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Class Action Settlement: Plaintiffs vs. Trader Joe’s Company
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
CASE NO.: BC487089
JUDGE Elihu M. Berle
JOSE PEREZ, MAYRA ESPINOZA, AND ROBERTO ALVARADO, JR. on behalf of themselves and all others similarly situated, Plaintiffs vs. TRADER JOE’S COMPANY, Defendant.
SUMMARY NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
IF YOU ARE HEARING IMPAIRED, VISUALLY IMPAIRED, OR MOBILITY IMPAIRED, AND HAVE BEEN TO OR BEEN DETERRED FROM PATRONIZING A CALIFORNIA TRADER JOE’S STORE, YOU COULD GET A PAYMENT FROM A CLASS ACTION SETTLEMENT
Who? A person is a member of this settlement ifhe or she is hearing impaired, vision impaired and/or mobility impaired or uses a wheelchair or other devices for mobility and has been to a Trader Joe’s store in the state of California, will patronize Trader Joe’s, or would have patronized Trader Joe’s but for access problems from June 22,2009 through the end of the proposed settlement (approximately July 9, 2018) (“Class Members”). If you have been to, or been deterred from patronizing, a Trader Joe’s in California between June 22,2009 and December 13, 2013, you may be eligible for monetary recovery.
What? The lawsuit seeks to make Trader Joe’s alter its stores with respect to access for people who are vision impaired, hearing impaired and/or mobility impaired, and seeks damages in an amount specified by Statute(s) for people who shopped at Trader Joe’s in California (“Damages Class Members”). Trader Joe’s denies liability. The Court did not decide which side is correct. Under the settlement, Trader Joe’s will make alterations to its California stores to become fully accessible to the hearing, vision and mobility impaired, and will pay $460,000.00 to a Fund to be distributed to Class Members minus the cost of administration ofthe Fund, which is estimated at approximately $149,000.00. In addition, Trader Joe’s has also agreed to pay attorneys’ fees and costs not to exceed $235,000.00. Qualifying Class Members can obtain monetary recovery. Trader Joe’s has also agreed to pay an incentive award to the three class representatives not to exceed $10,000.00 each, subject to court approval, out of the Fund.
How? The detailed notice package contains everything you need to make a claim. Call the number below or visit the website below to get one. To qualify for a payment, you must submit a claim by May 31, 2014.
Effect? If you are a Class Member and do not want to be bound by the settlement’s monetary provisions, you must exclude yourself by May 31, 2014. Ifyou exclude yourself by May 31, 2014, you cannot get money from this settlement. If you do not exclude yourself, you will release all claims for damages (excepting personal injury damages resulting from physical injury) relating to accessibility of Trader Joe’s stores in the State of California for people who are vision impaired, hearing impaired and/or mobility impaired.
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NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
TO: This settlement pertains to all persons who at any time from June 22, 2009 through the end of the proposed settlement (approximately, July 9, 2018) were hearing impaired, vision impaired and/or mobility impaired, including individuals with limited upward mobility and reach, who used, use or will use wheelchairs or other devices for mobility, and who patronized any Trader Joe’s Store or who allege they would have patronized one or more Trader Joe’s Store but for allegedly being denied, on the basis of disability, the full and equal enjoyment ofthe goods, services, facilities, privileges, advantages, or accommodations of such Trader Joe’s Store(s) (“Settlement Class”).
PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS MAY BE AFFECTED.
1. The purpose ofthis notice is to inform you of a proposed settlement (the “Settlement”) of a certified class action lawsuit (the “Action”) against Trader Joe’s Company (hereinafter “Trader Joe’s”). The Action is currently pending in the Superior Court of the State of California, County of Los Angeles, BC487089 (the “Court”).
2. This notice is intended (1) to inform you ofthe Settlement ofthe Action, (2) to describe the Settlement and how the Settlement may affect you, and (3) to advise you of your rights and options with respect to the Settlement, including making a claim, opting out of the Settlement and/or objecting thereto.
DESCRIPTION OF THE ACTION
3. Plaintiff Jose Perez filed the Action on or about June 22, 2012; and Amended Complaint was filed by Plaintiffs Jose Perez, Mayra Espinoza and Roberto Alvarado, Jr. thereafter. The Amended Complaint alleges the following: that Trader Joe’s stores owned by Trader Joe’s Company in California have physical barriers and other conditions that deny full and equal access to persons with mobility, vision and/or hearing disabilities.
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NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
10. Pursuant to the Settlement Agreement, Class Counsel will apply to the Court for approval of attorneys’ fees and reimbursement ofcosts, not including costs of notice and administration, in the amount of $235,000.00. The costs of notice to the class and administration ofthe fund will come out of the Damages Fund. Any attorney’s fees and costs award is to be paid by the Defendant separately and will not come out of the Damages Fund.
11. On December 13, 2013, the Court issued an Order (the “Preliminary Approval Order”) which, among other things, granted preliminary approval to the Settlement and established procedures for this Notice, Final Approval of the Settlement and other related matters.
12. If the Settlement receives Final Approval from the Court, a Judgment will be entered pursuant to the order ofthe Court and all members of the Settlement Class will be barred from prosecuting or continuing to prosecute against Trader Joe’s, its predecessors, successors and its present and former parents, partners, subsidiaries and affiliates, employees, agents, assigns, representatives, insurers, heirs, executors and administrators, any and all claims, causes of action or lawsuits, which they had or have arising out of or relating to the matters alleged in the Action.
RELEASE OF CLAIMS
13. Release Language.
a. All Settlement Class Members Shall Release Claims for Injunctive and Declaratory Relief as follows: i. Effective on the date of Final Approval, Named Plaintiffs and all Settlement Class Members and each of their executors, successors, heirs, assigns, administrators, agents and representatives (collectively, the “Injunctive and Declaratory Releasing Parties”), in consideration of the relief set forth herein, the sufficiency of which is expressly acknowledged, unconditionally and forever do fully and finally release, acquit, and discharge Trader Joe’s Company and its present and former parents and subsidiaries and each oftheir respective present, former or future officers, directors, employees, shareholders, administrators, executors, affiliates, insurers, successors and assigns (collectively, the “Trader Joe’s Parties”) from the Released Injunctive and Declaratory Relief Claims as defined below.
ii. The “Released Injunctive and Declaratory Relief Claims” are any and all past and/or present claims, rights, demands, charges, complaints, actions, suits and causes of action, obligations or liabilities of any and every kind, whether known or unknown, suspected or unsuspected, accrued or unaccrued, for injunctive, cleclaratory or other non~monetary relief, however described, based on conduct preceding Final Approval of this Settlement Agreement that were brought, or could have been brought now or through the expiration date of this Agreement in this action or in any other court, tribunal, forum or proceeding, so long as Trader Joe’s is in compliance with the terms of this Settlement Agreement, that are based upon or arise out ofthe accessibility of Trader Joe’s Stores to persons who are vision impaired, hearing impaired and/or mobility impaired, including individuals with limited upward mobility and reach, or who use wheelchairs or other devices for mobility under:
(1) Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181 et seq., and all rules and regulations promulgated thereunder;
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NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
iii. The “Released Damages Claims” also include any and all past, present, or future, extending through the expiration of this Agreement, claims, rights, demands, charges, complaints, actions, suits, causes of action, obligations or liabilities of any kind, known or unknown, for damages and attorneys fees (collectively, for this subparagraph, “claims”), except personal injury claims involving physical injury, based upon actions, omissions or conduct that occurs after Final Approval of this Agreement and during the Term of this Agreement to the extent that such claims arise out of or relate to actions, omissions, or conduct (including physical conditions at Trader Joe’s Stores) that were challenged or could have been challenged in this action so long as Trader Joe’s is in compliance with the terms of this Agreement.
iv. The Released Damages Claims do not include personal injury claims involving physical injury to a plaintiff.
HOW TO MAKE A CLAIM
14. Claim Form.
a. To be an “Eligible Claimant” as that term is defined in the Settlement Agreement and be eligible for an award from the Damages Settlement Fund, you must be an individual who is vision impaired, hearing impaired, mobility impaired or used or uses a wheelchair, scooter or other device for mobility and whose access to a Trader Joe’s store located in California during the period oftime from June 22, 2009 through December 13, 2013 was hindered or deterred because of Architectural or Other Barriers as defined in the Settlement Agreement. If you satisfy these criteria and have not previously signed a release of any claims you may have against Trader Joe’s, you may be eligible to receive money damages.
b. If you file both an Opt Out statement requesting to be excluded from the monetary relief portions ofthe case, and a Claim Form, your Opt-Out statement will be disregarded.
c. Your Claim Form must be mailed and postmarked on or before May 31, 2014 or your claim will be denied. To insure that you have a record of your claim and date of mailing, we suggest that you keep a copy of your signed Claim Form and mail the original Claim Form by certified mail and keep a copy ofthe postmarked certified mail receipt. (Certified mail is suggested, but not required.)
OPTING OUT OF SETTLEMENT
15. You may request exclusion from the class for purposes of monetary relief only. If you wish to opt out of the class for purposes of participation in the monetary portion of the settlement, you must submit a written and signed request for exclusion (“Opt-’Out Statement”) to the Claims Administrator, Simpluris, Inc. Opt-Out Statements must be postmarked and mailed to the Claims Administrator no later than May 31, 2014.
a. No Settlement Class Member may opt out of the injunctive relief provisions ofthis Agreement. No Named Plaintiff may opt out of any of the provisions of this Agreement.
b. If you submit both a claim form and an opt-out statement, your opt-out statement will be disregarded.
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CNN.com Lawsuit Update
A California judge has rejected CNN’s attempt to dismiss a lawsuit brought about by GLAD. The Hollywood Reporter: http://www.hollywoodreporter.com/thr-esq/cnn-deaf-lawsuit-attempt-dismiss-glad-305479
CNN.com Lawsuit Information
At a long and involved hearing on Thursday, February 2, 2012, a federal court in Oakland, California firmly rejected CNN’s efforts to throw out GLAD’s lawsuit demanding closed-captioning on CNN.com. GLAD and three individual plaintiffs filed this lawsuit in June 2011 following unsuccessful informal efforts to persuade defendant to provide closed-captioning for its online videos at CNN.com. The lawsuit alleges that CNN’s refusal to provide closed-captioning for its online videos violates California’s civil rights statutes by excluding deaf and hard of hearing visitors to CNN.com.
In September 2011, CNN made a “Motion to Strike” the case under California’s “anti-SLAPP” statute. SLAPP stands for “Strategic Lawsuit Against Public Participation” and is designed to prevent plaintiffs from using litigation as a weapon against defendants’ free speech rights. CNN claimed in its Motion to Strike that requiring it to provide closed captioning at CNN.com violates its free speech rights. At a hearing on February 2, 2012, CNN’s attorney claimed that closed captioning would contain transcription errors. The attorney argued that CNN’s choice not to closed-caption on the internet was an editorial choice not to carry speech content that contained errors, and that this choice is “in furtherance of” CNN’s free speech rights.
Plaintiffs’ counsel, Laurence W. Paradis of Disability Rights Advocates, noted that plaintiffs have submitted evidence showing that a qualified captioning company can provide closed-captioning without more errors than broadcast television captioning. Plaintiffs have not asked for a particular closed-captioning technology, but instead have demanded that defendant provide closed captioning that gives deaf and hard of hearing visitors full and equal access to the benefits of the videos on CNN.com. The 21st Century Video and Communications Accessibility Act requires that online closed-captioning be of at least equal quality to closed captioning on broadcast television.
The court agreed with plaintiffs and rejected CNN’s arguments. Magistrate Judge Laurel Beeler indicated that the lawsuit does not implicate CNN’s free speech rights under the First Amendment or the anti-SLAPP statute. The Judge noted that the lawsuit is not about the content of CNN’s speech, but about the “mechanics of delivery” of that speech. She further agreed with plaintiffs’ position that deaf Californians do not seek to change CNN’s speech– they want access to CNN’s speech. The judge made clear that she intends to deny CNN’s motion to strike. The court will likely issue an order denying CNN’s motion within the next several weeks. Dr. Patricia Hughes attended the hearing along with numerous other members of California’s deaf and hard of hearing community.
FOR IMMEDIATE RELEASE
June 15, 2011
Dr. Patricia Hughes, GLAD CEO: firstname.lastname@example.org
Anna Levine and Elizabeth Leonard of Disability Rights Advocates: (510) 665-8644
Linda Dardarian and Rachel Brill of Goldstein, Demchak, Baller, Borgen & Dardarian: (510) 763-9800
CNN.COM SUED BY DEAF AND HARD-OF-HEARING for lack of CAPTIONED VIDEOS ON ITS WEBSITE
Oakland, CA – June 15, 2011 – A class action lawsuit filed today in Alameda County Superior Court alleges that Time Warner Inc., the owner of CNN.com discriminates against people who are deaf or hard-of-hearing by failing to provide any captioning of its on-line videos on its website. The suit is the first of its kind in the country. The suit is brought by The Greater Los Angeles Agency on Deafness (“GLAD”) on behalf of its members with hearing loss, and three individual plaintiffs. The plaintiffs are represented by Disability Rights Advocates (“DRA”), a non-profit disability rights legal center headquartered in Berkeley, California that specializes in high-impact cases on behalf of people with disabilities and Goldstein, Demchak, Baller, Borgen & Dardarian, a plaintiffs’ public interest class action law firm headquartered in Oakland, California.
The internet has revolutionized the speed of reporting and the ability to access news information. Within hours of a story breaking, videos are posted on news websites allowing the public to access critical information. Yet CNN.com, one of the largest media and entertainment companies in the world, refuses to provide any captioning of its on-line videos, excluding the deaf and hard-of-hearing communities from accessing video news content on its website. Viewership of CNN.com rises dramatically when breaking news becomes available. For example, according to its own website, CNN.com received 67 million global page views in a single day, March 12, 2011, immediately following the Japanese earthquake and tsunami. Almost every user who visited CNN.com that day watched a video; according to its own website, CNN.com received 60 million global video starts on March 12, 2011.
Hearing loss is a major disability. The Hearing Loss Association of America reports that approximately 36 million American adults report some degree of hearing loss. Approximately 1 million Americans are functionally deaf. The number of adults with hearing loss is expected to increase significantly as the baby boomer generation continues to age. California, with 100,000 deaf residents, is thus home to a great many people who depend on captions to understand news videos. Many people with hearing loss utilize captioning to understand video content. Captioning displays dialogue, and may also identify who is speaking and include non-speech information conveyed through sound, such as sound effects, music and laughter.
Currently, broadcast and cable television content must be closed captioned under federal communications law. There is readily available technology that would enable on-line news sites to provide similar closed captions. Captioning can be provided as an option for deaf and hard- of-hearing visitors to CNN.com without interfering with the experience of non-disabled website visitors. “Time Warner’s refusal to provide captioning of its videos is astounding given how central the internet is in today’s communication environment. The lack of captioned videos means that millions of people with hearing loss will continue to be denied equal access to video news content on CNN.com,” said Anna Levine, Plaintiffs’ attorney of Disability Rights Advocates.
Donny Jacob, a plaintiff in the case says, “The era of waiting for the six o’clock news is over. I simply want an equal opportunity to view news videos on CNN.com’s website at my convenience like most people can.”
“As we gear up for the 2012 presidential elections, watching debates among candidates will be of major importance to Americans. Body language and facial cues are a central part of communication for individuals who are deaf or hard-of-hearing. Videos with captions allow people who lack the ability to hear or have minimal hearing to access these aspects of communication, which are vital for viewing speeches,” said Linda M. Dardarian, Plaintiffs’ attorney of Goldstein, Demchak, Baller, Borgen & Dardarian.
Jennifer Olson, a plaintiff in the case, regularly visits CNN.com for news. “People with hearing loss want to watch captioned videos of candidates’ speeches for a clearer understanding and perception of each candidate,” said Jennifer Olson.
Edward Kelly, a plaintiff in the case is an advocate who works with deaf and hard-of-hearing individuals. After the Tsunami in Japan hit, Edward like many Americans was concerned about whether radiation levels would spread to the U.S. “I could see pictures of nuclear reactors that were damaged but without captioning, I did not know if the radiation would spread to California. My clients echoed the same concern. I wanted to provide them with an accurate report about radiation levels but the lack of captioning prevented me from doing so,” said Edward Kelly.
“Technology has the ability to advance society but if technology is not accessible, it harms certain communities by excluding them. CNN’s refusal to provide captioning of its on-line video news content is leaving deaf and hard-of-hearing communities behind as they cannot instantly and conveniently access crucial news information,” says Dr. Patricia Hughes, Chief Executive Officer of GLAD, an organizational Plaintiff in the lawsuit.
The lawsuit alleges violations of California’s anti-discrimination statutes: the Unruh Civil Rights Act and Disabled Persons Act. A copy of the Complaint can be found at www.dralegal.org.
About Greater Los Angeles Agency on Deafness, Inc. (GLAD)
The mission of the Greater Los Angeles Agency on Deafness, Inc. (GLAD) is to ensure equal access of the deaf and hard of hearing community to the same opportunities afforded their hearing counterparts. The organization’s general purposes and powers are directed around the promotion of the social, recreational, cultural, educational, and vocational well-being of its deaf and hard of hearing constituents. www.gladinc.org
About Disability Rights Advocates (DRA)
Disability Rights Advocates is a non-profit legal center which, for nearly twenty years, has specialized in high-impact class action litigation on behalf of people with all types of disabilities. DRA litigates nationally and has offices in New York City and Berkeley, California.
About Goldstein, Demchak, Baller, Borgen & Dardarian
Goldstein, Demchak, Baller, Borgen & Dardarian, is an Oakland, California based law firm which represents plaintiffs nationally in complex and class action litigation, including civil rights, employment discrimination, wage and hour, disability access, consumer, and other public interest class actions.
How You Can Take Action
If you have encountered access barriers at CNN.com and would like to share your experience, or would like more information about the lawsuit, please contact Disability Rights Advocates at (510) 665-8644 or email email@example.com.
Bloomberg BNA: http://www.bna.com/challenge-cnns-decision-n12884908856/
Entertainment Law Digest: http://www.entlawdigest.com/2012/03/28/Captions.pdf
Opposing Views: http://www.opposingviews.com/i/politics/lights-camera-captions
San Francisco Gate: http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2012/02/04/BAKK1N2SST.DTL
Courthouse News: www.courthousenews.com/2011/06/16/New_Complaints.htm