Burger King® California
Wheelchair Access Investigation

Settlement Agreement
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Bill Lann Lee (CA State Bar No. 108452) Andrew Lah (CA State Bar No. 234580) Julia Campins (CA State Bar No. 238023) LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 1330 Broadway, Suite 1800 Oakland, CA  94612 Telephone: (510) 839-6824 Facsimile: (510) 839-7839 Email: blee@lewisfeinberg.com   Timothy P. Fox (CA State Bar No. 157750) Amy Robertson (pro hac vice) FOX & ROBERTSON, P.C. 104 Broadway, Suite 400 Denver, CO  80203 Telephone: (303) 595-9700 Facsimile: (303) 595-9705 Email: tfox@foxrob.com     Mari Mayeda (CA State Bar No. 110947) P O Box 5138 Berkeley, CA 94705 Telephone: (510) 848-3331 Facsimile: (510) 841-8115 Email: marimayeda@earthlink.net Attorneys for Plaintiffs

Michael D. Joblove (pro hac vice) Jonathan E. Perlman (pro hac vice) GENOVESE JOBLOVE & BATTISTA, P.A. 100 SE Second Street, 44th Floor Miami, FL 33131 Telephone: (305) 349-2300 Facsimile: (305) 349-2310 Email: mjoblove@gjb-law.com   Clement L. Glynn (CA State Bar No. 57117) Adam Friedenberg (CA State Bar No. 205778) GLYNN & FINLEY, LLP One Walnut Creek Center 100 Pringle Avenue, Suite 500 Walnut Creek, CA 94596 Telephone: (925) 210-2800 Facsimile: (925) 945-1975 Email: cglynn@glynnfinley.com Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

 

MIGUEL CASTANEDA, KATHERINE CORBETT, and JOSEPH WELLNER on behalf of themselves and others similarly situated,   Plaintiffs, vs. BURGER KING CORPORATION, Defendant.

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Case No. C 08-4262 WHA (JL) SETTLEMENT AGREEMENT

 

 

1  Introduction.

 

1.1  This Settlement Agreement (“Agreement”) is entered into by and between Burger King Corporation (“BKC”)  on the one hand, and Miguel Castaneda, Katherine Corbett, and Joseph Wellner (collectively “Named Plaintiffs”), individually and on behalf of themselves and a class of persons similarly situated (hereinafter referred to as the “Class” and defined below), on the other hand.  BKC and the Named Plaintiffs (individually and on behalf of the Class) shall individually be referred to as a “Party” and jointly as the “Parties.”

 

1.2  This Agreement applies to the ten (10) Burger King Restaurants listed in Paragraph 3.11 below for which the Court has granted class certification.  These ten restaurants will be referred to herein as “The Restaurants.”

1.3  Named Plaintiffs each uses a wheelchair or scooter for mobility and each claims to be a person with a disability as that term is used in the Americans with Disabilities Act.  Named Plaintiffs all patronize one or more of The Restaurants and intend to continue doing so in the future. 

 

1.4  The Named Plaintiffs have brought suit in the United States District Court for the Northern District of California (the “Court”), Civil Action No. 08-04262 WHA (the “Lawsuit”), in which they allege that BKC violated Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq., the Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq. (“Unruh”), and the California Disabled Persons Act (“CDPA”), Cal. Civ. Code § 54 et seq. at The Restaurants. 

 

1.5  On September 25, 2009, the Court certified ten separate classes of mobility- impaired individuals who use wheelchairs or scooters and who allegedly were denied equal access to one or more of The Restaurants on account of their disability. 

 

1.6  The Parties now wish to effect a complete resolution and settlement of all claims, disputes and controversies relating to the allegations of Named Plaintiffs and the Class with respect to The Restaurants, and to resolve their differences and disputes by settling the Lawsuit.

 

2 No Admission of Liability.  By agreeing to and voluntarily entering into this Agreement, BKC makes no admission or concession, direct or indirect, express or implied, that The Restaurants are or were in any way inaccessible or that BKC has violated the ADA, Unruh or the CDPA or any other federal, state, or local law, building code, regulation, order, or rule with respect to The Restaurants.  Nothing in this Agreement shall operate as an admission by BKC in any context other than within the settlement of this Lawsuit that any particular standard or standards are applicable under the ADA, Unruh, the CDPA or any other federal or state law to any Burger King restaurant.  Nor shall any party, or its counsel, make reference to this Agreement as support for any future claim against any Burger King® restaurant.

 

3  Definitions.  In addition to the terms defined elsewhere in the Agreement, the following terms shall have the meanings set forth below.  Any terms not defined herein shall have the meaning ascribed to them in the ADA, the Standards and/or the CBC. 

 

3.1  “CBC” shall refer to those portions of the California Building Code that provide standards for ensuring accessibility for individuals who use wheelchairs and scooters, including but not be limited to part 2 of title 24 of the California Code of Regulations. 

 

3.2  “Class Counsel” means Amy F. Robertson and Timothy P. Fox of Fox & Robertson, P.C., Bill Lann Lee, Julia Campins, Kirsten Scott and Andrew Lah of Lewis, Feinberg, Lee, Renaker & Jackson, P.C., and Mari Mayeda.

 

3.3  “Costs” means all out-of-pocket expenses reasonably incurred and shall include (but not be limited to) amounts paid and payable to experts.

 

3.4  “Damages Claimants” means members of the Class who contacted Class Counsel no later than March 1, 2010, indicating a desire to seek monetary recovery in this case.  Damages Claimants include Class members identified by Class Counsel from their records as having indicated a desire on or before March 1, 2010, to seek monetary recovery obtained in this case, as well as Class members who claim to have contacted class counsel on or before March 1, 2010 to indicate a desire to seek monetary recovery in this case.

 

3.5  “Dispute Resolution” means the process described in Paragraph 11 hereof.

 

3.6  “Final Approval” means the approval of this Agreement by a United States District Judge by signature of an order in a form substantially similar to that submitted by the Parties that, among other things, attaches this Agreement as an exhibit, retains jurisdiction for the Court for the Term of this Agreement in order to enforce this Agreement, and has become final and non-appealable.

 

3.7  “Notice Deadline” means the deadline for publishing notice to be set by the Court as part of the Preliminary Approval process. 

 

3.8  “Preliminary Approval” means the initial approval by the Court of the terms of this Agreement, which shall occur prior to any notice being provided in accordance with Paragraph 14 of this Agreement.

 

3.9  “Class” means the class of all individuals with mobility-impairment disabilities who use wheelchairs or electric scooters for mobility who, at any time on or after April 16, 2006, were denied, or are currently being denied, on the basis of their mobility-impairment disability, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of one or more of The Restaurants. 

 

3.10  “Class Member” means any member of the Class.

 

3.11  “The Restaurants” means the following Burger King restaurants:

 

3.11.1 No. 2055 located at 6021 Central Ave., El Cerrito, CA;

 

3.11.2 No. 2288 located at 4200 International Blvd., Oakland, CA;

 

3.11.3 No. 2032 located at 2415 N. Texas St., Fairfield, CA;

 

3.11.4 No. 1864 located at 677 Contra Costa Blvd., Pleasant Hill, CA;

 

3.11.5 No. 2505 located at 2162 Railroad Ave., Pittsburg, CA;

 

3.11.6 No. 1943 located at 2440 Mahogany Way, Antioch, CA;

 

3.11.7 No. 4516 located at 1799 N. Broadway, Walnut Creek, CA;

 

3.11.8 No. 4075 located at 972 El Camino Real, South San Francisco, CA;

 

3.11.9 No. 4039 located at 950 W. A St., Hayward, CA; and

 

3.11.10 No. 977 located at 2757 Castro Valley Blvd., Castro Valley, CA.

 

3.12  “Successor Remodel” means the remodeling process that occurs when a Tenant's lease agreement is renewed.  Such remodeling typically occurs at least once every twenty (20) years.

 

3.13  “Standards” means the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A.  The version of the Standards in existence at the time of Final Approval of this Agreement shall be the version to which this term refers except that, if amendments to or a different version of the Standards are adopted by the Department of Justice, that different version shall govern any actions taken or required to be taken after the effective date thereof.  BKC shall not be required to make alterations to any work it has done prior to that effective date.

 

3.14  “Tenant” shall mean the operator or successor operator of The Restaurants on or after April 1, 2006 to whom BKC leases The Restaurants.

 

4  Conditions Precedent.  This Agreement shall be conditioned upon and shall be effective only upon the occurrence of all of the following events.

 

4.1 Class Counsel and BKC shall jointly request a preliminary approval hearing.

 

4.2 Class Counsel and BKC shall move jointly for an Order Granting Preliminary Approval of this Agreement and Approving Issuance of Notice in Accordance with the Procedures for Providing Notice Submitted by the Parties and such motions are granted by the Court.

 

4.3 Upon preliminary approval of this Agreement and approval of the Notice and the procedures for providing notice, notice shall be provided to the Class in accordance with the procedures for providing notice approved by the Court. 

 

4.4 A Fairness Hearing shall be held in accordance with Paragraph 13.2 below.

 

4.5 The Court shall grant Final Approval of this Agreement and enter Judgment in accordance with the terms set forth herein after a Fairness Hearing has been conducted, and all such orders and approvals have become final and non-appealable.  The Judgment shall finally resolve all issues raised in this proceeding.

 

5 Term of Agreement.  This Agreement shall have a term (“Term”) that expires six (6) years after the date of Final Approval as defined above, or the date the last Dispute Resolution process is concluded, whichever comes later.

 

6 Additional Work At The Restaurants.

 

6.1 BKC will ensure that the work set forth in Exhibit A hereto will be performed at The Restaurants on or before 90-days following the Final Approval.  

 

6.2 Within one week following completion of all work set forth in Exhibit A hereto, BKC will notify Class Counsel of such completion. 

 

6.3 The applicable accessibility laws and standards provide for conventional building industry tolerances for field conditions.  The Parties acknowledge and agree that all work to be performed at The Restaurants under this Settlement Agreement is subject to the acceptable measurements set forth in Exhibit B, hereto.

 

6.4 Within 60 days of receipt of the notice referred to in Paragraph 6.2 above, Class Counsel shall have the right to inspect the work upon written notice to BKC to verify that it has been completed.  Such inspection will be conducted in the presence of BKC or the Tenant operator of the Restaurant and will be conducted in a time and manner to cause the least possible disruption to the operation of the Restaurant.

 

6.5 If Class Counsel believes that BKC has not sufficiently complied with this Paragraph 6, it may submit the matter to Dispute Resolution pursuant to Paragraph 11 hereof.

 

7  Policies, Practices and Procedures.

 

7.1  Surveys

 

7.1.1 Daily Opening Path of Travel Checklist

 

7.1.1.1   BKC will provide each Tenant a Daily Opening Path of Travel Checklist that includes the following:

 

Under “Exterior” add the text “● No Obstructions”

 

Under “Dining Room Clean and Inviting” add the text “● Condiment and tableware dispensers at the front of the counter.”

 

Under “Rest Rooms” add the text “● No Obstructions - Accessible to Wheelchairs.”

 

Under “Front Counter Clean and Organized” add after “uncluttered” the text “-- especially any lowered area.”

 

7.1.1.2   BKC will add the following text to its manual:

 

Prepare restaurant for all guests, including those who use wheelchairs, scooters or walkers, including

 

Accessible parking spaces are free of obstructions;

 

There is a clear path to the counter, drinks, condiments and accessible seats that is free of obstructions such as high chairs, advertising stands, etc.

 

Any lowered area of the counter is free of obstructions such as promotional material, games, brochures, etc.

 

All condiment and tableware dispensers are pulled to the front of the counter to be within reach ranges.

 

Restrooms are free of obstructions and the trash can is not in the clear floor space by any of the fixtures. 

 

7.1.1.3   BKC will require each Tenant to perform the tasks set forth therein each day just prior to the Restaurant's opening. 

 

7.1.2 Tri-Annual surveys

 

7.1.2.1   At least once every three years, BKC will cause to be surveyed, by a surveyor knowledgeable in the requirements of the CBC and ADA, each Restaurant using the form attached as Exhibit C. 

 

7.1.2.2   The form shall document any deviations from the applicable requirements under this Settlement Agreement, the corrective actions that BKC will require of the Tenant, and the timing of such corrective action.

 

7.1.3 Successor remodel surveys

 

7.1.3.1  When a Restaurant undergoes a Successor Remodel, BKC will ensure that the Tenant shall hire a registered architect (the “Surveying Architect”) to survey the Restaurant using the form attached as Exhibit D (“Successor Survey Form”). 

 

7.1.3.2  Following completion of the Successor Remodel, BKC will ensure that the Surveying Architect re-surveys the Restaurant using the Successor Survey Form, and confirms that the remodeled restaurant complies with the Settlement Agreement.

 

8  Monitoring of Compliance.

 

8.1 The Parties shall monitor BKC's compliance with Paragraph 7 as more fully described in this Paragraph 8.

 

8.2 No more than once each year, Class Counsel may request from BKC a copy of all Tri-Annual and Successor Remodel surveys that were completed during the prior calendar year.  Within 30 days of such request, BKC will provide the requested surveys, as well as documentation sufficient in BKC's reasonable judgment to demonstrate that necessary corrective actions, if any, have been completed.

 

9  Monetary Relief and Claims Procedure.

 

9.1 Monetary Settlement Funds

 

9.1.1 To satisfy and settle all claims for damages of the Named Plaintiffs and the Damages Claimants in this Lawsuit, BKC will pay the sum of five million (5,000,000) dollars (the “Damages Fund”).

 

9.1.2 Creation of Funds

 

9.1.2.1 Within thirty (30) days after Final Approval, BKC shall cause to be transferred to an interest-bearing trust account designated by Class Counsel (the “Account”) the sum of five million (5,000,000) dollars.  All interest earned on the Account between the time the Damages Funds are deposited and the time the Damages Funds are distributed to the Named Plaintiffs and “Eligible Claimants” (as that term is defined in Paragraph 9.3 herein), less taxes owed on such interest, shall be used to pay the Named Plaintiffs and the Eligible Claimants and certain Administration and Notice Costs (if such Costs exceed the amounts set forth in Paragraphs 9.2.1 and 14.4) in accordance with the provisions of this Agreement.

 

9.1.2.2 Named Plaintiffs shall retain an independent claims administrator (the “Claims Administrator”) to:  (1) distribute notice and Claims Forms; (2) receive and track returned Claims Forms; (3) obtain supplemental information from claimants, as necessary; (4) receive and forward to the Parties and the Court Objections; (5) verify the validity of each claim submitted and certify those who are Eligible Claimants as defined in Paragraph 9.3 below; (6) administer and disburse awards from the Damages Funds; and (7) perform such other duties as are necessary to carry out the provisions of the Agreement. The Parties agree that the claims administrator will have check writing authority on the Account as necessary and appropriate to satisfy their responsibilities under this Agreement.

 

9.2  Use of Damages Funds.  The Damages Funds will be used as follows:

 

9.2.1 Administration and Notice Costs.  Class Counsel will pay the costs and expenses billed by the Claims Administrator in an amount not to exceed $50,000, and will pay the costs of providing notice to the class, as set forth in Paragraph 14.4.  To the extent that the costs and expenses billed by the Claims Administrator exceed $50,000, or notice costs exceed $15,000, those excess amounts will be paid from the Damages Fund.

 

9.2.2 Payments to the Named Plaintiffs. Named Plaintiffs will request that from the Damages Fund, the Court determine and award each of them an amount for their time and effort spent on behalf of the separate classes in this case.  Named Plaintiffs will not specify an amount sought, and the amount will be left to the Court's discretion.  If the Court awards payments to the Named Plaintiffs, then within thirty-five (35) days after Final Approval of the Agreement, the Claims Administrator shall make those payments from the Damages Fund via certified mail, return receipt requested, as well as provide 1099 forms to the Named Plaintiffs. 

 

9.2.3 Payments to Eligible Claimants.  The funds remaining in the Damages Fund after the above disbursements shall be referred to as the Damages Fund Remainder, which will be used to pay Eligible Claimants in the manner and amount described below.

 

9.2.4 To the extent that there are any funds remaining in the Damages Fund Remainder after the distribution to Eligible Claimants, such funds will be used as set forth in Paragraph 9.6.  In no event shall any funds from the Damages Fund revert back to BKC.

 

9.3 Eligibility for Payments from the Damages Fund Remainder.  To be an “Eligible Claimant” and be eligible for an award from the Damages Fund Remainder, an individual must satisfy each and all of the following criteria:

 

9.3.1 Have indicated to class counsel on or before March 1, 2010 that he/she want to be included in any monetary recovery obtained in this case;

 

9.3.2 Return a completed “Claim Form” (in a form substantially similar to that attached hereto as Exhibit E) that is postmarked by no later than the deadline stated in the Claim Form;

 

9.3.3 Declare under penalty of perjury that he/she is an individual who used or uses a wheelchair or scooter for mobility who has been to a Covered Restaurant between April 16, 2006 and March 1, 2010;

 

9.3.4 Declare under penalty of perjury which of the Covered Restaurant(s) that he/she visited;

 

9.3.5 Declare under penalty of perjury that, between April 16, 2006 and March 1, 2010, he/she visited a Covered Restaurant and encountered an architectural barrier that hindered his/her access at the Covered Restaurant, or was deterred from entering a Covered Restaurant because of an architectural barrier of which he/she was aware;

 

9.3.6 Describe under penalty of perjury the manner in which his/her access was hindered or deterred at the Covered Restaurant.  A visit that complies with Paragraphs 9.3.5 and 9.3.6 shall be referred to as a “Qualifying Visit.”

 

9.3.7 Declare under penalty of perjury the number of Qualifying Visits to each Covered Restaurant that he/she has had between April 16, 2006 and March 1, 2010; and

 

9.3.8 Not previously have released his/her claims against BKC for the time period April 16, 2006 to March 1, 2010.

 

9.3.9 Named Plaintiffs shall be eligible for payments from the Damages Fund Remainder in accordance with the same criteria and procedures applicable to other Eligible Claimants.

 

9.4 Claims Determination Process.

 

9.4.1 Distribution of Claim Forms.  Commencing with the Notice Deadline set by the Court and continuing through the Claim-filing deadline provided in Paragraph 9.4.2 herein, the Claims Administrator shall mail a Claim Form to all Damages Claimants.  The Claims Administrator shall mail a Claim Form within three (3) business days after receiving the identity of a Damages Claimant.  Any written request for Claim Forms received by Class Counsel or BKC's counsel shall be forwarded to the Claims Administrator by electronic mail or facsimile within forty-eight (48) hours (excluding weekends and holidays) of its receipt.  Any potential Damages Claimant who telephones Class Counsel or BKC's counsel and requests a Claim Form shall be referred to the Claims Administrator.

 

9.4.2 Filing of Completed Claim Forms.  All claims for monetary payment from the Damages Fund shall be made in writing using the Claim Form.  All Claim Forms must be signed by the claimant under penalty of perjury.  Each Damages Claimant, including minors, must submit his/her own Claim Form.  A parent, legal guardian or next of kin may complete and sign a Claim Form on behalf of a minor.  A designated representative may complete and sign a Claim Form on behalf of a claimant who, because of disability, incapacity or death cannot complete and sign the claim form.  If a Damages Claimant experienced more than one discriminatory incident, all such incidents must be detailed on one (1) Claim Form.  All Claim Forms must be mailed to the Claims Administrator and postmarked by no later than the date that is twenty (20) days after the final approval hearing.

 

9.4.3 Review of Completeness of Claim Forms.  The Claims Administrator shall initially review all Claim Forms to determine if the form is filled out completely and is signed properly.  If the Claim Form is incomplete or is not signed properly, the Claims Administrator shall return the Claim Form to the claimant and the claimant shall be given thirty (30) days from the date of that mailing within which to return to the Claims Administrator the Claim Form completed and/or signed properly.  The failure of a claimant to complete, sign and return his or her Claim Form within thirty (30) days shall result in a denial of his or her claim.

 

9.4.4 Approval of Claims.  The Claims Administrator shall then conduct a review of all Claim Forms to determine whether they present valid claims in accordance with the terms and provisions of this Agreement.  All claimants whose claims are determined to be valid by the Claims Administrator shall be eligible for an award from the Damages Funds.

 

9.4.5 Disputed Claims.  If upon initial review of the Claim Form, the Claims Administrator is unable to determine the validity of the claim, the Claims Administrator shall so notify the claimant in writing and state the reasons why the information contained on the Claim Form is insufficient to determine the validity of the claim.  The claimant shall be given thirty (30) days from the date of mailing of the notification in which to supplement or amend the Claim Form or provide such other information he or she wishes to assist the Claims Administrator in determining the validity of the claim.  Upon further review of the Claim Form, including such additional information as may be submitted by the claimant, the Administrator shall (i) approve the claim, in which case, the claimant is eligible for an award from the Funds; or (ii) reject the claim.

 

9.4.6 Rejected Claims.  If the Claims Administrator rejects a claim as not meeting the terms or provisions of this Agreement, the Administrator shall so notify the claimant in writing.

 

9.4.7 Deadline for Administrator Review of All Claims.  The Claims Administrator shall complete its review and issue a determination as to the validity of all Claim Forms within ninety (90) days of the deadline for submission of Claim Forms set forth in Paragraph 9.4.2.

 

9.4.8 Determination – Final and Binding.  All determinations of the Claims Administrator shall be final, binding, and non-appealable.  Neither Class Counsel nor BKC shall have any responsibility for or role in the claims determination process.

 

9.5 Class Monetary Distribution. 

 

9.5.1 The maximum number of Qualifying Visits for which an Eligible Claimant may obtain recovery is six (6). 

 

9.5.2 The amount that an Eligible Claimant may recover for each Qualifying Visit shall be determined by dividing the Damages Fund Remainder by the Total Qualifying Visits, where the Total Qualifying Visits is the sum of all Eligible Claimant's Qualifying Visits (not to exceed six such Visits for a single Eligible Claimant).

By way of example, if (a) the Damages Fund Remainder is $4.9 million; (b) there are 350 Eligible Claimants, and (c) the sum of all Qualifying Visits for all Eligible Claimants (with no single class member eligible for more than six visits) is 1,200, then the amount that an Eligible Claimant would recover for a Qualifying Visit would be ($4.9 million / 1,200), or $4,083.33 per Qualifying Visit.  Under this scenario, an Eligible Claimant seeking recovery for one Qualifying Visit would receive $4,083.33, and an Eligible Claimant seeking recovery for six or more Qualifying Visits would receive $24,499.98.

 

9.5.3 No later than ten (10) days after the deadline for completion of the claims determination process set forth in Paragraph 9.4, the Claims Administrator shall provide Class Counsel and BKC with a list of the names, addresses, telephone numbers, email addresses, a copy of the claims forms, and the pro rata amount of the validated claim from the Damages Fund Remainder, of all persons who have submitted claims in connection with the Lawsuit.

 

9.5.4 No later than twenty (20) days after the deadline for completion of the claims determination process set forth in Paragraph 9.4, the Claims Administrator shall cause to be mailed, via certified mail, return receipt requested, checks in the amounts specified in the claims determination process, and 1099 forms to Eligible Claimants.  All checks shall be negotiable for no more than one (1) year from the date of mailing.

 

9.5.5 Returned checks.  When the Claims Administrator receives a returned check based on an incorrect address, it will conduct a database search for an additional address and, if an additional address is identified, the Claims Administrator will remail the check to that address within 14 days of its receipt of the returned check.  All returned checks of claimants for whom no correct address is obtained shall be held by the Claims Administrator for sixty (60) days.  If no claim is made for such checks during this time period, the funds from such checks shall become part of the funds to be allocated to the Cy Pres and distributed in accordance with Paragraph 9.6 of this Agreement.

 

9.6  Cy Pres. 

In the event that there are funds remaining in the Damages Fund as a result of returned or uncashed checks or otherwise, and a period of one hundred (100) days has elapsed from the date on which settlement checks are mailed by the Claims Administrator, then such remaining amounts shall be used first to pay any otherwise valid claims that were excluded from the Class Monetary Distribution through error or omission of the Claims Administrator.  Any further balance remaining shall be paid to Disability Rights Advocates of Berkeley, CA.

 

10 Opt-Out Right.

 

10.1 No Class Member may opt out of the injunctive relief provisions of this Agreement.

 

10.2 Any Damages Claimant may request exclusion from the Class for purposes of monetary relief only.  Damages Claimants who wish to opt out of the Class for purposes of participation in the monetary portion of the settlement must submit a written and signed request for exclusion (“Opt-Out Statement”) to the Claims Administrator.  Opt-Out Statements must be postmarked and mailed to the Claims Administrator not later than sixty (60) days after the Notice Deadline set by the Court.

 

10.3 The Claims Administrator shall stamp the date received on the original of any Opt-Out Statement it receives and serve copies of the Statement on Class Counsel and BKC counsel not later than three (3) business days after receipt thereof and shall file the date-stamped originals of any Opt-Out Statements with the Clerk of the Court not later than ten (10) business days prior to the date set for the final approval hearing.  The Claims Administrator shall retain copies of all Opt-Out Statements in its files until such time as the Claims Administrator is relieved of its duties and responsibilities under this Agreement.

 

10.4 If the number of Damages Claimants who opt out of the Class in the manner provided in this Agreement exceeds 30, or consists of Damages Claimants whose claims, in the aggregate, exceed $500,000, then BKC, at its sole option, shall have the right to void this settlement on the tenth (10th) day after the Court requires individuals to return opt out notices.  If BKC exercises this option, all of the Parties' obligations under this Agreement shall cease to be of any force and effect, and the Agreement and any orders entered in connection therewith shall be vacated, rescinded, canceled, and annulled, and the Parties shall return to the status quo in the Lawsuit as if the Parties had not entered into the Agreement, including return of all payment(s) BKC may have made hereunder, if any.  In addition, the Agreement and all negotiations, court orders and proceedings relating thereto shall be without prejudice to the rights of any and all Parties hereto, and evidence relating to the Agreement and all negotiations shall not be admissible or discoverable in the Lawsuit or otherwise. 

 

11 Dispute Resolution. The Parties shall address disputes relating to the provisions of this Agreement as follows.

 

11.1 Informal dispute resolution

 

11.1.1 If either Party believes that a dispute exists relating to the provisions of this Agreement, it shall notify the other Party in writing, describing the dispute. The other Party shall respond in writing to such notice within fifteen (15) business days of receipt of the notice.

 

11.1.2 Within fifteen (15) business days of receipt of the response described in Paragraph 11.1.1, counsel for both Parties shall meet and confer by telephone or in person and attempt to resolve the issue informally.  If the Parties believe it would be useful to enter mediation on the issue in dispute, they may agree to do so.

 

11.2 Submission to the Court

 

11.2.1 If the meet and confer process pursuant to Paragraph 11.1 above does not result in a resolution of the dispute within a reasonable time, any Party may make a motion for resolution of the dispute by Judge William Alsup or any other United States District Judge who may be assigned to the case.

 

11.2.2 In the event either Party finds that it is necessary to seek resolution of the dispute by the Court, the Court shall award reasonable attorneys' fees and Costs incurred in pursuing dispute resolution as set forth in this Paragraph 11.2 in accordance with the prevailing party standards of the ADA and Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22 (1978).  Should BKC prevail on two separate occasions on which a dispute is brought before the Court, the Christiansburg Garment standard shall not apply in ensuing occasions on which a dispute is brought before the Court, but rather the Court shall award fees to the prevailing party.

12 Attorneys' Fees and Costs.

 

12.1 BKC shall pay Class Counsel's reasonable attorneys' fees and costs incurred in connection with this matter up to and including the date of Final Approval of this Agreement in an amount to be determined by the Court, which amount Class Counsel agrees will not exceed $2,500,000.  Class Counsel further agrees that it will not seek any additional attorney's fees or costs of any kind for work done relating to The Restaurants following final approval of this Agreement (including, but not limited to time spent on compliance monitoring or damages claim distribution, expert consultant fees etc.), excepting only attorneys' fees awarded as a prevailing party under the dispute resolution process set forth herein.  BKC shall not oppose a request by Class Counsel for reasonable attorneys' fees and costs in an amount not exceeding $2,500,000.00. 

 

12.2 BKC shall pay any amounts due pursuant to Paragraph 12.1 within ten days after Final Approval as defined above  by sending a check in the appropriate amount to Bill Lann Lee, Lewis, Feinberg, Lee, Renaker & Jackson, P.C., 1330 Broadway, Suite 1800, Oakland, CA 94612. 

 

13 Preliminary Approval, Objections and Fairness Hearing.

 

13.1 Promptly after execution of this Agreement, the Parties shall jointly request that the Court schedule a preliminary approval hearing on March 18, 2010 or as soon thereafter as the Court may set the hearing and that the Court preliminarily approve the Agreement and approve the proposed form of Notice and plan for providing notice submitted by the Parties.

 

13.2 Class Counsel and BKC shall ask the Court to schedule a fairness and final approval hearing for a date after June 15, 2010 or eighty (80) days after the Notice Deadline set by the Court, whichever is later, or as soon thereafter as the Court may set the hearing.

 

13.3 Any Class Member may object to the proposed Agreement by filing, within sixty (60) days after the Notice Deadline set by the Court, written objections with the Clerk of the Court as provided by the Court's Order of Preliminary Approval of Settlement.  Responses by BKC and Class Counsel to any timely-filed objections shall be made no less than five (5) days before the Fairness Hearing as provided by the Court's Order.

 

14 Notice: 

 

14.1 Notice of this Agreement (the “Injunctive Notice”), which shall be in a form approved by the Court, will be provided to Class Members informing them of: (1) a general description of the injunctive terms of this Agreement; and (2) their right to object to the Agreement.

 

14.2 Notice of this Agreement (the “Damages Notice”), which shall be in a form approved by the Court, will be provided to the Damages Claimants informing them of: (1) a general description of the terms of this Agreement; and (2) their right to object to the Agreement; and (3) the prerequisites for recovery of damages.

 

14.3 The Injunctive Notice, the Damages Notice, and the plan for providing notice must satisfy the requirements of Federal Rule of Civil Procedure 23 and applicable legal precedent, and must be approved by the Court.  In their motion seeking preliminary approval of the Agreement, the Parties will propose a Notice Deadline and the proposed Notice Deadline will be as soon as reasonably possible.

 

14.4 Plaintiffs shall bear the cost of notice up to an amount of $15,000.00.  Any costs above that amount shall be borne by the Fund. 

 

15 Judgment, Final Approval and Dismissal.

 

15.1 At the time of the Fairness Hearing, BKC and Class Counsel shall jointly request that the Court enter a Final Judgment and Order in a form agreeable to the Parties granting Final Approval of this Agreement.  Among other things, the Final Judgment and Order shall attach this Agreement as an exhibit and shall provide that the Court retains jurisdiction through the Term of the Agreement in order to enforce this Agreement.

 

15.2 This Lawsuit shall be dismissed with prejudice pursuant to Rule 41 of the Federal Rules of Civil Procedure, no later than thirty (30) days following the expiration of the Term of this Agreement.

 

15.3 The Court will retain continuing and exclusive jurisdiction over the Parties, including jurisdiction over the members of the Class, for purposes of enforcing, implementing, and interpreting this Settlement.

 

16 Terms Not Confidential; Communication with the Press.

 

16.1 The terms of this Agreement shall not be confidential.

 

16.2 However, Class Counsel and Named Plaintiffs have agreed not to issue a press release concerning the Agreement. 

 

16.3 Class Counsel or BKC may discuss the Agreement with members of the media provided that neither shall make any statement to the media, written or verbal, that is inconsistent with the fact that BKC has denied all allegations of discrimination, no finding has been made against BKC, and that BKC, as part of the settlement process, has worked diligently and in good faith to ensure accessibility for the disabled at The Restaurants, nor that is inconsistent with the Parties' obligation under Paragraph 26 hereof.

 

17 Releases:

 

17.1 Release of Claims for Injunctive Relief

 

17.1.1 Effective on the date of Final Approval, Named Plaintiffs and all Class Members and each of their spouses, executors, successors, heirs, assigns, administrators, agents and representatives (collectively, the “Injunctive Releasing Parties”), in consideration of the relief set forth herein, the sufficiency of which is expressly acknowledged, unconditionally and forever do fully and finally release, acquit, and forever discharge BKC and its present, former and future parents, subsidiaries, officers, directors, employees, shareholders, administrators, executors, affiliates, attorneys, successors and assigns and all persons or entities that own, operate or lease The Restaurants covered by this Decree (the “BKC Parties”) from the Released Injunctive Claims as defined below.

 

17.1.2 The “Released Injunctive Claims” are any and all claims, rights, demands, charges, complaints, actions, suits and causes of action, whether known or unknown, suspected or unsuspected, accrued or unaccrued, for injunctive, declaratory or other non-monetary relief, however described, based on conduct preceding Final Approval of this Agreement that were brought, could have been brought or could be brought now or in the future that relate in any way to the accessibility of The Restaurants to persons who use wheelchairs or scooters under:

 

17.1.2.1 Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181 et seq., including all applicable rules, regulations, and standards thereunder;

 

17.1.2.2 Cal. Civ. Code §§ 51, et seq., and § 54, et seq., including all applicable rules and regulations and standards thereunder;

 

17.1.2.3 Cal. Code Regs., tit. 24 and all rules and regulations promulgated thereunder, and any other provision of California law to the extent it grants a right of action for alleged violations of the foregoing; and

 

17.1.2.4 Any state or local statutory, administrative, regulatory or code provisions that either (a) directly incorporate Title III of the Americans with Disabilities Act or any of the rules or regulations promulgated thereunder or (b) set forth standards or obligations coterminous with or equivalent to Title III of the Americans with Disabilities Act or any of the rules or regulations promulgated thereunder.

 

17.1.3 The “Released Injunctive Claims” also include all claims, rights, demands, charges, complaints, actions, suits, causes of action or liabilities of any kind for injunctive, declaratory or other non-monetary relief, however described, (collectively, for this subparagraph, “claims”) regarding the accessibility of The Restaurants to the mobility impaired that arise during the Term of this Decree. 

 

17.1.4 To the extent permitted by law, the final entry of this Decree will be fully binding and effective for purposes of res judicata and collateral estoppel upon BKC and the Class Members with respect to claims for injunctive or declaratory relief under Title III of the ADA, and any other federal, state, or local law, rule or regulation, order, or ordinance relating to or concerning access for persons with mobility disabilities at The Restaurants.  Nothing in this Section, however, will prevent Class Counsel from enforcing this Decree. 

 

17.2 Release of Claims for Accessibility Damages  (Named Plaintiffs and Damages Claimants Only)

 

17.2.1 Effective on the date of Final Approval, Named Plaintiffs and all Damages Claimants and each of their spouses, executors, successors, heirs, assigns, administrators, agents and representatives (collectively, the “Damages Releasing Parties”), in consideration of the relief set forth herein, the sufficiency of which is expressly acknowledged, unconditionally and forever do fully and finally release, acquit, and forever discharge the BKC Parties from the Released Damages Claims as defined below.

 

17.2.2 The “Released Damages Claims” are any and all claims, rights, demands, charges, complaints, actions, suits, causes of action, and liabilities of any kind, whether known or unknown, suspected or unsuspected, accrued or unaccrued, for changes if any kind (including, but not limited to, statutory, actual, compensatory, consequential, special,  emotional harm or punitive damages) based on conduct preceding Final Approval of this Agreement that were brought, could have been brought or could be brought now or in the future that relate in any way to the accessibility of The Restaurants to persons who use wheelchairs or scooters.

 

17.2.3 The “Released Damages Claims” also include all claims, rights, demands, charges, complaints, actions, suits, causes of action or liabilities of any kind for statutory, actual, compensatory, consequential, special,  emotional harm or punitive damages relating to the accessibility of The Restaurants to the Named Plaintiffs and Damages Claimants that arise during the Term of this Agreement. 

 

17.2.4 To the extent permitted by law, the final entry of this Decree will be fully binding and effective for purposes of res judicata and collateral estoppel upon BKC, Named Plaintiffs and all Damages Claimants with respect to claims of any kind for damages or monetary relief (including statutory, actual, compensatory, consequential, special, emotional harm or punitive damages) relating in any way to the accessibility of The Restaurants.

 

17.3 Known or Unknown Claims. The Damages Releasing Parties and the Injunctive Releasing Parties shall collectively be referred to as the “Releasing Parties.”  The Releasing Parties understand and expressly agree that this AGREEMENT extends to all claims of every nature and kind, known or unknown, suspected or unsuspected, past, present, or future, arising from or attributable to any conduct of the BKC Parties, whether known by the Releasing Parties or whether or not any Releasing Party believes he or she may have any claims, and that any and all rights granted to the Releasing Party under Section 1542 of the California Civil Code or any analogous state law or federal law or regulations, are hereby expressly WAIVED, if applicable.  Said Section 1542 of the California Civil Code reads as follows:

 

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.

 

18 Tolling of Other Pending Claims and Withdrawal of Appeal

 

18.1 “Additional Putative Claimants” shall refer to all individuals with disabilities who use wheelchairs or electric scooters for mobility who, at any time on or after October 16, 2006, were denied, or are currently being denied, on the basis of their mobility-impairment disability, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any California Burger King® restaurant, other than The Restaurants, that was leased by or from BKC at any time on or after October 16, 2006.

 

18.2 BKC agrees that any and all statutes of limitations applicable to any claims of the Additional Putative Claimants (including, but not limited to, all judicial deadlines and all administrative requirements that may be required to be satisfied prior to filing a civil law suit) alleging discrimination on the basis of mobility-impairment disabilities under the ADA, Unruh and the CDPA, at any leased Burger King® restaurant in the State of California other than The Restaurants, are hereby tolled.  BKC agrees that the statute of limitations for such claims extends back to October 16, 2006, and shall begin running again on September 1, 2010.  The Parties agree that, except as expressly stated herein, nothing contained in this Section 18 shall revive any limitations period, or portion thereof, that expired prior to October 16, 2006. 

 

18.3 The Parties' agreement concerning the date on which the statute of limitations was tolled does not waive the right of BKC to make any argument it may have concerning the date on which statutes of limitations for claims relating to new construction and alterations accrue, including, but not limited to, arguments based on Garcia v. Brockway, 526 F.3d 456 (9th Cir. 2008).  Named Plaintiffs and Class Counsel, by agreeing to this Paragraph 18.3, do not concede that Garcia has any relevance to the claims in this or any other litigation. 

 

18.4 In consideration of the tolling agreement set forth in the Paragraph 18.2 above, within ten days of Final Approval of this Agreement, Class Counsel will withdraw the appeal in Castaneda v. Burger King Corp., No. 10-15310 before the United States Court of Appeals for the Ninth Circuit. 

 

19 No Third Party Beneficiaries.

 

19.1 Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity not a Party to this Agreement any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

 

19.2 Individual class members shall not be deemed to be third-party beneficiaries of this Agreement, and they shall have no right to bring any action for any alleged violation of this Settlement.  Only the Named Plaintiffs through Class Counsel may seek to enforce the terms of this Agreement through the Dispute Resolution process provided for herein or before the Court.  To the extent individual class members have complaints regarding BKC's implementation or performance of the terms of this Agreement, they must bring them to the attention of the Named Plaintiffs and/or Class Counsel.

 

20 Entire Agreement. This Agreement contains all the agreements, conditions, promises and covenants among BKC, Named Plaintiffs, Class Counsel, the Class, and the Damages Claimants regarding matters set forth in it and supersedes all prior or contemporaneous agreements, drafts, representations or understandings, either written or oral, with respect to the subject matter of the present Agreement.