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PLS.’ NOTICE OF MOT. & MOT. FOR PRELIMINARY APPROVAL: MEM. OF POINTS & AUTHORITIES IN SUPP. THEREOF

CASE NO. 5:16-CV-07013-LHK (SVK) 

Guy B. Wallace (SBN 176151) 

gwallace@schneiderwallace.com 

Mark T. Johnson (SBN 76904) 

mjohnson@schneiderwallace.com 

SCHNEIDER WALLACE 

COTTRELL KONECKY 

WOTKYNS LLP 

2000 Powell Street, Suite 1400 

Emeryville, CA 94608 

(415) 421-7100; (415) 421-7105 (Fax) 

Adam B. Wolf (SBN 215914) 

awolf@pwcklegal.com 

Catherine Cabalo (SBN 248198) 

ccabalo@pwcklegeal.com 

PEIFFER WOLF CARR & KANE 

4 Embarcadero Center, 14th Floor 

San Francisco, CA 94104 

(415) 766-3592; (415) 402-0058 (Fax) 

Linda M. Dardarian (SBN 131001) 

ldardarian@gbdhlegal.com 

Andrew P. Lee (SBN 245903) 

alee@gbdhlegal.com 

GOLDSTEIN, BORGEN, DARDARIAN & HO 

300 Lakeside Drive, Suite 1000 

Oakland, CA 94612 

(510) 763-9800; (510) 835-1417 (Fax) 

Attorneys for Plaintiffs and the Plaintiff Classes 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION 

ABDUL NEVAREZ and PRISCILLA NEVAREZ, 

on behalf of themselves and all others similarly 

situated, and SEBASTIAN DEFRANCESCO, 

 Plaintiffs, 

vs. 

FORTY NINERS FOOTBALL COMPANY, LLC, 

a Delaware limited liability company, et al., 

 Defendants. 

Case No.: 5:16-cv-07013-LHK (SVK) 

CLASS ACTION 

PLAINTIFFS’ NOTICE OF MOTION AND 

MOTION FOR PRELIMINARY 

APPROVAL; MEMORANDUM OF POINTS 

AND AUTHORITIES IN SUPPORT 

THEREOF 

Date: January 30, 2020 

Time: 1:30 p.m. 

Place: Courtroom 8 

Before: Hon. Lucy H. Koh 

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PLS.’ NOTICE OF MOT. & MOT. FOR PRELIMINARY APPROVAL: MEM. OF POINTS & AUTHORITIES IN SUPP. THEREOF

CASE NO. 5:16-CV-07013-LHK (SVK) 

NOTICE OF MOTION 

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 

PLEASE TAKE NOTICE that on January 30, 2020 at 1:30 p.m., in the Courtroom of the 

Honorable Lucy H. Koh, United States District Judge for the Northern District of California, located at 

280 South 1st Street, San Jose, California, Plaintiffs in the above-captioned cases will and hereby do 

move the Court, in accordance with Federal Rule of Civil Procedure 23, for an Order: 

a. Granting preliminary approval of the parties’ proposed Settlement Agreement and 

Release of Claims and the exhibits attached thereto (collectively, “Settlement Agreement” and filed 

concurrently herewith) entered into between the parties; 

b. Modifying the definition of the certified Damages Class to close membership as of the 

date of preliminary approval of the proposed Settlement Agreement; 

c. Appointing Plaintiff Sebastian DeFrancesco as a Class Representative representing the 

Injunctive Relief Class; 

d. Approving the parties’ proposed notice program, including the proposed forms of 

notice, as set forth in the Settlement Agreement, and directing that notice be disseminated pursuant to 

such program; 

e. Appointing KCC as Settlement Administrator, and directing KCC to carry out the duties 

and responsibilities of the Settlement Administrator specified in the Settlement Agreement; 

f. Approving the parties’ proposed Claim Form, and approving the procedures set forth in 

the Settlement Agreement for (i) the submission of Claim Forms and allocation of the Damages Fund 

established by the Settlement Agreement, (ii) Damages Class Members to exclude themselves from the 

Settlement, and (iii) all Plaintiff Class Members to object to the Settlement; 

g. Staying all non-Settlement related proceedings in the above-captioned case pending 

final approval of the Settlement Agreement; 

h. Setting a Final Approval Hearing and certain other dates in connection with the final 

approval of the Settlement Agreement. 

Case 5:16-cv-07013-LHK Document 375 Filed 10/07/19 Page 2 of 35
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PLS.’ NOTICE OF MOT. & MOT. FOR PRELIMINARY APPROVAL: MEM. OF POINTS & AUTHORITIES IN SUPP. THEREOF

CASE NO. 5:16-CV-07013-LHK (SVK) 

This motion is based on this notice of motion and motion, the accompanying memorandum of 

points and authorities, the Settlement Agreement, including all exhibits thereto, the accompanying 

Declaration of Guy B. Wallace, the argument of counsel, all papers and records on file in these cases, 

and such other matters as the Court may consider. 

Dated: October 7, 2019 Respectfully submitted, 

/s/ Guy B. Wallace 

Guy B. Wallace 

Attorneys for Plaintiffs and the Plaintiff Classes

 

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PLS.’ NOTICE OF MOT. & MOT. FOR PRELIMINARY APPROVAL: MEM. OF POINTS & AUTHORITIES IN SUPP. THEREOF

CASE NO. 5:16-CV-07013-LHK (SVK) 

TABLE OF CONTENTS 

I. INTRODUCTION ............................................................................................................... 1

II. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND .................................. 2

A. The Complaint ......................................................................................................... 2

B. Defendants’ Challenges to the Pleadings ................................................................ 3

C. Class Certification ................................................................................................... 3

D. Discovery ................................................................................................................. 4

E. The Parties’ Cross Motions for Summary Judgment .............................................. 4

F. Mediation and Settlement ........................................................................................ 4

III. ARGUMENT ...................................................................................................................... 5

A. The Proposed Settlement Agreement Makes a Minor Change to the Definition of 

the Damages Class ................................................................................................... 5

B. The Proposed Settlement Agreement Meets the Standard for Preliminary 

Approval .................................................................................................................. 6

1. The Legal Standard for Preliminary Approval ............................................ 6

2. The Settlement Is the Product of Serious, Informed and Non-Collusive 

Negotiations ................................................................................................. 7

3. The Settlement Has No Obvious Deficiencies and Does Not Grant 

Preferential Treatment to the Class Representatives or Other Class 

Members ...................................................................................................... 8

4. The Settlement Will Result in Substantial Benefits to the Classes and 

Falls Within the Range of Possible Approval ........................................... 10

a. Injunctive Relief ............................................................................ 10

b. Damages ........................................................................................ 16

c. The Settlement Does Not Permit Any Reversion .......................... 17

d. The Litigation Risks Support Preliminary Approval ..................... 18

5. The Proposed Service Awards to the Named Plaintiffs Are Fair and 

Reasonable and Routinely Approved ........................................................ 18

6. Plaintiffs Are Entitled to Reasonable Attorneys’ Fees and Costs ............. 19

C. The Proposed Notice Satisfies Due Process and Should Be Approved ................ 22

D. The Plan to Allocate Settlement Funds Should Be Preliminarily Approved ........ 23

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CASE NO. 5:16-CV-07013-LHK (SVK) 

E. The Proposed Settlement Administrator ............................................................... 23

F. Cy Pres ................................................................................................................... 24

G. Required Notice to the Class and CAFA Notice. .................................................. 24

H. Plaintiffs Have Disclosed the Only Side Agreement Produced to Them By 

Defendants ............................................................................................................. 25

I. The Court Should Approve the Proposed Scheduling Order and Set a Date for 

the Fairness Hearing .............................................................................................. 25

IV. CONCLUSION ................................................................................................................. 25

 

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PLS.’ NOTICE OF MOT. & MOT. FOR PRELIMINARY APPROVAL: MEM. OF POINTS & AUTHORITIES IN SUPP. THEREOF

CASE NO. 5:16-CV-07013-LHK (SVK) 

TABLE OF AUTHORITIES 

Federal Cases

Armstrong v. Davis 

275 F.3d 849 (9th Cir. 2001) .................................................................................................................. 5 

Bautista v. Harvest Mgmt. Sub LLC

 Case No. 12-cv-10004FMO (CWx), 2013 WL 12125768 (C.D. Cal. Oct. 16, 2013) ...................... 23 

Borchardt v. City of Tucson

 706 Fed. App’x 372 (9th Cir. 2017) .................................................................................................. 22 

Brown v. Hain Celestial Grp., Inc. 

No. 3:11-cv-03082-LB, 2016 WL 631880 (N.D. Cal. Feb. 17, 2016) ................................................. 8 

Californians for Disability Rights, Inc. v. Cal. Dept. of Transp.

 No. C 06—5125 SBA, 2010 WL 2228531 (N.D. Cal. June 2, 2010) .............................................. 18 

Castaneda v. Burger King Corp.

 No. C 08—04262 WHA, 2010 WL 2735091 (N.D. Cal. July 12, 2010) .............................. 17, 18, 20 

Connolly v. Weight Watchers N. Am. Inc.

 Case No. 14-cv-01983-TEH, 2014 WL 3611143 (N.D. Cal. July 21, 2014) .................................... 22 

Dennis v. Kellogg Co.

697 F.3d 858 (9th Cir. 2012) .............................................................................................................. 24 

Edwards v. Nat’l Milk Producers Fed’n

 No. 11-CV-04766-JSW, 2017 WL 3623734 (N.D. Cal. June 26, 2017) .......................................... 17 

Eisen v. Carlisle & Jacquelin

 417 U.S. 156 (1974) .......................................................................................................................... 22 

Farrar v. Hobby

 506 U.S. 103 (1992) .......................................................................................................................... 19 

Gaudin v. Saxon Mortgage Servs., Inc.

 No. 11-cv-01663-JST, 2015 WL 7454183 (N.D. Cal. Nov. 23, 2015) ............................................. 19 

Hanlon v. Chrysler Corp.

150 F.3d 1011 (9th Cir. 1998) ........................................................................................................ 6, 20 

Hesse v. Sprint Corp.

 598 F.3d 581 (9th Cir. 2010) ............................................................................................................... 9 

In re Anthem, Inc. Data Breach Litig. 

327 F.R.D. 299 (N.D. Cal. 2018) ....................................................................................................... 17 

In re Bluetooth Headset Products Liability Litig. 654 F.3d 935 (9th Cir. 2011) .......................................................................................................... 20, 21 

In re High-Tech Employee Litig.

No. 11-cv-2509, 2013 WL 6328811 (N.D. Cal. Oct. 30, 2013) .................................................... 6, 23 

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CASE NO. 5:16-CV-07013-LHK (SVK) 

In re Hyundai and Kia Fuel Economy Litig. 

926 F.3d 539 (9th Cir. 2019) ...................................................................................................... 6, 7, 20 

In re Optical Disk Drive Products Antitrust Litig.

No. 3:10-md-2143 RS, 2016 WL 7364803 (N.D. Cal. Dec. 12, 2016) ............................................. 17 

In re Pacific Enters. Sec. Litig.

 47 F.3d 373 (9th Cir. 1995) ............................................................................................................... 20 

In re Tableware Antitrust Litig.

484 F. Supp. 2d 1078 (N.D. Cal. 2007) ............................................................................................... 7 

Koller v. Med Foods, Inc. 

No. 3:14-CV-2400-RS, 2018 WL 9619436 (N.D. Cal. Aug. 29, 2018) .............................................. 8 

Laguna v. Coverall N. Am., Inc. 

 753 F.3d 918 (9th Cir. 2014) ............................................................................................................. 21 

Nachshin v. AOL, LLC

 663 F.3d 1034 (9th Cir. 2011) ........................................................................................................... 24 

Nat’l Rural Telecomm’s Coop v. Directv, Inc. 

221 F.R.D. 523 (C.D. Cal. 2004) ................................................................................................. 16, 18 

Nevarez v. Forty Niners Football Company, LLC 

326 F.R.D. 562 (N.D. Cal. 2018) ................................................................................................. 3, 5, 6 

Nitsch v. DreamWorks Animation SKG Inc.

No. 14-CV-04062-LHK, 2017 WL 399221 (N.D. Cal. Jan. 19, 2017) ............................................ 6, 7 

Officers for Justice v. Civil Serv. Comm’n of City and Cty. of S.F.

688 F.2d 615 (9th Cir. 1982) .............................................................................................................. 16 

Rodriguez v. West Publ’g Corp.

563 F.3d 948 (9th Cir. 2009) .................................................................................................... 7, 19, 23 

Staton v. Boeing Co.

327 F.3d 938 (9th Cir. 2003) ................................................................................................................ 6 

Stemple v. RingCentral, Inc.

 No. 18-cv-04909-LB, 2019 WL 3842091 (N.D. Cal. Aug. 15, 2019) ................................................ 7 

Van Vranken v. Atlantic Richfield Co.

 901 F. Supp. 294 (N.D. Cal. 1995) ................................................................................................... 19 

Villalpando v. Exel Direct Inc.

 No. 3:12-cv-04137-JCS, 2016 WL 7785852 (N.D. Cal. Dec. 9, 2016) ............................................ 19 

Winans v. Emeritus Corp.

 No. 13-cv-03962-HSG, 2016 WL 107574 (N.D. Cal. Jan. 11, 2016) ............................................... 17 

Statutes

28 U.S.C. § 1712 .................................................................................................................................... 25 

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CASE NO. 5:16-CV-07013-LHK (SVK) 

42 U.S.C. § 12101(a)(7) ......................................................................................................................... 24 

Cal. Civ. Code § 51 .................................................................................................................................. 9 

Rules and Regulations

F.R.C.P. 23(c)(2)(B) ............................................................................................................................... 22 

F.R.C.P. 23(e)(2) ...................................................................................................................................... 6 

F.R.C.P. 23(h) ......................................................................................................................................... 21 

Other Authorities

Manual for Complex Litigation (Fourth) 

§ 21.632 (2015) .................................................................................................................................... 6 

W. Rubenstein, Newberg on Class Actions 

(5th ed. 2014) § 8.5 ............................................................................................................................ 22 

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PLS.’ MOT. FOR PRELIMINARY APPROVAL - CASE NO. 5:16-CV-07013-LHK (SVK) 

I. INTRODUCTION 

The proposed Settlement Agreement and Release of Claims (“Settlement” or “Settlement 

Agreement”) provides both extensive injunctive relief and a substantial damages fund to the Plaintiff 

Classes. The Settlement Agreement provides comprehensive injunctive relief to remedy the violations 

of the Americans with Disabilities Act (“ADA”) and California’s Unruh Civil Rights Act that were 

alleged in the Fourth Amended Complaint, including the barrier lists attached to the Complaint as 

Exhibits A through D. (A true and correct copy of the proposed Settlement is attached as Exhibit 1 to 

the Declaration of Guy B. Wallace in Support of Plaintiffs’ Motion for Preliminary Approval 

(“Wallace Decl.”). The proposed Settlement requires remedial access work with respect to all areas of 

Levi’s Stadium, its parking, and the pedestrian rights of way leading from the parking lots to the 

Stadium. The remedial work to be performed is set forth in the Settlement and Exhibits A-J thereto, 

which include a detailed remedial plan and specifications. The proposed Settlement will ensure that 

Class Members with mobility disabilities and their companions have full and equal access to the 

Stadium and its related facilities. The proposed Settlement will also require Defendants to provide full 

and equal access to ticketing services. To ensure that Class Members receive this relief, the proposed 

Settlement mandates effective reporting and monitoring under the Court’s continuing jurisdiction. 

The proposed Settlement Agreement also provides a $24 million class damages fund with no 

reversion to Defendants. Class Members who make claims on the fund will receive a minimum of 

$4,000 for each visit to Levi’s Stadium in which they encountered an access barrier that caused them 

difficulty, discomfort or embarrassment within the meaning of California Civil Code § 55.56 et seq. up 

to a maximum of $80,000. This is the largest class damages settlement ever achieved in a case 

challenging physical access to a place of public accommodation. 

The proposed Settlement follows three years of contested litigation, including extensive 

discovery and motion practice. The parties reached the Settlement after six formal mediation sessions 

under the supervision of Mark Rudy and Michael Loeb, and numerous in-person and telephone 

negotiations between counsel and Defendants. 

The proposed Settlement is fair, adequate and reasonable, and satisfies all of the criteria for 

preliminary settlement approval under Rule 23 of the Federal Rules of Civil Procedure. Accordingly, 

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PLS.’ MOT. FOR PRELIMINARY APPROVAL - CASE NO. 5:16-CV-07013-LHK (SVK) 

Plaintiffs ask that the Court: (i) preliminarily approve the Settlement; (ii) modify the definition of the 

certified Damages Class so that it only extends through the date of preliminary approval; (iii) appoint 

Sebastian DeFrancesco as an additional Class Representative for the Injunctive Relief Class; (iv) 

approve the proposed form of the class notice and distribution plan; and (v) set a fairness hearing. 

II. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND 

A. The Complaint 

Plaintiffs Abdul and Priscilla Nevarez filed this class action on December 7, 2016, asserting 

claims for both injunctive relief and damages against the Forty Niners Football Company, LLC, the 

City of Santa Clara (“the City”), the Santa Clara Stadium Authority (the “Stadium Authority”) and 

Ticketmaster Entertainment, Inc. (“Ticketmaster”) based on alleged violations of the Americans with 

Disabilities Act (“ADA”), the Rehabilitation Act of 1973, California Government Code Section 11135, 

the California Disabled Persons Act (California Civil Code §§ 54 et seq.) and the California Unruh Act 

(California Civil Code §§ 51 et seq.). See Complt. (ECF 1). Thereafter, the Complaint was amended 

to add the Forty Niners Stadium Management Company LLC as a Defendant (ECF 9). 

On April 13, 2017, pursuant to Stipulation of the Parties approved by this Court, Plaintiffs filed 

their Second Amended Complaint limiting their claims to the alleged violation of Titles II and III of 

the ADA and California’s Unruh Act, and adding Sebastian DeFrancesco as a Plaintiff. (ECF 47, 50). 

On August 1, 2017, the Court dismissed the named Plaintiffs’ claims for individual damages against 

the City and Stadium Authority except for Plaintiffs Abdul and Priscilla Nevarezes’ claims for 

damages based on their visit to the Stadium on April 2, 2016. On August 15, 2017 the Court dismissed 

without prejudice Plaintiffs’ claims against Ticketmaster, finding that those claims were subject to 

mandatory arbitration. (ECF 85). 

Plaintiffs filed a Third Amended Complaint on August 8, 2017 (ECF 78) and the operative 

Fourth Amended Complaint on July 27, 2018 (ECF 195). The Complaint includes and incorporates 

exhibits identifying the alleged disability access barriers in the Stadium, as well as in the Stadium’s 

main parking lot and the adjacent pedestrian right of way. (ECF 195-1 – 195-4). It also maintains 

class claims against the Forty Niners Defendants for Unruh Act damages. Id. 

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PLS.’ MOT. FOR PRELIMINARY APPROVAL - CASE NO. 5:16-CV-07013-LHK (SVK) 

B. Defendants’ Challenges to the Pleadings 

On February 7, 2017, Defendants filed a motion to dismiss the then-operative Complaint in its 

entirety for alleged failure to state a claim and the alleged lack of standing on the part of Plaintiff 

Priscilla Nevarez. (ECF 28, 32). Following the filing of a Second Amended Complaint, Defendants 

filed new motions to dismiss on the same grounds. (ECF 58). The Court denied these motions in 

relevant part, finding that Ms. Nevarez had alleged facts to establish standing. (ECF 76 at 14, 16, 17). 

C. Class Certification 

On July 12, 2018, this Court granted in part and denied in part Plaintiffs’ motion for class 

certification. Nevarez v. Forty Niners Football Company, LLC, 326 F.R.D. 562, 592 (N.D. Cal. 2018). 

The Court certified the following three classes pursuant to Federal Rule of Civil Procedure 23: 

Injunctive Relief Class: 1. All persons with mobility disabilities who use 

wheelchairs, scooters, or other mobility aids who will attempt to purchase 

accessible seating for a public event at Levi’s Stadium and who will be 

denied equal access to the Stadium’s facilities, services, accessible 

seating, parking, amenities, and privileges, including ticketing, during the 

three years prior to the filing of the Complaint herein through the 

conclusion of this action. 

Companion Injunctive Relief Class: 2. All persons who are companions 

of persons with mobility disabilities who use wheelchairs, scooters or 

other mobility aids and who have used or will use companion seating for 

public events located at Levi’s Stadium during the three years prior to the 

filing of the Complaint herein through the conclusion of this action. 

Damages Class: 3. All persons with mobility disabilities who use 

wheelchairs, scooters or other mobility aids who have purchased, 

attempted to purchase, or for whom third parties purchased accessible 

seating and who have been denied equal access to Levi’s Stadium’s 

facilities, services, accessible seating, parking, amenities, and privileges 

at an event controlled by the Forty Niners Football Company, LLC, Forty 

Niners SC Stadium Company, LLC, or Forty Niners Stadium 

Management Company, LLC, during the two years prior to the filing of 

the Complaint herein through the conclusion of this action. 

Id. The first and second classes seek declaratory and injunctive relieve pursuant to Title II and Title III 

of the ADA and were certified pursuant to Rule 23(b)(2). The third class seeks statutory damages 

under the Unruh Act and was certified pursuant to Rule 23(b)(3). This Court appointed Abdul Nevarez 

as representative of the first and third classes, and Priscilla Nevarez as representative of the second 

class. 

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D. Discovery 

The parties engaged in extensive discovery prior to reaching an agreement to resolve this case. 

Such discovery included 13 sets of document requests (11 propounded by Plaintiffs; 2 propounded by 

Defendants), 6 sets of document subpoenas (all propounded by Plaintiffs); 13 sets of interrogatories (9 

propounded by Plaintiffs; 4 propounded by Defendants), and 15 sets of requests for admission (all 

propounded by Plaintiffs). See Wallace Decl. at ¶ 15. In response to Plaintiffs’ document requests and 

subpoenas, Defendants and third parties produced approximately 3.4 million pages of documents, 

including thousands of construction drawings of the Stadium and its related facilities, most of which 

were reviewed and analyzed for use as deposition or trial exhibits. Id. 

Plaintiffs’ Counsel and their experts spent 14 days inspecting the accessibility of the Stadium, 

parking lots serving the Stadium, and nearby pedestrian rights-of-way for persons with mobility 

disabilities. Id. at ¶ 16. Plaintiffs took or defended 43 depositions, including 15 Rule 30(b)(6) 

depositions, 16 expert depositions, several depositions of third parties such as the Stadium’s Architect 

of Record, consultants to Defendants in the design and construction of the Stadium, and the Named 

Plaintiffs. Id.

E. The Parties’ Cross Motions for Summary Judgment

The parties filed cross motions for partial summary judgment on December 20, 2018. ECF 

282, 288. On February 5, 2019, this Court issued an Order denying both motions without prejudice, 

staying the case for case narrowing at the next case management conference, and directing the parties 

select up to 12 physical access barriers to litigate through summary judgment, the pre-trial conference 

and trial. ECF 328. On June 20, 2019, the parties filed their narrowed motions for partial summary 

judgment limited to 6 physical access barriers for each side. The motions were fully briefed and set for 

hearing for August 29, 2019. The motions were pending when the parties informed the Court that a 

proposed settlement had been reached. 

F. Mediation and Settlement 

The parties engaged in extensive settlement negotiations in order to reach a final resolution of 

this matter for which Plaintiffs now seek preliminary approval. Two mediation sessions were held in 

May and July 2018 with Michael A. Loeb at JAMS, and four with mediator Mark S. Rudy in 

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December 2018, January and February 2019, and August 29, 2019. By February 2019, the parties had 

made significant progress in resolving injunctive relief, and agreed to a $24 million damages fund for 

Damages Class members. Beginning in March 2019, the parties continued face-to-face and telephonic 

negotiations to finalize injunctive relief terms. Wallace Decl. ¶ 21. 

Settlement negotiations involved detailed discussions of the scope of the barrier remediation 

that would be required of Defendants under the Settlement Agreement, including the specifications of 

the work to be performed as displayed in exhibits to the Agreement, as well as the measures to be 

taken for reporting on, monitoring and enforcing the obligations created by the Agreement. The 

negotiations were arms-length, intensive and ultimately successful in resolving the case. Id. at ¶ 24. 

After class relief was fully resolved in late August 2019, the parties participated in a final 

mediation session with Mr. Rudy during which they agreed to the maximum amount of attorneys’ fees, 

expenses and costs that Plaintiffs would seek through a request for Court approval. Id. at ¶ 23. 

III. ARGUMENT 

A. The Proposed Settlement Agreement Makes a Minor Change to the Definition of the 

Damages Class 

This Court previously granted certification of three Plaintiff classes, the contours of which are set 

forth in Section II.C, above. Nevarez, 326 F.R.D. at 592. The proposed Settlement Agreement only 

changes the definition of the Damages Class to make the end date for class member inclusion coincide with 

the date of preliminary approval of the settlement rather than the conclusion of this action. Settlement 

Agreement at § I.3. This ensures that only those individuals who meet the class definition at the time of 

preliminary approval and to whom class notice will be directed will be bound by the Settlement. 

Accordingly, Plaintiffs respectfully request this Court modify the class definition so that it indicates that the 

Class only includes persons who meet the Class definition during the time from the beginning of the class 

period up through the date of preliminary approval. See, e.g., Armstrong v. Davis, 275 F.3d 849, 871-72 

n.28 (9th Cir. 2001); Nevarez, 326 F.R.D. at 575 (“[d]istrict courts have broad discretion to modify class 

definitions”) (citations omitted). 

The proposed Settlement also provides that Plaintiff DeFrancesco be appointed a representative of 

the Injunctive Relief. At class certification, the Court did not appoint Plaintiff DeFrancesco as a Class 

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Representative because he faced a particular defense for failing to timely file a tort claim for damages 

against the City of Santa Clara, which made him atypical of the Rule 23(b)(3) damages class. The Court 

did not address whether Mr. DeFrancesco could serve as a Class Representative for purposes of the Rule 

23(b)(2) Injunctive Relief Class. Nevarez, 326 F.R.D. at 580. The Settlement, however, names Plaintiff 

DeFrancesco as an Injunctive Relief Class Representative because he experienced the barriers at the 

Stadium alleged in the Complaint. Settlement Agreement § II.D.; Wallace Decl. ¶ 54. Plaintiff 

DeFrancesco has no conflicts with Class Members, actively participated in the litigation, and represented 

the interests of the Classes. See Section III.B.5, infra; Wallace Decl. ¶ 42. Accordingly, Plaintiff 

DeFrancesco should be appointed a Representative of the Injunctive Relief Class. 

B. The Proposed Settlement Agreement Meets the Standard for Preliminary Approval 

1. The Legal Standard for Preliminary Approval 

The law favors the settlement of class actions. See, e.g., In re Hyundai and Kia Fuel Economy 

Litig., 926 F.3d 539, 556 (9th Cir. 2019) (en banc). “[T]he decision to approve or reject a settlement is 

committed to the sound discretion of the trial judge because he [or she] is exposed to the litigants and 

their strategies, positions, and proof.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998) 

(internal citations and quotations omitted). 

Under Federal Rule of Civil Procedure 23(e), a court must determine whether a proposed class 

action settlement is “fair, reasonable, and adequate.” and whether to give notice of the proposed 

settlement to the class members and an opportunity to voice approval or disapproval of the settlement. 

Rule 23(e)(2); Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003) (quoting Hanlon, 150 F.3d at 

1026); Manual for Complex Litigation (Fourth) § 21.632 (2015). Such “preliminary approval” is not a 

dispositive assessment of the fairness of the proposed settlement, but rather determines whether it falls 

within the “range of reasonableness.” Nitsch v. DreamWorks Animation SKG Inc., No. 14-CV-04062-

LHK, 2017 WL 399221, at *1 (N.D. Cal. Jan. 19, 2017) (quoting In re High-Tech Employee Litig., No. 

11-cv-2509, 2013 WL 6328811, at *1 (N.D. Cal. Oct. 30, 2013) (“High-Tech I”) (citation omitted).

Preliminary approval of a settlement and notice to the proposed class is appropriate “[i]f [1] the 

proposed settlements appears to be the product of serious, informed, non-collusive negotiations, [2] has 

no obvious deficiencies, [3] does not improperly grant preferential treatment to class representatives or 

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segments of the class, and [4] falls within the range of possible approval.” Nitsch, 2017 WL 399221, 

at *2 (quoting In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1079 (N.D. Cal. 2007)). For the 

reasons discussed below, the proposed settlement falls well within the range of reasonableness, and 

easily meets the requirements for preliminary approval and those of Fed. R. Civ. Proc. 23(e). 

2. The Settlement Is the Product of Serious, Informed and Non-Collusive Negotiations 

“Where a settlement is the product of arm’s-length negotiations conducted by capable and 

experienced counsel, the court begins its analysis with a presumption that the settlement is fair and 

reasonable.” Stemple v. RingCentral, Inc., No. 18-cv-04909-LB, 2019 WL 3842091, at *5 (N.D. Cal. 

Aug. 15, 2019) (internal quotation omitted)); see also, In re Hyundai and Kia, 926 F.3d at 570 (“‘[W]e 

put a good deal of stock in the product of an arm’s-length, non-collusive, negotiated resolution.’ ”) 

(quoting Rodriguez v. West Publ’g Corp., 563 F.3d 948, 965 (9th Cir. 2009)). At this stage, so long as 

the settlement falls into the range of possible approval, the presumption applies and the settlement 

should be preliminarily approved. That is the case here. 

First, the Settlement was reached after informed negotiations supervised by two well-respected 

mediators experienced in class action cases, Michael Loeb and Mark Rudy. Wallace Decl. ¶ 21. The 

parties participated in six in-person mediations over the eighteen-month period between May 2018 and 

August 29, 2019. Id. at ¶¶ 21-23. The first two mediations took place with Mr. Loeb; the latter four 

mediations took place with Mr. Rudy. Mr. Rudy made a mediator’s proposal regarding the amount of 

class damages, which was accepted by the parties. Six months later, at the conclusion of the mediation 

process, Mr. Rudy made a mediator’s proposal regarding reasonable attorneys’ fees and costs. Both 

sides accepted his proposal two weeks later. Id. All major issues regarding injunctive relief were 

resolved prior to the mediation of fees and costs. Id. at ¶ 23. 

Second, the settlement was reached after extensive discovery, depositions and motion practice. 

Indeed, Counsel have thoroughly investigated the factual and legal issues raised in this action, and 

diligently litigated the class members’ claims for almost three years. Extensive investigation, 

discovery and motion practice has allowed the parties to assess the strengths and weaknesses of the 

claims, defenses, and the benefits of the proposed Settlement. Id. at ¶¶ 15-20. The parties conducted 

more than 40 depositions, and Plaintiffs reviewed and analyzed millions of pages of documents. 

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Plaintiffs also conducted outreach to the Classes; conducted numerous interviews of Class Members to 

investigate the access barriers, policies and practices at issue; and submitted 32 Class Member 

declarations to support the motion for class certification. Id. at ¶ 16. The motion for class certification 

was heavily contested, and the parties also filed cross motions for summary judgment. Indeed, at the 

time of settlement the parties had completed fact and expert discovery, and were in the process of 

preparing for trial. These and other proceedings in the case produced a thorough pre-settlement vetting 

of the factual and legal bases for Plaintiffs’ claims and the key defenses thereto. 

Third, Class Counsel have extensive experience litigating and settling systemic disability 

access and other complex class actions. Id. at ¶¶ 4-10. Accordingly, the fact that qualified and wellinformed counsel endorse the proposed settlement as being fair, reasonable, and adequate weighs in 

favor of approval. See, e.g., Koller v. Med Foods, Inc., No. 3:14-CV-2400-RS, 2018 WL 9619436, at 

*3 (N.D. Cal. Aug. 29, 2018); Brown v. Hain Celestial Grp., Inc., No. 3:11-cv-03082-LB, 2016 WL 

631880, at *5 (N.D. Cal. Feb. 17, 2016). 

3. The Settlement Has No Obvious Deficiencies and Does Not Grant Preferential 

Treatment to the Class Representatives or Other Class Members 

The proposed Settlement has no obvious deficiencies, but rather provides for comprehensive 

injunctive relief regarding all of the claims at issue in this litigation. Once the Settlement is fully 

implemented, Levi’s Stadium, its Main Parking Lot, and the adjacent pedestrian right of way will 

provide full and equal access to Class Members. Settlement at § III; Exhibits A-J. 

Moreover, the Settlement provides a non-reversionary distribution of $24 million in damages to 

eligible class members, without granting preferential treatment to any particular class members. 

Settlement at § VII.A. All of the class members who make claims that confirm, as required under 

applicable law, that they have mobility disabilities and encountered one or more barriers at Levi’s 

Stadium or its related facilities that caused them “difficulty, discomfort or embarrassment” will be able 

to recover a minimum of $4,000 or a maximum of $80,000 depending on the number of visits in which 

they encountered such barriers. This objective allocation plan does not grant preferential treatment to 

any member of the Damages Class. 

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The Settlement only releases the claims that were alleged, or that could have been alleged, 

based on the factual allegations of the Fourth Amended Complaint. In exchange for the equitable 

relief provided for by the Agreement, Class Members and Plaintiffs release “any and all claims that are 

the subject of, included within, and/or arise from this lawsuit, including without limitation, all claims, 

liabilities, obligations, demands, actions, and claims under Title II and Title III of the ADA, California 

Civil Code § 51, et seq., and their accompanying regulations that were brought or could have been 

brought based on the facts alleged in the Complaint against the Released Parties for injunctive or 

declaratory relief only relating to Conditions that allegedly deny access to the facilities specified in 

Exhibit A and access to Defendants’ ticketing services for wheelchair accessible and companion 

seating.” Settlement at § XIII.A.1. This release only applies for the duration of the agreement, i.e. 

three and a half years after it becomes effective. Id.; § XVI. The scope of the release for the Damages 

Class is essentially the same, except that it only releases claims for statutory damages that were 

brought or could have been brought based on the facts alleged in the Complaint for the period of time 

up to the date on which the Court grants Preliminary Approval of the Settlement Agreement. 

Settlement at § XIII.A.2. These narrow releases fully accord with Ninth Circuit precedent. Hesse v. 

Sprint Corp., 598 F.3d 581, 590 (9th Cir. 2010). 

The Settlement Agreement does not grant preferential treatment to the Class Representatives, 

who are subject to the same damages allocation plan as the absent Class Members. Subject to Court 

approval, the Named Plaintiffs would also receive service awards not to exceed $7,500 each, which 

Plaintiffs submit are fair and reasonable payments to recognize and compensate the Named Plaintiffs 

for the efforts and risks they took in stepping forward to assert claims, their participation in discovery 

and depositions, and the work done on behalf of the Plaintiff Classes to prosecute the claims. See

discussion infra at § III.B.5. 

Members of the Injunctive Relief and Companion Classes, as well as Damages Class Members 

who do not opt out, will be given the opportunity to object to the settlement and to appear at the Final 

Approval/Fairness Hearing in order to have their objections heard by the Court. Damages Class 

Members will have the opportunity to opt-out of the proposed Settlement should they so desire. 

Settlement, at § VI. The Claims Process set forth in the Settlement Agreement also provides Damages 

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Class Members the opportunity, should they disagree with Defendants’ records regarding the number 

of events that they attended at the Stadium, to provide documentation and/or an explanation to show a 

different number of visits. Id. at § VII.G; H. If there is a dispute, the Settlement Administrator will 

consult with the Parties to determine whether an adjustment is warranted. These procedural safeguards 

further support preliminary approval. 

4. The Settlement Will Result in Substantial Benefits to the Classes and Falls Within 

the Range of Possible Approval 

a. Injunctive Relief 

The injunctive relief guaranteed by the Settlement constitutes an excellent result for the 

Plaintiff Classes. The Settlement provides comprehensive injunctive relief regarding all of the claims 

in the Fourth Amended Complaint, including Defendants’ failure to provide physical access and 

Defendants’ failure to make reasonable modifications in policy and practice to ensure equal access to 

the Stadium’s facilities and services. The Settlement requires Defendants to remediate nearly all of the 

access barriers identified by Plaintiffs’ experts, as well as requiring Defendants to remove many other 

access barriers that were not identified in Plaintiffs’ Complaint. As this Court will recall, Plaintiffs’ 

Exhibit A identified 2,699 access barriers in the Stadium and its related facilities, including its parking 

lots and the pedestrian rights of way leading from those lots to the Stadium. The Settlement will 

remediate all but 25 of the alleged barriers (i.e., all but 1% of the barriers identified in the Complaint).1

 

Wallace Decl. ¶ 59. The Settlement will also remediate numerous other barriers in the Stadium’s stairs 

 

1

 These alleged barriers include: 18 alleged barriers regarding the lack of clear space on counters in the Stadium 

concessions; 4 alleged barriers regarding the location of the accessible toilet compartment door openings and 

whether they were located too far from the side wall or partition; an alleged barrier regarding the lack of 

wheelchair maneuvering space at urinals; and 2 alleged barriers regarding the existence of dirt sections of the 

pedestrian right of way serving the remote parking lots. Plaintiffs compromised regarding the clear space on the 

counters because of a recent U.S. Access Board interpretive guidance in which the Board stated that this type of 

condition did not violate the 2010 ADAS. Similarly, the parties’ experts had a good-faith disagreement 

regarding the correct interpretation of the requirement regarding the location of accessible toilet compartment 

door openings and the side walls or partitions. The lack of clear space for wheelchair users at urinals was not 

remediated because the Stadium’s restrooms have designated accessible wheelchair stalls and the Settlement 

provides comprehensive remediation regarding same. Settlement at § III.A.1.i.; Exh. A at Items 823 through 

1502.1. Finally, it was not necessary to remediate the two dirt sections in the pedestrian right of way because 

the Settlement provides compliant accessible parking in the Main Lot immediately adjacent to the Stadium, and 

compliant paths of travel from the Main Lot to the Stadium’s entrances. See Settlement, Exhibit J. 

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and breastfeeding stations that were not included in the Complaint. 

The detailed remedial access work that is specified in the Settlement Agreement and Exhibits 

A-L will bring the Stadium and its surrounding pedestrian rights of way into full compliance with the 

2010 ADAS and the 2019 CBC. Moreover, the Settlement provides extensive injunctive relief 

regarding all of the other problems with ticketing, transportation and other services that were described 

by the Class Members in their declarations. (ECF 139 [Appendix of Class Member Declarations].). 

Specifically, the Settlement mandates the following access work and improvements, all of which must 

fully comply with the 2010 ADAS and the 2019 CBC: 

 Parking, Exterior Path of Travel, and Entrances. The Settlement will provide 282 accessible 

parking spaces immediately adjacent to the Stadium in the Main Lot. Settlement at § III.A.3.a; Exhibit 

J. This is a sufficient number of parking spaces to meet the accessible parking requirement for all of 

the lots that Defendants use to provide parking. Wallace Decl. ¶ 28. An accessible path of travel will 

connect the accessible parking spaces in the Main Lot to the primary entrances to the Stadium at Gates 

A and C. The accessible path of travel, clearly marked and eight feet in width (i.e., double the 48 inch 

width specified in the 2010 ADAS and the 2019 CBC), will connect all of the accessible external 

features of the Stadium, including any amenities in the Main Lot (such as portable toilets and coat 

check), the stores and other points of interest in the Plaza, to the accessible Box Office windows, and 

the Stadium restaurants. Settlement at §§ III.A.1.b; Exhibit B, C, and J. The specifications for this 

remedial work are set forth in the drawings comprising Exhibit B (for the Plaza area and exterior 

entrances to the Stadium) and Exhibit J (for the path of travel from the parking lot) to the Settlement 

Agreement. The accessible path of travel to be established and maintained leading to and between the 

Bourbon Steak, Bourbon Pub and Tailgate restaurants is described in further detail at Section §§ 

III.A.2 of the Settlement Agreement. As a result of this access work, Class Members will no longer 

have to struggle with inaccessible parking, inaccessible security gates, inaccessible entrances, 

inaccessible ticket windows at the Box Office, and many other similar access problems that existed on 

the exterior of the Stadium. And, the parking adjacent to the Stadium will be priced at the lowest price 

Defendants charge for parking in the remote parking lots. Id. at § III.A3.b. 

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Pedestrian Rights of Way Leading to the Stadium. Some Class Members may continue to 

choose to park in the fifteen off-site parking lots that also serve Levi’s Stadium. The pedestrian right 

of way connecting those off-site parking lots to the Stadium contain numerous barriers to access, 

including curb ramps that lack a flush transition to the street and have excessive running, cross, 

counter, and side-flare slopes; sidewalks with excessive running and cross slopes, surface gaps, and 

abrupt changes in level; and pedestrian signals that fall outside of reach range for persons using 

wheelchairs and scooters. The proposed Settlement requires the City of Santa Clara to make these 

portions of the pedestrian right of way fully accessible to persons with mobility disabilities. In total, 

the Settlement Agreement requires the remediation of 454 non-compliant conditions, including 236 

curb ramps barriers present on 97 curb ramps, 203 sidewalk barriers, and 15 barriers related to 

inaccessible pedestrian signals. Settlement at § III.A.4; Exhibits H, I. 

Stadium Box Office. To ensure an accessible box office and approach to the box office at the 

Stadium, Defendants are required to remediate the box office-related barriers identified in Exhibit A to 

the Settlement Agreement in the manner specified and in § III.A.1.c. and Exhibit C of the Settlement. 

This includes removing the foot bar at the base of the designated accessible ticket window to allow a 

forward approach by wheelchair users, raising the existing grade to provide a level accessible area in 

front of the window, using accessible queuing plans, providing signage for the accessible window and 

providing all services at the accessible window that are offered to the public. Id., Ex. C notes 8, 11. 

Interior Circulation Within the Stadium. The Settlement Agreement ensures that Class 

Members will have an accessible path of travel throughout the Stadium. Defendants are required to 

remediate the specific conditions in the interior path of travel identified in Exhibit A in the manner 

specified therein, and no ramps in the path of travel will be permitted to have excessive running slopes. 

Settlement at §§ III.A.1.e. The location and specifications of the accessible interior path of travel are 

set forth in Exhibit D. 

Signage, Access Map and Trained Stadium Staff. The Settlement also requires a detailed 

signage plan to direct Class Members to the accessible exterior and interior features of the Stadium. 

Settlement at § III.A.1.e; Exhibit D. Clearly marked accessible paths and overhead signage will guide 

Class Members from the Main Lot to the entrances to the Stadium, and to the entrances leading to the 

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elevators. Id. This information will also be provided in a comprehensive access map that will be 

available both electronically and on paper. Settlement at § III.D. Further, Stadium employees will be 

trained on the location of accessible elevators, restrooms, and seating so that Class Members can get 

reliable assistance with finding their way to their seats. Id. at § III.F.1. Under the Settlement, Class 

Members will no longer have to struggle and engage in trial and error efforts to find the accessible 

routes and features within the Stadium. 

Accessible seating, companion seating, and restrooms. The Settlement requires Defendants to 

make extensive access improvements within the Stadium itself. Significantly, it requires Defendants to 

perform access work to the designated accessible seating so that it strictly complies with the 

requirement of the 2010 ADAS for level seating spaces. Settlement at Exhibit E. As a result of this 

access work, Class Members who use wheelchairs will no longer roll around in their seating spaces 

because of the excessive drainage gradient that was erroneously constructed. The number of accessible 

and companion seats shall comply with the 2010 ADAS standards. Arm rests and cupholders will be 

provided for companion seats to make them equivalent to standard seating. Settlement at § III.A.1.f.; 

Ex. E Further, Defendants will be required to remove all of the barriers identified in the Stadium’s 

restrooms in accordance with the remedial work specified in Exhibit A to the Settlement. Id. at 

§ III.A.1.i.; Ex. A at Items 823 through 1502.1. 

Social and Dining Spaces and Features, Including Restaurants, Bars, Drink Rails, and Drinking 

Fountains. Some of the most significant barriers in the Stadium included the general lack of accessible 

tables in restaurants, accessible lowered sections in bars, and the inaccessibility of other social spaces 

such as the Stadium drink rails and other counters at which patrons congregate or make purchases from 

Stadium personnel. As a result of the Settlement, Defendants will provide accessible seating and bar 

spaces at all locations at which food and drink is served or consumed within the Stadium. Settlement 

at §§ III.A.1.g; III.A.1.h; § III.A.2; Exhibit E. Further, the Settlement requires that all of the Stadium’s 

drinking fountains be made accessible. Id. at § III.A.1.j. 

Shops and Concessions. The Settlement requires that all of the barriers identified in the 

Stadium’s shops and concessions be remediated in accordance with Exhibit A. Settlement at §§ 

III.A.1.k, m. This access work will provide Class Members and their companions with equal access to 

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the Stadium’s shops and concessions. 

Boxes and Suites. The Settlement will make significant access improvements to the Stadium’s 

boxes and suites. Defendants will be required to provide accessible tables and other furniture within 

the boxes and suites in place of the existing inaccessible furniture. In addition, Defendants will be 

required to provide compliant accessible seating in the boxes and suites so that users with mobility 

disabilities will be able to access their seats and enjoy an unobstructed sightline to watch Stadium 

events. Settlement at § III.A.1.l. 

 Stairs and Handrail Extensions. The Settlement requires Defendants to provide compliant 

handrail extensions throughout the Stadium so that Class Members will be able to safely and easily 

transition from stairs and ramps to the landings at the top and bottom of same. Settlement at § 

III.A.1.n. In addition, the Settlement requires important access fixes that go beyond the barriers 

identified in Exhibit A to the Complaint, and which Plaintiffs would not have been able to obtain at 

trial. Specifically, the Settlement requires that Defendants remove access barriers in the Stadium’s 

external stairways, including barriers such as abrupt nosings on the risers of the stairs that constitute a 

tripping hazard. Settlement at § III.A.1.s. This important access and safety work will be performed on 

the external stairs at Gate A and Gate C, as well as the internal stairs at Toyota Gate F, the stairs within 

the Stadium bowl itself, and the stairs within the United Club. Id.

First Aid and Breastfeeding Stations. Work required to make the Dignity Health First Aid 

Room on Level 300 (Main Concourse) accessible are specified in § III.a.1.p. of the Settlement 

Agreement. The Settlement also requires that all of the inaccessible conditions in the Stadium’s 

breastfeeding stations be remediated so that women with disabilities will be able to access these 

important features. Settlement at § III.A.1.p. 

Restaurants. The Settlement Agreement requires Defendants to ensure that the Stadium 

restaurants remediate numerous access barriers identified in Exhibit A, including inaccessible 

entrances, paths of travel, dining areas, tables and restrooms. Settlement at § III.A.2. 

Auditorium – Section III.A.1.r. of the Settlement Agreement requires that Defendants provide 

an accessible means for gaining access to the stage and integrated accessible and companion seating. 

Ticketing. The Settlement Agreement provides important relief regarding ticketing. 

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Defendants will no longer require Class Members to purchase or exchange standard tickets for tickets 

for accessible seating at the Stadium Box Office. Instead, Class Members may now simply purchase 

or exchange standard tickets for tickets for accessible seating electronically without being required to 

go to the Box Office in-person. Settlement at § III.C. 

Other Relief. The Settlement requires Defendants to provide accessible shuttles and golf carts, 

to maintain the Stadium’s access features in operating condition by performing maintenance on a 

specific schedule, and to provide Class Members with a complaint and grievance procedure regarding 

access or service problems. Settlement at §§ III.B; III.E; X. 

Compliance Period and Deadlines. In all cases, express deadlines are set forth in the 

Settlement Agreement for the completion of the specified remediation work to be undertaken. 

Although these deadlines vary depending on the scope of the work and other factors identified during 

the settlement negotiations, all of the remedial work must be completed within a three-year compliance 

period. Settlement at § II.D. 

Monitoring. Under the Settlement Agreement’s reporting and monitoring provisions, Class 

Counsel will be able to ensure that Defendants complete all of the access work and other remedial 

measures required by the Settlement. The Settlement Agreement includes periodic reporting 

requirements for Defendants to provide specific information regarding their progress and the status of 

scheduled access work. Settlement at § X.B. Class Counsel are entitled to review designs, drawings, 

plans and specifications for the access work and to conduct semi-annual inspections to monitor 

compliance. Settlement at §§ X.B.; XI. The Settlement Agreement provides for reasonable attorneys’ 

fees for Class Counsel and for reasonable expert costs on an annual basis in connection with these 

monitoring and enforcement activities. Settlement at § 14.B. 

Continuing Jurisdiction. This Court will also retain jurisdiction in the event that the parties are 

unable to resolve any disputes regarding implementation. Settlement at § XV.

In summary, the Settlement Agreement constitutes an excellent result for the Plaintiff Classes. 

It provides Class Members with comprehensive injunctive relief, including a detailed remedial plan to 

remove over 2,674 access barriers which will guarantee that the Stadium and its related facilities 

provide full and equal access as required by the ADA and the Unruh Act. Wallace Decl. ¶¶ 25-35. It 

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is doubtful that this Court could have ordered greater injunctive relief if Plaintiffs prevailed at trial. 

b. Damages 

A proposed settlement is not to be measured against “a hypothetical or speculative measure of 

what might have been achieved.” Officers for Justice v. Civil Serv. Comm’n of City and Cty. of S.F., 

688 F.2d 615, 625 (9th Cir. 1982); Nat’l Rural Telecomm’s Coop v. Directv, Inc., 221 F.R.D. 523, 527 

(C.D. Cal. 2004) (“[I]t is well-settled law that a proposed settlement may be acceptable even though it 

amounts to only a fraction of the potential recovery that might be available to the class members at 

trial.”). 

The Class damages fund represents an outstanding result for the Class. As an initial matter, the 

$24 million damages fund in this case is the largest ever obtained in a physical access case under Title 

III of the ADA with Unruh Act damages claims. Wallace Decl. ¶ 61, and comparable settlement chart 

attached thereto as Exhibit 3. As discussed, the non-reversionary fund will guarantee a substantial 

recovery to the Damages Class Members who make claims, with a minimum recovery of $4,000 and a 

maximum recovery of $80,000 per person depending on the number of visits during which the Class 

Member encountered an access barrier that caused them “difficulty, discomfort or embarrassment.” 

Settlement at §§ VII.A; VII.D; VIII.A.1. 

The $24 million recovery compares favorably with Plaintiffs’ estimates of total exposure. As 

one point of comparison, the $24 million settlement amount represents 34.3% of the approximate $70 

million outside exposure analysis calculated by Plaintiffs’ damages expert. Plaintiffs’ aggregate 

damages model was based on the assumption that a Class Member was in attendance at a particular 

event if 100% of the seats sold to that Class Member were used. If a lesser percentage of seats were 

actually used for a particular event, the damages calculation for that Class Member was based on a 

corresponding percentage of the statutory amount of $4,000. This assumes the seats were actually sold 

to and used by Class Members with mobility disabilities, and that they encountered at least one barrier 

that caused them “difficulty, discomfort or embarrassment” on each occasion that they attend an 

event.2

 Wallace Decl. ¶ 38. Plaintiffs’ damages expert calculated interest on these claims at 

 

2

 Under the Unruh Act, a plaintiff may recover the $4,000 minimum per visit to a place of public 

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approximately $9 million, using a 10% interest rate which was likely to be disputed at trial. Id. These 

figures are based on Plaintiffs’ assessment of a best-case-scenario. Id. To have obtained such a result 

at trial, Plaintiffs would have had to prove that all Damages Class Members visited the Stadium on at 

least one occasion and encountered a barrier that caused them “difficulty, discomfort or 

embarrassment.” During expert discovery, Defendants strongly disputed that Plaintiffs’ damages 

model provided a reliable and accurate means of calculating the number of visits on which Class 

Members encountered such barriers. They also strongly disputed that such claims could be resolved 

manageably at a class trial. Indeed, the uncertain and risky nature of calculating the number of visits 

by disabled class members to a public accommodation which would qualify for a $4,000 damages 

award was recognized by Judge Alsup in his decision in the Castaneda case, and was a factor in his 

approval of the damages fund. Castaneda v. Burger King Corp., No. C 08—04262 WHA, 2010 WL 

2735091, at *3 (N.D. Cal. July 12, 2010). 

Moreover, the Damages Class’ recovery of 34.3% of Plaintiffs’ maximum estimated class 

damages compares favorably with recoveries that have been held to be fair, reasonable and adequate in 

other class actions. See, e.g., In re Anthem, Inc. Data Breach Litig., 327 F.R.D. 299, 319 (N.D. Cal. 

2018) (approving recovery of 14.5% of the “projected recovery that Settlement Class Members would 

be entitled to if they prevailed on their claims” and collecting authorities); Edwards v. Nat’l Milk 

Producers Fed’n, No. 11-CV-04766-JSW, 2017 WL 3623734, at *7 (N.D. Cal. June 26, 2017) 

(approving recovery of 30% of maximum damages); In re Optical Disk Drive Products Antitrust Litig., 

No. 3:10-md-2143 RS, 2016 WL 7364803, at *5 (N.D. Cal. Dec. 12, 2016) (approving 31% of 

maximum damages); Winans v. Emeritus Corp., No. 13-cv-03962-HSG, 2016 WL 107574, at *5 (N.D. 

Cal. Jan. 11, 2016) (approving recovery of 33.2% of maximum damages and collecting authorities). 

c. The Settlement Does Not Permit Any Reversion 

The Settlement does not permit any reversion of any part of the Class damages fund to 

Defendants. The entire $24 million class damages fund will be distributed to Class Members who 

make claims. Settlement at § VIII. 

 

accommodation, not per barrier encountered on any visit. Cal. Civ. Code § 55.56(a). 

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d. The Litigation Risks Support Preliminary Approval 

The potential risks attending further litigation support preliminary approval. Courts have long 

recognized the inherent risks and “vagaries of litigation,” and emphasized the comparative benefits of 

“immediate recovery by way of the compromise to the mere possibility of relief in the future, after 

protracted and expensive litigation.” Nat’l Rural Telecomm’s Coop., 221 F.R.D. at 526. The 

“inherent” risks of protracted litigation, trial and appeal are all factors that militate in favor of 

settlement in systemic access cases under the ADA. See, e.g., Castaneda, 2010 WL 2735091, at *3; 

Californians for Disability Rights, Inc. v. Cal. Dept. of Transp., No. C 06—5125 SBA, 2010 WL 

2228531, at *3 (N.D. Cal. June 2, 2010) (“The settlement affords significant and immediate relief that 

may never have materialized had the trial concluded.”). Proceeding to the series of short trials 

regarding groups of barriers that this Court has ordered (and the inevitable appeals of those decisions) 

would have added many years to the resolution of this case. Given the importance of the accessibility 

of the Stadium to the Class Members lives, the potential for years of delayed recovery is a significant 

concern. Considered against the risks of continued litigation, and the importance of the accessibility of 

the Stadium and its related facilities to the Class Members, the totality of relief provided under the 

proposed Settlement is well within the range of reasonableness. Wallace Decl. ¶ 61. 

5. The Proposed Service Awards to the Named Plaintiffs Are Fair and Reasonable 

and Routinely Approved 

Under the Settlement, service awards of $7,500 will be paid to the three Named Plaintiffs. See 

Settlement at § XIII.B. These service awards are nominal, and are appropriate in light of the Named 

Plaintiffs’ specific efforts to assist the litigation. The service awards will be paid separately by 

Defendants and will not be paid from the Class damages fund. These proposed amounts are specified 

in the class settlement notice and Class Members will have an opportunity to comment on them. 

Service awards “are intended to compensate class representatives for work done on behalf of 

the class, to make up for financial or reputational risk undertaken in bringing the action, and, 

sometimes, to recognize their willingness to act as a private attorney general.” Rodriguez, 563 F.3d at 

958-59. The factors courts use in evaluating whether to approve an award include: “‘1) the risk to the 

class representative in commencing suit, both financial and otherwise; 2) the notoriety and personal 

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difficulties encountered by the class representative; 3) the amount of time and effort spent by the class 

representatives; 4) the duration of the litigation[;] and 5) the personal benefit (or lack thereof) enjoyed 

by the class representative as a result of the litigation.’” Van Vranken v. Atlantic Richfield Co., 901 F. 

Supp. 294, 299 (N.D. Cal. 1995). 

The amounts requested here are reasonable and within the range approved by courts in this 

District. See, e.g. Gaudin v. Saxon Mortgage Servs., Inc., No. 11-cv-01663-JST, 2015 WL 7454183, at 

*10 (N.D. Cal. Nov. 23, 2015) (finding service award of $15,000 to be “fair and reasonable”); Van 

Vranken, 901 F. Supp. at 299 (approving $50,000 participation award to plaintiffs); Villalpando v. Exel 

Direct Inc., No. 3:12-cv-04137-JCS, 2016 WL 7785852, at *2 (N.D. Cal. Dec. 9, 2016) (approving 

$15,000 service awards for each of the three named plaintiffs). 

All of the above factors support the service awards requested here. The relatively small service 

awards are intended to compensate the Named Plaintiffs for the important role they played for the 

benefit of the Classes, and the substantial time, effort, and risks they undertook to secure the resulting 

Settlement. They accepted the responsibility of prosecuting this case for the benefit of all Class 

Members. Wallace Decl. ¶ 42. They provided information during lengthy interviews, responded to 

extensive written discovery, provided documents, identified witnesses, assisted Class Counsel in 

preparing for depositions and in seeking discovery, and prepared for and sat for their own depositions. 

Id. They also assisted in preparing and evaluating the case for mediation, and in the settlement process 

itself. Id. As will be discussed in the motion for service awards that Plaintiffs will file during the class 

notice period, the amount sought is reasonable under the circumstances. 

6. Plaintiffs Are Entitled to Reasonable Attorneys’ Fees and Costs 

As prevailing parties by virtue of obtaining a court-enforceable Settlement, Plaintiffs are entitled to 

recover their reasonable attorneys’ fees, costs and litigation expenses herein. Farrar v. Hobby, 506 U.S. 

103, 111 (1992). Plaintiffs’ motion for attorneys’ fees, expenses and costs, also to be filed during the class 

notice period, will seek compensation under the lodestar-multiplier method. The lodestar method is 

appropriate for civil rights cases involving fee shifting statutes such as the ADA. See, e.g., In re Hyundai 

and Kia, 926 F.3d at 570; In re Bluetooth Headset Products Liability Litig., 654 F.3d 935, 941 (9th Cir. 

2011); Hanlon, 150 F.3d at 1029. 

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Class Counsel will apply to the Court for an award of reasonable attorneys’ fees, costs and 

expenses in an amount not to exceed $13,457,152.40. See Settlement at § XIV. Like the Named 

Plaintiffs’ service awards, Class Counsel’s attorneys’ fees, expenses, and costs will not be paid from 

the $24 million Damages Fund, but will instead be paid separately by the Defendants. When they file 

their motion for attorneys’ fees, expenses and costs, Class Counsel will demonstrate that this fee 

amount is reasonable based on the lodestar method plus a multiplier of approximately 1.25. Wallace 

Decl. ¶ 44. To date, Class Counsel have expended approximately 17,224.5 hours in litigating this case. 

Id. Class Counsel have incurred more than $1,300,000 in costs and expenses. Plaintiffs will also 

demonstrate that their costs and expenses were reasonably incurred. 

The Ninth Circuit has held that a cross-check against the common fund method is not required 

where, as here, the lodestar method applies. In re Hyundai and Kia, 926 F.3d at 571 (“[W]e do not 

require courts employing the lodestar method to perform a ‘crosscheck’ using the percentage method. 

This would make ‘little logical sense,’ because ‘the lodestar method yields a fee that is presumptively 

reasonable.’”) (citations omitted). Indeed, use of the common fund method would be particularly 

inappropriate in this case because of the extensive injunctive relief provided by the Settlement (the 

great benefits of which to the Plaintiff Classes cannot be quantified in monetary terms). Id. at 570. 

In any event, Plaintiffs’ requested fees and costs would also be reasonable under the common 

fund method given the results achieved in this case and the risks undertaken by Class Counsel. 

Plaintiffs’ requested fees would equal 32.5% of a hypothetical common fund comprised of the sum of 

$24 million dollars in damages and $13.46 million in fees and costs. The Ninth Circuit has held that 

fee awards of 33% or more of a common fund are permissible. In re Hyundai and Kia, 926 F.3d at 

571; In re Pacific Enters. Sec. Litig., 47 F.3d 373, 379 (9th Cir. 1995); see also, Castaneda, 2010 WL 

2735091, at *3 (approving fee award of 33% of the damages fund in ADA access case against Burger 

King because “the monetary damages in this settlement –although quite substantial—are only part of 

the relief obtained for class members” under the settlement which also required “injunctive relief at the 

ten restaurants in question to eliminate accessibility barriers”). 

The attorney’s fee arrangement does not improperly favor Class Counsel at the expense of the 

Classes. In Bluetooth, the Ninth Circuit identified three indicia of collusive fee arrangements: “(1) 

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when counsel receive a disproportionate distribution of the settlement, or when the class receives no 

monetary distribution but class counsel are amply rewarded; (2) when the parties negotiate a ‘clear 

sailing’ arrangement providing for the payment of attorneys' fees separate and apart from class funds . . 

. ; and (3) when the parties arrange for fees not awarded to revert to defendants rather than be added to 

the class fund.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d at 947. Although the Settlement 

includes a “clear sailing” provision and allows for the reversion of unawarded attorneys’ fees, the 

absence of collusion is clearly demonstrated by the facts of this case. First, the settlement was reached 

after the Court granted class certification. Thus, the heightened-level of scrutiny applicable to precertification settlements at issue in Bluetooth does not apply. Id. at 946. Second, the attorneys’ fees 

requested by Class Counsel are amply justified under both the lodestar and common fund 

methodologies, as discussed above. Where “the fee award is clearly reasonable as viewed through the 

appropriate application of either the lodestar or percentage-of-recovery methods, the chance of 

collusion narrows to a slim possibility.” Laguna v. Coverall N. Am., Inc., 753 F.3d 918, 925 (9th Cir. 

2014) (vacated after appeal dismissed). Moreover, the parties did not negotiate attorneys’ fees until 

after all relief issues had been resolved. Finally, the presence of Bluetooth indicia does not foreclose 

settlement approval. Rather, “it is sufficient that a district court recognizes and balances potentially 

collusive provisions, such as the reversion to defendants of unclaimed funds, against the other terms of 

the settlement agreement.” Laguna, 753 F.3d at 925. Here, the proposed Settlement represents an 

outstanding result for the Plaintiff Classes, including comprehensive injunctive relief and the largest 

class damages fund ever obtained in a case challenging physical access to a place of public 

accommodation. Accordingly, the substantial benefits of the Settlement demonstrate that the interests 

of Class Counsel did not “infect the negotiations.” In re Bluetooth Headset Prods. Liab. Litig., 654 

F.3d at 947. 

In their Motion for fees, costs and expenses pursuant to Rule 23(h), Class Counsel will 

demonstrate that when considered under both the lodestar and percentage of the fund methods, Class 

Counsel’s fees and costs are reasonable. 

 

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C. The Proposed Notice Satisfies Due Process and Should Be Approved 

Under Rule 23(e) and due process requirements, the parties to a class action settlement must 

distribute notice that is “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.” Borchardt v. 

City of Tucson, 706 Fed. App’x 372, 373 (9th Cir. 2017). The settlement must provide “the best notice 

that is practicable under the circumstances . . . .” Fed. R. Civ. P. 23(c)(2)(B); see also W. Rubenstein, 

Newberg on Class Actions (5th ed. 2014) § 8.5. There is no requirement that all class members 

receive actual notice; rather, “individual notice must be provided to those class members who are 

identifiable through reasonable effort.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 175-76 (1974). 

The Parties’ proposed notice plan complies with Rule 23(e) and due process because individual 

notice will be directed to all Class Members who can be identified through reasonable effort. Once the 

Settlement Administrator has searched for updated mailing addresses based on information in 

Defendants’ business records, the Short Form Notice will be sent by mail and/or email to all 

identifiable Class Members. The Settlement Administrator will also send one or more email reminders 

prior to the claim deadline to Damages Class Members who have not yet filed a claim. In addition, the 

Long Form Notice will be posted on the settlement website, on Defendants’ websites, and at 

conspicuous locations throughout Levi’s Stadium. The Short Form Notice will also be distributed to 

organizations that serve individuals with mobility disabilities. The notice is therefore reasonably 

calculated to reach members of all three Classes. See, e.g., Connolly v. Weight Watchers N. Am. Inc., 

Case No. 14-cv-01983-TEH, 2014 WL 3611143, at *4 (N.D. Cal. July 21, 2014) (individualized notice 

by first class mail only was sufficient). 

In addition, the content of the proposed notice complies with Rule 23(e) and due process 

requirements. The Long Form Notice, attached as Exhibit K to the Settlement Agreement, informs 

Class Members of their right to object to the Settlement and that, if they are in the Damages Class, they 

have a right to either opt out of the Settlement or file a claim for a monetary award. It provides a 

digestible overview of the Settlement’s injunctive relief. It includes contact information for Class 

Counsel, the address for a Settlement Website maintained by the Settlement Administrator and 

containing the Agreement and other important documents, and instructions on how to access the case 

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docket. It states the date of the Fairness Hearing and that the date may change without further notice to 

the Class. The Short Form Notice, attached as Exhibit L to the Settlement Agreement, provides the 

same important information as the Long Form Notice in a summary form. Both the Long Form Notice 

and the Short Form Notice are easy to understand, and “strike a balance between thoroughness and the 

need to avoid unduly complicating the content of the notice and confusing class members.” Bautista v. 

Harvest Mgmt. Sub LLC, Case No. 12-cv-10004FMO (CWx), 2013 WL 12125768, at *17 (C.D. Cal. 

Oct. 16, 2013) (citation omitted). Accordingly, the proposed notice should be approved. 

D. The Plan to Allocate Settlement Funds Should Be Preliminarily Approved 

The proposed allocation of the $24,000,000 damages fund is fair, reasonable, and adequate. 

Each Damages Class Member who submits a timely, valid, and approved claim form will be entitled to 

receive a minimum award of $4,000 unless the total number of approved claims exceeds 6,000. 

Settlement at § VIII.A.1. In that event, the Damages Fund will be allocated on a pro rata basis such 

that the minimum award will be less than $4,000. Id. If fewer than 6,000 approved claims are 

submitted, each Damages Class Member will receive a minimum award of $4,000, and the remainder 

of the Damages Fund will be allocated on a pro rata basis to Damages Class Members who made more 

than one Qualifying Visit to the Stadium, with a maximum award of $80,000. Id. Any residual 

amounts remaining in the Damages Fund 400 after days the initial distribution will be either allocated 

to all eligible claims on a pro rata basis as part of a second distribution, or, if less than $100,000 is 

available for a second distribution, paid to the two cy pres recipients in equal portions. Settlement at 

§ VIII.B. No portion of the Damages Fund will revert to Defendants. Id. Plans of allocation that 

divide settlement funds pro rata based on the extent of injury, such as the one herein, are routinely 

approved as “cost effective, simple, and fundamentally fair.” In re High-Tech Employees Antitrust 

Litig., No. 11-CV-02509-LHK, 2015 WL 5159441, at *8 (N.D. Cal. Sep. 2, 2015); see also Rodriguez, 

563 F.3d at 957 (affirming approval of settlement in which monetary fund was allocated pro rata).

E. The Proposed Settlement Administrator 

After receiving competing proposals from two class action settlement administrators, the 

parties selected KCC to administer the Settlement. Wallace Decl. ¶ 55. KCC is a highly reputable 

class action settlement administrator that has implemented over 6,500 class action settlements. KCC is 

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familiar with this matter as it successfully distributed the class certification notice approved by the 

Court in December 2018. (ECF 278.) KCC estimates the cost of settlement administration to range 

between $64,702 and $95,832 depending on the number of claims submitted (3,000 to 7,000). Id. The 

projected costs of administration are reasonable given the amount of work necessary to distribute 

notice and process claims for thousands of Damages Class Members. The cost of settlement 

administration will not be deducted from the Damages Fund. Instead, Defendants will pay for this cost 

separately. Settlement at § V.A. Collectively, Class Counsel have used KCC 13 times within the last 

two years to distribute class certification notice or administer class settlements. Wallace Decl. ¶ 55. 

F. Cy Pres 

The cy pres doctrine allows for the “next best distribution” of unclaimed portions of class 

action settlements. See e.g., Nachshin v. AOL, LLC, 663 F.3d 1034, 1036 (9th Cir. 2011). A cy pres

award must be “guided by (1) the objectives of the underlying statute(s) and (2) the interests of the 

silent class members,” and must not benefit a group “too remote from the plaintiff class.” Dennis v. 

Kellogg Co., 697 F.3d 858, 865 (9th Cir. 2012). Here, any balance of a $100,000 or less remaining in 

the Damages Fund 400 days after the date of distribution will be divided evenly between the Silicon 

Valley Independent Living Center and the Center for Independence of Individuals with Disabilities, 

San Mateo. Settlement at § VIII.B. Both of these organizations provide programs and services that 

help persons with mobility disabilities lead independent lives. Wallace Decl. ¶ 41. In this way, their 

work furthers the primary goals of the ADA and other disability non-discrimination laws, including 

“equality of opportunity, full participation, independent living, and economic self-sufficiency.” 42 

U.S.C. § 12101(a)(7). Moreover, these organizations serve persons with mobility disabilities who live 

in Santa Clara and San Mateo counties. People who receive assistance from these organizations may 

be Class Members in this case, and are likely to attend events at the Stadium. Accordingly, providing 

them with the residue of the Damages Fund amounts to the “next best” use of that money. 

G. Required Notice to the Class and CAFA Notice. 

Defendants are responsible for providing notice under the Class Action Fairness Act (CAFA). 

Settlement at § V.B. Defendants will provide CAFA notice within ten (10) days of the filing of this 

motion. Id. Moreover, 28 U.S.C. § 1712 is inapplicable to the proposed settlement because it does not 

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provide for the recovery of coupons to Plaintiff Class Members. 

H. Plaintiffs Have Disclosed the Only Side Agreement Produced to Them By Defendants 

Plaintiffs have provided the Court with a copy of the only side agreement produced to them by 

Defendants, and are aware of no other such agreements. Wallace Decl. ¶ 58; Exh. 4. 

I. The Court Should Approve the Proposed Scheduling Order and Set a Date for the 

Fairness Hearing 

The parties propose the following schedule for distribution of notice to the Class Members and 

the deadlines for claims, opt outs and objections. The parties also request that the Court set a Final 

Approval Hearing: 

Deadline for Defendants to provide CAFA notice 10 days after preliminary approval 

Deadline for Defendants to provide updated contact 

information for Plaintiff Class Members to Settlement 

Administrator 

14 days after preliminary approval 

Deadline to distribute short form notice to Plaintiff Class 

Members, post long form notice at Levi’s Stadium, post 

long form notice on websites and social media, and send 

short form notice to disability organizations 

21 days after preliminary approval 

Deadline for Plaintiffs to file their motion for reasonable 

attorneys’ fees, costs, and expenses and motion for service 

awards 

30 days after distribution of notice 

Deadline for Plaintiff Class Members to object or opt out 45 days after distribution of notice 

Deadline for Damages Class Members to file claims 90 days after distribution of notice 

Deadline for the parties to file their motion for final 

approval of settlement and response to objections 

14 days prior to Final Approval 

Hearing 

Final Approval Hearing TBD 

Deadline for Settlement Administrator to complete review 

and determine validity of all claims 

90 days after deadline for Damages 

Class Members to file claims 

IV. CONCLUSION 

For the reasons stated herein, Plaintiffs respectfully request that their motion be granted. 

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Dated: October 7, 2019 Respectfully submitted, 

/s/ Guy B. Wallace 

Guy B. Wallace 

Attorneys for Plaintiffs and the Plaintiff Classes 

 

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CERTIFICATE OF SERVICE 

I hereby certify that I electronically filed the foregoing document with the Clerk of the Court 

for the United States District Court, Northern District of California, by using the Court’s CM/ECF 

system on October 7, 2018. 

I certify that all participants in the case are registered CM/ECF users and that service will be 

accomplished by the Court’s CM/ECF system. 

Dated: October 7, 2019 

/s/ Guy B. Wallace 

Guy B. Wallace 

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