Opinion
Case No. 18-cv-06012-JSW
2020-05-22
COMMUNITY RESOURCES FOR INDEPENDENT LIVING, et al., Plaintiffs, v. MOBILITY WORKS OF CALIFORNIA, LLC, et al., Defendants.
Stuart John Seaborn, Sean Paul Betouliere, Disability Rights Advocates, Berkeley, CA, for Plaintiffs Community Resources for Independent Living, Dorene Giacopini, Stuart James. Kelley Marie Blasa Fox, Melissa Tara Daugherty, Lewis Brisbois Bisgaard & Smith LLP, Los Angeles, CA, Jonathan David Martin, Lewis Brisbois Bisgaard & Smith LLP, San Francisco, CA, for Defendants.
Stuart John Seaborn, Sean Paul Betouliere, Disability Rights Advocates, Berkeley, CA, for Plaintiffs Community Resources for Independent Living, Dorene Giacopini, Stuart James.
Kelley Marie Blasa Fox, Melissa Tara Daugherty, Lewis Brisbois Bisgaard & Smith LLP, Los Angeles, CA, Jonathan David Martin, Lewis Brisbois Bisgaard & Smith LLP, San Francisco, CA, for Defendants.
ORDER GRANTING MOTION FOR FINAL APPROVAL
Re: Dkt. No. 61
JEFFREY S. WHITE, United States District Judge Now before the Court for consideration is the Plaintiffs' motion for final approval of a class action settlement. The Court has considered the parties' papers, relevant legal authority, and the record in this case, and it held a final approval hearing on May 22, 2020. There were no objectors present at that hearing. For the reasons set forth in the remainder of this Order, the Court GRANTS the motion.
The Court will address Plaintiffs' motion for attorneys' fees and costs in a separate Order.
BACKGROUND
Plaintiffs filed this class action lawsuit in October 2018 and allege that Mobility Works, one of the country's largest providers of wheelchair accessible vehicles for sale or rent, and a major installer of adaptive devices, employed two policies that discriminated against drivers with disabilities. (Compl. ¶¶ 1-2, 27-31.) First, Plaintiffs alleged that Mobility Works would not install hand controls or other adaptive devices in rental cars when drivers with disabilities needed and requested them. (Id. ¶¶ 1-2, 27-28.) Second, Plaintiffs alleged that before Mobility Works would install such devices in a vehicle, it required people with disabilities who needed them to undergo unnecessary and burdensome "certification" courses, which were not imposed on any nondisabled drivers. (Id. ¶¶ 1-2, 29-31.)
Adaptive devices include hand controls, which allow drivers to accelerate or brake using their hands instead of their feet; steering knobs, which allow for one-handed steering; and pedal extensions, which allow drivers whose feet would not otherwise reach the pedals to drive.
Defendants do not admit these allegations and do not concede liability. However, after nearly a year of negotiations, which included two private mediation sessions, multiple telephonic meetings, and several settlement proposals from each side, the parties reached an agreement on a proposed class-wide settlement (the "Agreement").
On March 6, 2020, the Court preliminarily approved the Agreement, found that final approval was likely, and directed notice to the settlement class (the "Preliminary Approval Order"). The parties subsequently disseminated notice, and they did not receive any objections.
ANALYSIS
Federal Rule of Civil Procedure 23(e) conditions the settlement of any class action on court approval, which is intended to ensure that the proposed settlement is "fair, adequate, and free from collusion." Lane v. Facebook, Inc. , 696 F.3d 811, 819 (9th Cir. 2012) (citation and internal quotation marks omitted); see also Fed. R. Civ. P. 23(e)(2). Because this settlement was reached prior to certification, the Court subjects it to a "higher level of scrutiny for evidence of collusion or other conflicts of interest than is ordinarily required." In re Bluetooth Headset Prod. Liab. Litig. , 654 F.3d 935, 946 (9th Cir. 2011) (discussing higher standard). In order to make a final fairness determination, the Court must consider: (1) whether the class was adequately represented; (2) whether the proposed settlement was negotiated at arm's length; (3) whether the relief provided for the class is adequate, taking into account the costs, risks, and delay of trial and appeal, the terms of any proposed award of attorneys' fees, and other factors; and (4) whether the proposal treats class members equitably relative to one another. Fed. R. Civ. P. 23(e)(2) ; see also Lane , 696 F.3d at 819 (discussing pre-amendment factors set forth in Hanlon v. Chrysler Corp. , 150 F.3d 1011 (9th Cir. 1998) ). When the Court considers these questions, it must be careful to "evaluate the fairness of a settlement as a whole, rather than assessing its individual components," while remaining mindful that "the question whether a settlement is fundamentally fair within the meaning of Rule 23(e) is different from the question whether the settlement is perfect in the estimation of the reviewing court." Lane , 696 F.3d at 818-19.
Before approving such settlements, courts must look not only for explicit evidence of collusion, but also for more "subtle signs" of self-interest, including (1) whether class counsel will receive "disproportionate distribution of the settlement," (2) whether the defendant has agreed not to object to class counsel's fee request, and (3) whether unclaimed funds will revert to the defendant. In re Bluetooth , 654 F.3d. at 946. This "more exacting" review is intended to ensure that "class representatives and their counsel do not secure a disproportionate benefit" at the expense of other class members. Roes 1-2 v. SFBSC Mgmt., LLC , 944 F.3d 1035, 1049 (9th Cir. 2019) (citation and internal quotations omitted).
The Court has considered these factors and has examined the settlement process for subtle signs of collusion, and the Court finds that final approval is appropriate.
A. The Parties' Agreement Will Provide Excellent Relief To Plaintiffs And The Settlement Class.
In evaluating the substantive fairness of a proposed settlement, courts consider whether "the relief provided for the class is adequate," "the costs, risks, and delay of trial and appeal," "the terms of any proposed award of attorneys' fees," as well as other factors. Fed. R. Civ. P. 23(e)(2)(C). The Court concludes Plaintiffs obtained an excellent result on behalf of themselves and the Settlement Class, and it concludes all relevant factors weigh in favor of approval.
This case concerns a Rule 23(b)(2) class, and Plaintiffs did not bring, litigate, settle, or release any damages claims. Therefore, Rule 23(e)(2)(C)(ii) does not apply. Rule 23(e)(2)(C)(iii) is similarly inapplicable, because no separate agreement has been made in connection with the parties' settlement.
As discussed above, Plaintiffs' filed this case to address two issues: (1) Mobility Works' alleged refusal to install hand controls or other adaptive devices in rental cars; and (2) its alleged imposition of unnecessary and burdensome "certification" requirements on drivers with disabilities. The parties' settlement will completely and conclusively resolve both issues, to the benefit of drivers with disabilities nationwide.
Under the Agreement, Mobility Works will install hand controls and other adaptive equipment in any available rental vehicle upon request, at no charge to customers. Therefore, people with disabilities who need such devices will be able to rent and drive Mobility Works vans independently, where before they were allegedly forced to either rely on a nondisabled driver, or to forego using the company's rental services entirely. (See Agreement at § 3.3.2.) In addition, Mobility Works will now allow drivers who need adaptive equipment installed in any vehicle to forego the prior "certification" requirement, provided that they have a valid license and can attest to their experience using the equipment they have requested. (Id. at §§ 3.2.1, 3.3.4.)
The Agreement is attached to this Order.
In addition to the core policy changes described above, the terms of the Agreement will ensure that potential customers are well-aware of these new policies and will ensure that they are consistently implemented by Mobility Works employees. (Id. at §§ 3.5.1 (publication), 3.4, 3.5.2, 3.6.1 (employee training and implementation).) The Agreement also contains provisions to monitor settlement compliance—including semi-annual submission of customer complaints to Plaintiffs' counsel—and to ensure that any disputes that arise during its two-year term are promptly resolved. (Id. at §§ 3.6.1.2, 3.6.2 (monitoring), § 4 (dispute resolution), § 5.1 (term).) Finally, for all members of the Settlement Class other than Plaintiffs, the terms of the Agreement provide for release only of the declaratory and injunctive claims brought and settled in this action—these class members' potential damages claims will not be affected; nor will any claims that might accrue after the expiration of the Agreement's term. (Id. at § 8.)
1. The Potential Costs, Risks, And Delays of Trial and Appeal Also Weigh In Favor Of Approval.
In considering "the costs, risks, and delay of trial and appeal," Fed. R. Civ. P. 23(e)(2)(C)(i), courts in the Ninth Circuit evaluate "the strength of the plaintiffs' case; the risk, expense, complexity, and likely duration of further litigation; [and] the risk of maintaining class action status throughout the trial." Hanlon , 150 F.3d at 1026. As Plaintiffs point out, victory in this case was far from assured. Even if Plaintiffs had won a contested motion for class certification, prevailed on the merits, and fought off any appeals, that process would likely have taken years and cost hundreds of thousands of additional dollars in attorneys' fees and costs. In the interim, Plaintiffs and other drivers with disabilities who wanted to make full use of Mobility Works' services would have been waiting for relief. Moreover, the end result of the settlement is that Plaintiffs achieved the exact policy and practice changes they sought.
In short, the Court concludes the potential costs, risks, and delay associated with trial and appeal weigh strongly in favor of final approval—particularly when considered together with the excellent and timely relief achieved. See In re Anthem, Inc. Data Breach Litig. , 327 F.R.D. 299, 318 (N.D. Cal. 2018) (granting final approval where "further litigation would have been costly and uncertain and would have detrimentally delayed any potential relief for the Class," whereas the relief provided by settlement was "timely, certain, and meaningful").
2. The Terms Of The Parties' Proposed Attorneys' Fee Award Also Weigh In Favor Of Approval.
The statutes at issue in this case allow prevailing plaintiffs to recover their reasonable fees and costs. See 42 U.S.C. § 12205 ; Cal. Civ. Code § 52(a). Under the Unruh Act, such an award is mandatory. Engel v. Worthington , 60 Cal. App. 4th 628, 632-35, 70 Cal.Rptr.2d 526 (1997) ; Moralez v. Whole Foods Mkt., Inc. , No. C 12-01072 CRB, 2013 WL 3967639, at *2 (N.D. Cal. July 31, 2013). However, in the context of a class settlement, "courts have an independent obligation to ensure that" any award of fees and costs "is reasonable, even if the parties have already agreed to an amount." In re Bluetooth , 654 F.3d at 941.
Defendants have agreed to pay Plaintiffs a total of $150,000.00 to compensate them for attorneys' fees, expenses and costs incurred through final approval. (See Agreement at § 6.) For the reasons set forth in the Order addressing Plaintiffs' motion for fees, the Court finds that this award is reasonable.
3. The Adequate Representation Factor Weighs in Favor of Approval.
In determining whether a class has been adequately represented, courts consider the same "adequacy of representation" questions that are relevant to class certification. See, e.g., In re MyFord Touch Consumer Litig. , No. 13-cv-03072-EMC, 2019 WL 1411510, at *8 (N.D. Cal. Mar. 28, 2019). Those questions are: "(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?" Hanlon , 150 F.3d at 1020. Adequate representation of counsel is generally presumed in the absence of contrary evidence. Californians for Disability Rights, Inc. v. California Dep't of Transp. , 249 F.R.D. 334, 349 (N.D. Cal. 2008). The Court has considered the Agreement, the submissions in support thereof, and in the absence of contrary evidence, the Court finds that Plaintiffs and their counsel have adequately represented the Settlement Class. This factor weighs in favor of approval.
4. The Fact that the Agreement Is The Product of Arms-Length Negotiations Weighs in Favor of Approval.
There is no presumption of fairness that attaches to settlements achieved through arms-length negotiations. Roes 1-2 , 944 F.3d at 1049-50. However, such negotiations can weigh in favor of approval. See Fed. R. Civ. P. 23(e)(2)(B).
The considerations encompassed by Rule 23(e)(b)(2) overlap with those contemplated by "certain Hanlon factors, such as the non-collusive nature of negotiations, the extent of discovery completed, and the stage of proceedings." In re Extreme Networks, Inc. Sec. Litig. , No. 15-CV-04883-BLF, 2019 WL 3290770, at *7 (N.D. Cal. July 22, 2019) (citing Hanlon , 150 F.3d at 1026 ).
The Advisory Committee has recognized, "the involvement of a neutral or court-affiliated mediator or facilitator ... may bear on whether [negotiations] were conducted in a manner that would protect and further the class interests." Advisory Committee Notes to 2018 Amendments, Fed. R. Civ. P. 23(e)(2).
In considering this Rule 23 factor, the record demonstrates that the parties began settlement discussions in mid-January of 2019. On January 30, 2019, Plaintiffs sent Defendants a letter describing the exact policy and practice changes they sought. Defendants responded to that letter in April 2019. Over the ensuing months, the parties exchanged several more letters concerning possible settlement. Because the parties disputed several key terms, Plaintiffs simultaneously prepared for trial and pursued necessary discovery, including through review of produced documents, interrogatory responses, and a day-long 30(b)(6) deposition of Defendants' designee. (See Declaration of Sean Betouliere, ¶¶ 15-17.)
On May 31, 2019, the parties conducted a full-day mediation with their appointed Northern District panel mediator, Michael J. Loeb. At this mediation, the parties were able to agree on the core substantive terms of a settlement pertaining to injunctive relief, which were memorialized in a signed memorandum of understanding; to conserve resources, they also agreed to stay discovery and litigation while working out the remaining details. The parties exchanged draft settlement agreements and engaged in related calls and correspondence over the next several months; by November 1, 2019, they had resolved all major substantive issues and achieved a near-complete settlement draft. On November 4, 2019, having reached agreement on injunctive relief for Plaintiffs and the proposed class, Plaintiffs sent Defendants an attorneys' fee demand. Shortly thereafter the parties engaged in a further mediation session with Mr. Daniel Ben-Zvi of ADR Services, Inc., which led to the resolution of all remaining issues, including attorneys' fees and costs and incentive awards for Plaintiffs Giacopini and James. The Agreement was fully executed on January 28, 2020. (Id. ¶¶ 18-24.)
Where, as here, an agreement is the product of "serious, informed, non-collusive negotiations" conducted by experienced counsel over an "extended period of time," those facts will weigh in favor of approval. See, e.g., In re Tableware Antitrust Litig. , 484 F. Supp. 2d 1078, 1079-80 (N.D. Cal. 2007) (granting preliminary approval); In re Tableware Antitrust Litig. , No. C-04-3514 VRW, 2007 WL 4219394, at *3 (N.D. Cal. Nov. 28, 2007) (granting final approval, and holding that "extended negotiations that culminated in the settlement indicate that the agreement here was reached in a procedurally sound manner"). The Court concludes the record in this case demonstrates that this factor weighs in favor of approval.
5. The Fact that the Agreement Treats All Class Members Equitably Weighs in Favor of Approval.
The terms of the Agreement provide that Plaintiffs and the Settlement Class will receive exactly the same injunctive relief. The one difference between Plaintiffs and the Settlement Class is that Plaintiffs seek a $2,000 incentive award, meant to compensate them for their time spent advocating on behalf of the Settlement Class. Because the terms of the Agreement treat Plaintiffs and all other "class members equitably relative to each other," the Court finds that this factor weighs in favor of approval. See Fed. R. Civ. P. 23(e)(2)(D).
The request is addressed in the separate Order addressing Plaintiffs' motion for fees and costs.
B. Adequate Notice Of The Parties' Proposed Settlement Has Been Provided To The Class, And There Have Been No Objections.
Notice to a settlement class certified under Rule 23(b)(2) is within the Court's discretion. Fed. R. Civ. P. 23(c)(2)(a), (e)(1). Notice provided under Rule 23(e) must "generally describe[ ] the terms of the settlement in sufficient detail to alert those with adverse viewpoint to investigate and to come forward and be heard." Lane , 696 F.3d at 826 (alteration in original) (quoting Rodriguez v. W. Publ'g Corp. , 563 F.3d 948, 962 (9th Cir. 2009) ).
The parties attest they disseminated notice to the Settlement Class in accordance with the Preliminary Approval Order. The one minor exception was that dissemination to subscribers of class counsel's newsletter was delayed by three business days as a consequence of disruptions caused by COVID-19. (See Joint Declaration of Sean Betouliere and Kelly Fox.) The Court finds the delay does not affect the adequacy of notice, as those newsletter subscribers still received notice of the proposed settlement over 40 days in advance of this Court's May 5, 2020 deadline for class member objections.
No objections have been submitted. The "absence of a negative reaction" weighs in favor of approval. Chun-Hoon v. McKee Foods Corp. , 716 F. Supp. 2d 848, 852 (N.D. Cal. 2010).
C. The Court Dismisses Plaintiffs' Complaint and Retains Jurisdiction to Enforce The Parties' Agreement.
The Court GRANTS Plaintiffs' motion and approves the Agreement. In accordance the terms of that Agreement, which is attached to this Order and expressly incorporated herein, the Court DISMISSES Plaintiffs' case with prejudice. However, the Court retains jurisdiction to enforce the Agreement and resolve any disputes that might arise during its term. The Clerk shall close this file.
IT IS SO ORDERED.
Attachment
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Settlement Agreement," "Settlement," or "Agreement") is made between Mobility Works of California, LLC, and WMK, LLC (collectively, "Defendants"), and Community Resources for Independent Living ("CRIL"), Dorene Giacopini, Stuart James, and the Settlement Class (collectively, "Plaintiffs"). Collectively, these individuals and entities are referred to as the "Parties."
WHEREAS, Plaintiffs, represented by Disability Rights Advocates ("DRA" or "Plaintiffs' Counsel"), filed a lawsuit styled Community Resources for Independent Living, et al. v. Mobility Works of California, LLC, et al. , Case No. 4:18-cv-06012-JSW, in the United States District Court for the Northern District of California, Oakland Division on October 1, 2018 (the "Lawsuit");
WHEREAS, Plaintiffs alleged in the Lawsuit that Defendants' conduct violated the Americans with Disabilities Act, 42 U.S.C. §§ 12181 et seq. , and the Unruh Civil Rights Act, Cal. Civ. Code §§ 51 et seq. ;
WHEREAS, the Parties have engaged in fact discovery; exchanged extensive settlement communications; participated in a day-long mediation before mediator Michael Loeb, at which they were able to agree on the core terms of a settlement; and participated in a half-day mediation before mediator Daniel Ben-Zvi, during which they came to an agreement regarding the monetary component of the settlement;
WHEREAS, the Parties now wish to effect a complete resolution and settlement of all claims and controversies relating to the allegations in the Lawsuit, believing settlement to be in their respective best interests in light of the expense and uncertainty of litigation, and without admission of any liability, fact, claim or defense, on the terms and conditions set forth herein;
NOW, THEREFORE, in exchange for the mutual covenants and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Definitions
When used in this Settlement Agreement or any of its Exhibits, the following terms should be read to have the following meanings. All other terms shall be interpreted according to their plain and ordinary meanings, unless otherwise noted.
1.1. "Adaptive Equipment" means and refers to any equipment used as a driving aid by people with disabilities. In the context of Customer rentals of vehicles with Adaptive Equipment, the term refers specifically to pedal extensions, spinner
knobs, push-rock hand controls, push-pull hand controls, push-right-angle hand controls, and/or push-twist hand controls.
1.2. "Class Counsel" means and refers to the nonprofit corporation Disability Rights Advocates, and all duly licensed attorneys who are employees thereof.
1.3. "Customer" means and refers to any person who purchases or expresses interest in purchasing any service or product from Mobility Works.
1.4. "Dispute" means and refers to each and every dispute that may arise out of this Settlement Agreement and/or its Exhibits, including, but not limited to, disputes concerning the interpretation, implementation, monitoring, and modification of this Settlement Agreement, or the Parties' compliance with its terms. All Disputes shall be resolved using the Dispute Resolution Procedure outlined in Section 4.
1.5. "Fairness Hearing" means the hearing to be held by the District Court, pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, to determine whether the settlement set forth in this Settlement Agreement should be approved.
1.6. "Final Approval" means the order by the District Court, after notice and the holding of the Fairness Hearing, granting approval of this Settlement Agreement under Rule 23(e) of the Federal Rules of Civil Procedure. The hearing at which such Final Approval is considered or granted, should a hearing be held, will be called the "Final Approval Hearing."
1.7. "Mobility Works" means and refers to WMK, LLC and its subsidiary entities nationwide.
1.8. "Preliminary Approval" means the preliminary approval of this Settlement Agreement by the District Court.
1.9. "Released Claims" means and refers to all claims released in Section 8.1.
1.10. "Rural Location" means and refers to any Mobility Works showroom that employs a single mechanic and that is more than 50 miles away from any other Mobility Works showroom.
1.11. "Settlement Class" means and refers to all people with disabilities who need Adaptive Equipment to operate a vehicle, and who have used or attempted to use Defendants' rental or installation services between October 1, 2016 and Final Approval, as well as all such individuals who will use or attempt to use Defendants' rental or installation services throughout the Settlement Term.
2. Procedures for Class Settlement
2.1. Prior to Final Approval, the Parties' only obligations under this Settlement Agreement will be those set forth in this Section (Section 2).
2.2. Court Approval: This Settlement Agreement will be subject to approval by the District Court. However, nothing in this Settlement Agreement will be deemed to authorize the District Court to
change or modify any of its terms. The Parties agree that any change, modification, or rejection of any of the provisions of this Settlement Agreement by the District Court or any other court will constitute a material modification of this Settlement Agreement, will prevent the Judgment from becoming Final, and will give any Party the right to terminate this Settlement Agreement in its entirety.
2.3. Preliminary Approval: Within thirty (30) days of circulating the fully executed Settlement Agreement, the Parties will jointly submit a request to the District Court for Preliminary Approval of this Settlement Agreement, along with a request for an order from the District Court.
2.4. Conditional Certification of the Settlement Class: The Parties agree that the Settlement Class will be conditionally certified, in accordance with the terms of this Settlement Agreement, solely for purposes of effectuating this Settlement Agreement. Defendants do not consent, and Class Counsel and Plaintiffs agree that Defendants will not be deemed to have consented to, the certification of the Settlement Class for any other purpose.
2.5. No Opt-Out: The Parties agree that the Settlement Class will be certified in accordance with the standards applicable under Rule 23(b)(2) of the Federal Rules of Civil Procedure and that, accordingly, no Settlement Class member may opt out of any of the provisions of this Settlement Agreement.
2.6. Notice: The Parties will jointly request approval by the District Court of notice to the Settlement Class consistent with this Section. Following the District Court's issuance of the Preliminary Approval Order, the Parties will provide notice of the proposed Settlement Agreement, advising the members of the Settlement Class of the terms of the proposed Settlement Agreement and their right to object to the proposed Settlement Agreement. This Notice of Settlement will be provided as set forth in Exhibit A to this Agreement.
2.7. Fairness Hearing: The Parties will jointly request that the District Court schedule and conduct a Fairness Hearing to decide whether Final Approval of the Settlement Agreement will be granted.
2.8. Objections: Members of the Settlement Class will have an opportunity to object to the proposed Settlement Agreement but may not opt out. The Parties will request that the District Court order the following objection procedure:
2.8.1. Any Settlement Class member may object to this Settlement Agreement by filing, within sixty (60) days after the District Court has issued the Preliminary Approval Order, written objections with the District Court, with a copy of such objections served concurrently on Class Counsel by messenger delivery, FedEx or other overnight carrier delivery, First Class U.S. Mail delivery, and/or email. Any Settlement Class member may also appear
at the Court's Fairness Hearing.
2.8.2. With respect to any and all objections to this Settlement Agreement received by Class Counsel, Class Counsel will provide a copy of each objection to counsel of record for Defendants, by electronic-mail delivery, within two (2) court days after receipt of such objection.
2.8.3. Responses by Class Counsel and/or Defendants to any timely filed objections will be filed with the District Court no less than five (5) days before the Fairness hearing, or as otherwise ordered by the Court.
2.9. Final Approval:
2.9.1. The Parties agree that, upon Final Approval, the Settlement Agreement will be binding on the parties and the District Court will enter the Judgment under Rule 54(b) of the Federal Rules of Civil Procedure dismissing the Lawsuit with prejudice subject to Judge Jeffrey S. White retaining jurisdiction to (i) enforce the terms of the Settlement Agreement; and (ii) resolve any Dispute regarding compliance with this Settlement Agreement as described in Section 4.
2.9.2. Defendants will not assert, after the Judgment has become Final, that Judge Jeffrey S. White lacks jurisdiction to enforce the terms of this Settlement Agreement nor will it raise any jurisdictional defense to any enforcement proceedings permitted under the terms of this Settlement Agreement.
2.9.3. If the District Court denies the Parties' request to enter the Judgment and this Settlement Agreement does not receive Final Approval, or if this Settlement Agreement does not become Final for any reason in accordance with its terms: (i) this Settlement Agreement will be null and void and of no force and effect; (ii) nothing in this Settlement Agreement will be deemed to prejudice the position of any of the Parties with respect to any matter; and (iii) neither the existence of this Settlement Agreement, nor its contents, will be admissible in evidence, referred to for any purpose in any litigation or proceeding, or be deemed an admission by Defendants of any fault, wrongdoing, or liability.
3. Substantive Terms
3.1. Unless otherwise specified, all terms in this Section (Section 3) shall become effective on the date of Final Approval.
3.2. Adaptive Equipment in Existing Vehicles and Vehicles for Purchase Policy:
3.2.1. To the extent Mobility Works requires Customers seeking to have Adaptive Equipment installed in a vehicle they own or a vehicle they are purchasing to provide certain information regarding their ability to use the requested Adaptive Equipment, Mobility Works will accept
any of the following forms of proof that a Customer is able to use purchased Adaptive Equipment as an independently sufficient form of proof:
3.2.1.1. A valid driver's license without an endorsement or restriction regarding the use of Adaptive Equipment, combined with a written statement and signature indicating that the Customer has experience using the requested Adaptive Equipment, or substantially similar Adaptive Equipment;
3.2.1.2. A valid driver's license with an endorsement or restriction regarding the use of the requested Adaptive Equipment or substantially similar Adaptive Equipment; or
3.2.1.3. Other forms of proof as Mobility Works deems appropriate, including, for example, written documentation by a medical professional, a driver trainer, or a Certified Driver Rehabilitation Specialist.
3.2.2. Mobility Works will not require any Customer to provide an evaluation or other documentation from a medical professional, driver trainer, or Certified Driver Rehabilitation Specialist regarding experience with requested or purchased Adaptive Equipment if the Customer can provide the forms of proof listed in Subsections 3.2.1.1 or 3.2.1.2 of this Agreement. Mobility Works will not prefer any one form of proof described in Section 3.2.1 and its Subsections over any other independently sufficient form of proof described in that Section and its Subsections.
3.3. Adaptive Equipment in Rental Vehicles Policy:
3.3.1. Section 3.3 and its subsections shall only apply in a given state or at a given Mobility Works location if Mobility Works offers rental vehicles to customers in that state or at that location.
3.3.2. Mobility Works will, upon request, and at no charge to Customers, install in any available rental vehicle the following Adaptive Equipment: pedal extensions, spinner knobs, push-rock hand controls, push-pull hand controls, push-right-angle hand controls, and/or push-twist hand controls.
3.3.3. Mobility Works will install or make available any Adaptive Equipment listed in the immediately preceding paragraph in an available rental vehicle with 48 hours' advance notice, or in a shorter amount of time if reasonably possible, except in Rural Locations. In Rural Locations, Mobility Works will install or make available such Adaptive Equipment in an available rental vehicle with 72 hours' advance notice, or in a shorter amount of time if reasonably possible.
3.3.4. To the extent Mobility Works requires Customers seeking to rent a vehicle with Adaptive Equipment to provide certain information regarding their ability to use the requested Adaptive Equipment, Mobility Works will accept any of the following forms of proof that a
rental vehicle Customer is able to use Adaptive Equipment as an independently sufficient form of proof:
3.3.4.1. A valid driver's license without an endorsement or restriction regarding the use of Adaptive Equipment, combined with a written statement and signature indicating that the Customer has experience using the requested Adaptive Equipment or substantially similar Adaptive Equipment;
3.3.4.2. A valid driver's license with an endorsement or restriction regarding the use of the requested Adaptive Equipment or substantially similar Adaptive Equipment; or
3.3.4.3. Other forms of proof as Mobility Works deems appropriate, including, for example, written documentation by a medical professional, a driver trainer, or a Certified Driver Rehabilitation Specialist.
3.3.5. Mobility Works will not require any rental vehicle Customer to provide an evaluation or other documentation from a medical professional, driver trainer, or Certified Driver Rehabilitation Specialist regarding experience with requested Adaptive Equipment if the Customer can provide the forms of proof listed in Subsections 3.3.4.1 or 3.3.4.2 of this Agreement. Mobility Works will not prefer any one form of proof described in Section 3.3.4 and its Subsections over any other independently sufficient form of proof described in that Section and its Subsections.
3.3.6. Mobility Works will ensure that customers can reserve a rental vehicle with the Adaptive Equipment listed in this section through each system by which customers can generally reserve rental vehicles, including through a web request form and through calling Mobility Works' rental line. Mobility Works will develop and publish an updated web form for rental vehicle reservations, compliant with this Agreement as soon as possible, but no later than 180 days following the date of Final Approval of this Agreement. Mobility Works will develop and disseminate a guide for over-the-phone reservations including Adaptive Equipment, compliant with this Agreement as soon as possible, but no later than 180 days following the date of Final Approval of this Agreement.
3.3.7. For all rental vehicle reservations, Customers must indicate that they have the ability to use the requested vehicle and, if applicable, the requested Adaptive Equipment.
3.3.8. This agreement does not limit Mobility Works' right or ability to install any other equipment in rental vehicles if requested, in addition to the types of Adaptive Equipment listed in Section 3.3.2 of this Agreement. This Agreement does not require Mobility Works to install any types of Adaptive Equipment in rental
vehicles that are not listed in Section 3.3.2.
3.4. Training
3.4.1. Mobility Works will ensure all current employees who interact with Customers with respect to the sale or rental of vehicles are trained on its policies consistent with Sections 3.2 and 3.3 of this Settlement Agreement as soon as possible, but no later than 180 days following the date of Final Approval of this Agreement.
3.4.2. Once policies consistent with Sections 3.2 and 3.3 of this Agreement are developed, Mobility Works will train new employees who interact with Customers with respect to the sale or rental of vehicles on those policies in the normal course of new employee training, and, in any event, no later than thirty (30) days following the new employee's first date of employment.
3.5. Publication and Incorporation of Policies
3.5.1. Mobility Works will publish its policies regarding installation of Adaptive Equipment in existing vehicles, vehicles for purchase, and rental vehicles, consistent with Sections 3.2 and 3.3 of this Agreement, on its website as soon as possible, but no later than 180 days following the date of Final Approval of this Agreement. Such revised policies shall also be posted prominently at each Mobility Works showroom location as soon as possible, but no later than 180 days following the date of Final Approval of this Agreement.
3.5.2. Mobility Works will incorporate its policies regarding Adaptive Equipment in existing vehicles, vehicles for purchase, and rental vehicles, consistent with Sections 3.2 and 3.3 of this Agreement, into relevant internal handbooks, checklists, and training guides, including but not limited to its Administrator's Playbook as soon as possible, but no later than 180 days following the date of Final Approval of this Agreement. Mobility Works shall inform Plaintiffs of any intended change in its policies, handbooks, reservation request forms, checklists, or training guides concerning the Substantive Terms of this Agreement (§ 3, et seq. ) during the term of this Agreement, and Mobility Works shall provide Plaintiffs with redline versions of such documents. Plaintiffs will keep such documents confidential and will provide any comments on such documents within fifteen (15) days of receiving such documents; such documents shall not be published or disseminated until either (i) Plaintiffs provide comments or (ii) fifteen (15) days have passed.
3.6. Monitoring and Implementation
3.6.1. Policy Implementation
3.6.1.1. Mobility Works will create a training program regarding its new policies (which may be found in Sections 3.2 & 3.3 above), which will be
available to its employees on its web portal. Mobility Works will maintain records of its employees' certificates of completion of the training program and will ensure its ability to generate reports documenting the employees that have completed the training program.
3.6.1.2. Defendants will submit evidence of training completion every twelve (12) months throughout the Term.
3.6.2. Monitoring Component
3.6.2.1. When posting and publishing its new policies as described in § 3.5.1 of this Agreement, Mobility Works will include a phone number with an indication that if an individual believes the policy is not being fully complied with, the individual should call the phone number to make a report.
3.6.2.2. Mobility Works will direct all reports to a select few individuals, who will be tasked with completing a form documenting both the complaint and how the issue was resolved.
3.6.2.3. Mobility Works will submit evidence of any complaints lodged by way of these completed forms to Plaintiffs' Counsel, starting 180 days from the Effective Date, and continuing on a bi-annual basis throughout the term. Any sensitive, personal information included on these forms will be redacted, but Mobility Works will make a good faith effort to inquire into affected individuals' permission to provide their names and contact information to Plaintiffs' Counsel, upon Plaintiffs' Counsel's request. Mobility Works will provide Plaintiffs' Counsel with the names and contact information of any individuals who provide such consent. Mobility Works will also keep a record of all communications with affected individuals, so that its compliance with these terms can be verified in the event of a dispute.
4. Dispute Resolution Procedure
4.1. If any disputes arise as to compliance with this Agreement, the Parties agree to resolve the dispute according to the following procedure:
4.1.1. Step One – Notice: One Party will send a letter to counsel for the other Party concerning any dispute, and the Parties will meet and confer in a good faith effort to resolve the identified dispute.
4.1.2. Step Two – Mediation: If the Parties are unable to resolve their dispute through meet and confer negotiations within twenty-one (21) days of receipt of the letter raising the dispute, the dispute shall be submitted to mediation before a Magistrate Judge for the U.S. District Court for the Northern District of California or another mutually agreeable mediator.
4.1.3. Step Three – Resolution by District Court: If the Parties are unable to resolve a dispute through Step Two, they shall submit the dispute for resolution by the Federal District Court for the Northern District of California. The Parties may seek to recover reasonable fees and costs in connection
with proceedings under Step Two and Step Three, in accordance with applicable law.
5. Term of Agreement
5.1. This Settlement Agreement shall be in effect from the date of Final Approval until two (2) years from that date (the "Term"). Judge Jeffrey S. White will have continuing jurisdiction to enforce this Settlement Agreement throughout the Term.
6. Attorneys' Fees and Costs Through Final Approval
6.1. With respect to attorneys' fees and costs that Plaintiffs incurred from the inception of this matter through Final Approval, and the payment thereof by Defendants, the Parties agree to the following in this Section as a complete resolution of the issue.
6.2. Defendants agree that, conditioned upon the District Court granting Final Approval of this Settlement Agreement, and the Judgment becoming Final, Plaintiffs are prevailing parties for purposes of awarding reasonable attorneys' fees, expenses, and costs.
6.3. Defendants agree to pay Class Counsel's reasonable attorneys' fees, litigation expenses, and costs in the total amount of $150,000 for Class Counsel's fees, expenses, and costs through Final Approval. The amount of fees will be included in the notice to the class and subject to review and Approval by the Court pursuant to Rule 23 of the Federal Rules of Civil Procedure.
6.4. Class Counsel's reasonable attorneys' fees, litigation expenses, and costs will be paid within 90 days after: (i) the District Court has issued a written order granting Final Approval of this Settlement Agreement; and (ii) the Judgment has become Final.
6.5. Defendants' payment of the amounts for reasonable attorneys' fees, expenses, and costs pursuant to Sections 6.1 through 6.5. will be in full and complete satisfaction of any and all claims for attorneys' fees, expenses, and costs incurred by Plaintiffs and Class Counsel in this Lawsuit, and Plaintiffs (on behalf of themselves and the Settlement Class) and Class Counsel expressly waive any right to recover any additional attorneys' fees, expenses, and costs in connection with this Lawsuit or this Settlement Agreement, except for those attorneys' fees, expenses, and costs incurred as a result of the Dispute Resolution Procedure described in Section 4.
7. Service Awards
7.1. Within thirty (30) days after Final Approval of this Agreements, Defendants shall:
7.1.1. Pay the sum of $2,000 to each of the Named Plaintiffs, Dorene Giacopini and Stuart James, for services rendered to the Settlement Class.
8. Released and Unreleased Claims
8.1. Released Claims: Conditioned upon and subject to Final Approval by the Court and Defendants' compliance with the terms of this Settlement Agreement, Plaintiffs and the Settlement Class release
Defendants, their successors in interest, assigns, parents and subsidiaries, divisions, and any and all current, future, or former directors, employees, officers, agents, or attorneys from any and all claims that were brought in this Lawsuit. This release of claims will apply and be binding upon Plaintiffs (including members of the Settlement Class). This release will not apply to any claims that accrue after the expiration of the Term.
8.2. Waiver of Rights Under Civil Code § 1542 : Conditioned upon and subject to Final Approval by the Court and Defendants' compliance with the terms of this Settlement Agreement, with respect to the claims released in Section 8.1, Plaintiffs James, Giacopini, and CRIL further expressly waive and relinquish all rights and benefits afforded by Section 1542 of the Civil Code of the State of California, which states, "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 known by him or her, would have materially affected his or her settlement with the debtor or released party."
8.3. Unreleased Claims: The above-described release does not apply to any claims to enforce the terms of this Settlement Agreement, and nothing in this Settlement Agreement shall be interpreted as a release of any claims for damages on behalf of the Settlement Class. Expressly excluded from this provision are named plaintiffs Dorene Giacopini, Stuart James, and CRIL, each of whom do expressly and forever release any and all claims for damages that were or could have been brought in the Lawsuit . Plaintiffs do not release any claims that were not, or could not have been, brought in this Lawsuit.
9. Additional Terms
9.1. Governing Law: This Agreement shall be governed in all respects by the law of the State of California.
9.2. Entire Agreement: This Agreement, and the documents attached to or expressly referred to in this Settlement Agreement, constitute the final and complete written expression and exclusive statement of all the agreements, conditions, promises, representations, and covenants between the parties with respect to the matters set forth in this Settlement Agreement. No representations, warranties, or promises have been made or relied upon by any party hereto, other than those contained herein. This Agreement supersedes any and all other prior agreements or drafts, either written or oral, between the parties with respect to the subject matter hereof. This Agreement cannot be amended, modified, or supplemented except by a written document signed by all of the Parties and approved by the District Court.
9.3. No Other Representation: Each of the Parties represents and agrees that, in executing this Settlement Agreement, they have relied solely on the statements
expressly set forth in this Agreement and has placed no reliance whatsoever on any statement, representation, or promise of any other Party or person or entity not expressly set forth in this Agreement, or upon the failure of the other Party or person or entity to make any statement, representation, or disclosure of anything whatsoever. The Parties have included this provision to preclude any claim that any Party was in any way fraudulently induced to execute this Settlement Agreement, and to preclude the introduction of parole evidence to vary, interpret, supplement, or contradict the terms of this Agreement.
9.4. Execution in Counterparts: This Agreement may be executed in counterparts, each of which may be executed and delivered via facsimile or PDF electronic delivery with the same validity as if it were an ink-signed document and each of which shall be effective and binding on the Parties as of the Effective Date. Each such counterpart shall be deemed an original and, when taken together with other signed counterparts, shall constitute one and the same Agreement.
9.5. Advice of Counsel and Voluntary Agreement: The Parties hereto represent that they have read this Agreement carefully in its entirety and are satisfied that they understand and agree to all its provisions; that this Settlement Agreement has been voluntarily entered into; that they have received independent advice from their respective attorneys with respect to the advisability of executing this Settlement Agreement; and that any and all investigation and analysis of the facts deemed necessary or desirable have been conducted prior to the execution of this Settlement Agreement.
9.6. Power and Authority to Execute: Each of the Parties hereto represent that they have the power and the authority to execute and deliver this Agreement and to perform the obligations hereunder, and that each person executing this Agreement on each Party's behalf has been authorized to sign on behalf of the respective Party and to bind each to the terms of this Agreement.
9.7. Binding Effect: All of the terms and provisions of this Settlement Agreement will be binding upon and will inure to the benefit of the Parties and their heirs, successors, and assigns.
9.8. Construction: The Parties acknowledge and agree that this Agreement has been jointly drafted by all Parties hereto as a result of arm's length negotiations among the Parties. Because all Parties have contributed to the preparation of this Agreement, it shall not be construed more strictly against one party than another. Any rule of law, including, without limitation, Section 1654 of the California Civil Code, that would require interpretation of any ambiguities or uncertainties in this Settlement Agreement against one of the Parties will have no application and is hereby expressly waived. Where
required by context, the plural includes the singular and the singular includes the plural.
9.9. Notices: Any notice or communication provided under this Agreement shall be made in writing and shall be delivered or sent by electronic mail or First Class U.S. Mail to the addresses below, or to such other addresses as may be specified in writing by any Party to the other Party (provided that ten (10) days' written notice of such designation is provided to all other Parties in accordance with the terms of this Section).
9.9.1. To Plaintiffs:
Sean BetouliereDisability Rights Advocates2001 Center Street, Fourth FloorBerkeley, CA 94704sbetouliere@dralegal.org
9.9.2. To Defendants:
Melissa T. DaughertyLewis Brisbois Bisgaard & Smith, LLP633 West 5th St., Suite 4000Los Angeles, CA 90071Melissa.Daugherty@lewisbrisbois.com
IN WITNESS WHEREOF, the Parties hereto have approved and executed this Settlement Agreement on the dates set forth opposite their respective signatures.
EXECUTED by the Parties as follows:
Dated: January 15 , 2020 WMK, Inc. and MobilityWorks of California, LLC, Defendants. By: ________ Title: Chief Operating Officer, President Dated: ____________, 2020 Community Resources for Independent Living, Plaintiff. By: _______________________ Title: ____________________ Dated: ____________, 2020 By: _______________________ Dorene Giacopini, Plaintiff, individually and as a representative of the Settlement Class
9.9. Notices: Any notice or communication provided under this Agreement shall be made in writing and shall be delivered or sent by electronic mail or First Class U.S. Mail to the addresses below, or to such other addresses as may be specified in writing by any Party to the other Party (provided that ten (10) days' written notice of such designation is provided to all other Parties in accordance with the terms of this Section).
9.9.1. To Plaintiffs:
Sean BetouliereDisability Rights Advocates2001 Center Street, Fourth FloorBerkeley, CA 94704sbetouliere@dralegal.org
9.9.2. To Defendants:
Melissa T. DaughertyLewis Brisbois Bisgaard & Smith, LLP633 West 5th St., Suite 4000Los Angeles, CA 90071Melissa.Daugherty@lewisbrisbois.com
IN WITNESS WHEREOF, the Parties hereto have approved and executed this Settlement Agreement on the dates set forth opposite their respective signatures.
EXECUTED by the Parties as follows:
Dated: ____________, 2020 WMK, Inc. and MobilityWorks of California, LLC, Defendants. By: _________________________________ Title: ______________________________ Dated: January 27 , 2020 Community Resources for Independent Living, Plaintiff. By: ________ Title: ________ Dated: ____________, 2020 By: ______________________________ Dorene Giacopinl, Plaintiff, Individually and as a representative of the Settlement Class
9.9. Notices: Any notice or communication provided under this Agreement shall be made in writing and shall be delivered or sent by electronic mail or First Class U.S. Mail to the addresses below, or to such other addresses as may be specified in writing by any Party to the other Party (provided that ten (10) days' written notice of such designation is provided to all other Parties in accordance with the terms of this Section).Sean Betouliere Disability Rights Advocates 2001 Center Street, Fourth Floor Berkeley, CA 94704 sbetouliere@dralegal.org
9.9.1. To Plaintiffs:
9.9.2. To Defendants:Melissa T. Daugherty Lewis Brisbois Bisgaard & Smith, LLP 633 West 5th St., Suite 4000 Los Angeles, CA 90071 Melissa.Daugherty@lewisbrisbois.com
IN WITNESS WHEREOF, the Parties hereto have approved and executed this Settlement Agreement on the dates set forth opposite their respective signatures.
EXECUTED by the Parties as follows:
9.9. Notices: Any notice or communication provided under this Agreement shall be made in writing and shall be delivered or sent by electronic mail or First Class U.S. Mail to the addresses below, or to such other addresses as may be specified in writing by any Party to the other Party (provided that ten (10) days' written notice of such designation is provided to all other Parties in accordance with the terms of this Section).
9.9.1. To Plaintiffs:
Sean BetouliereDisability Rights Advocates2001 Center Street, Fourth FloorBerkeley, CA 94704sbetouliere@dralegal.org
9.9.2. To Defendants:
Melissa T. DaughertyLewis Brisbois Bisgaard & Smith, LLP633 West 5th St., Suite 4000Los Angeles, CA 90071Melissa.Daugherty@lewisbrisbois.com
IN WITNESS WHEREOF, the Parties hereto have approved and executed this Settlement Agreement on the dates set forth opposite their respective signatures.
EXECUTED by the Parties as follows:
Dated: January 10 , 2020 By: ________ Stuart James, Plaintiff, individually and as a representative of the Settlement Class.
APPROVED AS TO FORM:
Dated: January 28 , 2020 Lewis Brisbois Bisgaard & Smith LLP By: Melissa T. Daugherty Attorney for Defendants Dated: January 10, 2020 DISABILITY RIGHTS ADVOCATED By: ________ Sean Betouliere Attorney for Plaintiffs