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Form #841

Retained Claims in Class Action

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Retained Claims in Class Action Free Legal Form

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Retained claims in class action.

Notwithstanding paragraph _________[number of the general release paragraph] below:

(a). Individual members of the Class and their survivors shall retain the right to bring individual claims for compensatory damages against the Settling Defendants only (but not against the Other Defendants or any other person or entity) based upon any theory of liability other than for _________[describe theories, e.g., fraud, misrepresentation, conspiracy to commit fraud or misrepresentation, RICO, suppression, concealment or any other alleged willful or intentional conduct] (the "Retained Claims").  Any lawsuit based on a Retained Claim may seek compensatory damages only; the Class on behalf of its individual members hereby waives any and all claims seeking punitive and exemplary damages based on any Released or Retained Claims.

(b). With respect to the Retained Claims, individual members of the Class and their survivors shall be entitled to proceed in _________ County through the filing of individual actions based on Retained Claims as defined in sub-paragraph (a) within the later period of the following: (i) any applicable statute of limitations; or (ii) one year from the date of final approval of this Settlement. Every member of the Class shall have a minimum of one year from final approval of the Settlement to file an individual action, even where the action would otherwise be barred under the applicable statute of limitations.

(c). With respect to any action asserting Retained Claims, the Settling Defendants agree that venue shall lie wherever venue is proper. The Settling Defendants also agree that venue shall be proper in the _________ Judicial Circuit, _________ County, _________[state]. The Settling Defendants agree that they will not seek removal to federal court of any lawsuit brought solely by a member of the Class in the _________ Judicial Circuit, _________ County, _________[state] based upon, and limited to, the Retained Claims. The Settling Defendants further agree that _________[state] substantive law (without regard to its choice of law or conflict of laws principles) shall apply in any such lawsuit brought with respect to Retained Claims in the aforesaid _________ state court.

(d). With respect to any Retained Claims seeking damages on account of _________[describe basis, e.g., lung cancer, chronic bronchitis, emphysema, chronic obstructive pulmonary disease, or chronic sinusitis], brought by a member of the Class or his or her survivor, the burden of proof as to whether _________[indicate product or its byproducts, e.g., Environmental Tobacco Smoke ("ETS")] can cause one of the above-described diseases ("general causation") shall be borne by the Settling Defendants and the Jury shall be so instructed; in all other respects, including the issue of whether an individual plaintiff's disease was caused by _________[indicate product or its byproducts] ("specific causation"), the ordinary burdens of proof applicable to any Retained Claims shall remain unaltered. In addition, the altered burden of proof provided herein with respect to general causation shall in no way affect the ability of the Settling Defendants to introduce any evidence or argument as to general causation, specific causation, or alternative causation, or to introduce any evidence or argument which the Settling Defendants would otherwise be entitled to present, at any future trial in which Retained Claims are brought. The Settling Defendants' agreement to alter the burden of proof as provided herein is not an admission of any sort, and shall not be construed, now or at any future trial or proceeding, as an admission of causation or any other fact or legal contention;

(e). With respect to any future action by a member of the Class or survivor against any or all of the Settling defendants based only upon Retained Claims, any evidence presented to the jury in the present trial (which commenced _________[date]) through witnesses at said trial shall be useable in any such action by any part, subject to all objections by any party, as if it were presented through the live testimony of such witnesses in that action. Except to the extent provided herein, all objections to such evidence, whether raised in the present trial , shall be reserved, and this Settlement Agreement shall in no way affect the determination of the relevance or admissibility of such evidence; Settling Defendants shall make available to any class member who files suit asserting a Retained Claim, at Settling Defendants' expense, a copy of the video testimony of the _________ trial;

(f). With respect to each and every action brought by any individual class member or survivor based on any Retained Claims, the parties shall have a reasonable opportunity to conduct (or complete, as the case may be) all reasonably permissible discovery with respect to the claims that are the subject of the action. Consistent with the foregoing, it is the intention of the parties that individual claims proceed to trial expeditiously. In addition, in connection with any such action, Settling Defendants shall receive at least 60 days' notice prior to the commencement of any trial in which they are named as Defendants. Notwithstanding anything to the contrary, the claim of _________ and other Class Representatives may be set for trial once approval of the Settlement Agreement is final.

(g). In any action based on the Retained Claims, only individual claims shall be permitted and in no event shall any claims of more than one member of the class be joined, consolidated, or aggregated or determined by means of extrapolation or any other mechanism for deciding cases other than on the basis of individual trials.

(h). With respect to each and every action brought by any individual class member or survivor based only on any Retained Claims, the Settling Defendants agree to accept service of process by certified mail addressed to the Settling Defendants. The Settling Defendants further agree that with respect to such actions in the United States, said Defendants further agree that with respect to such actions in the United States, said Defendants shall not contest personal jurisdiction or service or process and shall not challenge joinder of the Settling Defendants. The Settling Defendants agree not to assert in any such actions by way of motion, as a defense or otherwise, any claim or objections that they are not subject to the jurisdiction of this Court; that joinder of Settling Defendants is improper; or that any other Released Parties are responsible in whole or in part for the injuries or damages.

(i). In any individual actions brought by individual class members or their survivors asserting Retained Claims in this Court, Settling Defendants agree not to assert motions to dismiss challenging the legal sufficiency of the counts in such individual actions that restate verbatim counts in strict liability in tort, breach of warranty and negligence of the complaint in the present action. Settling Defendants reserve the right to challenge the sufficiency of the claims asserted in such Counts by any other appropriate procedure and to challenge the sufficiency of any other allegation in such individual actions.

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Total Forms Contributed 51
 

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Terms Of Use

Submissions to this site, including any legal or business forms, posts, responses to questions or other communications by contributors are not intended as and should not be construed as legal advice. You are strongly encouraged to consult competent legal council before engaging in any action based upon content contained on this site.

These downloadable forms are only for personal use. Retransmission, redistribution, or any other commercial use is prohibited. This includes reposting forms from this site to another site offering free legal or other document forms for download.

Please note that the donator may have included different usage terms regarding this form, and you agree to abide by these terms. It is highly recommended that you have a licensed attorney review any legal documents for which you are searching in order to make sure that your needs are being properly and completely satisfied.

Your use of this site constitutes your acceptance of our terms of use and your agreement to hold this site, its officers, employees and any contributors to this site harmless for any damage you might incur from your use of any submissions contained on this site. If you do not agree to the above terms, please do not proceed.

These forms are provided to assist business owners and others in understanding important points to consider in different transactions. They are offered with the understanding that no legal advice, accounting, or other professional service is being offered by these documents or on this website. Laws vary in the different states. Agreements acceptable in one state may not be enforced the same way under the laws of another state. Also, agreements should relate specifically to the particular facts of each situation. Therefore, it is important to consult legal counsel whenever utilizing these forms. The Forms are not a substitute for legal advice YourFreeLegalForms.com is not engaged in recommending or referring members on the site or making claims about the competence, character or qualifications of its participating members.
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