SETTLEMENT AGREEMENT AND RELEASE

November 13, 2020

This Settlement Agreement (the “Agreement”) is made on the 13th day of November 2020 by
and between Scott W. Johnson (“Johnson”); Jan Malcolm (“Malcolm”) and Michael Schommer
(“Schommer”) in their individual and official capacities, collectively the “Parties”, for the
purpose of settling claims relating to the case Johnson v. Malcolm, et al., Case No. 20-cv-01275,
currently pending in the United States District Court for the District of Minnesota (the
“Lawsuit”).

RECITALS

WHEREAS following the outbreak of COVID-19, the Minnesota Department of Health

(“MDH”) began holding regular conference calls or briefings to discuss COVID-19 health
response issues;

WHEREAS MDH created a conference line that allowed journalists to pose questions to
the panelists speaking on the COVID-19 conference call or briefing (the “COVID-19 Conference
Line”);

WHEREAS Johnson was granted access to the COVID-19 Conference Line on or about
April 9, 2020;

WHEREAS on or after April 28, 2020, Mr. Johnson was subsequently excluded from
accessing the COVID-19 Conference Line;

WHEREAS Johnson brought claims against Malcolm and Schommer in the Lawsuit,
seeking readmission to the COVID-19 Conference Line;

WHEREAS the Parties desire to resolve all claims at issue in the Lawsuit without any
admission of liability;

NOW THEREFORE, in consideration of the mutual promises and covenants contained

herein, the sufficiency of which is hereby acknowledged, the Parties agree as follows:

AGREEMENT

1. Access to MDH Conference Line: MDH agrees to provide Johnson access to the
COVID-19 Conference Line immediately upon the effective date of this Agreement.
This access shall be the same access as other participants on the COVID-19 Conference
Line, meaning Johnson can dial in and request an opportunity to ask a question. If
Johnson requests an opportunity to pose a question during a conference or briefing, MDH
is under no obligation to call on Johnson, but may choose to call on Johnson in its
discretion. Johnson’s access to the COVID-19 Conference Line shall continue as long as
and whenever MDH hosts a conference or briefing on the COVID-19 Conference Line.
2. Limitations on Subject Matter of Johnson’s Questions: If MDH calls upon Mr.
Johnson, and allows him to ask a question while he is on the COVID-19 Conference
Line, Mr. Johnson agrees that his question(s) will be related to the COVID-19 pandemic.
Mr. Johnson further agrees that he will refrain from asking any questions related to the
Lawsuit or MDH’s process for handling media inquiries if called upon on the COVID-19
Conference Line.

3. Responses to Johnson’s E-Mail Questions: In addition to granting Mr. Johnson access

to the COVID-19 Conference Line, MDH shall answer up to three questions related to
the COVID-19 pandemic submitted in one e-mail per week from Johnson. This provision
does not require MDH to answer questions about the Lawsuit or MDH’s process for
handling media inquiries. To the extent MDH interprets an e-mail from Johnson to
contain more than three questions on COVID-19 health response issues, it shall answer
the first three questions in the e-mail.

4. Timeline for MDH to Respond to Johnson’s E-Mail Questions: MDH shall

acknowledge receipt of an e-mailed question sent during normal business hours (9:00 am
Central to 5:00 pm Central) by the end of the following business day on which it is
received. Below are three examples to help clarify this provision:

• MDH receives Johnson’s e-mail on Tuesday at 3 pm. MDH must acknowledge

receipt of this e-mail by 5 pm Wednesday.

• MDH receives Johnson’s e-mail on Friday at 3 pm. MDH must acknowledge

receipt of this e-mail by 5 pm Monday.

• MDH receives Johnson’s e-mail on Saturday. MDH must acknowledge receipt of

this e-mail by 5 pm Tuesday.

MDH shall provide responses to Johnson’s emailed questions the same manner as it
responds to e-mailed questions from other journalist participants on the COVID-19
Conference Line. Johnson’s e-mails must be directed to
health.communications@state.mn.us and include the term “JohnsonSettlement” in the
subject line for purposes of allowing MDH to identify Johnson’s e-mails.

5. Duration of E-mail Questions and Responses: The provisions in Paragraphs 3 and 4 of

this Agreement shall continue until the emergency declared by Executive Order 20-01, as
amended or renewed from time to time, is lifted or otherwise terminated.

6. Dismissal of all Claims with Prejudice: The Parties agree to execute and file a joint
stipulation of dismissal of the Lawsuit with prejudice, and with each party bearing their
own costs and attorneys’ fees, no later than seven (7) days after the effective date of this
Agreement.

7. Mutual Release: On the effective date of this Agreement, the Parties, on behalf of
themselves and their predecessors, successors and assigns, and each of their agents,
employees, representatives, officers, and directors, shall irrevocably release, acquit and

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 forever discharge each other party, and its predecessors, successors and assigns, and each
of their agents, employees, representatives, officers, and directors, of and from any and
all claims, actions, causes of action, controversies, damages, losses, expenses, costs,
attorneys’ fees, liabilities and obligations whatsoever, suspected or unsuspected, whether
presently known or unknown, foreseen or unforeseen, that were or could have been made
in the Lawsuit, or that are based on facts that have occurred on or before the effective
date of this Agreement, provided, however, that nothing herein shall release any rights or
claims arising out of this Agreement or the breach of this Agreement, or any other
conduct that post-dates the effective date of this Agreement.

8. Entire Agreement: This Agreement constitutes the entire agreement between the parties
concerning the subject matter of the agreement, and fully supersedes any and all prior
understandings, representations, warranties, or agreements pertaining to the subject
matter of this Agreement.

9. Effective Date: This Agreement shall become effective when it has been signed by
Johnson, Malcolm in her personal and official capacity as Commissioner of MDH, and
by Schommer in his personal and official capacity as Communications Director of MDH.

10. Choice of Law: This Agreement shall be interpreted and enforced in accordance with
the laws of the State of Minnesota, without giving effect to any conflicts of law or other
principles thereof that would result in the application of the laws of another jurisdiction.

11. Enforcement: The terms of this Agreement shall be binding upon and enforceable
against and shall inure to the benefit of the Parties, heirs, successors, personal
representative, and assigns of each.

12. Construction: This Agreement was negotiated and jointly drafted by the Parties, and the
rule that ambiguities will be construed against the drafter does not apply.

13. Headings. The headings and subheadings contained in this Agreement are for
convenience only and shall not control or affect the meaning, construction, or
interpretation of any provision of the Agreement.

14. Counterparts/Copies: This Agreement may be executed in counterparts, and copies of

this Agreement shall have the same force and effect as originals.

15. Electronic Signatures: The Parties acknowledge and agree that this Agreement may be
executed by electronic signature, which shall be considered as an original signature for all
purposes and shall have the same force and effect as an original signature. Without
limitation, “electronic signature” shall include faxed versions of an original signature or
electronically scanned and transmitted versions (e.g., via pdf) of an original signature.

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IN WITNESS WHEREOF, Scott W. Johnson, Jan Malcolm, and Michael Schommer have
executed this Agreement as of November __, 2020.

Scott W. Johnson

Date:

Jan Malcolm in her personal and official

capacity as Commissioner of MDH

Date:

Michael Schommer in his personal and

official capacity as Communications
Director of MDH

Date: