Number range CHAPTER

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 99-109-CIV-GARBER

> )

ACCESS NOW, INC., et. al, )

)

> )

Plaintiffs, )

> )

v\. )

> )
>
> )

AMBULATORY SURGERY CENTER )

GROUP, LTD., et al., )

)

)

Defendants. )

)

**OBJECTIONS OF AMICUS CURIAE UNITED STATES**

**TO PROPOSED CLASS ACTION PARTIAL SETTLEMENT AGREEMENTS OF [NORTHWEST
MEDICAL CENTER INC.]{.underline}** **[AND LARGO MEDICAL CENTER,
INC.]{.underline}**

**I. INTRODUCTION**

In December 2001, plaintiffs Access Now, Inc. ("Access Now" or
"Plaintiffs") filed a fourth amended class action complaint alleging
violations of the Americans with Disabilities Act ("ADA") by Defendants.
The fourth amended complaint alleges that Defendants, nationwide
providers of health care services operating over 450 medical facilities
throughout the United States, have denied the class the full and equal
enjoyment of their goods, services, program, facilities, privileges,
advantages, or accommodations, and full and equal access to their
facilities in violation of the ADA.

The plaintiff class in this matter, which this Court conditionally
certified on May 18, 2000, includes "\[a\]ll people in the United States
with disabilities as that term has been defined by U.S.C. § 12102(2)
\[title III of the ADA\] . . . ." As the Plaintiffs stated in their
motion for class certification, the "proposed Class is gigantic in size"
and "is as geographically diverse as the United States."[^1]

On January 2, 2002, Plaintiffs and Settling Defendants, Northwest
Medical Center, Inc. and Largo Medical Center Inc. ("Northwest,"
"Largo," or "Settling Defendants"), filed partial class action
settlement agreements (the "Agreements") that purport to settle all
accessibility claims \-- both ADA-based claims as well as claims arising
under state and local accessibility laws \-- on behalf of a nationwide
class of persons with respect to Northwest and Largo.[^2] In the

Agreements, the parties state their intent to forever resolve and bar
all claims concerning physical, communication, or program access
barriers arising under the ADA or relevant state law. Further indicia of
the parties' intent is the language of the public notice of settlement,
which advises that:

> the general release in this action will be effective to [forever
> discharge]{.underline} any claims relating to physical, communication,
> structural and program access barriers, if any, at the Medical Center
> by a class member [whether known or unknown]{.underline} to the class
> member at the time of the settlement agreement.

(Docket \## 132, 133, Exhibit B) (emphasis added).

Where, as here, settlements of a private enforcement action purport to
bind all individuals covered by title III of the ADA from hereafter
asserting rights under those provisions, it is appropriate for the
Attorney General to assist the Court in determining whether such
agreements are, in reality, in the public interest. The instant
Agreements simply are not. These settlements so favor the defendants --
Northwest and Largo -- and so limit future ADA enforcement actions on
behalf of persons with disabilities, that the United States must object
to their approval. *Amicus curiae* United States of America urges the
Court to reject these Agreements on numerous grounds. The Northwest and
Largo Agreements are so procedurally flawed that their endorsement would
compromise the legal interests of both the greater disability community
and the United States. These flaws include (1) constitutionally
defective class notice; (2) an overly broad release provision that
waives claims that are not addressed and/or remedied by the Agreements;
and (3) an onerous mechanism for resolving disputes about access or
compliance with the terms of the Agreements that is heavily weighted in
favor of Settling Defendants. While voluntary settlement of litigation
is always a laudable goal, the procedural flaws of these Agreements
require this court to reject these partial settlement Agreements.

**II. BACKGROUND AND PROCEDURAL HISTORY**

In January 1999, Access Now filed a complaint against Cedars Health Care
Group, Ltd. ("Cedars"), a Florida corporation operating healthcare
service facilities in Miami, Florida, alleging that Cedars intentionally
discriminated against plaintiffs and individuals with disabilities in
violation of the ADA, by denying them access to, and full and equal
enjoyment of, the goods, services, facilities, privileges, advantages
and/or accommodations of the hospital. (Docket #1, at ¶ 8). Since the
initial complaint was filed in this matter, four amended complaints have
been filed, each time adding more defendants. (Docket \## 1, 24, 43, 68,
130).

On May 18, 2000, this Court, pursuant to Rule 23 of the Federal Rules,
conditionally granted certification of a class that includes "all
persons in the United States" covered by the ADA. (Docket \# 63). In its
fourth amended class action complaint, filed in December 2001,
Plaintiffs allege that the class, which "consist\[s\] of well over Ten
Million (10,000,000) members" has been denied full and equal access to
public accommodations owned or operated by Defendants, nationwide
providers of health care services operating over 450 medical facilities
throughout the United States, in violation of the ADA. (Docket \# 130,
¶¶ 13, 15).

On January 2, 2002, Plaintiffs and Settling Defendants Northwest and
Largo filed Partial Settlement Agreements that purport to settle any
accessibility claims concerning physical, communications, structural,
and program access barriers on behalf of a nationwide class of persons
with respect to Northwest and Largo. (Docket \## 132, 133.) By Orders
dated January 2, 2002, this Court scheduled the fairness hearings for
March 11, 2002, directed the parties to provide notice to the Class, and
set February 15, 2002, as the cut-off date for objections to the
Northwest Agreement and Largo Agreement. [See]{.underline} Orders as to
the Notice of Partial Settlement Agreements (Docket ##134, 135).

The Court also Ordered the Parties to provide notice of the agreement to
the class members via one of the following methods: (i) newsletter or
(ii) announcement on the Internet website of Access Now, Inc. (Docket \#
80). This Court's Order also provided that summary notices are to be
posted at one or two public locations in the facility or facilities
affected by the proposed Agreements. [Id]{.underline}.

The summary notice advises that Settling Defendants will improve access
to and usability of their facilities for persons with disabilities in
exchange for a "general release\...effective to forever discharge any
claims relating to physical, communication, structural and program
access barriers . . . ." (Docket \## 132, 133, Exhibit B).

# III. ARGUMENT

1.  **[Introduction]{.underline}**

Access Now and Settling Defendants, as proponents of the class
settlements, bear the burden of demonstrating that these Agreements
represent a fair and reasonable resolution of class members'
discrimination claims. [See]{.underline}, [e.g.]{.underline}, [In re
General Motors Corp. Pick-Up Fuel Tank Products Liability
Litigation]{.underline}, 55 F.3d 768, 785 (3rd Cir. 1995), [cert.
denied]{.underline}, 516 U.S. 824 (1995); [Holmes]{.underline}, 706 F.2d
1144, 1147 (11th Cir. 1983). As discussed below, these Agreements are so
flawed that the parties do not come close to satisfying this burden and
the Court must, therefore, reject these Settlement Agreements.

Determining the propriety of a settlement is committed to the sound
discretion of the district court. [See]{.underline}, [e.g.]{.underline},
[Sterling v. Stewart]{.underline}, 158 F.3d 1199, 1201 (11th Cir. 1998);
[Bennett v. Behring Corp.]{.underline}, 737 F.2d 982, 986 (11th Cir.
1984). Because "the \[class action\] settlement process is more
susceptible than adversarial adjudications to certain types of abuse,"
[Pettway v. American Cast Iron Pipe Co.]{.underline}, 576 F.2d 1157,
1214 (5th Cir. 1978), [cert. denied]{.underline}, 439 U.S. 1115
(1979),[^3] the Court has a "heavy duty to ensure that any agreement is
'fair, adequate, and reasonable.'" [Piambino v. Bailey]{.underline}, 757
F.2d 1112, 1139 (11th Cir. 1985) (internal citation omitted), [cert.
denied]{.underline}, 476 U.S. 1169 (1986); [see also]{.underline}
[Holmes]{.underline}, 706 F.2d at 1147; [United States v. City of
Hialeah]{.underline}, 899 F. Supp. 603, 606 (S.D. Fla. 1994),
[aff'd]{.underline}, 140 F.3d 968 (11th Cir. 1998).[^4]

When assessing the propriety of a class action settlement agreement, the
court's discretion is also limited in two other respects. First, the
court cannot sanction a proposed settlement that is either collusive or
contrary to public policy. [See]{.underline}, [e.g.]{.underline},
[United States v. City of Alexandria]{.underline}, 614 F.2d 1358, 1362
(5th Cir. 1980). Second, the Court does not have the authority to modify
the terms of a class action settlement agreement; the agreement must be
approved or rejected as a whole. [See]{.underline}, [e.g.]{.underline},
[Brooks v. Georgia State Bd. of Elections]{.underline}, 59 F.3d 1114,
1119-20 (11th Cir. 1995); [Holmes]{.underline}, 706 F.2d at 1160
("Courts are not permitted to modify settlement terms or in any manner
to rewrite the agreement reached by the parties.").

The Court must ensure the fairness of a negotiated settlement agreement
and may not modify it. Accordingly, because of the myriad of procedural
defects of the Agreements before this Court, the Court must reject the
Agreements.

**2. [The Class Notices Are Defective and Will Reach Only A
]{.underline}**

> **[Minuscule Portion of Class Members]{.underline}**

The primary flaw underlying the class notice in these Agreements
concerns their limited means of distribution. The class notices violate
due process and fail to meet Rule 23's notice requirements. Because
class action litigation under Rule 23 has a preclusive effect on class
members \-- most of whom are not even aware of the litigation \-- both
procedural due process and statutory considerations require that notice
of a proposed settlement be disseminated to the class prior to final
judicial approval. [See]{.underline} [Eisen v. Carlisle &
Jacquelin]{.underline}, 417 U.S. 156, 172-77 (1974); Fed. R. Civ. P.
23(c)(2), 23(e). At a minimum, due process demands that notice must be
"reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an
opportunity to present their objections." [Mullane v. Central Hanover
Bank & Trust Co.]{.underline}, 339 U.S. 306, 314 (1950).

Beyond this basic due process standard, the nature and degree of notice
required largely depend on the types of claims covered by the settlement
and the identity of interests among class members. In class actions
where individual interests are stronger and class interests less
cohesive \-- typically, claims for monetary relief certified under Rule
23(b)(3) \-- both Rule 23(c) and due process demand stronger procedural
protections for absent class members. [See]{.underline},
[e.g.]{.underline}, [Holmes v. Continental Can Co.]{.underline}, 706
F.2d at 1155-59. Both due process and Rule 23(c)(2) mandate that absent
class members be given both (i) "the best notice practicable under the
circumstances, including individual notice to all members that can be
identified through reasonable efforts," and (ii) an opportunity to
exclude themselves or "opt-out" of the class and lawsuit. Fed R. Civ. P.
23(c)(2); [see]{.underline} [also]{.underline} [Eisen]{.underline}, 417
U.S. at 173-76 (individual notice must be sent to identifiable class
members under Rule 23(c)(2) regardless of expense).

Viewed through the lens of these statutory and due process requirements,
the Northwest and Largo class notices cannot withstand scrutiny. The
release provisions in these Agreements are exceedingly broad, barring
class members from litigating not only ADA title III claims arising
after the date of the settlement agreement, but also claims for
compensatory or punitive damages under state or local accessibility
laws. Northwest and Largo Agreements, Section IX.B. As the summary
notice of the Agreements advises, class members:

> are deemed to have waived the protection provided by any state
> statutes or codes with respect to unknown claims at the time of a
> general release, and the general release in this action will be
> effective to [forever discharge any claims]{.underline} relating to
> physical, communication, structural and program access barriers, if
> any, at the Medical Center by a class member whether known or unknown
> to the class member at the time of the settlement agreement.

(Docket ##132, 133, Exhibit B) (emphasis added). Because the Agreements
purport to waive monetary claims, due process requires actual notice and
an opportunity to opt out irrespective of whether the class has been
conditionally certified. The Class Members were afforded neither of
these procedural protections.[^5]

Even assuming arguendo that the Agreements' expansive release provisions
do not necessitate these constitutionally-enhanced procedural measures,
the class notices are nonetheless defective under the more lenient
"reasonableness" standard governing class notice under Rule 23(e). For
class actions seeking to compromise claims for injunctive or declaratory
relief, federal courts have generally upheld published notices so long
as the notices adequately inform interested parties of the pendency of
the lawsuit, provide a summary of the agreement's general terms, and
inform parties of their respective rights thereunder. [See]{.underline},
[e.g.]{.underline}, [Mendoza v. United States]{.underline}, 623 F.2d
1338, 1350-51 (9th Cir. 1980), [cert. denied]{.underline}, 450 U.S. 912
(1981); [Allen v. Alabama State Bd. of Educ.]{.underline}, 190 F.R.D.
602, 606-07 (M.D. Ala. 2000); [Stanley v. Darlington County School
Dist.]{.underline}, 879 F. Supp. 1341, 1372-73 (D.S.C. 1995), [rev'd in
part on other grounds]{.underline}, 84 F.3d 707 (4th Cir. 1996).

The means of distribution mandated by these Agreements are too
inadequate to be deemed reasonable. By this Court's Amended Class Order,
dated January 8, 2002, the parties' proposed publication scheme provides
that notice need only be published in Access Now's Inc. newsletter*,*
[or]{.underline} be posted on Access Now's website.[^6] (Docket \## 80,
139). Further, the parties are only required to post a summary notice in
one or two public locations in each of the facility or facilities
affected by the proposed settlements.

Plaintiffs acknowledge the class is gigantic and the class numbers over
ten million individuals. [^7] (Docket \# 41.) By contrast, membership in
Access Now is approximately 643 persons. [See]{.underline}
[[www.adaaccessnow.org/jan02.]{.underline}](http://www.adaaccessnow.org/board.)
As such, a minuscule percentage of the ten million member class will
receive notification of these Settlement Agreements in Access Now's
newsletter. While it is unknown how frequently the members of the
disability community visit the Access Now's website, it is highly
unlikely that this web site -- or the notices to be posted thereon --
will be viewed with sufficient frequency to reasonably apprise class
members of the pendency of these Agreements.

Similarly, posting a summary of the settlement terms in one or two
public locations at each Settling Defendants' facilities cannot
reasonably apprise the vast number of individuals affected by these
Settlement Agreements. There are seven different buildings covered by
the Agreements with various floors and suites -- merely posting the
notice in one or two places in a large hospital will not ensure
notification to a large number of current or potential disabled patients
and visitors.

In summary, the Agreement's notice provisions violate class members' due
process rights and fail to meet Rule 23 notice requirements of actual
notice and an opportunity to opt-out of

the settlement agreement. Moreover, even under the more lenient
"reasonableness" standard governing class action notices, the notice is
flawed because of the limited distribution.

**3. [The Release Provisions are Overbroad]{.underline}**

The Agreements' release provisions suffer from both overbreadth and
ambiguity. The release provisions are ambiguous and it is difficult to
determine, with any precision, what rights and claims the class members
are waiving. The release provisions are overbroad in three significant
respects, they: a) appear to waive access claims arising after the date
of the settlement agreement; b) bar state and local law claims which may
provide remedies not available under the ADA; and c) bar claims not
addressed and/or remedied in the Agreements.

In the release provisions, Named Plaintiffs and all class members
release and waive all "Released Claims" as defined in the Agreements.
[See]{.underline} Section IX.A(1). The definition of "Released Claims"
includes accessibility claims based on the ADA as well as state and
local disability-related statutes, rules and regulations.
[See]{.underline} Section IX.B. In the release, the

> Named Plaintiffs and all Class Members\... fully and finally release
> and forever discharge the Settling Defendants . . . from any and all
> past and/or present claims, rights, demands, charges, complaints,
> actions, causes of action, obligations, or liabilities of every kind
> that were or could have been brought, known or unknown, for individual
> and/or class relief based on any and all claims arising under or
> related to Title III of the ADA or its implementing regulations \[or
> under more stringent state or local statute, rules, or regulations, if
> applicable\] concerning any of the Settling Defendant's Facility (ies)
> that have been or could have been brought or asserted in this action,
> in any action in any court of competent jurisdiction, or in any
> arbitration of federal, state, or local agency administrative
> proceeding.

[Se]{.underline}e Section IX.B(5). Indeed, when the release provisions
are interpreted in light of the recital provisions and the summary
notice, they plainly are so all encompassing that they should not be
countenanced by this Court.[^8]

> A. *The Release Provisions Appear To Waive Access Claims* *Arising
> After The Date Of The Settlement Agreement*s

The Agreements purport to forever waive the rights of all class members
to bring access claims, even egregious claims, that arise after the date
of the Agreements. Courts have viewed prospective waivers of
individuals' civil rights -- whether arising out of the ADA or other
anti-discrimination statutes -- with great disfavor. [See,]{.underline}
[e.g]{.underline}., [Alexander v. Gardner-Denver Co.]{.underline}, 415
U.S. 36, 51-52 (1974) ("\[There can be no prospective waiver of an
\[individual's\] rights under Title VII."); [Adams v. Philip Morris,
Inc.]{.underline}, 67 F.3d 580, 584 (6th Cir. 1995) (\"A\[\] \[party\]
cannot purchase a license to discriminate\"); [Uherek v. Houston Light
and Power Co.]{.underline}, 997 F. Supp. 789, 792 (S.D. Tex. 1998) ("A
party may validly waive \[Title VII\] claims that exist on the day she
signs a release, but not future claims."); [see]{.underline}
[also]{.underline} [Rivera-Flores v. Bristol-Myers Squibb
Caribbean]{.underline}, 112 F.3d 9, 10-12 (1st Cir. 1997) (holding
[past]{.underline} ADA claims subject to waiver so long as release was
knowing, voluntary, and "given in exchange for additional benefit").
This Court should not issue Settling Defendants a license to
discriminate by approving this Agreement. [See]{.underline},
[e.g.]{.underline}, [City of Alexandria]{.underline}, 614 F.2d at 1362
(noting judicial duty to ensure class action settlement Agreements are
neither illegal nor contrary to public policy); [Shurford]{.underline},
897 F. Supp. at 1547 (same). In the interest of fairness and public
policy, these Agreements must be rejected.

The prospective release is especially troubling because it will
substantially compromise the Department of Justice's ADA enforcement
efforts to protect the rights of individuals with disabilities and the
public interest. The Department of Justice is the federal agency with
primary responsibility for enforcing Title III of the ADA and its
implementing regulations against public accommodations.
[See]{.underline} 42 U.S.C. §§ 12181 - 12189; 28 C.F.R. pt. 36 (1994).
In keeping with this responsibility, the Department has the statutory
authority to conduct compliance reviews of entities covered by Title
III, investigate alleged violations -- sometimes based upon individual
complaints \-- and, when necessary and appropriate, commence a civil
action in district court for equitable relief, civil penalties, and/or
monetary damages for the aggrieved party or parties. 42 U.S.C. §
12188(b).

The Agreements prohibit class members from "ever asserting a Released
Claim, and from commencing, joining in or voluntarily assisting in a
lawsuit or adversary proceeding, against the Released Parties arising
out of, regarding, or *relating* *to* the Released Claims \... ."
against the Settling Defendants. Section IX.B(3) (emphasis added). This
release provision may inhibit disabled persons from filing complaints
with the Department of Justice or assisting the Department with an
investigation of future ADA violations at Settling Defendants'
facilities. This provision could also deter individuals from recovering
compensatory damages for future Title III violations pursuant to the
Department's enforcement activities. In sum, the prospective release
provision is unfair, contrary to public policy, and would undermine the
Department of Justice's ADA enforcement efforts.

> B. *The Release Includes State and Local Law Claims Which Are Not
> Addressed By The Agreements*

The Agreements are also overbroad in that they bar class members from
bringing claims under state and local accessibility laws which may
provide remedies not available under the ADA. Section IX.B;
[see]{.underline} [also]{.underline} Section I.H(6); Exhibit B. For
example, Florida law provides that disability discrimination by places
of public accommodation gives rise to cause of action for "compensatory
damages, including . . . mental anguish, loss of dignity, and any other
intangible injuries, and punitive damages." Fla. Stat. Ann. §§ 413.08,
760.07, 760.11(5) (West 1998). The ADA does not provide for such a range
of compensatory damages.

C. *The Release Provisions Bar Claims Not Addressed And/Or Remedied In
These Agreements*

The release provisions are also overbroad because they bar litigation
concerning access issues that the Agreements do not address and/or
remedy. Furthermore, it is unclear whether these Agreements even address
all of the ADA violations that were at issue in this case. Without
reviewing and verifying a detailed expert report about access at each
facility, and reviewing every written or unwritten hospital policy, a
class member cannot, at this time determine, if the Agreements resolve
(or even identify) all accessibility issues that may affect him.

**4. [The Agreements' Dispute Resolution Mechanism is Burdensome and
Unlikely to]{.underline} [Afford Complete Relief to Class Members
]{.underline}**

In lieu of encouraging fast resolutions of small problems which arise
under the Agreements, and the remedying of lack of compliance with these
Agreements, the "Dispute Resolution Procedures" purport to provide a
mechanism whereby class members may bring complaints to the attention of
Settling Defendants and, subsequently, the district court. However, as
with other aspects of these Agreements, the "benefits" conferred by this
dispute resolution scheme are largely illusory and, in any event,
heavily weighted in favor of Settling Defendants. While the United
States favors dispute resolution before involving the Court, the
proposed dispute resolution procedures are burdensome, expensive, and
ineffective, and are thus another ground for this Court's rejection of
these Settlement Agreements.

The dispute resolution mechanism set forth in these Agreements is wholly
deficient for various reasons. First, the procedures are burdensome. In
order to invoke the dispute resolution procedures, a class member must
provide written notice to the Settling Defendants. Section V.A(1)&(2).
Such notice must describe in great detail the facts and circumstances of
the dispute, including references to all specific provisions of the
Agreement, the remedial action sought, and any arguments supporting the
class member\'s position. Section V.A(2)(a), (b). The Settling
Defendants has 20 days after receipt of the class member\'s notice to
respond. Moreover, the class members must engage in negotiations, for an
indefinite period of time before seeking mediation with the assigned
Magistrate Judge. Section V.A(2)(d). This onerous process substantially
interferes with prospects of informal resolutions and could
substantially delay supplemental relief.

Second, the dispute resolution provisions set forth "Standards" that the
Parties must follow in any dispute resolution procedure. Section V.B(1).
According to these "Standards," if the Settling Defendant merely asserts
that it is unable to implement the terms of the Agreement, or is unable
to meet the deadlines set forth in the Agreement, then the Parties must
negotiate a "substitute modification" in lieu of compliance with the
Agreement. [Id]{.underline}. "Substitute modification" means "an
alternative access improvement that will not be more expensive or
otherwise burdensome for Settling Defendant than the one that Settling
Defendant is unable to implement, and one that is consistent with the
purpose of this Agreement." [Id]{.underline}. Settling Defendant can
simply contend, without any supporting evidence, that they can not
comply with the Agreement. The class members are subsequently forced to
negotiate a "substitute modification," which may result in even less
access.

In sum, the dispute resolution scheme is highly weighted in favor of
Settling Defendants and are designed to delay effective relief under the
terms of the Agreements.

**5. [The Agreements Lacks Any Mechanism for Monitoring
Compliance]{.underline}**

There is no mechanism for monitoring compliance with the Agreements.
While the absence of an effective monitoring program may not alone be a
reason to reject the Agreements, the lack of such a program -- when
coupled with the Agreements' other significant procedural problems --
underscores the manifest injustice class members will likely suffer if
the district court endorses the Agreements. [Cf]{.underline}. [Van Horn
v. Trickey]{.underline}, 840 F.2d 604, 608 (8th Cir. 1988) (affirming
district court\'s approval of prisoners\' class action challenging
conditions at correctional center when settlement agreement provided,
[inter]{.underline} [alia]{.underline}, strong compliance monitoring
program by court-appointed committee of penal experts).

**IV. CONCLUSION**

Because the Agreements proposed by the Parties are procedurally
defective, the United States Objects to their approval and urges the
Court to deny entry of these Agreements.

DATED: March \_\_\_, 2002

Respectfully submitted,

> Ralph F. Boyd, Jr.
>
> Assistant Attorney General
>
> Civil Rights Division
>
> John L. Wodatch, Chief
>
> L. Irene Bowen, Deputy Chief
>
> Philip L. Breen, Special Legal Counsel
>
> Disability Rights Section

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

> Alyse S. Bass

Margaret L. Baskette

> Trial Attorneys
>
> Disability Rights Section
>
> Civil Rights Division
>
> United States Department of Justice

P.O. Box 66738

> Washington, D.C. 20035-66738
>
> \(202\) 616-9511

\(202\) 616-0330

> \(202\) 307-1198 (fax)

\[[[alyse.bass@usdoj.gov]{.underline}](mailto:%5Bbass.alyse@usdoj.gov)\]

\[[[peggy.baskette@usdoj.gov\]]{.underline}](mailto:%5Bbaskette.peggy@usdoj.gov%5D)

Guy A. Lewis

United States Attorney

Veronica Harrell-James

Assistant United States Attorney

Southern District of Florida

99 Northeast Fourth Street -6^th^ Floor

Miami, Florida 33132

\(305\) 961-9327

> Counsel for United States of America

[CERTIFICATE OF SERVICE]{.underline}

I hereby certify that on this \_\_ day of March, 2002, true and correct
copies of "UNITED STATE'S MOTION FOR LEAVE TO PARTICIPATE AS AMICUS
CURIAE" and "OBJECTIONS OF AMICUS CURIAE UNITED STATES TO PROPOSED CLASS
ACTION PARTIAL SETTLEMENT AGREEMENTS OF NORTHWEST MEDICAL CENTER INC.
AND LARGO MEDICAL CENTER, INC.," and "PROPOSED ORDER" were served by
Federal Express, postage pre-paid, on the following parties:

Miguel M. de la O

de la O and Marko, P.A.

3001 S.W. 3^rd^ Avenue

Miami, Florida 33129

Attorney for Plaintiffs and the Class

Youndy C. Cook

Ford & Harrison

101 E. Kennedy Blvd.,

Suite 900

Tampa, Florida 33602

Attorneys for Settling Defendant

> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Alyse Bass

[^1]: ^?^ [See]{.underline} Plaintiff's Motion for Class Certification
    and Memorandum of Law Thereof (filed January 14, 2000)(Docket \# 41
    p. 7-8).

[^2]: ^?^ Settling Defendant Northwest is an owner of the following
    properties: (1) Northwest Medical Center, 2801 N. State Road, 7,
    Margate, Florida; and (2) Northwest Medical Plaza Condominium
    located at 5800 Colonial Drive, Margate, Florida. Northwest owns and
    operates healthcare provider services at Units 106, 107, 108, 200,
    201, and 202 of the Northwest Medical Plaza Condominium. In
    addition, Northwest leases and operates healthcare provider services
    at the following properties: (1) the first floor of the Medical
    Office Building, West 2825 North State Road, Margate, Florida; (2)
    Suites 101, 103, 311 of the Medical Office Building, 5901 Colonial
    Drive, Margate, Florida.

    Settling Defendant Largo is an owner of the following properties:
    (1) Largo Medical Center, 201 14^th^ Street SW, Largo, Florida. In
    addition, Largo leases and operates healthcare provider services at
    the following properties: (1) Medical Arts Building, 1345 West Bay
    Avenue in Largo, Florida (Suites 204, 205, and 401); (2) Second
    floor of 1300 S. Fort Harrison Avenue, Clearwater, Florida.

    Both Settling Defendants are affiliated with HCA - The Healthcare
    Co.

[^3]: ^?^ In [Bonner v. City of Prichard]{.underline}, 661 F.2d 1206
    (5th Cir. 1981) (*en banc*), the Eleventh Circuit adopted as binding
    precedent all decisions of the former Fifth Circuit decided prior to
    October 31, 1981.

[^4]:

[^5]: ^?^ Even publication of a class notice in the largest circulation
    newspapers or magazines is rarely a constitutionally acceptable
    substitute for individual, mailed notice. [See]{.underline},
    [e.g.]{.underline}, [Eisen]{.underline}, 417 U.S. at 175
    ("'\[N\]otice by publication ha\[s\] long been recognized as a poor
    substitute for actual notice and . . . its justification \[is\]
    'difficult at best.'") ([quoting]{.underline} [Schroeder v. City of
    New York]{.underline}, 371 U.S. 208, 213 (1962));
    [Mullane]{.underline}, 339 U.S. at 313-15 (holding publication of
    notice in local newspaper constitutionally insufficient, and noting
    "\[i\]t would be idle to pretend that publication alone . . . is a
    reliable means of acquainting interested parties of the fact that
    their rights are before the courts").

[^6]: ^?^ On January 8, 2002, this Court amended the Class Orders.
    Pursuant to the Amended Class Order, if Plaintiffs reach future
    settlement Agreements with multiple Defendants, the parties may
    aggregate the fairness hearing "to reduce the need for separate
    hearings." (Docket #139). The parties' desire to avoid separate
    hearings on future settlement agreements is yet an other example of
    how the parties are depriving class members of a fair and full
    opportunity to present their objections. The parties apparently
    intend to use these Agreements as a model for the remaining hospital
    settlements that makes the rejection of them even *more* critical to
    the rights of disabled individuals.

[^7]: ^?^ In enacting the ADA, Congress found that "some 43,000,000
    Americans have one or more physical or mental disabilities, and this
    number is increasing\..." 42 U.S.C. § 12102.

[^8]: ^?^ The summary notice explains that, the Agreements will "bar all
    class members from asserting [any claims]{.underline} against the
    Medical Center concerning physical, communication, structural and
    program access barrier." (Docket ##132, 133, Exhibit B). The
    "Recital" language, Section I. H( 6), expresses the parties intent
    to forever bar access claims and to:

    > Bind Settling Defendant, Named Plaintiffs, and the Class, so that,
    > *inter alia*, neither the Named Plaintiffs nor any Class member
    > will hereafter assert or claim that Settling Defendant is required
    > to make additional or different modifications \...or \... follow
    > different standards for Future Construction or Renovation, beyond
    > what is agreed to herein in order to comply with federal or
    > applicable state laws regarding access for Persons with
    > Disabilities, and no Class member will hereafter assert a legal
    > claim against Settling defendant under the ADA\...or any federal,
    > state or local laws \....arising form or relating to a physical,
    > communication, or operational access feature (or lack thereof)
    > covered under this Agreement."