WILLITS, et al v. CITY OF LOS ANGELES - Settlement Agreement and Release of Claims

6. Settlement Approval Process

6.1. Court Approval

This Settlement Agreement shall be subject to approval by the District Court. However, nothing in this Settlement Agreement shall 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 shall constitute a material modification of this Settlement Agreement, shall prevent the Judgment from becoming Final, and shall give any Party the right to terminate this Settlement Agreement in its entirety.

6.2. Preliminary Approval by the District Court

Within five (5) days of circulating the fully executed Settlement Agreement, the Willits Plaintiffs and the City shall jointly submit a request to the District Court for Preliminary Approval of this Settlement Agreement in the Willits Action, along with a request for an order from the District Court (substantially in the form attached to this Settlement Agreement as Exhibit "C") (the "Preliminary Approval Order"): (i) preliminarily approving this Settlement Agreement; (ii) conditionally certifying the Settlement Class; (iii) appointing the Willits Plaintiffs as class representatives for the Settlement Class; (iv) appointing Class Counsel to represent the Settlement Class; (v) directing notice to the Settlement Class as provided in this Settlement Agreement; (vi) setting forth procedures and deadlines for comments and objections as provided in this Settlement Agreement; (vii) scheduling a Fairness Hearing; and (ix) enjoining Settlement Class members from asserting or maintaining any claims to be released by this Settlement Agreement pending the Fairness Hearing.

6.3. Conditional Certification of the Settlement Class

The Parties agree that the Settlement Class shall be conditionally certified, in accordance with the terms of this Settlement Agreement, solely for purposes of effectuating the settlement embodied in this Settlement Agreement. The City does not consent, and Class Counsel and the Willits Plaintiffs agree that the City shall not be deemed to have consented, to the certification of the Settlement Class for any purpose other than to effectuate the settlement embodied in this Settlement Agreement. In the event the Settlement Agreement is terminated pursuant to its terms, or if for any reason the settlement embodied in this Settlement Agreement is not effectuated or the Judgment does not become Final, the certification of the Settlement Class shall be vacated, and the Willits Action shall proceed as though the Settlement Class had never been certified, with all parties reserving all of their claims and defenses.

6.4. No Opt-Out

The Parties agree that the Settlement Class shall 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. The Parties further agree that any order, ruling, or determination by or of the District Court or any other court that permits or allows any Settlement Class member to opt out of any of the provisions of this Settlement Agreement shall constitute a material modification of this Settlement Agreement, shall prevent the Judgment from becoming Final and shall give any Party the right to terminate this Settlement Agreement in its entirety.

6.5. Notice to the Settlement Class

The Parties shall jointly request approval by the District Court of notice to the Settlement Class as set forth in this Section 6.5. Following the District Court’s issuance of the Preliminary Approval Order, the Parties shall 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 (which may be provided in conjunction with or in coordination with any notice of the Carter/Fahmie Settlement Agreement) shall be published as follows:

6.5.1. Within forty-five days (45) days after the District Court has issued the Preliminary Approval Order, the City shall cause notice of the settlement to be published for four (4) consecutive weeks in the following papers of general circulation: The Los Angeles Times and The Los Angeles Daily News in English; and La Opinion in Spanish. Such notice will include the terms required by the District Court, which are anticipated to be as follows: (i) a brief statement of the Willits Action, the settlement embodied in this Settlement Agreement, and the claims released by the Settlement Class; (ii) the date and time of the hearing on the Final Approval of the proposed Settlement Agreement; (iii) the deadline for submitting objections to the proposed Settlement Agreement; and (iv) the web page, address, and telephone and fax numbers that may be used to obtain a copy of the Notice of Settlement (substantially in the form attached to this Settlement Agreement as Exhibit "B") in English, Spanish or alternative accessible formats for individuals with visual impairments. The City shall pay the costs for the publication of the notice described in this Section, but the City, upon the commencement of the Compliance Period, shall be reimbursed for all such incurred costs from the Annual Commitment.

6.5.2. Within twenty (20) days after the District Court has issued the Preliminary Approval Order, the City shall cause a copy of the Notice of Settlement to be posted and remain posted on the City’s official website (www.lacity.org), on the Bureau of Street Services’ official website (www.ci.la.ca.us/boss) and on the Department of Disability’s official website (www.disability.lacity.org) for four (4) consecutive weeks. Such websites shall also make a copy of the Notice of Settlement available in English and Spanish, and in an accessible electronic format that can be recognized and read by software commonly used by individuals with visual impairments to read web pages. All pages or content on these websites that are part of the process for accessing the information in the Notice of Settlement shall comply with WCAG. The City shall pay the costs for the publication of the notice described in this Section, but the City, upon the commencement of the Compliance Period, shall be reimbursed for all such reasonably incurred costs from the Annual Commitment.

6.5.3. Within ten (10) days after the District Court has issued the Preliminary Approval Order, Class Counsel shall cause a copy of the Notice of Settlement to be provided to the organizations listed on Exhibit "F" to this Settlement Agreement (or such other organizations that, in Class Counsel’s judgment, serve the interests of persons with disabilities who reside in the City and rely upon wheelchairs, scooters, or other devices for mobility, possess address, electronic-mail, or other contact information for such persons, and will provide copies of the Notice of Settlement to such persons on a prompt and effective basis). Class Counsel shall pay the reasonable costs for the publication of the notice described in this Section, but Class Counsel, upon the commencement of the Compliance Period, shall be reimbursed for all such reasonably incurred costs from the Annual Commitment.

6.5.4. Within ten (10) days after the District Court has issued the Preliminary Approval Order, Class Counsel shall establish a website where a copy of the Notice of Settlement will be available in English and Spanish, and in an accessible electronic format that can be recognized and read by software commonly used by individuals with visual impairments to read web pages. All pages or content on the websites that are part of the process for accessing the information in the notice shall comply with WCAG. Class Counsel shall pay the reasonable costs for the publication of the Notice of Settlement described in this Section, but Class Counsel, upon the commencement of the Compliance Period, shall be reimbursed for all such reasonably incurred costs from the Annual Commitment.

6.6. Press Release Regarding Settlement

The Parties agree that prior to the execution of this Settlement Agreement, Class Counsel and counsel for the City issued the joint written press release regarding the settlement set forth in this Settlement Agreement substantially in the form attached hereto as Exhibit "E". The Parties agree that after the full execution of this Settlement Agreement, they and their respective counsel may discuss the settlement set forth in this Settlement Agreement with the media but shall use their best efforts: (i) to ensure that such discussions are consistent with the substance and tenor of the joint press release attached hereto as Exhibit "E"; and (ii) to refrain from disparaging the other Parties or their counsel in connection with the settlement and the matters set forth in this Settlement Agreement.

6.7. Fairness Hearing

The Parties shall jointly request that the District Court schedule and conduct a Fairness Hearing to decide whether Final Approval of the Settlement Agreement shall be granted. At the Fairness Hearing, the Parties shall jointly move for entry of the Judgment (substantially the form as attached to this Settlement Agreement as Exhibit "D"), providing for: (i) Final Approval of this Settlement Agreement as fair, adequate, and reasonable; (ii) final certification of the Settlement Class for settlement purposes only; (iii) final approval of the form and method of notice of the Judgment to the Settlement Class; (iv) final approval of the appointment of Class Counsel for the Settlement Class; (v) final approval of the appointment of the Willits Plaintiffs as class representatives of the Settlement Class; (vi) final approval of the release of the City and its Related Entities from the Released Claims; (vii) final approval of an order that the Settlement Class members will be enjoined and barred from asserting any of the Released Claims against the City and its Related Entities following entry of Judgment and up to and including the completion of the Compliance Period; (viii) a finding by the District Court that the City’s expenditure of the amounts set forth in Section 12.2 below for the purposes set forth in this Settlement Agreement is proper and reasonably calculated based on the available information to maintain and ensure accessibility of the Pedestrian Facilities located in the City of Los Angeles to persons with Mobility Disabilities; (ix) confirmation by the District Court of the findings set forth within Section 3 hereinabove, (x) the Parties and all members of the Settlement Class to be bound by the Judgment; and (xi) the District Court’s retention of jurisdiction over the Parties to enforce the terms of the Judgment throughout the term of this Settlement Agreement.

6.8. Objections to the Settlement Agreement

Members of the Settlement Class shall have an opportunity to object to the proposed Settlement Agreement but may not opt-out. The Parties shall request that the District Court order the following procedures for assertion of objections, if any, to the Settlement Agreement:

6.8.1. Any Settlement Class member may object to this Settlement Agreement by filing, within forty-five (45) days of the commencement of the issuance of the notice to the Settlement Class required under Section 6.5 above, 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 or by First Class U.S. Mail delivery and/or appearing at the Court’s Final Approval Hearing and speaking to the Court.

6.8.2. With respect to any and all objections to this Settlement Agreement received by Class Counsel, Class Counsel shall provide a copy of each objection to counsel of record for the City, by messenger delivery or electronic-mail delivery, within two (2) court days after receipt of such objection.

6.8.3. Responses by Class Counsel and/or the City to any timely-filed objections shall be filed with the District Court no less than five (5) days before the Fairness Hearing, or as otherwise ordered by the Court.

6.9. Additional Steps

The Parties shall take all procedural steps regarding the Fairness Hearing that may be requested by the District Court and shall otherwise use their respective best efforts to consummate the settlement embodied in this Settlement Agreement, and to obtain approval of this Settlement Agreement, entry of the Judgment and dismissal with prejudice of the Griffin and Pineda Actions.

6.10. Final Approval

6.10.1. The Parties agree that upon Final Approval the District Court shall enter the Judgment under Rule 54(b) of the Federal Rules of Civil Procedure (substantially in the form attached to this Settlement Agreement as Exhibit "D") dismissing the Willits Action with prejudice, subject to the District Court retaining jurisdiction to resolve any Dispute (as defined below) regarding compliance with this Settlement Agreement that cannot be resolved through the process described in Section 19 below, and to rule on Plaintiffs’ motion for reasonable attorneys’ fees and costs, as described in Section 21.3 below.

6.10.2. Conditioned upon: (i) the District Court granting Final Approval of this Settlement Agreement, and the Judgment becoming Final; (ii) the Superior Court dismissing with prejudice the Pineda and Griffin Actions; and (iii) the Superior Court granting final approval of the Carter/Fahmie Settlement and the Carter/Fahmie Settlement becoming Final, the Parties stipulate and agree that the City consents to the District Court exercising jurisdiction over the state law claims alleged in the Carter/Fahmie Action for the sole purpose of enforcing this Settlement Agreement. The City will not assert, after the Judgment has become Final, that the District Court lacks jurisdiction to enforce the terms of this Settlement Agreement, or raise any jurisdictional defense to any enforcement proceedings permitted under the terms of this Settlement Agreement.

6.10.3. Should the District Court deny the Parties’ request to enter the Judgment, should this Settlement Agreement not receive Final Approval by the District Court for any reason, or should this Settlement Agreement not become Final for any reason in accordance with its terms: (i) this Settlement Agreement shall be null and void and of no force and effect; (ii) nothing in this Settlement Agreement shall 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, shall be admissible in evidence, referred to for any purpose in any litigation or proceeding, or be deemed an admission by the City of any fault, wrongdoing or liability.