. v. Drizly, LLC f/k/a Drizly, Inc., et al., No. 1:20-cv-


4

11492 (D. Mass.).

(B) “Agreement” or “Settlement Agreement” means this Stipulation and

Agreement of Settlement, together with any appendices and exhibits attached hereto, which are

incorporated herein by reference.

(C) “Alternative Judgment” means a form of final judgment that may be entered by

the Court herein but in a form other than the form of Final Judgment provided for in this

Settlement Agreement, provided that the Alternative Judgment may not differ in any material

respect from the form of Final Judgment provided for in this Settlement Agreement absent the

Parties’ consent.

(D) “Authorized Claimant” means any Settling Class Member who, in accordance

with the terms of this Settlement Agreement, files a timely and valid Proof of Claim and Release

form and is entitled to monetary relief from Drizly pursuant to this Settlement Agreement or

order of the Court.

(E) “Business Days” means Monday through Friday, inclusive, of each week unless

such day is a holiday in the United States.

(F) “Class” or “Settlement Class” means all Persons in the United States whose

customer data was compromised in the Data Breach. Excluded from the Class are (i) Drizly and

its employees, agents, affiliates, parents, and subsidiaries, whether or not named in the amended

complaint in this Action (“Amend. Cmplt.,” ECF No. 35); (ii) all Settlement Class Members who

timely and validly request exclusion from the Settlement Class; (iii) any judge, justice, or judicial

officer presiding over this matter and the members of their immediate families and judicial staff;

and (iv) the attorneys representing the Parties in the Action.

(G) “Class Member(s)” or “Settlement Class Member(s)” means a Person or


5

Persons who are a member of the Settlement Class.

(H) “Class Notice” means the form of notice of the proposed Settlement Agreement

to be distributed to the Settlement Class as provided in this Settlement Agreement and the

Preliminary Approval Order.

(I) “Class Notice and Settlement Administration Costs” means all costs and

expenses related to the issuance of Class Notice to the Settlement Class and the administration of

the settlement process by the Settlement Administrator, including but not limited to the

preparation and distribution of the Court-approved notices, processing of Proofs of Claims and

Release, and issuance of payment to Authorized Claimants. Drizly will bear the costs and

expenses of the foregoing, separate and apart from the payments Drizly will make representing

the Settlement Cash Payment, attorneys’ fees and expense award, and Incentive Awards.

(J) “Court” means the U.S. District Court for the District of Massachusetts.

(K) “Data Breach” means the data intrusion security incident that Drizly made public

on July 28, 2020, in which an unauthorized party accessed certain personally identifiable

information of Drizly’s customers.

(L) “Drizly” means the defendants previously named in the Action who are parties to

the Settlement Agreement, and includes Drizly, LLC f/k/a Drizly, Inc. and The Drizly Group,

Inc., as well as any future parent or successor entities.

(M) “Drizly’s Counsel” means ZwillGen PLLC.

(N) “Effective Date” means one Business Day after the Final Approval Order and

Final Judgment become Final, provided this Agreement has not been terminated in accordance

with the provisions of Section 16.

(O) “Escrow Account” means an interest-bearing account mutually agreeable to the


6

Parties and administered by the Settlement Administrator.

(P) “Execution Date” means the date on which this Agreement is executed by the

last Party to do so.

(Q) “Fairness Hearing” means a hearing scheduled by the Court following the

issuance of the Preliminary Approval Order and Class Notice to consider the fairness, adequacy

and reasonableness of the proposed Settlement and Settlement Agreement as well as Plaintiffs’

motion for attorneys’ fees and expenses, and Incentive Award.

(R) “Fee and Expense Application” is defined in Section 5.

(S) “Final” means, with respect to any court order, including, without limitation, the

Final Judgment, that such order represents a final and binding determination of all issues within

its scope and is not subject to further review on appeal or otherwise. An order becomes “Final”

when: (i) no appeal has been filed and the prescribed time for commencing any appeal has

expired; or (ii) an appeal has been filed and either (a) the appeal has been dismissed and the

prescribed time, if any, for commencing any further appeal has expired, or (b) the order has been

affirmed in its entirety and the prescribed time, if any, for commencing any further appeal has

expired. Any appeal or other proceeding pertaining solely to any order issued with respect to

any application for attorneys’ fees and expenses and/or Incentive Awards pursuant to Section 5

below, shall not in any way delay or prevent the Final Judgment from becoming Final.

(T) Final Approval Order” means an order of the Court granting final approval to

the Settlement following (i) preliminary approval of the Settlement Agreement, (ii) the issuance

of the Class Notice pursuant to the Preliminary Approval Order, and (iii) the Fairness Hearing.

(U) “Final Judgment” means the order of judgment and dismissal of the Action and

the Released Claims with prejudice and without costs as to Drizly except as provided herein,


7

pursuant to the Final Approval Order.

(V) “Incentive Award” means any award by the Court to named Plaintiffs as further

described in Section 5, not to exceed $2,000.00 each per named Plaintiff.

(W) “Notice Plan” means the plan and method for distributing Class Notice to the

Settlement Class Members as developed by the Settlement Administrator in collaboration with

the Parties, as set forth in Section 12.

(X) “Objection Date” means the date by which Settlement Class Members must

notify the Clerk of Court and the Parties’ Counsel of their objection to the Settlement pursuant to

the process described herein, the Class Notice, and in the Preliminary Approval Order.

(Y) “Opt-Out Date” means the date by which Settlement Class Members must notify

the Settlement Administrator of their request to be excluded from the Settlement Class, pursuant

to the process described herein, the Class Notice, and in the Preliminary Approval Order.

(Z) “Parties” means Drizly and Plaintiffs collectively, and “Party” applies to each

individually.

(AA) “Person” means a natural person, corporation, limited liability corporation,

professional corporation, limited liability partnership, partnership, limited partnership,

association, joint-stock company, estate, legal representative, trust, unincorporated association,

proprietorship, any business or legal entity, or any other entity or organization; and any spouses,

heirs, predecessors, successors, representatives or assigns of any of the foregoing.

(BB) “Plaintiffs” means the named Plaintiffs in the Action—James Barr, Mary

Birdoes, Jeff Bowlin, and Ryan Landis. This Settlement Agreement is entered into with each

and every Plaintiff. In the event that one or more Plaintiff(s) fails to secure Court approval to act


8

as a class representative, the validity of this Settlement Agreement as to the remaining Plaintiffs,

the Settlement Class, and Plaintiffs’ Co-Counsel shall be unaffected.

(CC) “Plaintiffs’ Co-Counsel” means Plaintiffs’ Co-Counsel in the Action, and

includes (1) Lowey Dannenberg, P.C., (2) Carlson Lynch LLP, (3) Keller Lenkner, LLC,

(4) Thompson Consumer Law Group, PC, and (5) Block & Leviton LLP.

(DD) “Preliminary Approval Order” means an order of the Court, in a form to be

agreed upon by the Parties, issued in response to the Motion for Preliminary Approval described

in Section 11.

(EE) “Proof of Claim and Release” means the form to be provided to potential

Settlement Class Members, upon further order(s) of the Court, by which any Settling Class

Member may make a claim.

(FF) “Released Claims” means any and all actual, potential, filed, known or unknown,

fixed or contingent, claimed or unclaimed, suspected or unsuspected, claims, demands,

liabilities, rights, causes of action, contracts or agreements, extracontractual claims, damages,

punitive, exemplary or multiplied damages, expenses, costs, attorneys’ fees or obligations

(including Unknown Claims) that could be brought, whether in law or in equity, accrued or

unaccrued, direct, individual or representative, of every nature and description whatsoever,

whether based on federal, state, local, statutory or common law or any other law, rule or

regulation, against the Released Parties, or any of them, that arise out of or are related to any

facts, transactions, events, matters, occurrences, acts, disclosures, statements, representations,

omissions or failures to act regarding the Data Breach alleged in the Action. Nothing herein is

intended to release any claims any governmental agency or governmental actor may have against

Drizly.


9

(GG) “Released Parties” means Drizly, LLC f/k/a Drizly, Inc. and The Drizly Group,

Inc., as well as any and all of their respective present or past heirs, executors, estates,

administrators, predecessors, successors, assigns, parent companies, subsidiaries, licensors,

licensees, associates, affiliates, employers, employees, agents, consultants, independent

contractors, insurers, directors, managing directors, officers, partners, principals, members,

attorneys, accountants, financial and other advisors, underwriters, shareholders, lenders, auditors,

investment advisors, legal representatives, successors in interest, assigns and companies, firms,

trusts, and corporations.

(HH) “Releasing Parties” means Plaintiffs and Settling Class Members, as well as any

and all of their respective present or past heirs, executors, estates, administrators, predecessors,

successors, assigns, parent companies, subsidiaries, licensors, licensees, associates, affiliates,

employers, employees, agents, consultants, independent contractors, insurers, directors,

managing directors, officers, partners, principals, members, attorneys, accountants, financial and

other advisors, underwriters, shareholders, lenders, auditors, investment advisors, legal

representatives, successors in interest, assigns and companies, firms, trusts, and corporations.

(II) “Settlement” means the settlement of the Released Claims set forth in this

Settlement Agreement herein.

(JJ) “Settlement Administrator” means any Person that the Court approves to

perform the tasks necessary to provide notice of the Settlement to the Settlement Class and to

otherwise administer the Settlement, as described further herein. The Parties propose that the

Settlement Administrator will be A.B. Data, Ltd. - Class Action Administration.

(KK) “Settlement Cash Payment” means the total amount of cash payments that will

be deposited in the Escrow Account by Drizly to pay to Settling Class Members that file a timely


10

and valid Proof of Claim and Release, as described in Section 3, which shall not be less than one

million fifty thousand U.S. dollars ($1,050,000.00), and shall not exceed three million one

hundred fifty thousand U.S. dollars ($3,150,000.00).

(LL) “Settlement Service Credit Amount” means the total amount of credits against

Drizly’s service fee that Drizly will provide to Settling Class Members that file a timely and

valid Proof of Claim and Release, as described in Section 3, the value of which shall not exceed

$447,750.00.

(MM) “Settlement Value” means the total value of the Settlement, including the value

of the Settlement Cash Payment, Settlement Service Credit Amount, injunctive relief and the

requested attorneys’ fees and expenses as described in Sections 3-5. The Settlement Value will

be between $3,350,000.00 and $7,105,750.00.

(NN) “Settling Class Members” means Settlement Class Members who do not submit

a timely and valid request for exclusion from this Action pursuant to Fed. R. Civ. P. 23(c) and in

accordance with the procedure to be established by the Court.

(OO) “Unknown Claims” means any Released Claims that Releasing Parties do not

know or suspect to exist in their favor as of the Effective Date, which if known, might have

affected their decision with respect to the Settlement.

2. Settlement Class

(A) Plaintiffs will file an application, as part of the motion for preliminary approval

under Section 11, seeking the certification of the Settlement Class as described herein pursuant

to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure.

(B) The Parties’ agreement as to certification of the Settlement Class is solely for

purposes of effectuating the Settlement and for no other purpose. Drizly retains all of their


11

objections, arguments, and defenses with respect to class certification and any other issue, and

reserve all rights to contest class certification and any other issue, if the Settlement set forth in

this Settlement Agreement does not result in the entry of a Final Approval Order and Final

Judgment, if the Court’s approval is reversed or vacated on appeal, if this Settlement Agreement

is terminated as provided herein, or if the Settlement set forth in this Settlement Agreement

otherwise fails to become effective. The Parties acknowledge that there has been no stipulation

to any classes or certification of any classes for any purpose other than effectuating the

Settlement, and that if the Settlement set forth in this Settlement Agreement is not finally

approved, if the Court’s approval is reversed or vacated on appeal, if this Settlement Agreement

is terminated as provided herein, or if the Settlement set forth in this Settlement Agreement

otherwise fails to become effective, this agreement as to certification of the Settlement Class

becomes null and void ab initio, and this Settlement Agreement or any other settlement-related

statement may not be cited regarding certification of the Class, or in support of an argument for

certifying any class for any purpose related to this Action or any other proceeding.

3. Claim Payments to Authorized Claimants

(A) Within 30 days following the Effective Date, Drizly agrees to pay into the Escrow

Account an amount sufficient to provide each Settling Class Member that submits a timely and

valid Proof of Claim and Release a cash payment (the “Claim Payment”) of fourteen U.S. dollars

($14.00), provided that such dollar amount shall be adjusted in the following circumstances:

(i.) If the total amount due to Settling Class Members submitting a timely and

valid Proof of Claim and Release at $14.00 per claim does not exceed $1,050,000.00, the

cash payment amount to each Settling Class Member submitting a timely and valid Proof


12

of Claim and Release shall be increased pro rata so that Drizly’s aggregate cash

payments to all eligible Settling Class Members totals $1,050,000.00.

(ii.) If the total amount due to Settling Class Members submitting a timely and

valid Proof of Claim and Release at $14.00 per claim exceeds $3,150,000.00, the cash

payment amount to each Settling Class Member submitting a timely and valid Proof of

Claim and Release shall be reduced pro rata so that Drizly’s aggregate cash payments to

all eligible Settling Class Members totals $3,150,000.00.

(iii.) In no event shall the aggregate cash payments to Settling Class Members

submitting an Approved Claim exceed $3,150,000.00.

(B) Upon payment of the Settlement Cash Payment into the Escrow Account pursuant

to this Section, all risk of loss with respect to the Claims Payments shall pass to the Escrow

Fund, and any and all remaining interest or right of Drizly in or to the Escrow Account, if any,

shall be absolutely and forever extinguished.

(C) Within 30 days following the Effective Date, after receiving the list of Authorized

Claimants from the Settlement Administrator, Drizly shall provide each Settling Class Member

that submits a timely and valid Proof of Claim and Release a $1.99 credit against Drizly’s

service fee for orders placed through its platform, which shall not expire for at least one (1) year

from date of issuance; provided that, if the total credits to be issued to Authorized Claimants

exceeds $447,750.00, the credit shall be reduced pro rata so that Drizly’s aggregate Settlement

Service Credit Amount totals $447,750.00. The $1.99 credit represents the equivalent of the full

amount of a service fee to Drizly for an order as of the date of this Settlement Agreement. The

total amount of service credits that Drizly provides is the Settlement Service Credit Amount.


13

4. Injunctive Relief

(A) The Parties agree that the injunctive relief set forth below and Drizly’s

improvements to its data security posture are valued at no less than $2,300,000.00.

(B) Drizly estimates that over the specified two-year period, it will incur

approximately $2,300,000.00 in relevant security costs, including dedicated security personnel

and third-party tools and services.

(C) For a period of no less than two (2) years following the Effective Date, Drizly

agrees to adopt or maintain the following data security measures:

(i.) Drizly will maintain a written information security program;

(ii.) Drizly will designate an employee, holding an executive position, with

responsibility for and oversight of Drizly’s data security as it relates to customer,

employee, and company information, including oversight of implementation and

compliance with respect to the commitments in this Section;

(iii.) Drizly will continue to utilize commercially reasonable tools for

monitoring and identification of potentially suspicious activity within the company’s

network environment, maintain processes and procedures designed to automatically bring

alerts regarding such activity to the attention of appropriate security personnel, and use

commercially reasonable efforts to verify that third-party cloud services with access to

customer information within the company’s network environment provide a level of

security, that is at least industry-standard for such service;

(iv.) Drizly will hire a third-party cybersecurity firm to conduct penetration

tests of Drizly’s customer data environment on a periodic basis, at least once a year;


14

(v.) Drizly will continue to provide periodic information security training for

employees with access to company systems containing customer data;

(vi.) Drizly will continue to require the use of multi-factor authentication

(“MFA”) for employee accounts with access to systems used to store customer data

(wherever supported), for as long as MFA is deemed reasonable and industry standard.

5. Payment of Attorneys’ Fees, Reimbursement of Expenses, and Application for Incentive Award

(A) Subject to Court approval, Plaintiffs’ Co-Counsel shall be reimbursed and paid

solely by Drizly for all attorneys’ fees and expenses incurred in this Action subject to the

limitations below.

(i.) Plaintiffs’ Co-Counsel may apply to the Court for an award of attorneys’

fees and expenses in an amount not to exceed $1,200,000.00, which shall be the sole

aggregate compensation paid by Drizly for all Plaintiffs’ Co-Counsel representing the

Class. Drizly shall take no position with respect to Plaintiffs’ Co-Counsel’s motion for

attorneys’ fees and expenses provided the requested award of attorneys’ fees and

expenses does not exceed $1,200,000.00. In no event shall Drizly be obligated to pay or

reimburse Plaintiffs’ Co-Counsel an amount greater than $1,200,000.00.

(ii.) Drizly agrees to pay the Court-awarded attorneys’ fees and expenses

amount (subject to the aforementioned limit) within fourteen (14) days following entry of

such an order. Plaintiffs’ Co-Counsel shall provide Drizly with appropriate banking

instructions to facilitate the payment. However, if the Settlement Agreement is prevented

from going into effect by subsequent order of the trial court or on appeal, Plaintiffs’ Co-

Counsel must return such funds to Drizly, within the time period provided in Section 17.


15

(B) Subject to Court approval, Plaintiffs may make an application to the Court for

payment by Drizly of an award in connection with their representation of the Settlement Class in

this Action, which amount constitutes the Incentive Award, subject to the limitations below.

(i.) Each Plaintiff may seek an Incentive Award in an amount not to exceed

$2,000. The purpose of such awards shall be to compensate Plaintiffs for the efforts and

risks taken by them on behalf of the Class. Drizly shall take no position with respect to

Plaintiffs’ application for Incentive Awards provided the requested Incentive Awards do

not exceed $2,000.00 per Plaintiff. In no event shall Drizly be obligated to pay any

named Plaintiff an amount greater than $2,000.00. The Incentive Award is separate and

apart from any Claim Payment to which a Plaintiff may be entitled.

(ii.) Drizly agrees to pay the Incentive Awards (subject to the aforementioned

limit) within fourteen (14) days following entry of such an order. Plaintiffs’ Co-Counsel

shall provide Drizly with appropriate banking instructions to facilitate the payments.

However, if the Settlement Agreement is prevented from going into effect by subsequent

order of the trial court or on appeal, Plaintiffs must return such funds to Drizly, within the

time period provided in Section 17.

(C) The procedures for, and the allowance or disallowance by the Court of, any

application for approval of attorneys’ fees, expenses, or Incentive Awards (collectively, “Fee and

Expense Application”) are not part of the Settlement set forth in this Agreement, and are to be

considered by the Court separately from the Court’s consideration of the fairness,

reasonableness, and adequacy of the Settlement set forth in this Settlement Agreement. Any

order or proceeding relating to a Fee and Expense Application, or the reversal or modification

thereof, shall not operate to terminate or cancel this Settlement Agreement, or affect or delay the


16

finality of the Final Judgment and the Settlement of the Action as set forth herein. No order of

the Court or modification or reversal on appeal of any order of the Court concerning any Fee and

Expense Application shall constitute grounds for termination of this Agreement.

(D) Prior to the Fairness Hearing, Plaintiffs’ Co-Counsel and Plaintiffs shall file their

Fee and Expense Application.

6. Administration of Claims

(A) The Settlement Administrator, subject to such supervision and direction by the

Court, and/or Plaintiffs’ Co-Counsel as may be necessary (with input from Drizly’s Counsel as

contemplated herein), shall administer the Proof of Claim and Release forms submitted by the

Settling Class Members pursuant to the administrative procedures described in Appendix A. The

Settlement Administrator shall oversee the distribution of cash payments to Settling Class

Members that file timely and valid Proof of Claim and Release, pursuant to the administrative

procedures described in Appendix B. The Settlement Administrator shall also prepare and file

any required tax forms and provide instructions for the payment of any taxes assessed on the

Escrow Account (if applicable) to be paid by Drizly.

(B) In order to be considered timely and valid, a Proof of Claim and Release must be

electronically submitted or postmarked to the Settlement Administrator no later than ninety (90)

days after the date on which the Notice Plan commences. Postmark dates shall constitute timely

mailing. The Class Notice will specify this deadline and other relevant dates described herein.

A Proof of Claim and Release that is sent to an address other than that designated by the

Settlement Administrator, or that is not timely postmarked or electronically submitted, shall be

invalid.


17

(C) The Settlement Administrator shall maintain reasonably detailed records of its

activities under this Agreement. The Settlement Administrator shall retain all such records as

required by law and under its normal business practices, and such records will be made available

to Plaintiffs’ Co-Counsel and Drizly’s Counsel upon request.

(D) Plaintiffs’ Co-Counsel and Drizly’s Counsel shall be given reports as to both

claims made and payments distributed and have the right to review and obtain supporting

documentation and challenge such reports if they believe them to be inaccurate or inadequate.

(E) The Settlement Administrator’s determination of the validity or invalidity of any

such claims shall be binding, subject to Court review.

(F) Personal information relating to or submitted by Settlement Class Members

pursuant to this Settlement Agreement shall be deemed confidential and protected as such by the

Settlement Administrator, the Parties, and their respective counsel. Any customer records Drizly

provides to the Settlement Administrator shall be stored and processed in a confidential manner.

The Settlement Administrator and Plaintiffs’ Co-Counsel shall not use or disclose such records

for any purpose other than effectuating the Settlement contemplated by this Agreement.

(G) All Settlement Class Members who fail to submit a timely and valid Proof of

Claim and Release form for any benefits hereunder within the time frames set forth herein, or

such other period as may be ordered by the Court, or otherwise allowed, shall be forever barred

from receiving any payments or benefits pursuant to the Settlement set forth herein, but will in

all other respects be subject to, and bound by, the provisions of the Settlement Agreement, the

releases contained herein and the Final Judgment.


18

(H) No Person shall have any claim against the Settlement Administrator, Plaintiffs,

Drizly, Plaintiffs’ Counsel, and/or Drizly’s Counsel based on distributions of benefits to

Settlement Class Members.

(I) Drizly agrees to pay all Class Notice and Settlement Administration Costs. The

Settlement Administrator will provide invoices to Plaintiffs’ Co-Counsel and Drizly’s Counsel

at least every three months. Drizly agrees to pay such invoices within 30 days of receipt.

(provided that if a portion of an invoice is disputed, Drizly shall pay the undisputed portion of

the invoice and identify the disputed portion to the Settlement Administrator within such period).

7. Administration/Maintenance of the Escrow Account

The Escrow Account shall be maintained by the Settlement Administrator and Plaintiffs’

Co-Counsel under supervision of the Court and shall be distributed solely at such times, in such

manner, and to such Persons as shall be directed by subsequent orders of the Court (except as

provided for in this Settlement Agreement). The Parties intend that the Escrow Account be

treated as a “qualified settlement fund” within the meaning of Treasury Regulation § 1.468B.

Plaintiffs’ Co-Counsel shall ensure that the Escrow Account at all times complies with Treasury

Regulation § 1.468B in order to maintain its treatment as a qualified settlement fund. To this

end, Plaintiffs’ Co-Counsel shall ensure that the Escrow Account is approved by the Court as a

qualified settlement fund and that any Settlement Administrator or other administrator of the

Escrow Account complies with all requirements of Treasury Regulation § 1.468B-2. Any failure

to ensure that the Escrow Account complies with Treasury Regulation § 1.468B-2, and the

consequences thereof, shall be the sole responsibility of Plaintiffs’ Co-Counsel. Notwithstanding

the foregoing, should any reasonable taxes be due on any interest or dividend income earned by

the Escrow Account as a qualified settlement fund, to the extent such taxes cannot be paid


19

directly from funds in the Escrow Account itself, Drizly will bear the responsibility of making

such tax payments as determined by the Settlement Administrator in consultation with Plaintiffs’

Co-Counsel and Drizly’s Counsel.

8. Release and Covenant Not to Sue

(A) Upon the Effective Date, the Releasing Parties, and each of them, shall be deemed

to have, and by operation of the Final Judgment shall have, fully, finally, and forever released,

relinquished, and discharged all Released Claims against the Released Parties. Further, upon the

Effective Date, and to the fullest extent permitted by law, each Settling Class Member, including

Plaintiffs, shall, either directly, indirectly, representatively, or in any capacity, be permanently

barred and enjoined from filing, commencing, prosecuting, intervening in, or participating (as a

class member or otherwise) in any lawsuit, action, or other proceeding in any jurisdiction (other

than participation in the Settlement as provided herein) against any Released Party based on the

Released Claims.

(B) Plaintiffs shall have, and each Settling Class Member shall be deemed to waive

any and all provisions, rights, and benefits conferred by any law of the United States or any state

or territory of the United States, or principle of common law, which governs or limits a person’s

release of Unknown Claims. Plaintiffs, for themselves and on behalf of Settling Class Members,

shall be deemed to relinquish, to the fullest extent permitted by law, 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, including Cal. Civ. Code § 1542 or any law which is similar, comparable, or

equivalent to Cal. Civ. Code § 1542, 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


20

KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.

Plaintiffs acknowledge, and Settling Class Members by operation of law shall be deemed to have

acknowledged, that they may discover facts in addition to or different from those now known or

believed to be true with respect to the Released Claims, but that it is the intention of the

Plaintiffs, and by operation of law, Settling Class Members, to completely, fully, finally and

forever extinguish any and all Released Claims, known or unknown, suspected or unsuspected,

which now exist, or heretofore existed, or may hereafter exist, and without regard to the

subsequent discovery of additional or different facts.

(C) For the avoidance of doubt, by entering into this Agreement, neither Drizly nor

any other Released Party shall have or shall be deemed to have released, relinquished, or

discharged any claim or defense against any Person responsible for or otherwise involved in the

Data Breach.

9. Opt-Out Procedures

(A) Each Person wishing to opt out of the Settlement Class shall timely submit written

notice of such intent to the designated Post Office box or email address established by the

Settlement Administrator. The written notice must provide the Person’s full name, email address,

the name and number of the case, and a clear statement that they wish to be excluded from the

Settlement Class for purposes of this Settlement. Any written notice sent by mail must also be

personally signed by the Person requesting exclusion. So-called “mass” or “class” opt-outs shall

not be allowed.

(B) To be effective, written notice must be postmarked or emailed no later than ninety

(90) days after the date on which the Notice Plan commences. Postmark dates shall constitute

timely mailing. A written notice that does not include all of the information in the preceding


21

paragraph, or that is sent to an address other than that designated by the Settlement

Administrator, or that is not timely postmarked or emailed, shall be invalid, and the Person(s)

serving such request shall be a Settlement Class Member and shall be bound as a Settling Class

Member by this Agreement, if approved.

(C) Within ten (10) Business Days following the deadline set by the Court for the

filing of requests to opt out of the Settlement, the Settlement Administrator and Plaintiffs’ Co-

Counsel will provide Drizly’s Counsel with any requests to opt-out.

(D) All Persons who submit valid and timely notices of their intent to be excluded

from the Settlement Class, above, referred to herein as “Opt-Outs,” shall not receive any benefits

of and/or be bound by the terms of this Settlement Agreement. All Persons falling within the

definition of the Settlement Class who do not request to be excluded from the Settlement Class in

the manner set forth above shall be bound by the terms of this Settlement Agreement and Final

Judgment entered thereon.

(E) The Parties and their respective counsel agree that they will make no effort to

suggest, solicit, facilitate or otherwise encourage potential Class Members to opt out of the

Settlement.

10. Objection Procedures

(A) Each Settlement Class Member desiring to object to the Settlement Agreement

shall submit a timely written notice of their objection by the Objection Date.

(B) Such notice shall state: (i) the objector’s full name, address, telephone number,

and e-mail address; (ii) the case name and case number; (iii) information identifying the objector

as a Settlement Class Member; (iv) a written statement of specific legal and factual basis for each

objection, including whether the objection applies only to the objecting person, a specific subset


22

of the Settlement Class or the entire Settlement Class; (v) a description of any and all evidence

the objecting person may offer at the Fairness Hearing, including but not limited to the names,

addresses, and expected testimony of any witnesses and all exhibits intended to be introduced at

the Fairness Hearing; (vi) the identity of all counsel representing the objector; (vii) a statement

whether the objector and/or their counsel will appear at the Final Fairness Hearing; (viii) the

objector’s signature and the signature of the objector’s duly authorized attorney or other duly

authorized representative (along with documentation setting forth such representation); and (ix) a

list, by case name, court, and docket number, of all other cases in which the objector and/or the

objector’s counsel has filed an objection to any proposed class action settlement within the last

five (5) years.

(C) To be timely, written notice of an objection in the appropriate form must be filed

with the Clerk of the Court no later than ninety (90) days from the date on which the Notice Plan

commences, and served concurrently via First-Class Mail therewith upon Plaintiffs’ Co-Counsel,

Christian Levis of Lowey Dannenberg, P.C., at the address listed on the signature page; and

counsel for Drizly, Jacob Summer, ZwillGen PLLC, at the address listed on the signature page.

Postmark dates shall constitute timely mailing.

(D) Any Settlement Class Member who fails to comply with the requirements for

objecting in writing shall waive and forfeit any and all rights he or she may have to appear

separately and/or to object to the Settlement Agreement, and shall be bound by all the terms of

the Settlement Agreement and by all proceedings, orders and judgments in the Action. Any

challenge to the Settlement Agreement, the final order approving this Settlement Agreement, or

the Final Judgment to be entered upon final approval shall be pursuant to appeal under the

Federal Rules of Appellate Procedure and not through a collateral attack.


23

11. Motion for Preliminary Approval

(A) As soon as practicable after the Execution Date of the Settlement Agreement, at a

time to be mutually agreed by Drizly and Plaintiffs’ Co-Counsel, Plaintiffs’ Co-Counsel, on

behalf of Plaintiffs, shall submit this Settlement Agreement to the Court and shall file a motion

for entry of the Preliminary Approval Order in the Action requesting:

(i.) certification of the Settlement Class for settlement purposes only pursuant

to Section 2;

(ii.) preliminary approval of the Settlement Agreement as set forth herein;

(iii.) the scheduling of a Fairness Hearing and briefing schedule for the Motion

for final approval and Entry of Final Judgment;

(iv.) appointment of Plaintiffs’ Co-Counsel as counsel for the Settlement Class;

(v.) appointment of the Plaintiffs as Settlement Class representatives;

(vi.) approval of the Class Notice, Notice Plan, and claim form(s) agreed upon

by the Parties in coordination with the Settlement Administrator; and

(vii.) appointment of A.B. Data, Ltd. - Class Action Administration as

Settlement Administrator.

12. Class Notice

(A) In the event that the Court preliminarily approves the Settlement, the Settlement

Administrator shall, in accordance with Rule 23 of the Federal Rules of Civil Procedure, provide

Class Notice to all Settlement Class Members whose identities can be determined after

reasonable efforts. Drizly agrees to cooperate with Plaintiffs’ Co-Counsel and the Settlement

Administrator to provide Class Notice to Settlement Class Members through appropriate

methods, which the Parties expect to consist of email communications to Settlement Class


24

Members utilizing the email addresses in Drizly’s customer records, as well as notifications to

Settlement Class Members through the Drizly platform (website and mobile applications),

subject to the Court’s approval.

(B) The Class Notice shall explain (i) the general terms of the Settlement Agreement,

(ii) the general terms of the proposed relief to Settlement Class Members, (iii) the general terms

of the Fee and Expense Application, (iv) Settlement Class Members’ rights to object to the

Settlement, to request exclusion from the Class, and/or to appear at the Fairness Hearing, and

(v) the process for submitting a claim to obtain the proposed relief.

(C) The text of the Class Notice shall be agreed upon by the Parties before its

submission to the Court for approval thereof.

(D) All reasonable fees, costs, and expenses associated with emailing the Class Notice

to any Settlement Class Member will be considered Class Notice and Settlement Administration

Costs and paid directly by Drizly. The Parties and the Settlement Administrator shall mutually

agree on the budget in connection with Class Notice and Settlement Administration Costs, and

shall use all reasonable efforts to avoid unnecessary expenses.

(E) Drizly shall bear the costs and responsibility for timely serving notice of the

Settlement to the extent required by the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1715.

Drizly shall also cause a copy of such CAFA notice and proof of service of any such notice to be

provided to Plaintiffs’ Co-Counsel.

13. Motion for Final Approval and Entry of Final Judgment

(A) After Class Notice is issued, and prior to the Fairness Hearing, Plaintiffs’ Co-

Counsel, on behalf of the Plaintiff(s), shall move for entry of the Final Approval Order and Final

Judgment in this Action:


25

(i.) finally certifying solely for settlement purposes the Settlement Class;

(ii.) finding that the Class Notice constituted the best notice practicable under

the circumstances and complied in all respects with the requirements of Rule 23 of the

Federal Rules of Civil Procedure and due process;

(iii.) finally approving this Settlement Agreement and its terms as being a fair,

reasonable and adequate settlement of the Settlement Class’ claims against Drizly under

Rule 23 of the Federal Rules of Civil Procedure;

(iv.) directing that, as to the Released Parties, the Action be dismissed with

prejudice and without costs except as provided herein as against the Settling Class

Members;

(v.) discharging and releasing the Released Claims as to the Released Parties;

(vi.) discharging and releasing the Released Parties from any claims and causes

of action of every nature and description, whether known or unknown, whether arising

under federal, state, common or foreign law (including Fed. R. Civ. P. 11) that arise out

of or relate in any way to the institution, prosecution, or settlement of the Action as

against Drizly, except for claims relating to the enforcement of the Settlement;

(vii.) permanently barring and enjoining all Settling Class Members from filing,

commencing, prosecuting, intervening in, or participating (as class members or

otherwise) in any lawsuit, action, or other proceeding in any jurisdiction against any

Released Party based on the Released Claims;

(viii.) determining pursuant to Fed. R. Civ. P. 54(b) that there is no just reason

for delay and directing that the Final Judgment shall be final and appealable;


26

(ix.) reserving the Court’s continuing and exclusive jurisdiction over the

Settlement and this Agreement, including the administration and consummation of this

Agreement; and

(x.) containing such other and further provisions consistent with the terms of

this Agreement to which Drizly and Plaintiffs expressly consent in writing.

(B) Prior to the Fairness Hearing, as provided in Section 5, Plaintiffs’ Co-Counsel

will timely request by separate motion that the Court approve its Fee and Expense Application.

The Fee and Expense Application is separate and apart from the Settlement between the Parties.

If the Fee and Expense Application is not approved, in whole or in part, it will have no effect on

the finality of the Final Approval Order approving the Settlement and the Final Judgment

dismissing the Action with prejudice as to Drizly.

14. Best Efforts to Effectuate This Settlement

The Parties agree to cooperate with one another to the extent reasonably necessary to

effectuate and implement the terms and conditions of this Settlement Agreement and to exercise

their reasonable best efforts to accomplish the terms and conditions of this Settlement

Agreement.

15. Occurrence of Effective Date

Following the occurrence of the Effective Date, Drizly shall deposit the Settlement Cash

Payment in the Escrow Account within thirty (30) days, and upon deposit any and all interest or

right of Drizly in or to the Escrow Account, if any, shall be absolutely and forever extinguished.

The Escrow Account shall be administered by the Settlement Administrator at the written

direction of Plaintiffs’ Co-Counsel.


27

16. Termination

(A) If the Effective Date does not and cannot occur, then this Settlement Agreement

shall be terminated, subject to and in accordance with subsections below, unless the Parties

mutually agree in writing to continue with this Agreement for a specified period of time.

(B) Drizly and Plaintiffs’ Co-Counsel (acting on behalf of Plaintiffs) shall have the

right, but not the obligation, in their sole discretion, to terminate this Settlement Agreement by

providing written notice to the other Party’s Counsel within twenty-five (25) Business Days of

learning of any of the following events:

(i.) the Court declines to enter or modifies the Preliminary Approval Order

sought pursuant to Section 11 or the Final Approval Order sought pursuant to Section 13

in any material respect;

(ii.) the Court declines to approve the Settlement Agreement or any material

part of it;

(iii.) the Court declines to enter the Final Judgment in any material respect or

an Alternative Judgment; or

(iv.) the Final Approval Order or the Final Judgment (or the Alternative

Judgment) is modified or reversed or vacated by any appellate court in any material respect.

(C) Drizly shall have the right, but not the obligation, in their sole discretion, to

terminate this Settlement Agreement by providing written notice to Plaintiffs’ Co-Counsel within

twenty-five (25) Business Days of the occurrence of either of the following conditions:

(i.) individuals comprising more than two percent (2%) of the Settlement

Class in total have timely and validly opted out of and/or objected to the proposed

Settlement Agreement; or


28

(ii.) Plaintiffs, their agents, or any other individuals operating at their direction

or in coordination with them, file or threaten to file any arbitrations or additional lawsuits

against Drizly related to the Released Claims at any time prior to Final Approval.

(D) If Drizly seeks to terminate the Settlement Agreement on the basis of subsection

(C) above, the Parties agree that any dispute as to whether Drizly may invoke subsection (C) to

terminate the Settlement Agreement that they cannot resolve amongst themselves after

reasonable efforts will be resolved through the alternative dispute resolution process set forth in

Section 30 of this Settlement Agreement, notwithstanding that the Settlement Agreement will

have been filed with and preliminarily approved by the Court.

(E) If it appears that dispute resolution efforts pursuant to subsection (D) will not be

completed before five (5) Business Days in advance of the Fairness Hearing, the Parties will

jointly seek an adjournment of the Fairness Hearing to allow time for this process to be

completed.

(F) Except as provided in subsection (C), any other dispute between Plaintiffs and

Drizly concerning the interpretation or application of this Section 16 shall be presented to the

Court for binding determination upon the application of Plaintiffs or Drizly.

17. Effect of Termination

Unless otherwise ordered by the Court, in the event that the Effective Date does not occur

or this Settlement Agreement should terminate or be cancelled, or otherwise fails to become

effective for any reason, including, without limitation, in the event that the Settlement as

described herein is not finally approved by the Court or the Final Judgment is reversed or

vacated following any appeal, then:


29

(A) Within ten (10) Business Days after written notification of such event is sent by

Drizly’s Counsel or Plaintiffs’ Co-Counsel to all Parties and the Settlement Administrator, the

Settlement Cash Payment, all interest earned, and any amount required to be refunded by

Plaintiffs’ Co-Counsel pursuant to Section 5 will be refunded, reimbursed, and repaid to Drizly

by the Settlement Administrator and/or Plaintiffs’ Co-Counsel, as applicable.

(B) The Settlement Administrator or its designee shall apply for any tax refund owed

to the Escrow Account and pay the proceeds to Drizly, after deduction of any fees or expenses

reasonably incurred in connection with such application(s) for refund;

(C) The Parties shall be returned, to the maximum extent possible, to their respective

positions in the Action as of immediately prior to the execution of the settlement term sheet

dated January 22, 2021, with all of their respective legal claims and defenses preserved as they

existed at that time; and

(D) Upon termination of this Settlement Agreement with respect to all Parties, then:

(i.) this Settlement Agreement shall be null and void and of no further effect,

and Drizly, Plaintiffs, and Settlement Class Members shall not be bound by any of its terms;

(ii.) any and all releases hereunder shall be of no further force and effect;

(iii.) the Parties shall be deemed to reverted nunc pro tunc to their respective

status in the Action as of January 22, 2021, and shall proceed in all respects as if this

Settlement Agreement had not been executed, without prejudice in any way from the

negotiation, fact or terms of the Settlement, and with all of their respective legal claims,

objections and defenses preserved as they existed on that date (including any objection to

or defense based on, among other things, a lack of personal jurisdiction); and

(iv.) any and all rulings, orders, or judgments entered, altered, amended or


30

vacated by the Court in accordance with the terms of this Settlement Agreement shall be

deemed reverted nunc pro tunc to their respective status as of January 22, 2021, and shall

proceed in all respects as if this Settlement Agreement had not been executed, without

prejudice in any way from the negotiation, fact, or terms of the Settlement.

18. Confidentiality Protection and Public Statements

(A) Plaintiffs, Plaintiffs’ Co-Counsel, Drizly’s Counsel, and Drizly agree to maintain

the confidentiality of the terms of this Settlement prior to the filing of a Motion for Preliminary

Approval. During this period, the Settlement and its terms are and shall be treated as confidential

and shall not be disclosed, described, or characterized to any other person, attorney, entity,

publication, or member of the media, except as may be required by law, judicial process, or order

of a court, to enforce the terms of the Settlement, or as otherwise agreed by the Parties.

(B) Notwithstanding the foregoing, Drizly may disclose such information to a

regulatory authority, the IRS, its auditors, or its insurance carriers if it determines that disclosure

is appropriate or required by applicable law. Further, Drizly may disclose such information in its

securities filings and/or financial disclosures if it determines that disclosure is appropriate or

required by applicable law.

(C) Plaintiffs and/or Plaintiffs’ Co-Counsel shall not, at any time, issue press releases

or make other public statements regarding the Settlement or the Action (apart from filings with

the Court as necessary to obtain Preliminary or Final Approval of the Settlement) unless Drizly

agrees to such press releases or public statements in advance; provided that Plaintiffs’ Co-

Counsel may post Court orders regarding the Action and brief summaries of those orders on their

website(s) without permission from Drizly, so long as any reference in such order(s) to materials

subject to any confidentiality obligations are properly redacted. This provision shall not prohibit


31

Plaintiffs’ Co-Counsel from communicating with any person in the Settlement Class regarding

the Action or the Settlement (subject to compliance with any and all applicable confidentiality

obligations).

19. Binding Effect

(A) This Settlement Agreement shall be binding upon, and inure to the benefit of, the

successors and assigns of Drizly, the Released Parties, Plaintiffs, and Releasing Parties.

(B) The waiver by any Party of any breach of this Settlement Agreement by another

Party shall not be deemed a waiver of such breach by any other Party or a waiver by any Party of

any other prior or subsequent breach of this Settlement Agreement.

20. No Admissions

Neither the Settlement Agreement, nor the settlement contained herein, nor any act

performed or document executed pursuant to or in furtherance of the Settlement Agreement or

the settlement (i) is or may be deemed to be or may be used as an admission of, or evidence of,

the validity or lack thereof of any Released Claim, or of any wrongdoing or liability of any of the

Released Parties; or (ii) is or may be deemed to be or may be used as an admission of, or

evidence of, any fault or omission of any of the Released Parties in any civil, criminal or

administrative proceeding in any court, administrative agency or other tribunal. Any of the

Released Parties may file the Settlement Agreement and/or the Final Judgment in any action in

order to support a claim or defense based on principles of res judicata, collateral estoppel,

release, good faith settlement, judgment bar, or reduction or any other theory of claim preclusion

or issue preclusion or similar claim or defense.


32

21. Integrated Agreement

This Settlement Agreement, including any exhibits hereto and agreements referenced

herein, contains the entire, complete, and integrated statement of each and every term and

provision agreed to by and among the Parties and is not subject to any condition not provided for

or referenced herein. This Settlement Agreement supersedes all prior or contemporaneous

discussions, agreements, and understandings among the Parties to this Settlement Agreement

with respect hereto. This Settlement Agreement may not be modified in any respect except by a

writing that is executed by all the Parties hereto.

22. Headings

The headings used in this Settlement Agreement are for the convenience of the reader

only and shall not have any substantive effect on the meaning and/or interpretation of this

Settlement Agreement.

23. No Party is the Drafter

None of the Parties shall be considered to be the drafter of this Settlement Agreement or

any provision herein for the purpose of any statute, case law, or rule of interpretation or

construction that might cause any provision to be construed against the drafter. This Settlement

Agreement shall not be construed more strictly against one party than another merely by virtue

of the fact that it, or any part of it, may have been prepared by counsel for one of the parties, it

being recognized that it is the result of arm’s length negotiations and that all Parties have

contributed substantially and materially to the preparation of the Agreement.


33

24. Choice of Law

All provisions of this Settlement Agreement and its exhibits hereto shall be governed by

and interpreted according to the substantive laws of the Commonwealth of Massachusetts,

without regard to its choice of law or conflict of laws principles.

25. Execution in Counterparts

This Settlement Agreement may be executed in one or more counterparts. Facsimile and

scanned/PDF signatures shall be considered valid signatures. All executed counterparts shall be

deemed to be one and the same instrument. There shall be no agreement until the fully signed

counterparts have been exchanged and delivered to each of the Parties.

26. Submission to and Retention of Jurisdiction

The Parties, Released Parties, and the Releasing Parties irrevocably submit, to the fullest

extent permitted by law, to the exclusive jurisdiction of the United States District Court for the

District of Massachusetts solely for any suit, action, proceeding, or dispute arising out of or

relating to this Settlement Agreement, or the exhibits hereto. For the purpose of such suit,

action, or proceeding, to the fullest extent permitted by law, the Parties, Released Parties, and the

Releasing Parties irrevocably waive and agree not to assert, by way of motion, as a defense, or

otherwise, any claim or objection that they are not subject to the jurisdiction of such Court, or

that such Court is, in any way, an improper venue or an inconvenient forum or that the Court

lacked power to approve this Settlement Agreement or enter any of the orders contemplated

hereby.

27. Notices

All notices and other communications under this Settlement Agreement shall be sent to

the Parties to this Settlement Agreement at their address set forth on the signature page herein,


34

viz, if to Plaintiffs, then to: Christian Levis, Lowey Dannenberg, P.C., 44 South Broadway, Suite

1100, White Plains, New York 10601; and if to Drizly, then to Jacob Sommer, ZwillGen PLLC,

1900 M Street NW, Suite 250, Washington, DC 20036, or such other address as each party may

designate for itself, in writing, in accordance with this Settlement Agreement.

28. Authority

In executing this Settlement Agreement, Plaintiffs’ Co-Counsel represent and warrant

that they have been fully authorized to execute this Settlement Agreement on behalf of Plaintiffs

and the Settlement Class (subject to final approval by the Court after notice to all Settlement

Class Members), and that all actions necessary for the execution of this Settlement Agreement

have been taken. Drizly represents and warrants that their undersigned counsel is fully

empowered to execute the Settlement Agreement on behalf of Drizly and that all actions

necessary for the execution of this Settlement Agreement have been taken.

29. Stay

The Parties stipulate and agree that all proceedings and deadlines in the Action (including

with respect to the motion to compel arbitration and discovery deadlines) between Plaintiffs and

Drizly shall be indefinitely stayed pending the Court’s entry of the Preliminary Approval Order.

The stay will automatically be dissolved if the Settlement is terminated in accordance with the

provision of Section 16 of this Settlement Agreement.

30. Disputes or Controversies

(A) Except as otherwise provided herein, any dispute or controversy arising out of or

relating to Section 16(C) of this Settlement Agreement shall be decided first by discussion

among counsel for the Parties and, failing that, by confidential mediation. The mediations shall

be conducted by the Honorable Diane M. Welsh (Ret.), U.S. Magistrate Judge (E.D. Pa.), or if


35

unavailable, by another mediator at JAMS, Inc., formerly known as Judicial Arbitration and

Mediation Services (“JAMS”), as selected and agreed upon by the Parties. If the Parties are

unable to agree on the mediator within thirty (30) calendar days from the date on which the

mediation is commenced, JAMS shall appoint the mediator. The seat of mediation shall be

Boston, Massachusetts. If mediation fails to resolve the dispute, it shall be decided by arbitration,

in each case administered by a sole neutral arbitrator agreed upon by all Parties at JAMS, in

accordance with its procedures and Comprehensive Arbitration Rules & Procedures then in

effect (“Rules”) and in accordance with the Expedited Procedures in those Rules (or such other

alternative dispute resolution organization as all parties shall agree), except as modified herein. If

the Parties are unable to agree on the sole arbitrator within thirty (30) calendar days from the

date on which the arbitration is commenced, JAMS (or any dispute resolution organization

agreed upon by the Parties) shall appoint the sole arbitrator following the process set forth in the

Rules. The seat of arbitration shall be Boston, Massachusetts. Any appeal therefrom shall be

heard by the United States District Court for the District of Massachusetts.

(B) The arbitration shall be conducted on a strictly confidential basis, and the Parties

shall not disclose the existence or nature of any claim; any documents, correspondence, briefing,

exhibits, or information exchanged or presented in connection with any claim; or any rulings,

decisions, or results in the context of arbitration (collectively, “Arbitration Materials”) to any

third party, except to the Parties’ respective legal counsel (who shall also be bound by these

confidentiality terms), under seal in any judicial proceeding commenced in connection with this

Section 30, or to the extent that such disclosure is required or advisable pursuant to bank

regulatory requirements, SEC requirements, or other legal or regulatory requirements.


36

(C) Subject to any timely appeals under this Section 30, the arbitral decision shall be

final and binding upon the parties hereto. Any arbitral award may be entered as a judgment or

order in any court of competent jurisdiction. Except as the Rules may provide, the Parties shall

share JAMS’s administrative fees and the mediator’s or arbitrator’s fees and expenses. Each

Party shall be responsible for such Party’s attorneys’ fees and costs except as otherwise provided

by any applicable statute or other law. Either Party may commence litigation in any state or

federal court of competent jurisdiction located in Suffolk County, Massachusetts to obtain

injunctive relief in aid of arbitration, to compel arbitration, or to confirm or vacate an arbitrator’s

award. The Parties agree to take all steps necessary to protect the confidentiality of the

Arbitration Materials in connection with any such proceeding, agree to use their best efforts to

file all confidential information (and documents containing confidential information) under seal,

and agree to the entry of an appropriate protective order encompassing the confidentiality terms

of any settlement agreement.

[remainder of page intentionally left blank]


37

IN WITNESS WHEREOF, the Parties hereto have caused the Settlement Agreement to

be executed, by their duly authorized attorneys and/or corporate representatives.

Dated: March 26, 2021 By: _________________________________ Christian Levis (admitted pro hac vice) Amanda Fiorilla (admitted pro hac vice) LOWEY DANNENBERG, P.C. 44 South Broadway White Plains, New York 10601 Telephone: (914) 997-0500 [email protected] [email protected]

Anthony M. Christina (admitted pro hac vice) LOWEY DANNENBERG, P.C. One Tower Bridge 100 Front Street, Suite 520 West Conshohocken, PA 19428 Tel: (215) 399-4770 [email protected]

Counsel for Plaintiffs and the Proposed Class

Dated: March 26, 2021 By: _________________________________ Gary F. Lynch (admitted pro hac vice) Jamisen A. Etzel (admitted pro hac vice) CARLSON LYNCH, LLP 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15222 Tel: (412) 322-9243 [email protected] [email protected]


Dated: March 26, 2021 By: _________________________________ Warren D. Postman (admitted pro hac vice) Jason Ethridge (admitted pro hac vice) KELLER LENKNER, LLC 1300 I Street, N.W., Suite 400E Washington, D.C. 20005


38

Tel: (202) 918-1123 [email protected] [email protected] Counsel for Plaintiffs and the Proposed Class

Dated: March 26, 2021 By: _________________________________

Russell S. Thompson, IV (admitted pro hac vice) THOMPSON CONSUMER LAW GROUP, PC 5235 E. Southern Ave., D106-618 Mesa, AZ 85206 Tel: (602) 388-8898 [email protected] Counsel for Plaintiffs and the Proposed Class

Dated: March 26, 2021 By: _________________________________

Jacob Sommer (admitted pro hac vice) Nicholas Jackson (admitted pro hac vice) ZWILLGEN PLLC 1900 M Street NW, Suite 250 Washington, DC 20036 Tel: (202) 296-3585 [email protected] [email protected] Bart Huff (admitted pro hac vice) ZWILLGEN PLLC 300 N LaSalle St, Suite 4925 Chicago, IL 60654 Tel: (312) 685-2278 [email protected] Counsel for Defendants Drizly, LLC f/k/a Drizly, Inc. and The Drizly Group, Inc.

Dated: March 26, 2021 By: _________________________________

Joseph Grabmeier 334 Boylston Street, Suite 300 Boston, MA 02116 Chief Financial Officer, The Drizly Group, Inc.

DocuSign Envelope ID: 9D8393B6-0F08-426E-B641-7E3B4CFA8C45Case 1:20-cv-11492-LTS Document 52-4 Filed 03/29/21 of 52

38

Tel: (202) 918-1123 [email protected] [email protected]


Dated: March 26, 2021 By: _________________________________ Russell S. Thompson, IV (admitted pro hac vice) THOMPSON CONSUMER LAW GROUP, PC 5235 E. Southern Ave., D106-618 Mesa, AZ 85206 Tel: (602) 388-8898 [email protected]


Dated: March 26, 2021 By: _________________________________ Jacob Sommer (admitted pro hac vice) Nicholas Jackson (admitted pro hac vice) ZWILLGEN PLLC 1900 M Street NW, Suite 250 Washington, DC 20036 Tel: (202) 296-3585 [email protected] [email protected]

Bart Huff (admitted pro hac vice) ZWILLGEN PLLC 300 N LaSalle St, Suite 4925 Chicago, IL 60654 Tel: (312) 685-2278 [email protected]

Counsel for Defendants Drizly, LLC f/k/a Drizly, Inc. and The Drizly Group, Inc.

Dated: March 26, 2021 By: _________________________________ Joseph Grabmeier 334 Boylston Street, Suite 300 Boston, MA 02116

Chief Financial Officer, The Drizly Group, Inc.

DocuSign Envelope ID: 9D8393B6-0F08-426E-B641-7E3B4CFA8C45Case 1:20-cv-11492-LTS Document 52-4 Filed 03/29/21 of 52

38

Tel: (202) 918-1123 [email protected] [email protected] Counsel for Plaintiffs and the Proposed Class

Dated: March 26, 2021 By: _________________________________

Russell S. Thompson, IV (admitted pro hac vice) THOMPSON CONSUMER LAW GROUP, PC 5235 E. Southern Ave., D106-618 Mesa, AZ 85206 Tel: (602) 388-8898 [email protected] Counsel for Plaintiffs and the Proposed Class

Dated: March 26, 2021 By: _________________________________

Jacob Sommer (admitted pro hac vice) Nicholas Jackson (admitted pro hac vice) ZWILLGEN PLLC 1900 M Street NW, Suite 250 Washington, DC 20036 Tel: (202) 296-3585 [email protected] [email protected] Bart Huff (admitted pro hac vice) ZWILLGEN PLLC 300 N LaSalle St, Suite 4925 Chicago, IL 60654 Tel: (312) 685-2278 [email protected] Counsel for Defendants Drizly, LLC f/k/a Drizly, Inc. and The Drizly Group, Inc.

Dated: March 26, 2021 By: _________________________________

Joseph Grabmeier 334 Boylston Street, Suite 300 Boston, MA 02116 Chief Financial Officer, The Drizly Group, Inc.




Plaintiffs, vs.


Defendants.


APPENDIX A

TO STIPULATION AND AGREEMENT OF SETTLEMENT


CLAIMS ADMINISTRATION PROCEDURES

1. Subject to Court approval, each Authorized Claimant will receive a Settlement

Payment. Settling Class Members that submit valid Proofs of Claim and Release (“Claim Forms”)

by the claims filing deadline described on the settlement website (“Claims Deadline”) may be

eligible to be Authorized Claimants. Described below are the administrative procedures that will

apply to determine eligibility.

2. Each Settling Class Member wishing to receive a Settlement Payment must submit

a Claim Form that is signed under penalty of perjury and provides their name, the email address

associated with their Drizly account, and any unique claimant ID code and/or other information

required by the Settlement Administrator to confirm that the individual is a Settlement Class

Member. In addition, each Settling Class Member must provide their mailing address and, if

preferred, their “handle” or unique identifier on a supported electronic payment platform, which

will be used by the Settlement Administrator to transmit the Settlement Payment. If the Settling

Class Member does not provide a handle for an electronic payment platform in his or her Claim

Form (or in response to any follow-up communications from the Settlement Administrator that

may be agreed upon), he or she will receive a check at the mailing address provided if eligible to

receive the Settlement Payment.

3. Following receipt of each Claim Form, the Settlement Administrator will issue a

confirmation receipt to the person(s) filing the Claim Form (a “Claimant”).

4. The Settlement Administrator will review each Claim Form to determine whether

the Claimant is a Settling Class Member. The Settlement Administrator shall make this

determination by confirming that the information provided in the Claim Form matches (i) the

business records to be provided by Drizly identifying the members of the Settlement Class and

(ii) any additional validation information (such as a unique claimant ID code) utilized by the


2

Settlement Administrator for purposes of preventing fraudulent submissions. Claim Forms

submitted by persons who are not Settling Class Members will be rejected.

5. The Settlement Administrator will review each Claim Form to determine whether

the Claim Form is submitted in accordance with the Settlement Agreement and applicable Order(s)

of the Court. Claim Forms that are not submitted in accordance with the Settlement Agreement

and Order(s) of the Court will be rejected. The Settlement Administrator shall provide regular

updates to the Parties’ Counsel regarding its Claim Form determinations and cooperate with

requests for additional information and questions/disputes regarding claim validity decisions from

either Party’s Counsel.

COURT REVIEW

6. All proceedings with respect to the administration, processing, and determination

of claims, and the determinations of all controversies relating thereto, including disputed questions

of law and fact with respect to the validity of Claim Forms, shall be subject to the jurisdiction of

the Court. To the extent the Settlement Administrator rejects a Claim Form, the Claimant whose

Claim Form was rejected will be advised in writing of the reasons for the rejection and that such

Claimant will have the opportunity to seek Court review of the Settlement Administrator’s

rejection. All Claimants expressly waive trial by jury (to the extent any such right may exist) and

any right of appeal or review with respect to the Court’s determination.

DISTRIBUTION

7. The Settlement Administrator will file a declaration within forty-five (45) days after

the Court-specified claims submission deadline describing its review of Claim Forms and detailing

the Authorized Claimants and the rejected claims by claim identification number for Court review

in connection with Plaintiffs’ motion for final approval of the Settlement and entry of final

judgment. Within sixty (60) days following the later of (a) the Effective Date of the Settlement or


3

(b) the Court’s approval of the distribution of Settlement Payments to Authorized Claimants (if

such approval is separate from final approval of the Settlement), the Settlement Administrator will

distribute the Settlement Payment to all Authorized Claimants.




Plaintiffs, vs.


Defendants.


APPENDIX B

TO STIPULATION AND AGREEMENT OF SETTLEMENT


DISTRIBUTION OF CLAIM PAYMENTS

1. The Settlement Administrator will file a declaration within forty-five (45) days after

the Court-specified claims submission deadline describing its determinations as to provisionally

accepted and rejected Claim Forms for Court review in connection with Plaintiffs’ motion for final

approval of the Settlement and entry of final judgment. Following the Court’s approval of the

Settlement Administrator’s determination, within sixty (60) days following the later of (a) the

Effective Date of the Settlement or (b) the Court’s approval of the Settlement Administrator’s

determinations (if such approval is separate from final approval of the Settlement), the Settlement

Administrator will distribute the Claim Payment to all Authorized Claimants.

2. For Authorized Claimants that provided electronic payment information, the

Settlement Administrator will cause payment to be issued via the electronic payment platform.

Authorized Claimants will be notified and provided a reasonable opportunity to update their

electronic payment information (or request payment by check) prior to disbursement of the Claim

Payment. Once that period has expired and the Settlement Administrator issues payment to the

Authorized Claimant using the confirmed electronic payment information, no reissuance of the

Claim Payment may be requested.

3. For Authorized Claimants who did not provide electronic payment information,

checks in the amount of the Claim Payment will be mailed. All settlement checks shall be void

sixty (60) days after issuance and shall bear the language: “This check must be cashed within sixty

(60) days, after which time it is void.”

4. If a check becomes void, an Authorized Claimant shall have until six (6) months

after the Effective Date to request re-issuance. If no request for re-issuance is made within this

period, the Authorized Claimant will have failed to meet a condition precedent to recovery of

settlement benefits. In such circumstances, the Authorized Claimant’s right to receive monetary


2

relief shall be extinguished, and Drizly shall have no obligation to make the Claim Payment to the

Authorized Claimant.

5. The same provisions described above shall apply to any re-issued check. For any

checks that are issued or re-issued for any reason more than one hundred eighty (180) days from

the Effective Date, requests for re-issuance need not be honored after such checks become void.

6. If one (1) year following the commencement of the distribution of Claim Payments,

Claims Payments remain unclaimed and the Settlement Administrator has undertaken reasonable

efforts to distribute the Claim Payments to the Authorized Claimants, any remaining funds in the

Escrow Account may be donated to the Identity Theft Resource Center thirty (30) days after

Plaintiffs’ Co-Counsel have notified the Court of the proposed donation and the general

circumstances concerning the Claim Payments that were not claimed.


exhibit 1 stipulation and agreement of settlement

Documents