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March 17, 1997





 VI. The Proposed Settlement Is Fair, Reasonable, and Adequate In Light of the Multifarious Factors that the Court Must Consider

 140. Federal Rule of Civil Procedure 23(e) provides that the Court must approve any class action settlement. See Fed. R. Civ. P. 23(e). The Court determines here that the Proposed Settlement is indeed fair, reasonable, and adequate and should be approved.

 141. This Court "cannot accept a settlement that the proponents have not shown to be fair, reasonable and adequate." GM Trucks, 55 F.3d at 785. At least nine factors must be assessed to determine whether a proposed settlement is fair reasonable, and adequate, and deserving of court approval under Federal Rule of Civil Procedure 23 (e):

(1) the complexity and duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining a class action; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement in light of the best recovery; and (9) the range of reasonableness of the settlement in light of all the attendant risks of litigation.

 Id. (citing Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir. 1975)) (hereinafter the "Girsh factors"); see also Lake, 900 F. Supp. at 732. This nine-factor test requires this Court to conduct both "a substantive inquiry into the terms of the settlement relative to the likely rewards of litigation" and "a procedural inquiry into the negotiation process." GM Trucks, 55 F.3d at 796. The Court must ensure that the case did not settle in the absence of sustained effort by class representatives sufficient to protect the interests of the class. Accordingly, the Court should consider also whether the parties completed sufficient discovery prior to settlement; the adequacy of settlement relief in light of the preliminary discovery; whether the settlement omits major causes of action or types of relief; and whether the parties negotiated simultaneously on attorneys' fees and class relief. See id., 55 F.3d at 806.

 142. The Third Circuit has observed that in assessing the fairness of a proposed settlement, the Court should be careful not to substitute its image of an ideal settlement for the compromising parties' views: "The evaluating court must, of course, guard against demanding too large a settlement based on its view of the merits of the litigation; after all, settlement is a compromise, a yielding of the highest hopes in exchange for certainty and resolution." Id., 55 F.3d at 806 (citations omitted); see also, e.g., Lake, 900 F. Supp. at 732 (observing that significant weight should be attributed to the belief of experienced counsel that settlement is in the best interest of the class (citing Austin v. Pennsylvania Dep't of Corrections, 876 F. Supp. 1437, 1472 (E.D. Pa. 1995)); Sommers v. Abraham Lincoln Fed. Sav. & Loan Ass'n, 79 F.R.D. 571, 576 (E.D. Pa. 1978); Fisher Bros. v. Cambridge-Lee Indus., Inc., 630 F. Supp. 482, 488 (E.D. Pa. 1985); Walsh v. Great Atl. & Pac., 96 F.R.D. 632 at 642-43.

 143. Thus, the issue is whether the settlement is adequate and reasonable, not whether one could conceive of a better settlement. See In re Domestic Air Transp. Antitrust Litig., 148 F.R.D. 297 at 305 (stating a court "may only approve or disapprove the settlement as presented. It may not rewrite the settlement as requested by numerous objectors"); Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977) (in assessing fairness and reasonableness of settlement, the court is "not free to delete, modify or substitute certain provisions of the settlement") *fn58"

 A. The Proposed Settlement Provides Extraordinary Relief to Injured Policyholders

 144. Before embarking on a journey into an evaluation of the Proposed Settlement under the many criteria that this Court must consider, the Court must briefly explain why this proposed Settlement is so exceptional. The Proposed Settlement's combination of Basic Claim Relief and an individualized ADR process evolved from the settlements approved in New York Life, Index No. 94/127804, 1995 N.Y. Misc. LEXIS 652, and Michels v. Pheonix Home Life Ins. Co., Index No. 95/5318, slip op. (N.Y. Sup. Ct. Jan. 3, 1997). Courts, academic and industry experts, and various independent orqanizations have praised this settlement structure. In New York Life, the court found that "unlike some other class action settlements in which the value of the relief provided depended on highly contingent future purchases, the Class Relief here is tailored to meet the allegations of the Complaint and the specific insurance and investment needs of the Class Members." 1995 N.Y. Misc. LEXIS 652, at *78. The court in Phoenix Home Life, echoed these sentiments. See Phoenix Home Life, slip op., at 50 ("The ADR Process is a no-cost and efficient mechanism. It provides an independent forum for the resolution of individual claims, and its objective procedure and substantive criteria negotiated by the parties in advance eliminate concerns of bias."). Moreover, the CPR Institute for Dispute Resolution honored the architects of the New York Life settlement including the Co-Lead counsel of plaintiffs in this case, Milberg Weiss Bershad Hynes & Lerach. Weiss Supp. Aff. at P 32 and Ex. D.

 145. Additionally, insurance regulators from fifty states and the District of Columbia have endorsed the Settlement, forty-six of whom had endorsed an earlier and inferior settlement. The Proposed Settlement provides greater procedural safeguards and creates financial guarantees that neither the Task Force Plan nor the New York Life settlement contained.

 146. The Proposed Settlement benefits the class enormously. Relief is potentially unlimited--there is no cap. *fn59" The ADR process is fair and objective. And basic Claim Relief allows for remediation to individuals who choose not to partake of the ADR. The Proposed Settlement even provides Additional Remediation Amounts, the punitive damage counterpart to the Proposed Settlement, that will allow individual relief to exceed actual damages.

  147. Additionally, plaintiffs are not liable for attorneys' fees, litigation costs, and notice or administrative costs. *fn60" Prudential has agreed under the Proposed Settlement to bear the substantial expenses of sending Class Notice and implementing the Proposed Settlement. These costs include the costs of: printing and mailing more than eight million notices, publishing print notices in all fifty states and arranging multiple radio and television notices in all states, running the entire ADR process, and establishing the class action information center, toll-free "800" number, and operator staff (exceeding 1,000 operators) to respond to class member inquiries.

 148. Additionally, the Proposed Settlement permits class members to submit claims immediately after the Court's approval of the Settlement and issuance of its Final Order and Judgment. Because many class members are elderly or in ill health, the ability of class members to receive substantial relief sooner rather than later--possibly years later--militates in favor of the Proposed Settlement. In this light, the Proposed Settlement appears to be the best possible recovery.

 149. Because of these terms in particular, the Court finds that this settlement is extremely fair to the policyholders whom Prudential injured. The Court finds also that the Proposed Settlement is fair, reasonable, and adequate in light of the factors recently gathered in GM Trucks.

 B. The Complexity of this Action and the Likely Lengthy Duration of the Litigation Warrant Approval of the Proposed Settlement

 150. Courts consider the likely complexity and duration of litigation in evaluating the reasonableness of a settlement. See GM Trucks, 55 F.3d 768 at 812 (concluding that lengthy discovery and ardent opposition from the defendant with a plethora of pretrial motions were facts favoring settlement, which offered immediate benefits and would avoid delay and expense); Lake, 900 F. Supp. 726 at 732-33 (weighing in favor of settlement that due to the relative complexity of the issues involved and the amount of data that would need to be processed, the costs of litigating this matter through trial would likely be high" and, due to the thousands of class members involved, "the task of poring through the relevant records would clearly be a significant undertaking").

 151. Although litigation certainly would be manageable and would be superior to other means of adjudicating the controversy, the issue here is the extent to which the anticipated complexity and costs of proceeding to trial favor settlement. In this case, the anticipated complexity, costs, and time necessary to try this case greatly substantiate the fairness of the settlement.

 152. First, litigation of this case would raise some complex legal claims and defenses, which would include issues relating to conflicts of law, statutes of limitation, contract interpretation, statutory and common law fraud, causation, and damages. Some of these issues are discussed in this Court's opinion deciding Prudential's Rule 12(b)(6) motion. See In re Prudential Ins. Co. of Am. Sales Practices Litig., 1996 WL 392145 (D.N.J. May 10, 1996).

 153. Second, the litigation would raise also many complex factual issues. The litigation concerns Prudential's marketing and sale of various life insurance products. Litigation of plaintiffs' claims would entail proof concerning the practices and procedures of the agents and brokers and the interaction between the agents and brokers and Prudential's home office. In addition, the insurance products at issue are complex and would require actuarial and financial expert testimony to evaluate the assumptions underlying these products and the illustrations though which they were marketed to consumers. Litigation of plaintiffs' claims through trial would also entail extensive, time-consuming, and expensive proof of Prudential's internal procedures for establishing dividend scales, the quality and performance of Prudential's investment portfolio, and the decision-making processes relating to portfolio investments, dividend assumptions, and surplus determinations.

 155. In contrast to trying the case, the Proposed Settlement permits a prompt and efficient solution to plaintiffs' claims against prudential; the Proposed Settlement would afford plaintiffs relief months and perhaps years earlier than would be possible in a litigation environment. The Proposed Settlement provides that class members may begin submitting claims if and when the Court issues its Final Order and Judgment. Additional benefits would then be provided if and when the Proposed Settlement receives final appellate court approval. Accordingly, the likely complexity and duration of continuing the litigation weighs in favor of approving the Proposed Settlement.

 C. Class Reaction to the Proposed Settlement Has Been Overwhelmingly Favorable and Weighs in Favor of Class Approval

 156. The Court finds that the favorable reaction of the Class and the regulators weighs in favor of approving the Proposed Settlement. See Bell Atlantic Corp., 2 F.3d 1304 at 1313-14 n.15 (holding that small proportion of objectors constituted tacit consent to settlement); Stoetzner v. U.S. Steel Corp., 897 F.2d 115, 118-19 (3d Cir. 1990) (finding only twenty-nine objectors from 281-member class "strongly favors settlement"); Weiss v. Mercedez-Benz, 899 F. Supp. 1297 at 1301 (holding that "substantial silent consent weighs in favor of certification" where approximately 100 out of 30,000 class members objected or opted out of class).

 157. The Court recognizes that courts are reluctant to interpret a failure of class members to respond as a sign that these class members approve of the settlement. See GM Trucks, 55 F.3d 768 at 812 ("Even where there are no incentives or informational barriers to class opposition, the inference drawn from silence may be unwarranted."). But, in this case, that so little negative feedback was received after such an extensive notice and outreach program, weighs in favor of approving of the Proposed Settlement. Of over eight million class members, only about 300 have filed objections to the Proposed Settlement. Fiandaca Decl. P 11. Owners of 23,421 policies, or about 19,000 class members have opted out. *fn61" In terms of percentages, only .2 per cent of the class, less than one quarter of one percent, have criticized the Proposed Settlement or chosen not to participate in the class. Id. Thus, the numbers of class members who disapprove of the class action or the settlement are truly insignificant. And, the most vociferous objectors to the Proposed Settlement are a handful of litigants represented by counsel in cases that compete with or overlap the claims asserted in the Second Amended Complaint.

 158. The Court also finds as an extremely favorable indicator of class reaction, the fact that the insurance regulators in all fifty states and the District of Columbia have accepted the Proposed Settlement as fair and adequate. Thus, the regulators of all the states as representatives of their constituencies have indicated their complete approval of the Proposed Settlement.

 159. Consequently, although-the Court cannot assess class reaction by a mere numerical assessment, the numbers, in conjunction with the content of opt-outs and objections, and the support of regulators in all states weighs in favor of the Proposed Settlement.

 D. Approval of the Proposed Settlement at this Stage of the Proceedings Is Appropriate Because the Plaintiffs Have Completed Extensive Discovery and Settlement Now Would Save the Extensive Costs of Additional Discovery and Trial

 160. The Court also must consider the stage of the proceedings and the amount of discovery completed in assessing the fairness, reasonableness, and adequacy of the settlement. GM Trucks, 55 F.3d 768 at 813; Girsh, 521 F.2d at 157; In re Warner Communications Sec. Antitrust Litig., 618 F. Supp. 735 at 741. The Court must examine the stage of the proceedings to assess "the degree of case development that class counsel have accomplished prior to settlement." GM Trucks, 55 F.3d 768 at 813. This Court must determine whether counsel had an "adequate appreciation of the merits of the case before negotiating." Id. That appreciation may have been developed in the case at bar or "in some related proceeding."

 161. In the current case, counsel for plaintiffs and Prudential did not commence serious settlement discussions until 18 months of vigorous litigation had transpired. Ashinoff Aff. at P 3. Many motions had been argued and decided. *fn62" Id. Plaintiffs obtained voluminous discovery before settlement negotiations commenced and even more before negotiations concluded. *fn63" Ashinoff Aff. at PP 4, 8. Moreover, the parties had the benefit of the findings and results of the Task Force examination, which focused on many of the same issues raised in plaintiffs' complaints. See In re Beef Antitrust, 607 F.2d 167 at 180 (considering discovery in companion cases); In re Baldwin-United Corp., 105 F.R.D. 475 at 483 (finding that counsels' access to expert testimony and other evidence from parallel state court proceedings and public documents demonstrated that counsel tavailed themselves of all of these sources of information and conducted full adversarial negotiations"). By the end of July of 1996, the litigation had reached a point where counsel for both Prudential and plaintiffs could make an informed decision about the relative strengths and weaknesses of the case. Weiss Aff. at PP 104-05; Ashinoff Aff. at PP 3-5, 11.

 162. Consequently, the record reveals and this Court concludes that prior to signing the Settlement Agreement, the parties had reached a stage in the proceedings where they adequately understood the merits of the putative class action and could fairly, safely, and appropriately decide to settle the action. See Walsh v. Great Atl. & Pac., 96 F.R.D. 632 at 654.

 E. The Significant Risks Attendant to Plaintiffs' Ability to Establish Prudential's Liability and Damages Weigh In Favor of Approving the Proposed Settlement

 164. On December 26, 1995, Prudential moved to dismiss plaintiffs' clams on various grounds, including statutes of limitations and the fact that many or all of plaintiffs' allegations allegedly were contradicted by written contracts or other writings. As a result of that motion, this Court dismissed many of plaintiffs' causes of action without prejudice and dismissed some class representatives' claims entirely.

 165. And plaintiffs are not in the clear. Many obstacles could prevent plaintiffs from recovering after trial:

the need to prove that class members were unaware, despite their receipt of written disclosures in policy forms and illustrations, that dividends or interest rates could fluctuate;
the need to prove that class members were unaware, despite their receipt of written disclosures in policy forms and illustrations, that they had purchased life insurance or that the cash value would not accumulate in a life insurance policy at the rate at which it would accumulate in other investment vehicles;
the need to prove that class members were unaware of the relative merits of using existing policy values to fund the purchase of new insurance policies;
the need to prove that class members were deceived by Prudential's methods for determining and illustrating dividends and interest rates;
the need to overcome Prudential's contention that plaintiffs' asserted contract rights are barred by the Parol Evidence Rule because they are contradicted by the unambiguous language of the policies that constitute their contracts with Prudential;
the need to overcome Prudential's contention that a one-year statute of limitations and threeyear statute of repose would bar the federal securities claims of most class members who purchased VAL policies;
the need to overcome Prudential's contention that the federal securities, common law fraud, and negligent misrepresentation claims are untenable because plaintiffs cannot demonstrate: that class members reasonably relied on oral statements contradicted by written materials, that Prudential intended to defraud Class Members, or that Prudential misrepresented present facts, rather than making unenforceable predictions of future performance; and
the need to overcome Prudential's contention that the unjust enrichment claim fails to state a claim because valid written contracts bind the parties.

 166. Additionally, another potential risk may be plaintiffs' necessary reliance on expert testimony to establish liability and damages; a jury's acceptance of expert testimony is far from certain, regardless of the expert's credentials. And, divergent expert testimony leads inevitably to a battle of the experts. See United States v. 412.93 Acres of Land, 455 F.2d 1242, 1247 (3d Cir. 1972) (observing "the jury . . . is under no obligation to accept as completely true the testimony of any expert witness. It may adopt as much of the testimony as appears sound, reject all of it, or adopt all of it."); Rubenstein v. Republic Nat'l Life Ins. Co., 74 F.R.D. 337, 345 (N.D. Tex. 1976); In re Warner Communications Sec. Litig., 618 F. Supp. 735 at 744 ("In this 'battle of the experts' it is virtually impossible to predict with any certainty which testimony would be credited . . . .").

 167. Indeed, some of the risks of a trial on the merits in this case have been demonstrated by the Key case in which an Alabama judge overturned the substantial jury verdict rendered against Prudential in the life insurance sales practice case involving similar allegations to those now at bar. See Key v. Prudential Ins. Co. of America, Civ. No. 93-479 (Al. Cir. Ct. Dec. 28, 1995).

 F. The Risks of Maintaining this Class Action Through Trial Weigh in Favor of Approving the Proposed Settlement

 169. Plaintiffs risk also that this action would not proceed as a class action through the conclusion of the litigation. Under Rule 23, the Court may decertify a class at any time during the litigation. And Prudential has endeavored to reserve the right to challenge class certification in the event that the Proposed Settlement is not approved and will certainly endeavor to challenge class certification if this case goes to trial. Thus, although the Court finds that this case is manageable as a class action and that the class action device is the most appropriate means to adjudicate this controversy, as the case evolves, maintaining the class action may become unworkable and the Court may decertify the class. Accordingly, the risks of decertification weigh in favor of approving the Proposed Settlement.

 G. Prudential's Inability to Withstand a Greater Judgment Is a Factor Weighing in Favor of Approving the Proposed Settlement

 170. The Settlement is fair, reasonable, and adequate in light of Prudential's inability to withstand a much greater judgment. *fn64" See Weiss v. Mercedes-Benz, 899 F. Supp. 1297 at 1303. The value of the Proposed Settlement is extraordinary and Prudential's ability to withstand a greater judgment is a matter of concern.

 171. The objective value of the settlement is extraordinary. The Proposed Settlement is at the bare minimum worth $ 410 million -- experts have projected the value at between $ 1 billion and $ 2 billion. And there is no cap. Prudential must pay to remediate the claims of all of the claimants who allege that they have been misled; and many of these claimants will receive full or substantial remediation plus exemplary damages.

 172. There is evidence that a greater judgment likely would adversely affect Prudential's credit rating, which has already declined during these proceedings, and would, thereby, affect Prudential's ability to compete, its revenues, and its profitability. Class Counsel agreed to require Prudential to pay no greater minimum than $ 1.080 billion, because of the likely effect that a judgment far exceeding $ 1 billion would have on Prudential's credit rating and ability to conduct business. Weiss Aff. at P 214.

 173. And the fact that Prudential is a mutual insurance company also impacts on Prudential's ability to pay a greater judgment. Because Prudential is a mutual insurance company, policyholders who are not members of this class action may be indirectly negatively affected, in the form of reduced dividends.

 H. The Proposed Settlement is Reasonable in Light of the Best Possible Recovery and All of the Attendant Risks of Litigation

 174. The Court finds also that the Proposed Settlement is fair, reasonable, and adequate in light of the best possible recovery and the attendant risks of litigation. To estimate the best possible recovery for plaintiffs in the aggregate would be exceedingly speculative, and unnecessary here. In the present case, an individual's recovery exceeds the value of the best possible recovery discounted by the risks of litigation.

 175. If a plaintiff's case is clear from the available evidence, the plaintiff will be scored a "3" and receive a choice between full rescissionary or compensatory relief plus interest. Indeed, because this plaintiff need not pay any litigation costs or attorneys' fees and the plaintiff will receive recovery much more quickly than would be possible through litigation, this recovery is not only fair, it is exceptional.

 176. And if a plaintiff scores a "2," because the evidence on balance supports the claim, the plaintiff will receive 50% of the award that would be available with a score of "3," plus 100% of the interest on the claim. This plaintiff receives thus, 50% of damages, and need not pay litigation costs or attorneys' fees. And this plaintiff obtains more prompt relief than would be available through litigation. In sum, even where there is negligible evidence of wrongdoing, and where a plaintiff would not likely prevail after trial, the plaintiff receives an award equal to what a successful plaintiff would likely obtain after trial. The 50% award plus 100% interest is equivalent to a full award minus litigation costs, attorneys' fees, and the price of delay.

 177. Additionally, a class member who receives a score of "1," because the available evidence neither supports nor undermines the class member's claim, may obtain Basic Claim Relief, even though at trial this class member would not likely have recovered under the predominance of evidence standard. This relief, thus, is fair.

 178. Lastly, class members who choose Basic Claim Relief rather than participation in the ADR receive a value exceeding the value of the best possible recovery in litigation discounted by the risks of litigation. Class members who choose Easic Claim Relief either do not feel misled or do not desire to participate in the ADR process. These class members hence would not have pursued litigation and in essence receive valuable life insurance and investment options for the release of claims that they would not pursue.

 179. The Court finds, thus, that in this case the creative mix of the ADR process with the Basic Claim Relief options creates a settlement that benefits class members greatly more than litigation would. And, because class members who desired to pursue litigation, with its risks, in lieu of participation in the Proposed Settlement were permitted to optout, the Proposed Settlement is fair, reasonable, and adequate to all concerned.

 I. Plaintiffs Conducted Adequate Discovery Precedent to Agreeing to Settle

 180. This test captures the degree of case development that Class Counsel have accomplished prior to settlement. GM Trucks, 55 F.3d 768 at 813. Plaintiffs must take discovery sufficient to establish the strengths and weaknesses of their case. See Walsh v. Pittsburgh, 96 F.R.D. 632 at 654; In re Surgical Laser Technol. Sec. Litig., 1992 U.S. Dist. LEXIS 16724, at *3 (E.D. Pa. Oct. 29, 1992); cf. GM Trucks, 55 F.3d 768 at 814 (finding that settlement at inchoate stage of case where plaintiffs failed to depose potential valuable witness suggested inadequate discovery).

 181. Class Counsel here investigated all aspects of the allegations contained in the Second Amended Complaint. Plaintiffs reviewed and categorized approximately 1 million documents, 160 computer cassettes, 500 audio and video recordings, conducted hundreds of interviews with class members and current and former Prudential agents, and took twenty depositions. Weiss Aff. at PP 61-63, 72. And Class Counsel had access to, reviewed, and analyzed all of the discovery, and reports of the Task Force and Connecticut regulatory investigations. Indeed, the volume and substance of Class Counsel's knowledge of this case are unquestionably adequate to support this settlement.

 182. Krell complains that Class Counsel's swiftness compromised discovery. But plaintiffs on two separate occasions refused Prudential's overtures to settle the case because plaintiffs did not have sufficient discovery to evaluate their claims. Weiss Aff. at PP 49, 101-02. There is absolutely no support for Krell's assertion of inadequate discovery as the result of undue haste.

 184. Krell claims that plaintiffs should have obtained Prudential's audit reports. But plaintiffs assumed in their negotiations that those reports would support their worst suspicions and negotiated the punitive Additional Remediation Amount, on that basis. Weiss Aff. at PP 98-100. Thus, the absence of the audit reports is immaterial.

 J. The Proposed Settlement is Reasonable In Light of the Plaintiffs' Preliminary Discovery

 185. Plaintiffs' preliminary discovery lent to support to allegations of deceptive sales practices throughout the country. See supra commonality discussion. As discussed throughout, the Proposed Settlement provides full compensatory relief to any policyholder where the available evidences supports that policyholder's claim. The Proposed Settlement also provides through Basic Claim Relief very significant and relevant relief to policyholders who cannot establish that they were injured. The Court finds that the Proposed Settlement's relief provisions, as discussed throughout this Opinion, are adequate to account for plaintiffs' discovery of widespread deceptive sales practices.

 K. The Settlement Accounts for All Causes of Action and Types of Relief Sought in the Second Amended Complaint

 186. In the current case, both the ADR process and Basic Claim Relief meet the allegations in the complaint and are specifically tailored to remedy the harms identified in the complaint. The ADR provides fitting relief to policyholders injured by any deceptive sales practices that occurred during the Class Period because it allows full rescissionary or restitutionary relief for established claims and slightly lesser but still very substantial relief for claims less clear from the facts. Also, Basic Claim Relief provides appropriate relief to class members because Basic Claim Relief directly helps class members to meet their insurance or investment needs. Although the Proposed Settlement, as any settlement, prevents individual plaintiffs from obtaining exorbitant punitive damage awards, this observation suggests not a fault of the Proposed Settlement, but the reality, and benefit, of class action litigation, in which plaintiffs share in any punitive damages award. Thus, it is clear that the Proposed Settlement is tailored to meet the allegations of the Second Amended Complaint and that the Proposed Settlement remedies provide the relief sought in the Second Amended Complaint.

 L. The Parties Completed Negotiations of the Proposed Settlement Before Negotiating Attorneys' Fees and the Attorneys' Fee Agreement Is Legal and Proper

 188. Krell objects to Prudential's agreement not to oppose an attorneys' fee award of up to a specified amount, as determined by the Court, but this procedure is entirely proper. See, e.g., Lake, 900 F. Supp. 726 at 734 (observing no impropriety in agreement, bargained for after settlement had been reached, that defendant would pay particular amount of attorney fees and any portion disapproved by the court would revert to defendant); New York Life, 1995 N.Y. Misc. LEXIS 652, at *89-96 (approving settlement and $ 22 million fee pursuant to separately negotiated agreement); 3 Newberg, § 15.34, at 15-98 to 15-99 (observing that negotiation of a fee agreement should not be discouraged).

 189. Krell also unjustifiably attacks the parties' agreement that Prudential would pay half of the attorneys' fees to Plaintiffs' Counsel prior to any appeal. If the Court approves the Proposed Settlement and awards fees, the parties could begin to implement the Proposed Settlement immediately and counsel could collect the entire fee immediately. Under the fee agreement, Plaintiffs' Counsel receive less than is their right, not more, and not a "loan" as Krell postulates. The Court finds no impropriety in this arrangement.

 M. Class Counsel's Approval of the Proposed Settlement Indicates Its Fairness

 190. The judgment of counsel also weighs in favor of approving the Settlement. See, e.g., Cotton, 559 F.2d 1326 at 1330 (court is "entitled to rely upon the judgment of experienced counsel for the parties"); Smith v. Vista Org., Ltd., 1991 WL 152612, at *5 (S.D.N.Y. July 30, 1991) (in appraising fairness of proposed settlement, view of experienced counsel favoring settlement is entitled to "considerable weight" (citations omitted)). In the current case, the Court credits the judgment of Plaintiffs' Counsel, all of whom are active, respected, and accomplished in this type of litigation. These counsel have indicated that in their protessional view and judgment the Proposed Settlement is both comprehensive and fair, and that it provides valuable and sufficient economic benefits to the Class. Weiss Aff. at P 197. The Court agrees.

 N. The Objectors' Panoply of Other Concerns Fall Under Their Own Weight

1. The Proposed Settlement Improves Upon the Task Force Plan

 191. Krell has mistakenly argued that the Task Force remediation program is superior to the Proposed Settlement. Krell Brief at 77-86. But the Proposed Settlement unequivocally and dramatically improves upon the Task Force Plan. *fn66" Weiss Aff. at PP 161-83; Hoyer Aff. at PP 9-16. Plaintiffs have repeatedly detailed the extensive improvements of the Proposed Settlement over the Task Force Plan. Weiss Aff. at PP 161-83; Weiss Supp. Aff. In addition, plaintiffs' actuarial expert has valued the improvements of the Settlement over the Task Force Plan at $ 1.123 billion. Hoyer Aff. at P 19. Indeed, the Proposed Settlement's substantial improvements over the Task Force Plan are confirmed by the fact that the insurance departments of all fifty states and the District of Columbia have endorsed the Proposed Settlement as a positive development for their citizens and as an improvement over the Task Force Plan that forty-five of the jurisdictions had previously adopted. Thus, the Court concludes that the Proposed Settlement substantially expands the relief to class members, and rejects Kre1l's contrary contention.

 192. After an ostensible "line by line analysis of the similarities and differences between the Task Force Plan and Settlement Plan," Krell concludes that plaintiffs' counsel obtained little, if anything, for the class." Krell Brief at 76. Krell's "line by line" analysis, however, rests entirely on two affidavits of his counsel's paralegal, S. Catherine Colder, whom the Court finds unqualified. Ms. Colder has no legal training, nor any professional expertise or qualifications for the substantive analysis that she undertakes. Colder Aff. at P 2. *fn67" The Court credits her analysis not one iota. *fn68" See Mars Steel Corp. v. Continental Ill. Nat'1 Bank & Trust Co., 834 F.2d 677, 684 (7th Cir. 1987) (observing that a trial court has discretion to exclude "conclusional testimony, of little value at best, that the settlement was inadequate, offered in the main by persons having financial or professional relationships with [the objectors]."

 193. Nevertheless, to ensure an adequate record in the event, or eventuality, of appeal, the Court will address Krell's professed concerns. Indeed, Krell's line by line analysis and, therefore, his conclusions defy even a cursory reading of the two plans.

 194. Krell claims that under the Task Force Plan, the Claim Team was "completely independent of any Prudential involvement" while the parallel provision in the Proposed Settlement permits Prudential to select the Claim Team, subject only to veto by the Regulatory Oversight Staff and Lead Counsel. Krell Brief at 81. Krell overstates this distinction. Both the Task Force Plan and the Proposed Settlement require the Claim Team to be "wholly independent of Prudential." Compare Task Force Plan., Ex. A-3, at 10, P II.J. with Stipulation of Settlement, Ex. C, at 10, P II.J. Under the Task Force Plan, as Krell quotes, the Claim Team must be "mutually agreeable to the Regulatory Oversight Staff and the Company." Krell Brief at 81 (citing Task Force Plan, Ex. A-3, at 10, P II.J). Under the Proposed Settlement, the Regulatory Oversight Staff and Lead Counsel must approve the Claim Team candidates proposed by Prudential. Stipulation of Settlement, Ex. C, at 10, P II.J. The plans do not materially differ on this issue. If the change has any effect, it is to afford the Regulatory Oversight Staff and Lead Counsel the final authority to select the Claim Team.

 195. Krell complains also that under the Task Force Plan a policyholder could request a rehearing of the Appeals Committee decision, the fourth level of review, if the policyholder believed that the appellate decision operated as a "manifest injustice," but under the Proposed Settlement only the Claimant Representative can make the "manifest injustice" determination. Krell Brief at 82. The Claimant Representative, however, provides another layer of protection to policyholders and has the requisite knowledge and experience to determine whether the appellate decision operated as a manifest injustice. The Claimant Representative is appointed by Lead Counsel and must be experienced in commercial dispute resolution or the life insurance industry. If there is any reasonable basis to believe that a manifest injustice has occurred, the Claimant Representative will request a re-hearing. And under the Proposed Settlement only, the policyholder may have another Representative to assist with the rehearing. Stipulation of Settlement, Ex. C, at 22, P V.C.5. A policyholder dissatisfied with a prior scoring decision might believe that he or she was inadequately represented initially and desire new representation.

 196. Kre1l argues that the Proposed Settlement is inferior to the Task Force Plan also because the Proposed Settlement would exclude privileged documents from consideration in the ADR process. Krell Brief at 79. Krell directs us to the underscored language concerning the assembly of claim files in the Proposed Settlement's ADR process:

The file for a particular Claim will contain copies of all documents transmitted to, or prepared or obtained by, the Claim Evaluation Staff with respect to the claim, including, without limitation, to the extent available in the Company's records (including the non-privileged Company documents . . . held by Defendants' Counsel), the following materials: .

 Stipulation of Settlement, Ex. C, at 5, P II.F (emphasis added). Krell errs because this language irrefutably expands the realm of records that may be searched for claim evaluation purposes. The corresponding Task Force Plan provision limited the search to records in Prudential's direct possession. Task Force Plan, Ex. A-3, at 4, P II.F. In negotiating the Proposed Settlement, the parties agreed to include records in the possession of Prudential's counsel. Only privileged documents, which would be nondiscoverable, are excluded from the claim file assembly process.

 197. Krell argues that the Proposed Settlement is inferior to the Task Force Plan also because the definition of "Interest Rate" has changed. Kre1l Brief at 77-78. According to Krell, the change in the definition has reduced benefits to class members. The parties to the Proposed Settlement changed the wording of the definition to clarify the calculation of interest as set forth in the Task Force Plan. The definition does not change the amount of interest that will be provided to policyholders. Compare Task Force Plan, Ex. A-1, at 5, P I.C. with Stipulation of Settlement, Ex. B, at 6, P I.C.

 198. Krell argues that a change in the way that "Agent Statements" are prepared "appears to substantially decrease the amount of evidence available to class members to prove their claims." Krell Brief at 80. The ADR process requires the Claim Evaluation Staff to request the selling agent to furnish an "Agent Statement" concerning the claim. *fn69" Stipulation of Settlement, Ex. C, at 6, P II.G.2. Under the Task Force Plan, an unsworn or unsigned agent statement is "Available Evidence." Task Force Plan, Ex. A-2, at 6, P II.G.2.b. Under the Proposed Settlement, unsworn or unsigned agent statements are not considered to be "Available Evidence." This change does not harm policyholders, however. Stipulation of Settlement, Ex. C, at 6, P II.G.2. First, although there may be less evidence under the new provision, there will not be less credible evidence; an unsworn and unsigned statement has no indicia of reliability. Second, where an agent refuses to cooperate by signing a statement, the class member's score is enhanced by one, regardless. Stipulation of Settlement, Ex. B, at 11, P I.F.1.d. Accordingly, Krell's complaint is unfounded.

 2. ADR Review Is Impartial

 199. Some objectors incorrectly argue that initial review of the ADR claims by the Claims Evaluation Staff is not sufficiently impartial because the Staff is comprised of Prudential employees. Fla. AG at 13-14; Beauvias at 18; Johnson at 23-24. The Claim Evaluation Staff consists of qualified professional administrative Prudential employees wholly independent of Prudential's marketing or sales functions. Stipulation of Settlement, Ex. B, at 4, P I.C. Moreover, the Staff does not include employees who have been agents or who have directly supported agents. Id. Additionally, many of the scoring factors are objective and not subject to interpretation. Id., Ex. B, at 16, P II.A. And the Staff has no incentive artificially to minimize ADR scores because the entire evaluation, review, and appeals process occurs at Prudential's expense. *fn70"

  3. The ADR Process is Simple

  201. Beauvias argues that the ADR process is "onerous," requires the submission of "endless forms," and forces a policyholder to challenge a decision in several forums before a final decision can be obtained. Beauvias at 17-18. Treadway argues that the Proposed Settlement is unfair because it "puts the initial onus on defrauded life insurance customers to initiate a mini-trial." Treadway at 4. The Florida AG had argued that the ADR process is too "bureaucratic" and "complicated." Fla. AG at 13. The Florida AG submitted a 46 page "flow chart" prepared by its expert to support the Florida AG contention that the ADR process is overly complicated. Oscher Report, Attach. B. Also, Krell submitted an elaborate flow-chart to show the purported complexity of the Proposed Settlement and its unfairness to class members. Colder Aff., Ex. E. These objectors are mistaken.

  202. The ADR process is uncomplicated. To participate in the ADR process, the policyholder need only check a box on the Election Form, complete the Claim Form provided, attach any available documentation, and return the information in postageprepaid envelopes. *fn71" Stipulation of Settlement, Ex. C. The available "800" number facilitates the process. Id., Ex. C, at 4, P II.D. Claimants need not appear personally. Nor need a claimant retain counsel, though a claimant is free to do so.

  203. Consequently, and contrary to the objectors' contentions, the ADR process is quite simple for policyholders. Policyholders are spared the burden and expense of typical litigation, while Prudential performs the enormous and costly administrative processes. Prudential has projected, in fact, that its administrative costs for the Proposed Settlement will substantially exceed $ 100 million. Meade Aff. at P 10.

  204. The Florida AG and Krell flow charts are grossly misleading because they attribute to the policyholder all calculations of the ADR process, the large majority of which do not involve policyholders. Prudential is correct in asserting that this approach is tantamount "to diagramming the internal operating system of a computer and arguing that a lay person cannot possibly use the machine." Pru. Reply at 19-20.

  205. At the Fairness Hearing, Ms. Chin stated that her father had received misinformation from an operator at the "800" number. February 24, 1997 Tr. at 153-54. Though over 500,000 calls were received at the 800 number, no other complaints have been registered regarding the number. Although an occasional blip in "800" service is extremely unfortunate, the occasion does not undermine the Proposed Settlement's fairness. The parties are devoting substantial resources to ensuring that all individuals who interact with class members regarding the settlement are appropriately trained and supervised.

  4. The ADR Process Provides Adequate Substantive Relief

  206. The ADR process provides each class member an opportunity to receive full compensatory or rescission based relief, plus an Additional Remediation Amount (the equivalent of exemplary relief or punitive damages). Class members may be entitled to this relief without purchasing any additional products from Prudential. There is no monetary cap or ceiling on the amount that Prudential may pay to each claimant or all claimants.

  207. The Florida DOI had submitted the opinion of Steven 5. Oscher of Oscher Consulting, P.A. in an effort to demonstrate that the Proposed Settlement is not valuable. Oscher Aff. Although the Florida DOI has since withdrawn the submission, the Court addresses Oscher's analysis because other objectors have incorporated his conclusions by reference. Oscher's conclusions are not persuasive because his assumptions are mistaken.

  208. For example, Oscher erroneously assumed a 4% interest rate. Id., Ex. A, at 4-5. This interest rate is substantially less than the Interest Rate under the Proposed Settlement. The Proposed Settlement calculates interest at a variable rate, the actual rate in effect between the date the policy was issued and the date of award, plus 1.5%. Stipulation of Settlement, Ex. B., at 6, P I.C. (defining "Interest Rate"). The applicable Interest Rate from 1982 through 1995 ranges from 5.04% to 9.97%. Weiss Supp. Aff. at P 54. Oscher concludes that his hypothetical claimant is not made whole in reliance on his own incorrect assumed rate.

  209. In addition, Oscher misstates the function of the Financial Guarantees. Oscher complains that there is no logical reason that the first 330,000 policyholders should receive a greater remediation amount than subsequent remediated policyholders. Oscher Aff., Executive Summary, at 6 & Ex. D. This statement reflects a misunderstanding of the Proposed Settlement. If there are more than 330,000 claims remediated, the Financial Guarantees do not benefit the first 330,000 claimants to the detriment of later claimants. Rather, as is clear from a careful reading of the Stipulation of Settlement, the difference between the amount actually spent and $ 780 million will be allocated proportionally to all claimants, not merely the first 330,000 remediated claims. Stipulation of Settlement at C.5.a. and Ex. B, at 39, VI ("Allocation of Additional Remediation Amount").

  210. Oscher also misunderstands Prudential's position in the ADR process. According to Oscher, the Financial Guarantee will result in Prudential skewing the scores of all claims exceeding the first 330,000. Oscher Aff., Executive Summary, at 5. The process is unquestionably designed, however, to prevent misscoring.

  5. The Proposed ADR Scoring Provisions Adequately Determine Whether Prudential Misled Individual Class Members

  211. The ADR procedures provide relief without regard to a policyholder's ability to establish materiality, causation, damages, or any other of the requirements that would apply in formal litigation. Nevertheless, California, the Florida AG, the Florida DOI, and Massachusetts argued that a score of "3" is too difficult to obtain. Cal. at 4-5; Fla. DOl at 6-8; Fla. AG at 13. Beauvias argues that the scoring system is "stacked" against individual class members. Beauvias at 17. *fn72" The Court finds, however, that the score of "3" is available to all claimants who establish that they are entitled to full relief.

  212. For example, a "3" will be awarded whenever the producing agent confirms the allegation that a misstatement occurred in connection with the underlying sale of insurance. *fn73" And if an agent refuses to cooperate in the ALR process, the policyholder's score will also be enhanced.

  213. Additionally, a "3" will be awarded whenever "Company Documentation" expressly supports the conclusion that a misstatement occurred. *fn74" "Company documentation" broadly includes correspondence from Prudential or its agents, policy illustrations, applications, and sales materials. Stipulation of Settlement, Ex. B, at 5, P I.C. The materials would encompass, for example, misleading vanishing premium illustrations, *fn75" retirement plan sales materials, and application materials reflecting replacement policy sales. These materials also would encompass commonplace handwritten notations confirming contemporaneous or prior misstatements.

  214. Also, the ADR procedures incorporate several factors, "positive considerations," that may increase a score of "2" to a "3." *fn76" These considerations may afford relief to a policyholder if any of several circumstances surrounded the sale of the policy at issue. For example, if the agent without authority executed the policyholder's signature on a transaction document, the claimant automatically will receive a score of "3." Additionally, a claimant who normally would score a "2" may score a "3" if, for example: (1) the agent used unauthorized or altered sales materials or illustrations in connection with the sale, (2) the agent was terminated or otherwise disciplined or fined due to improper sales practices; (3) the agent refused to cooperate with the claim investigation; (4) the sale or servicing of the policy violated applicable state or federal regulations; or (5) documents relevant to the claim have been improperly destroyed or removed. Stipulation of Settlement, Ex. B, at 9, P ID.

  215. In addition to understating a claimant's ability to score a "3," some of these objectors understate the quality of relief available to those who score a "2." Claimants awarded a "2" will receive compensatory relief equal to more than 50% of their actual damages, plus possibly a share of the Additional Remediation Amount. E.g., Id., Ex. B, at 19, P II.C.1.b. As Massachusetts has conceded, this is "meaningful relief." Mass. at 12. Moreover, this relief is not diminished by attorneys' fees or costs as would be the case in an ordinary civil proceeding. Absent the Proposed Settlement, the policyholders somehow able to secure representation on a contingent fee basis would pay 30% to 40% of their recovery, plus litigation costs, to their counsel.

  6. The ADR Process is an Appropriate Mechanism to Assess Whether Class Members Were Affected by Prudential's Deceptive Sales Practices

  216. Treadway objectors argue that there should be an independent audit to initiate and remediate claims, so that individual class members need not act to receive relief. Treadway Supp. at 3. According to the Treadway objectors, the victimized policyholder demographics--injured policyholders were often elderly or uneducated--mandate automatic remediation. Id. at 5. Treadway objectors argue that the need for an automatic auditing system also is supported by Prudential's deliberate destruction of damaging evidence. Id.

  217. Treadway errs. Courts widely have recognized that it is generally appropriate to require each class member to demonstrate his or her entitlement to relief under the ADR. See, e.g., Franks v. Kroger Co., 670 F.2d 71, 72-73 (6th Cir. 1982) (affirming employment action settlement requiring class members to prove they were subjected to discrimination before receiving relief); Carbone v. Gulf Oil Corp., No. 85-361, 1989 U.S. Dist. LEXIS 8805, at *5-10 (E.D. Pa. July 27, 1989) (approving settlement requiring claimants to submit substantiated proofs of claim demonstrating entitlement to relief).

  218. Moreover, the ADR process does in effect presume that claimants are entitled to relief unless Prudential proves otherwise. A policyholder will be entitled to no relief only where the evidence, on balance, shows that no misrepresentation occurred. Where evidence is evenly divided policyholders will receive a "1," which may in many cases be enhanced to a "2" by the positive considerations discussed above.

  219. And the Proposed Settlement must be assessed as a whole; the Court cannot extricate an individual provision from the plan. Plaintiffs achieved minimum guarantees, additional remediation amounts, and other benefits under the Proposed Settlement that may benefit policyholders more than the provisions that the objectors request.

  7. The ADR Process Adequately Identifies Churning Cases

  220. According to some objectors, the Proposed Settlement unfairly requires each class member to initiate and prove his or her right to compensation through the ADR Process. Treadway Supp. at 3-4. These objectors argue that Prudential policyholders who were churned should be identified objectively through an independent audit using the "exact match" system and should be automatically compensated. E.g., id. The Court rejects the argument that the "exact match" system is preferable to the ADR procedures. To presume that all of Prudential's financed sales were wrong, ignores the reality that financing can be in the best interest of the consumer. The consumer may desire to meet increased life insurance needs without any immediate cash outlay, for example. Lautzenheiser Aff. at P 3. Neither the "exact match" system, nor any presumption that a financed transaction is fraudulent, is an appropriate replacement for the ADR, which appropriately discerns whether a given transaction was improper and affords the affected policyholder adequate relief.

  221. The "exact match" system isolates all new policies issued for which the premiums equal the amount of disbursements from old policies where the disbursement was made within 90 days of the issuance of the new policy. Treadway Supp. at 4. This system can be used whether or not the original policy was from Prudential, because Prudential's files contain records of disbursements of both Prudential and non-Prudential policies. Id. at 4 n.3.

  222. The "exact match" system is unnecessary, because the ADR adequately remediates policyholders who believe that they were induced through deceptive sales practices to buy their policies. And the "exact match" system is inappropriate because it detects as "matches" replacement transactions that are not illegal, fraudulent, or otherwise improper. All states permit replacement sales to occur and experts agree that financed life insurance sales may be in the best interest of the policyholders. Lautzenheiser Aff. at PP 13-24. No states have prohibited financed insurance or replacement sales; nor have they found that these practice are misleading or improper per se. Id. at P 3. Rather, states have prescribed appropriate safeguards to ensure that policies are financed properly, with clear and complete disclosure, and in a manner that protects the consumer against fraud and misrepresentation. *fn77" Id. at P 14.

When interest rates were high and universal life and "interest-sensitive" whole life products were being developed, the replacement of old life policies sold at rates based upon old mortality tables and offering low interest rates could have been viewed as a sound financial decision for many policyowners. These new products were designed to compete with banks, money market funds and newly founded life insurers that could offer new money interest rates that were at an all-time high.

  Task Force Report at 7. *fn78"

  224. Moreover, the ADR process is preferable to the "exact match" system, because the ADR process incorporates the actual protections afforded by state laws as they have existed over time. A violation of any state law or regulation applicable at the time of sale, whether replacement or otherwise, is deemed evidence that the policyholder was misled, and directly factors into the scoring of his or her claim. Stipulation of Settlement, Ex. B, at 11, P I.F.1.e (including as a positive consideration a violation of state insurance statutes or regulations). *fn79" Additionally, if the available evidence does not include executed forms required to be retained under state law, the Company is deemed to have violated applicable regulations and the claimant receives no less than the rescission remedy for a claim attaining a score of "2" without any deduction for term insurance costs. Id., Ex. C, at 10, P II.A.5.

8. The ADR Process Adequately Identifies Cases in Which Prudential Sold Life Insurance Policies as Investment Vehicles

  225. Objectors argue also that an "even premium/odd face amount" test should be used to detect life insurance policies sold as investment vehicles and to provide automatic relief to class members. Fla. DOI at 14-15; Treadway at 4. The "even premium/odd face amount" test is inferior to the current ADR process, however.

  227. But, there is no basis to presume that a policy having a face value that is not a multiple of $ 1,000 was sold as an investment and not a life insurance policy. Indeed, using the presumption would likely identify legitimate VAL sales, rather than solely improper transactions, because it was a common practice for Prudential representatives to work out an even premium schedule dictated by a client's ability to make regular payments. Fiandaca Decl. at P 8. And, this sort of premium-driven transaction often results in a policy having a face value that is not a multiple of $ 1,000. Id. Consequently, it would be unreasonable to impose the requested presumption on these Prudential transactions.

  228. The Court finds that the existing ADR provisions adequately identify transactions in which life insurance was sold as an investment plan. The ADR process weighs the available evidence, including policyholder statements, available documents, and agent complaint histories. These are more accurate indicia of whether a policyholder was misled than the proposed "even premium/odd face amount" test.

  229. Consequently, the Court rejects the argument that the ADR process should be replaced with the proffered "even premium/odd face amount" test.

9. The Proposed Presumptions for APP Claims Are Unnecessary and Inappropriate

  230. Massachusetts argued and Beauvias argues that beginning in 1984, Prudential improperly used the "Investment Generation Approach" ("IGA") to set the dividend scales that appeared in Prudential's illustrations without fully disclosing the implications of the IGA change in the illustrations. Mass. at 13-15; Beauvias at 8-10. Massachusetts argued that the ADR should include additional evidentiary considerations to increase a policyholder's score where these illustrations were used in a sale. Mass. at 13-15. Additionally, California proposed five additional factors that it believed should be considered in evaluating claims involving APP claims. Cal. at 10-11.

  231. The Court finds that the ADR process adequately addresses and remedies the damages flowing from Prudential's decision to adopt the IGA. First, if the class member was misled, the ADR scoring provisions will score the class member so that the class member will be entitled to significant relief. Second, the ADR damages formula adequately accounts for any losses stemming from Prudential's IGA. Vanishing premium scheme victims may obtain the difference between the premium payments and policy values illustrated at the time of sale and those that occurred in the wake of falling interest rates. Stipulation of Settlement, Ex. B, at 28-31, PP III.C.1.a, III.C.2.a. To the extent that claimants were paid dividends lower than those Prudential projected at sale, thus, they may recoup the resulting damages under the ADR process. Under any measure, this is fair and adequate relief.

10. No Additional Evidentiary Considerations Are Necessary

  232. As discussed above, the Proposed Settlement provides an extensive, non-exclusive list of Specific Evidentiary Considerations for each claim category. Several objectors argue that the Proposed Settlement must include additional factors. Massachusetts argues for additional Specific Evidentiary Considerations for each Claim-Specific Category. *fn80" Mass. at 14-16. Similarly, California argued for the addition of several Specific Evidentiary Considerations in the Abbreviated Payment Plan category. Cal. at 10-11. The Court finds the Proposed Settlement as it is to be fair and adequate.

  233. The existing lists of Specific Evidentiary Considerations, quite broad as they are, do not purport to be exclusive. They were incorporated into the agreement "to provide additional guidance to the Claim Evaluation Staff, the Claim Review Staff or the Appeals Committee, as the case may be, particularly in instances where there is an absence of Available Evidence of the alleged Misstatement, but where it appears that the Claimant was misled . . . . " Stipulation of Settlement, Ex. B, at 10, P I.F. The ...

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