United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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,

 v.

BURGER KING CORPORATION,

Defendant. /

No. C 08-04262 WHA

ORDER GRANTING MOTION FOR

FINAL APPROVAL OF CLASS

SETTLEMENT

INTRODUCTION

This class settlement is said by the parties to be the largest ever on a per class member

basis and per facility basis in a disability case involving public accommodations. This is an

ADA class action alleging barriers to access on behalf of mobility-impaired customers of

restaurants leased by defendants. Ten classes were certified — one for each of the restaurants

at which a named plaintiff allegedly encountered an access barrier — with separate trials

scheduled for each class. Plaintiffs and defendant now move for final approval of a stipulated

settlement agreement that would resolve this action as to all ten certified classes. Additionally,

class counsel moves for an award of attorney’s fees in the amount of $2,274,187.86, and costs

and expenses in the amount of $225,138.87. Lead plaintiffs Miguel Castaneda, Katherine

Corbett and Joseph Wellner also request compensation for their services to the class. For the

Case 3:08-cv-04262-WHA Document 361 Filed 07/12/10 Page 1 of 7
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

reasons explained below, the proposed settlement is fair, reasonable, adequate and in the best

interests of the class, and final approval of the proposed settlement is GRANTED.

STATEMENT

Named plaintiffs, Miguel Castaneda, Katherine Corbett, and Joseph Wellner, use

wheelchairs or scooters for mobility. They brought this action to remedy alleged architectural

barriers to access at restaurants that defendant Burger King Corporation leases to franchisees in

California. The putative class sued for an injunction ordering defendant to adopt policies that

would ensure access for customers who used wheelchairs and scooters and to bring the leased

restaurants into compliance with the Americans with Disabilities Act, 42 U.S.C. 12101, Section

51 of the California Civil Code (the Unruh Civil Rights Act), and Section 54 of the California

Civil Code (the California Disables Persons Act). They also sought the statutory minimum

damages for each offense, which includes $4,000 for each violation. Plaintiffs alleged that a

violation occurred each time a patron visited a store and encountered an access barrier there.

Plaintiffs sought to certify a single class including patrons of all Burger King restaurants

in California leased by Burger King to franchisees. There were approximately 92 such stores. 

A September 2009 order held that whether or not any particular store was ever out of ADA

compliance would have to be determined store by store and feature by feature, and therefore

certified a separate class for each of the ten individual restaurants where a named plaintiff

encountered alleged access barriers (Dkt. No. 226). Class members were required to opt-in to

be eligible to claim individualized statutory damages pursuant to the Unruh Act and the CDPA. 

The deadline for persons to opt in as class members was March 1, 2010. Three hundred eightytwo people opted in by the deadline. An additional 27 individuals contacted class counsel and

may or may not be damages claimants. The parties have agreed that these individuals shall be

sent damages notices and claims forms and shall be allowed to make valid claims for monetary

damages if they so choose.

Summary judgment motions relating to the first class scheduled for trial — the class of

patrons of the Burger King restaurant located at 6021 Central Avenue, in El Cerrito — were

pending when the parties filed their joint motion for preliminary approval of class settlement. 

Case 3:08-cv-04262-WHA Document 361 Filed 07/12/10 Page 2 of 7
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

Preliminary approval was granted on March 18, 2010. A deadline for class members to opt out

of the settlement for injunctive relief was June 7, 2010.

Additionally, class members could opt in to receive monetary damages by March 1,

2010. Each damages claimant had to complete a claim form documenting his or her eligible

visits to one of the ten restaurants where he or she encountered a barrier to access. Monetary

awards to each damages claimant will be distributed pro rata based on the total number of visits

by each damages claimant with a maximum number of six visits for which each claimant may

obtain recovery. Class members who did not opt in to receive damages claims did not release

their rights to pursue such claims separately even if they did not opt out of the injunctive relief

settlement. 

ANALYSIS

Three issues are addressed in this order. First, this order will explain why the pending

settlement is fair, reasonable and adequate under FRCP 23(e) and Hanlon v. Chrysler Corp.,

150 F.3d 1011, 1026 (9th Cir. 1998) (setting forth the factors to be considered when evaluating

class action settlements). Second, this order will explain why the lead plaintiffs should be fairly

compensated for their time and effort in this litigation. Third, this order will provide the basis

for why the awarded attorney’s fees are reasonable.

1. THE SETTLEMENT AGREEMENT IS FAIR, REASONABLE, AND ADEQUATE.

Having scrutinized the terms of the settlement agreement, proposed plan of distribution,

and adequacy of notice to class members, and having considered the motion for final approval

of the settlement agreement, the declarations submitted therewith, oral argument by counsel,

and all other documents of record in this matter, this order holds that the settlement agreement

is in the best interests of the class and is fair, reasonable and adequate under the factors set forth

in Hanlon.

No class members have opted out of the injunctive relief settlement. No objections to

the settlement have been filed. The settlement agreement provides for injunctive relief,

including the elimination of alleged accessibility barriers, the use of mandatory checklists with

specific accessibility items for remodeling, alterations, repairs and maintenance, and the

Case 3:08-cv-04262-WHA Document 361 Filed 07/12/10 Page 3 of 7
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

monitoring of compliance at the ten restaurants. The agreement requires three types of periodic

access surveys including (1) daily surveys conducted by tenant franchisee managers to ensure

frequently-changing elements remain in compliance such as that movable condiment dispensers

are kept within reach of persons in wheelchairs and that the path of travel to restrooms is not

obstructed, (2) mid-level surveys conducted every three years including items such as parking

lot restriping and restroom fixture, and (3) successor remodel surveys conducted whenever a

restaurant is remodeled, which occurs approximately once every 20 years. The settlement

agreement provides for the Court to retain jurisdiction to enforce the terms of settlement for

four years after the settlement agreement has been finalized: July 12, 2014.

The settlement also provides for a cash payment of $5,000,000 to the named plaintiffs

and the 382 class members who opted in stating that they wished to pursue damages claims. 

Monetary awards to each claimant will be distributed pro rata based on the total number of

visits by each damages claimant to one of the ten restaurants where he or she encountered a

barrier, with a maximum number of six visits for which each damages claimant can obtain

recovery. Each of these damage claimants must complete a claim form documenting his or her

eligible visits. Payment for the costs of notifying the class up to $15,000 and administering the

settlement up to $50,000 shall be paid by class counsel, while costs above those amounts shall

come from the settlement fund. Nevertheless, the parties estimate that even after such funds are

deducted, each of the 385 claimants will receive over $4000 per eligible visit up to six visits. 

The average recovery is approximately $13,000 for each claimant (Fox Decl. ¶ 2).

Plaintiffs estimated damages as high as $20,000,000 with respect to the ten certification

restaurants (Fox Decl. ¶ 8). Nevertheless, this assumed that plaintiffs could recover $4,000 per

visit to each restaurant by each class member without limitation to the number of visits, which

would have been disputed at trial. The parties say that on a per-class-member and per-facility

basis, this settlement is the highest monetary settlement ever in a disability access case

involving public accommodation (Br. at 1). It is at the least an adequate recovery in light of the

risks of litigation.

Accordingly, final approval of the settlement and plan of allocation shall be GRANTED.

Case 3:08-cv-04262-WHA Document 361 Filed 07/12/10 Page 4 of 7
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

2. ATTORNEY’S FEES AND INCENTIVE FEES.

Attorney’s fees will not come from the $5,000,000 in the damages fund, but shall be

paid separately by defendant. The parties agreed that defendant Burger King Corporation will

not oppose a request of attorney’s fees and costs up to $2,500,000. As noted above, class

counsel moved for an award of attorney’s fees in the amount of $2,274,187.86, and claim costs

and expenses in the amount of $256,947.93. They seek a total of $2,500,000 for fees and

expenses. Class counsel claim a lodestar in this matter of $1,188,519.10. They seek a

multiplier of just under two. 

The class notices informed class members that they had the right to object to the

structure and amount of attorney’s fees. Class counsel’s motion for fees was also posted to the

website established by class counsel since May 17. No objections were received.

Class counsel therefore seeks fees and costs of approximately 33% of the total amount

to be paid by defendant. This is more than the 25% benchmark that the Ninth Circuit has

established for percentage-of-the-fund cases. However, the monetary damages in this

settlement — although quite substantial — are only part of the relief obtained for class

members. As noted above, the settlement also provides for injunctive relief at the ten

restaurants in question to eliminate accessibility barriers. Additionally, the monetary recovery

of approximately $13,000 on average to damages claimants is very good.

Considering the foregoing, the request for attorney’s fees is reasonable and welljustified. Accordingly, the request for attorney’s fees and costs of $2,500,000 is GRANTED.

.3. COMPENSATION FOR LEAD PLAINTIFFS.

Lead plaintiffs Miguel Castaneda, Katherine Corbett and Joseph Wellner seek

compensation for the hours they spent representing and working on behalf of the class. They do

not seek incentive fees or payments in a fixed dollar amount.

Mr. Castaneda claims out-of-pocket travel expenses of $450, plus $350 for caregiver

fees so that he could attend court hearings, the pre-disposition meeting, and a deposition. He

estimates that he spent about 111 hours working on this case, including reviewing and

commenting on litigation documents, responding to discovery requests, working with class

Case 3:08-cv-04262-WHA Document 361 Filed 07/12/10 Page 5 of 7
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

counsel to prepare this case for trial, preparing for and attending his deposition, and meeting

with class counsel regarding the settlement agreement. These activities required him to miss

three-and-a-half days of work (Castaneda Decl. at 1–6).

Ms. Corbett claims out-of-pocket expenses of $295. She estimates that she spent about

100 hours representing the class (Corbett Decl. at 4–5).

Mr. Wellner estimates he spent about 30 hours performing work as a named plaintiff. 

He does not claim additional out-of-pocket expenses (Wellner Decl. at 3–4).

Generally, additional benefits to named plaintiffs beyond those received by the rest of

the class are disfavored. If a settlement is not good enough for named plaintiffs, it is usually not

good enough for the class. Nevertheless, named plaintiffs should be compensated for their outof-pocket expenses. Accordingly, Mr. Castaneda is awarded $1800 and Ms. Corbett is awarded

$1295, in addition to the class settlement. Mr. Wellner shall be awarded $1000 in addition to

the class settlement.

CONCLUSION

Accordingly, it is hereby ordered as follows:

1. The Court hereby finds that the settlement is fair, reasonable, and adequate as to

the class, plaintiffs and defendants, that it is the product of good faith, arms-length negotiations

between the parties, and that the settlement is consistent with public policy and fully complies

with all applicable provisions of law. The breadth of the release to be imposed on the absent

class members is sufficiently narrow. Absent class members who have not opted in to pursue

damages claims release only non-monetary claims relating to the accessibility of the ten

restaurants based on conduct preceding final approval of the settlement agreement. They do not

release any claims for monetary damages. The final settlement is therefore approved.

2. The notice as mailed to all class members fairly and adequately described the

proposed settlement, the manner in which class members could object to or participate in the

settlement, and the manner in which class members could opt out of the class, was the best

notice practicable under the circumstances, was valid, due and sufficient notice to all class

members, and complied fully with the Federal Rules of Civil Procedure, due process, and all

Case 3:08-cv-04262-WHA Document 361 Filed 07/12/10 Page 6 of 7
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

other applicable laws. A full and fair opportunity was afforded to class members to participate

in the proceedings to determine whether the proposed settlement should be given final approval. 

Accordingly, this order holds that all class members who did not exclude themselves from the

settlement by filing a timely request for exclusion are bound by this settlement order and

judgment. 

3. The Court retains continuing jurisdiction over the class action, named plaintiffs,

the class, and defendant for four years (until July 12, 2014) from the date of entry of this order

in order to supervise the implementation, enforcement, construction and interpretation of the

revised settlement agreement and this order.

4. The Court hereby awards Plaintiff's Counsel attorneys’ fees and costs of $2.5

million, to be paid separately by defendants, one-half now and the other half when the fund is

completely wound up. 

5. Damages claimants who opted in to receive monetary damages prior to the

deadline of March 10, 2010, have until August 13, 2010, to complete, sign, and submit their

claim forms for shares of the damages fund.

6. Named plaintiff Castaneda is awarded $1800, Named Plaintiff Wellner is

awarded $1000, and Named Plaintiff Corbett is awarded $1295 for compensation for their outof-pocket expenses in this action.

IT IS SO ORDERED.

Dated: July 12, 2010. WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

Case 3:08-cv-04262-WHA Document 361 Filed 07/12/10 Page 7 of 7