anoush hakimi (state bar no. 228858) anoush ......2 days ago · avenue, san francisco, california...

Anoush Hakimi (State Bar No. 228858) [email protected] Peter Shahriari (State Bar No. 237074) [email protected] THE LAW OFFICE OF HAKIMI & SHAHRIARI 7080 Hollywood Blvd., Suite 804 Los Angeles, California 90028 Telephone: (323) 672 – 8281 Facsimile: (213) 402 – 2170 Attorneys for Plaintiffs and the Proposed Class [Additional Counsel Listed on the Following Page]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DEE ANN EVANS, PATRICIA HILL, LISA ANDERSON AND PATRICK DUCKWALD, each individually, and on behalf of all others similarly situated, Plaintiffs, vs. BIRD RIDES, INC., a Delaware corporation; NEUTRON HOLDINGS, INC., a Delaware corporation; CITY OF OAKLAND, a public entity, CITY OF PIEDMONT, a public entity; CITY OF SANTA CLARA, a public entity; CITY OF SAN JOSE, a public entity; CITY OF MOUNTAIN VIEW, a public entity; CITY OF SAN MATEO, a public entity; CITY OF BURLINGAME, a public entity; CITY OF WALNUT CREEK, a public entity; CITY OF RICHMOND, a public entity; and DOES 1-10, Defendants.

Case No.: 3:19−cv−01207−VC PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT Judge: Hon. Vince Chhabria Date: February 25, 2021 Time: 10:00 a.m.

Case 3:19-cv-01207-VC Document 141 Filed 01/21/21 Page 1 of 24

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Martin J. Phipps, Esq. (pro hac vice) [email protected] PHIPPS MAYES PLLC 102 9th Street San Antonio, Texas 78215 Telephone: (210) 340 – 9877 Facsimile: (210) 340 – 9899 J. Randall Jones, Esq. (pro hac vice) [email protected] Spencer H. Gunnerson, Esq. (pro hac vice) [email protected] Michael J. Gayan, Esq. (pro hac vice) [email protected] KEMP, JONES, LLP 3800 Howard Hughes Parkway, 17th Floor Las Vegas, Nevada 89169 Telephone: (702) 385 – 6000 Facsimile: (702) 385 – 6001


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TABLE OF CONTENTS Page

Table of Contents ......................................................................................................................... 3 Table of Authorities ..................................................................................................................... 5 Notice of Motion .......................................................................................................................... 7 I. Introduction .......................................................................................................................... 8 II. Background .......................................................................................................................... 9

A. Plaintiff’s Allegations .......................................................................................... 9 B. The Discovery Undertaken and the Parties’ Settlement Conference ......................................................................................................... 11

III. The Terms of the Settlement Agreement ........................................................................... 12 A. Settlement Class Definition ................................................................................ 12 B. Injunctive Relief ................................................................................................. 12 C. Payment of Attorneys’ Fees and Expenses ........................................................ 13 D. Class Notice ........................................................................................................ 13 E. Release of Injunctive Claims .............................................................................. 13 IV. The Proposed Settlement Class Should be Certified ......................................................... 14 A. The Settlement Class is Sufficiently Numerous ................................................. 14 B. Settlement Class Members Share Common Questions of Law and Fact ..................................................................................................................... 15 C. Plaintiff’s Claims are Typical of the Settlement Class Members’ Claims ................................................................................................................. 16 D. Plaintiff and Class Counsel Will Adequately Represent the Settlement Class ................................................................................................................... 17 E. The Proposed Settlement Class Satisfies the Requirements of Rule 23(b)(2) ...................................................................................................... 18 V. Plaintiff’s Counsel Should be Appointed Class Counsel .................................................. 19


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VI. The Proposed Settlement Merits Preliminary Approval ................................................... 20 VII. Since the Settlement Provides Injunctive Relief Only and Does Not Release Any Monetary Claims, No Notice is Required ................................................................................................... 22 VIII. Conclusion ......................................................................................................................... 24


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TABLE OF AUTHORITIES

Page

Cases Ambrosia v. Cogent Commun., Inc., 312 F.R.D. 544 (N.D. Cal. 2016) ................................................................................................ 17 Amchem Prods. Inc. v. Windsor, 521 U.S. 591 (1997) .................................................................................................................... 14 Bickley v. Schneider Nat’l, Inc., No. 08-cv-05806-JSW, 2016 WL 4157355, at *1 (N.D. Cal. April 25, 2016) ........................... 22 Boring v. Bed Bath & Beyond of Cal. Ltd. Liab. Co., No. 12-cv-05259-JST, 2013 WL 6145706, at *7 (N.D. Cal. Nov. 21, 2013) ............................. 21 Celano v. Marriott Int’l, Inc., 242 F.R.D. 544 (N.D. Cal. 2007) ................................................................................................ 15 Cordy v. USS-Posco Indus., No. 12-cv-00553-JST, 2014 WL 212587, at *2 (N.D. Cal. Jan 17, 2014) .................................. 21 Cotter v. Lyft, Inc., 176 F. Supp. 3d 930 (N.D. Cal. 2016) ........................................................................................ 22 Dilts v. Penske Logistics, L.L.C., No. 08-cv-0318-CAB, 2014 WL 12515159, at *3 (S.D. Cal. July 11, 2014) ............................. 22 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) ..................................................................................................... 16 Harris v. Vector Mktg. Corp., No. 08-cv-5198, 2011 WL 1627973, at *8 (N.D. Cal. Apr. 29, 2011) ....................................... 21 In re High-Tech Employee Antitrust Litig., No. 11-cv-2509, 2013 WL 6328811, at *1 (N.D. Cal. Oct. 30, 2013) ........................................ 21 In re Oreck Corp. Halo Vacuum & Air Purifiers Mktg. & Sales Practices Litig., 282 F.R.D. 486 (C.D. Cal. 2012) ................................................................................................ 19 In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078 (N.D. Cal. 2007) .......................................................................... 20, 21, 22 Kanawi v. Bechtel Corp., 254 F.R.D. 102 (N.D. Cal. 2008) .......................................................................................... 15, 18 Kanter v. Warner-Lambert Co., 265 F.3d 853 (9th Cir. 2001) ....................................................................................................... 18 Kim v. Space Pencil, Inc., No. C 11-03796 LB, 2012 WL 5948951, at *2 (N.D. Cal. Nov. 28, 2012) ................................ 15


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Kline v. Dymatize Enters., LLC, No. 15-CV-2348-AJB-RBB, 2016 WL 6026330, at *4 (S.D. Cal. Oct. 13, 2016) ..................... 17 Lane v. Facebook, Inc., 696 F.3d 811 (9th Cir. 2012) ....................................................................................................... 20 Lilly v. Jamba Juice Co., No. 13-cv-02998-JST, 2015 WL 1248027, at *8-9 (N.D. Cal. Mar. 18, 2015) .......................... 13 Moshogiannis v. Sec. Consultants Grp., Inc., No. 10-cv-05971-EJD, 2012 WL 423860, at *3 (N.D. Cal. Feb. 8, 2012) ........................... 15, 21 Parra v. Bashas’, Inc., 536 F.3d 975 (9th Cir. 2008) ....................................................................................................... 14 Rannis v. Recchia, 380 F. App’x 646 (9th Cir. 2010) ................................................................................................ 23 Sarabri v. Weltman, Weinberg & Reis Co., L.P.A., No. 3:10–cv–1777 AJB (NLS), 2012 WL 3991734, at *7 (S.D. Cal. Aug. 27, 2012) ............... 19 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) .................................................................................................................... 14 Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998) ..................................................................................................... 16 Wolin v. Jaguar Land Rover N. Am. LLC, 617 F.3d 1168 (9th Cir. 2010 ...................................................................................................... 17 Statutes 28 C.F.R. § 35.104 .......................................................................................................................... 10 29 U.S.C. § 705(20)(B) ................................................................................................................... 10 29 U.S.C. §794 .................................................................................................................................. 8 42 U.S.C. § 12102(A) ...................................................................................................................... 10 42 U.S.C. § 12131 ............................................................................................................................. 8 Cal. Civ. Code § 54 ........................................................................................................................... 9 Cal. Gov’t Code § 11135 ................................................................................................................... 9 Cal. Gov’t Code § 4450 ..................................................................................................................... 8 Cal. Gov’t Code § 835 ....................................................................................................................... 9 Cal. Govt. Code § 12926 ................................................................................................................. 10 Other Authorities Herbert Newberg & Alba Conte, Newberg on Class Actions § 11.25 at 3839 (4th ed. 2002) ....... 20 Rules Fed. R. Civ. P. 23(a)(1)-(4 .............................................................................................................. 14 Fed. R. Civ. P. 23(a)(2). .................................................................................................................. 16 Fed. R. Civ. P. 23(a)(3). A .............................................................................................................. 16 Fed. R. Civ. P. 23(a)(4) ................................................................................................................... 17 Fed. R. Civ. P. 23(b)(2) ............................................................................................................. 14, 18 Fed. R. Civ. P. 23(e) ........................................................................................................................ 20 Fed. R. Civ. P. 23(g)(1)(A)(i)-(iv) .................................................................................................. 19 Fed. R. Civ. P. 23(g)(1)(B) .............................................................................................................. 19


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NOTICE OF MOTION

PLEASE TAKE NOTICE that on February 25, 2021, at 10:00 a.m., or at such other time as

may be set by the Court, Plaintiff Dee Ann Evans will appear, through counsel, before the Honorable

Vince Chhabria, or any Judge sitting in his stead, in Courtroom 4, 17th Floor, 450 Golden Gate

Avenue, San Francisco, California 94102, and then and there, respectfully move the Court, pursuant

to Federal Rule of Civil Procedure 23(e), to grant preliminary approval of a proposed class action

settlement reached between herself and Defendant City of Oakland.

Plaintiff’s motion is based upon this Notice, the Memorandum of Points and Authorities filed

herewith, the exhibits attached thereto, including the Parties’ proposed class action settlement

agreement, the Declaration of J. Randall Jones, Esq. in Support of Plaintiff’s Motion for Preliminary

Approval of Class Action Settlement attached hereto, and the record in this matter, along with any oral

argument that may be presented to the Court and evidence submitted in connection therewith.

Respectfully submitted,

DEE ANN EVANS, individually and on behalf of all others similarly situated,

Dated: January 21, 2021

By: /s/ J. Randall Jones___________ KEMP JONES, LLP J. Randall Jones Spencer H. Gunnerson Michael J. Gayan THE LAW OFFICE OF HAKIMI AND SHAHRIARI Anoush Hakimi PHIPPS MAYES PLLC Martin J. Phipps Attorneys for Plaintiffs and Proposed Class


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I. INTRODUCTION

Plaintiff Dee Ann Evans1 (“Plaintiff” or “Evans”) filed her Amended Class Action Complaint

against City of Oakland2 (the “City”) alleging that, as a result of the City’s actions and/or inactions,

the City allowed the deliberate and systemic exploitation of the City’s curb ramps, sidewalks,

crosswalks, pedestrian crossings, and other walkways (hereafter “Pedestrian Rights of Way”) for its

own profit and to the detriment of disabled persons attempting to navigate the Pedestrian Rights of

Way. Specifically, Evans brought claims against the City of Oakland for alleged violations of (1) Title

II of the ADA (“Title II”), 42 U.S.C. § 12131 et seq.; (2) Section 504 of the Rehabilitation Act

(“Section 504”), 29 U.S.C. §794 et seq.; (3) Cal. Gov’t Code § 4450 et seq.; (4) Cal. Gov’t Code §

835 et seq.; (5) Cal. Gov’t Code § 11135 et seq.; (6) Cal. Civ. Code § 54 et seq.; and (7) a claim for

public nuisance. The City of Oakland filed a Motion to Dismiss Plaintiff’s Amended Complaint (ECF

No. 59), but with the exception of dismissing Plaintiff’s claim under Cal. Gov’t Code § 4450, the

Court denied Oakland’s motion. See ECF No. 103 (Order Re Motions to Dismiss). Through informal

discovery and some formal discovery, Plaintiff was able to review and analyze the City of Oakland’s

Dockless Scooter Share Program (the “City Program”) in conjunction with complaints made regarding

Scooters obstructing Pedestrian Rights of Way and determined that the City Program could and should

be improved to better protect disabled persons attempting to navigate the City’s Pedestrian Rights of

Way. The City has categorically denied Plaintiff’s factual allegations and legal claims.

1 Three other Plaintiffs that filed the Class Action Complaint along with Evans were subsequently dismissed pursuant to Court order. 2 Evans also brought claims against Electric Scooter Companies Bird Rides, Inc., Neutron Holdings, Inc., and additional cities, including City of Piedmont, City of Santa Clara, City of San Jose, City of Mountain View, City of San Mateo, City of Burlingame, City of Walnut Creek, and City of Richmond. All of these Defendants were either dismissed by the Court pursuant to motion to dismiss or voluntarily dismissed by Evans. See ECF Nos. 103, 121, and 137. City of Oakland is the only remaining Defendant in this action.


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From the outset of this case, one of Plaintiff’s primary goals was to obtain injunctive relief that

would either stop the operation of electric scooters in the City of Oakland or require the City of

Oakland to take a closer look at its program and make changes that would benefit and better protect

the disabled community. And, as a result of her pursuit of this action, Plaintiff has achieved her goal:

As a material part of this Proposed Class Settlement, the Defendant City of Oakland has agreed to

make changes to better prevent and or address electric scooters that may be improperly parked or left

obstructing the City’s Pedestrian Rights of Way, and causing access issues for the Settlement Class.

As further explained below, the meaningful injunctive relief secured by the Settlement has improved

access and mobility for the for the Settlement Class in the City—especially in light of the risks of

further litigation — and warrants preliminary approval.

The proposed settlement was reached after significant adversarial proceedings and through an

arms-length negotiation. Specifically, prior to any settlement negotiations, the Parties engaged in

substantial adversarial motion practice (including fully briefed Motion to Dismiss and Motion to Strike

Class Allegations). The negotiations between Plaintiff and City of Oakland were at all times conducted

in good faith and at arms’ length, as the Parties reached their agreement in principle during a formal

settlement conference before Magistrate Judge Ryu.

Consequently, Plaintiff respectfully requests that the Court (i) certify the proposed Settlement

Class for settlement purposes, (ii) appoint Plaintiff as Class Representative and her counsel as Class

Counsel, (iii) grant preliminary approval of the Settlement, and (iv) schedule the final approval

hearing.

II. BACKGROUND

A. Plaintiff’s Allegations

Plaintiff is legally blind and is a “qualified person with a disability” and a person with “a

disability” within the meaning of all applicable statutes and regulations including 42 U.S.C. §


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12102(A), 28 C.F.R. § 35.104, 29 U.S.C. § 705(20)(B), Cal. Govt. Code § 12926, and other statutory

laws which protect the rights of “disabled persons.” See Amended Class Action Complaint, ECF No.

48 at ¶ 1. The City of Oakland is responsible for providing Plaintiff and other disabled persons access

to its public facilities, programs, services and activities. Id. at ¶ 11. The City of Oakland is also

responsible for maintaining and regulating the system of Pedestrian Rights of Way within its

boundaries. Id. at ¶¶ 11 and 51.

In 2018, the City of Oakland allowed the Electric Scooters Companies to start operating within

its boundaries. It was soon evident that the electric scooters caused barriers in paths of travel, and

access to public spaces, when they were physically left on and/or strewn about the public sidewalks,

curb cuts or ramps, or parked or laid down in or near crosswalks, and otherwise left in a disorderly or

chaotic fashion in Pedestrian Rights of Way. Id. at ¶ 35. While the City did implement a program

governing the use of electric scooters within the City limits—that City Program—Plaintiff alleged that

the City Program failed in the goal of keeping public rights of way safe and free of barriers, and

prioritized its relationship with the Electric Scooter Companies and the prospect of garnering more

income for the City through permit fees. Id. at ¶ 56. Plaintiff also alleged that despite notice of these

issues and the City’s ability to prohibit the unlawful use of electric scooters within its boundaries, the

City of Oakland failed to make accommodations or take necessary steps to ensure the lawful use of

electric scooters. Id. at ¶ 58. Finally, Plaintiff alleged that the City’s Pedestrian Rights of Way are not

readily accessible to and usable by persons with mobility and/or visual disabilities due to the pervasive

and ever-growing presence of Electric Vehicles that create physical access barriers along the path of

travel in the City’s Pedestrian Rights of Way. Id. The City categorically denies Plaintiff’s allegations.

Plaintiff’s lawsuit seeks to require the City to comply with all applicable disability and mobility

laws and provide fair and equal access to the City’s Pedestrian Rights of Way for all its residents and

visitors, including those with disabilities. The City contends that its current ordinances, laws and


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regulations fully comply with all federal and state disability and mobility laws.

B. The Discovery Undertaken and the Parties’ Settlement Conference

Following the Court’s partial denial of City of Oakland’s Motion to dismiss and partial denial

of the Electric Scooter Companies’ Motion to Dismiss, Plaintiff served written discovery requests to

gather more facts related to the pervasiveness of the obstructions Plaintiff contends were being caused

by the operation of electric scooters in the City and what the City and entities knew about the issues

and what, if anything, the City was doing to address these issues. See Declaration of J. Randall Jones,

Esq. in Support of Plaintiff’s Motion for Preliminary Approval of Class Action Settlement (“Jones

Dec.”) at ¶ 3, attached hereto as Exhibit 1. The Scooter Companies provided complaints they had

received related to the obstruction of Pedestrian Rights of Way by their electric scooters. Id. at ¶ 4. In

addition, Plaintiff conducted informal discovery by searching prior public records requests made to

the City regarding complaints related to the operation of electric scooters. Id. These documents

combined with a copy of the City’s Program governing the use of electric scooters and the permit

process, allowed Plaintiff and her counsel to adequately assess the case and engage in productive

settlement negotiations. Id. at ¶ 5.

With these documents and information in hand, Plaintiff’s counsel then began arm’s length

negotiations with counsel for the City, which resulted in an exchange of letters related to proposed

terms of settlement and changes to the City’s program to better protect the proposed class of disabled

persons. Id. at ¶ 6. Counsel then agreed that the negotiations would benefit from a formal settlement

conference with a magistrate judge and therefore requested and were granted the same. Id. On

September 1, 2020, Plaintiff and the City participated in a settlement conference held by the Honorable

Magistrate Judge Ryu.3 Id. By the end of the nearly day-long settlement conference and with the

3 Bird Rides, Inc. also participated in parts of the settlement conference solely to provide technical information to the City of Oakland regarding the practicality of any proposed changes to the City’s


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helpful guidance of Magistrate Judge Ryu, Plaintiff and the City of Oakland reached a settlement in

principle for a class-wide resolution of Plaintiff’s claims, subject to approval by the Oakland City

Council. Id. The Oakland City Council approved the terms of the proposed settlement on September

29, 2020, and the Parties finalized and executed the Settlement Agreement (attached hereto as Exhibit

2) shortly thereafter. Id. at ¶ 7.

III. THE TERMS OF THE SETTLEMENT AGREEMENT

For the Court’s convenience, the key terms of the Agreement are briefly summarized as

follows:

A. Settlement Class Definition: The settlement provides for an injunctive settlement

class of all persons with mobility and/or visual disabilities who have encountered an Electric Vehicle

obstructing their access to one or more Pedestrian Rights of Way in the City of Oakland. See Ex. 2

(Settlement Agreement) at § II.A.

B. Injunctive Relief: The City of Oakland has agreed to provide the following injunctive

relief: (a) revision of Section IV(J)(3)(c) and 4(a) of the City Program’s Terms and Conditions to

provide that an Operator licensed to operate in the City (“Licensed Operator”) shall address complaints

received directly or through Oakland’s 311 system, within three (3) hours during the time that the

Licensed Operator’s scooters are in operation in Oakland every day of the week; and (b) amendment

of the City Program as necessary to ensure that the requirement that a scooter rider send the Licensed

Operator a photograph of the scooter’s position at the end of the ride in order to close out the ride is

expressly set forth in the City Program. Id. at § III.A.

Prior to these revisions, the City of Oakland only required complaints to be addressed within

three (3) hours during business hours from Monday to Friday between 9:00 a.m. and 6:00 p.m., and

Program.


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allowed them to take up to 12 hours to address complaints during non-business hours and on weekends.

Furthermore, the amendment to the City Program requiring the Electric Scooter Companies to require

its riders to provide photographic proof of the proper parking of the scooter after a ride is completed

in order to close out the ride will better incentivize the riders to properly park scooters and prevent

them from becoming obstruction to the City’s Pedestrian Rights of Way.

C. Payment of Attorneys’ Fees and Expenses: The Parties have agreed that City of

Oakland will not oppose Class Counsel’s request for an award of reasonable attorneys’ fees and

expenses in an amount up to fifty thousand dollars ($50,000). Id. at § III.C. Any fee award requested

by Class Counsel, of course, will be subject to Court approval. Class Counsel will submit a fee petition

no later than fourteen (14) days prior to the Final Approval Hearing, or at any other time requested or

ordered by the Court.

D. Class Notice: Because the Settlement Agreement is made only under Federal Rule of

Civil Procedure 23(b)(2), the Parties agree that notice to the class is not required and need not be

provided. Id. § III.D.; see Lilly v. Jamba Juice Co., No. 13-cv-02998-JST, 2015 WL 1248027, at *8-

9 (N.D. Cal. Mar. 18, 2015). However, the Parties have agreed that if the Court in its discretion deems

it necessary to provide notice to the Settlement Class then (1) the Court’s order shall provide that such

notice be provided by written notices mailed to local disability rights groups, notice posted on the City

of Oakland’s website and notice posted on the City of Oakland’s social media pages; and (2) the

Court’s order shall provide that members of the Settlement Class may not opt out of the settlement.

See Ex. 2 (Settlement Agreement) at § III.D.

E. Release of Injunctive Claims: In exchange for the injunctive relief described above,

City of Oakland will receive a release of all claims for injunctive relief related to Settlement Class

Members. Id. at § IV.


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IV. THE PROPOSED SETTLEMENT CLASS SHOULD BE CERTIFIED

Before granting preliminary approval of a proposed class action Settlement, the Court must

first determine whether the Settlement Class is appropriate for certification. See Amchem Prods. Inc.

v. Windsor, 521 U.S. 591, 620 (1997). A party seeking class certification must satisfy the factors

enumerated in Federal Rule of Civil Procedure 23(a) by demonstrating that (1) the class is so numerous

that joinder of all members is impracticable, (2) there are questions of law or fact common to the class,

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class,

and (4) the representative parties will fairly and adequately protect the interests of the class. Parra v.

Bashas’, Inc., 536 F.3d 975, 978 (9th Cir. 2008); Fed. R. Civ. P. 23(a)(1)-(4).

In addition to satisfying the Rule 23(a) prerequisites, a plaintiff must also demonstrate one of

the three provisions of Rule 23(b). Amchem, 521 U.S. at 614; Manual for Complex Litigation (Fourth)

§ 21.633 (2004). In this case, Plaintiff seeks certification of the Settlement Class under Rule 23(b)(2).

Certification under this provision applies when a defendant “has acted or refused to act on grounds

that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is

appropriate respecting the class as a whole.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011);

see also Fed. R. Civ. P. 23(b)(2).

Ultimately, district courts have broad discretion to determine whether certification of a class

action lawsuit is appropriate. Kanawi v. Bechtel Corp., 254 F.R.D. 102, 107 (N.D. Cal. 2008). As

described in detail below, the proposed Settlement Class satisfies all of these prerequisites and should

therefore be certified.

A. The Settlement Class is Sufficiently Numerous.

Rule 23(a)’s first requirement—numerosity—is satisfied where “the class is so numerous that

joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). In demonstrating numerosity,

plaintiffs are not required to state the exact number of potential class members, and numerosity is


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usually met when the class contains at least forty members. Kim v. Space Pencil, Inc., No. C 11-03796

LB, 2012 WL 5948951, at *2 (N.D. Cal. Nov. 28, 2012); Celano v. Marriott Int’l, Inc., 242 F.R.D.

544, 549 (N.D. Cal. 2007) (“[C]ourts generally find that the numerosity factor is satisfied if the class

comprises 40 or more members”); Moshogiannis v. Sec. Consultants Grp., Inc., No. 10-cv-05971-

EJD, 2012 WL 423860, at *3 (N.D. Cal. Feb. 8, 2012) (holding that numerosity is satisfied by class

of 254 members). There is no question here that the Settlement Class is sufficiently numerous. The

City of Oakland is home to at least 30,000 persons with visual and/or mobility disabilities4, and is

visited by hundreds, if not thousands, of other persons with disabilities that reside in other cities

throughout California and the country. The Settlement Class easily satisfies the numerosity

requirement.

B. Settlement Class Members Share Common Questions of Law and Fact.

The second requirement of class certification asks whether there are “questions of law or fact

common to the class.” Fed. R. Civ. P. 23(a)(2). Commonality is construed permissively and is

demonstrated when the claims of all class members “depend upon a common contention.” Dukes, 564

U.S. at 338 (citation omitted); see also Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998).

Here, the claims of class members stem from the same legal and factual questions, including (i)

whether the City of Oakland is violating Title II of the ADA, 42 U.S.C. § 12131 et seq., by depriving

persons with disabilities access to programs, services and activities, specifically equal access to the

City’s Pedestrian Rights of Way unobstructed by electric scooters, and otherwise discriminating

4 See U.S. Bureau of the Census (ACS), 5 year Estimate, Table S1810, Disability Characteristics https://data.census.gov/cedsci/table?q=S1810%3A%20DISABILITY%20CHARACTERISTICS&g=0400000US06&tid=ACSST5Y2016.S1810&moe=false&tp=false&hidePreview=true; see also ADA PARC Community & Work Disparities Percentage of People with a Vision Disability, 2016 https://www.centerondisability.org/ada_parc/utils/indicators.php?id=51&palette=3; see also ADA PARC Community & Work Disparities Percentage of People with an Ambulatory Disability, 2016 https://www.centerondisability.org/ada_parc/utils/counties.php?state=CA&table=54&colour=0&palette=3; see also City of Oakland Facts About Oakland https://www.oaklandca.gov/topics/facts-about-oakland


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against these persons with disabilities; (ii) whether the City of Oakland is violating Section 504 of the

Rehabilitation Act, 29 U.S.C. § 794 et seq., by depriving persons with disabilities access to programs,

services and activities, specifically equal access to the City’s Pedestrian Rights of Way unobstructed

by electric scooters, and otherwise discriminating against these persons with disabilities; (iii) whether

the City of Oakland is violating Cal. Govt. Code § 11135(a), which prohibits denial of benefits to

persons with disabilities of any program or activity that is funded directly by the State of California or

receives any financial assistance from the State; and (iv) whether the City of Oakland is violating

California Civil Code § 54 et seq., by depriving persons with disabilities to full and equal access of

the City’s Pedestrian Rights of Way. These common questions—and there are many more—are

sufficient to establish commonality. Dukes, 564 U.S. at 359 (“[E]ven a single common question will

do”); see also Kim, 2012 WL 5948951, at *2 (“It is sufficient if class members complain of a pattern

or practice that is generally applicable to the class as a whole. Even if some class members have not

been injured by the challenged practice, a class may nevertheless be appropriate.”) (quoting Walters

v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998)). Accordingly, commonality is satisfied.

C. Plaintiff’s Claims are Typical of the Settlement Class Members’ Claims.

The third element of Rule 23(a)—typicality—directs courts to focus on whether the plaintiff’s

claims or defenses “are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). A

plaintiff’s claim is typical where it arises from the same course of conduct that gives rise to the claims

of other class members and is based on the same legal theory. See Ambrosia v. Cogent Commun., Inc.,

312 F.R.D. 544, 554 (N.D. Cal. 2016) (noting that typicality emphasizes “whether [named plaintiffs]

other members have the same or similar injury . . . and whether other class members have been injured

by the same course of conduct.”) (citations omitted). Ultimately, this requirement ensures that “the

interest of the named representative aligns with the interests of the class.” Wolin v. Jaguar Land Rover

N. Am. LLC, 617 F.3d 1168, 1175 (9th Cir. 2010). Here, Plaintiff’s claims are typical of those of the


17

Class because they arise from the same course of conduct and the injunctive relief provided by the

settlement will benefit all class members alike. Thus, Plaintiff’s claims are unquestionably typical of

those of the Settlement Class and the pursuit of her claims will necessarily advance the interests of the

absent Settlement Class members. See Kline v. Dymatize Enters., LLC, No. 15-CV-2348-AJB-RBB,

2016 WL 6026330, at *4 (S.D. Cal. Oct. 13, 2016) (“Because the present motion presents no difference

between Plaintiffs’ claims and those of the proposed settlement class, the Court finds typicality is

satisfied.”). Typicality is readily satisfied.

D. Plaintiff and Class Counsel Will Adequately Represent the Settlement Class.

Finally, Rule 23(a) requires that the representative parties have and will continue to “fairly and

adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). For adequacy, the Court must

ask: “(1) do the named plaintiffs and their counsel have any conflicts of interest with other class

members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf

of the class?” Hanlon, 150 F.3d at 1020. Appointing a plaintiff with typical claims who has retained

adequate counsel is usually sufficient. Dukes, 564 U.S. at 349 n.5 (discussing how the fulfillment of

the typicality requirement usually also supports a finding of adequacy because an adequate

representative will have claims that are typical of those of the class).

Here, Plaintiff shares the same interests as the other members in the Settlement Class— she

has a federally recognized disability that inhibits her ability to have full and equal access to the City’s

Pedestrian Rights of Way due to obstructions created by electric scooters. Moreover, Plaintiff has

worked alongside Class Counsel throughout the pendency of this case by providing information related

to her claims, responding to requests for information throughout the motion, discovery and settlement

processes, and participating in the settlement conference, which no doubt aided in reaching a

settlement. See Ex. 1 (Jones’ Dec.) at ¶ 8. These actions are evidence of Plaintiff’s dedication to

vigorously prosecuting the Settlement Class’s interests.


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Similarly, Plaintiff is represented by highly qualified counsel who have been committed to the

prosecution of this case from the outset. As discussed below infra Section V, Class Counsel J. Randall

Jones of Kemp Jones, LLP has extensive experience litigating class actions of similar size, scope, and

complexity to this class action and combined with the other Class Counsel firms have the resources

necessary to see this litigation through to its conclusion. Id. at ¶ 2. Moreover, Class Counsel have

vigorously prosecuted Plaintiff’s and the proposed class’s claims, as evidenced by their extensive

investigation giving rise to the complaint, the additional investigation of the operation of electric

scooters and the City’s Program governing the same, substantial motion practice, and diligent efforts

negotiating the ultimate Settlement. Id. See, e.g., Kanawi, 254 F.R.D. at 111 (finding adequacy met

where plaintiffs “demonstrated their commitment to the action” and their attorneys were “qualified to

represent the class”). The adequacy requirement is therefore readily satisfied.

E. The Proposed Settlement Class Satisfies the Requirements of Rule 23(b)(2).

In addition to the four requirements for certification under Rule 23(a), the proposed Settlement

Class also satisfies the additional requirement imposed under Rule 23(b)(2), that Defendant has “acted

or refused to act on grounds generally applicable to the class,” thereby making injunctive relief

appropriate. Fed. R. Civ. P. 23(b)(2); see also Kanter v. Warner-Lambert Co., 265 F.3d 853, 860 (9th

Cir. 2001). The “key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy

warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to

all of the class members or as to none of them.” Dukes, 564 U.S. at 360.

Here, preliminary certification of the Settlement Class under Rule 23(b)(2) is proper for at least

two reasons. First, the laws Plaintiff claims have been violated, including, but not limited to, Title II

of ADA, Section 504 of the Rehabilitation Act, and California Civil Code § 54, provide for injunctive

relief as a remedy, and Plaintiff has sought such relief in her Amended Complaint. See Amended

Complaint at ¶ 80; Kline, WL 6026330, at *4 (finding certification under 23(b)(2) appropriate where


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the operative law provides for and plaintiff requests injunctive relief). Second, the injunctive relief

sought by Plaintiff applies generally to each Settlement Class member. The changes Oakland has

agreed to make to enhance its program governing the operation of electric scooter within its city limits

will benefit and affect all Settlement Class members equally. In this circumstance, the “agreed-upon

injunctive relief will redress an alleged group-wide injury,” and makes class certification under Rule

23(b)(2) appropriate. Sarabri v. Weltman, Weinberg & Reis Co., L.P.A., No. 3:10–cv–1777 AJB

(NLS), 2012 WL 3991734, at *7 (S.D. Cal. Aug. 27, 2012).

V. PLAINTIFF’S COUNSEL SHOULD BE APPOINTED CLASS COUNSEL

Under Rule 23, “a court that certifies a class must appoint class counsel…[who] must fairly

and adequately represent the interest of the class.” Fed. R. Civ. P. 23(g)(1)(B). In appointing class

counsel, the court must consider: (1) the work in identifying or investigating potential claims; (2)

counsel’s experience in handling class actions or other complex litigation and the type of claims

asserted in the case; (3) counsel’s knowledge of the applicable law; and (4) the resources class counsel

has committed to representing the class. Fed. R. Civ. P. 23(g)(1)(A)(i)-(iv); see, e.g., In re Oreck Corp.

Halo Vacuum & Air Purifiers Mktg. & Sales Practices Litig., 282 F.R.D. 486, 492 (C.D. Cal. 2012).

The Parties seek the appointment of J. Randall Jones of Kemp Jones LLP as class counsel.

Here, proposed Class Counsel readily satisfies the criteria of Rule 23(g). First, they have

devoted a significant amount of time and effort to this litigation, including through their initial, and

somewhat technologically advanced investigation of Plaintiff’s claims and the operation and tracking

of electric scooters in the City, the substantive motion practice, meet and confers related to disputes

related to discovery, and settlement discussions. See Ex. 1 (Jones’ Dec.) at ¶ 3. Second, proposed Class

Counsel have extensive experience in similar complex litigation and have been appointed class counsel

in numerous class actions throughout the country. Id. at ¶ 2.

In short, proposed Class Counsel have the resources necessary to conduct litigation of this


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nature, have already diligently investigated the claims at issue in this action and dedicated substantial

resources to the case, and will continue to do so throughout its conclusion. Accordingly, J. Randall

Jones of Kemp Jones LLP meet the adequacy requirements of Rule 23, and should be appointed Class

Counsel.

VI. THE PROPOSED SETTLEMENT MERITS PRELIMINARY APPROVAL

Rule 23(e) requires judicial approval of a proposed class action settlement based on a finding

that the agreement is “fair, reasonable, and adequate,” see Lane v. Facebook, Inc., 696 F.3d 811, 818

(9th Cir. 2012), which involves a well-established two-step process: preliminary and final approval.

Fed. R. Civ. P. 23(e); see also Herbert Newberg & Alba Conte, Newberg on Class Actions § 11.25 at

3839 (4th ed. 2002). The first step is a preliminary inquiry to ensure that the settlement is not

“unacceptable at the outset.” Id.; see Lilly, 2015 WL 1248027, at * (“The proposed settlement need

not be ideal, but it must be fair and free of collusion, consistent with a plaintiff’s fiduciary obligations

to the class.”). Courts in this District grant preliminary approval where: “(1) the proposed settlement

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 segments

of the class, and (4) falls within the range of possible approval.” In re Tableware Antitrust Litig., 484

F. Supp. 2d 1078, 1079 (N.D. Cal. 2007) (quoting Manual for Complex Litigation (Second) § 30.44

(1985)). See also Cordy v. USS-Posco Indus., No. 12-cv-00553-JST, 2014 WL 212587, at *2 (N.D.

Cal. Jan 17, 2014) (quoting Tableware). In this case, the proposed Settlement readily meets each of

these requirements.

First, settlements that are the result of hard-fought litigation and arm’s length negotiations

among experienced counsel, such as this one, are “entitled to an initial presumption of fairness.” In re

High-Tech Employee Antitrust Litig., No. 11-cv-2509, 2013 WL 6328811, at *1 (N.D. Cal. Oct. 30,

2013) (internal citations and quotations omitted); see also Harris v. Vector Mktg. Corp., No. 08-cv-


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5198, 2011 WL 1627973, at *8 (N.D. Cal. Apr. 29, 2011). Settlement negotiations are generally found

to be non-collusive when reached with the assistance of a third-party neutral, see e.g., Boring v. Bed

Bath & Beyond of Cal. Ltd. Liab. Co., No. 12-cv-05259-JST, 2013 WL 6145706, at *7 (N.D. Cal.

Nov. 21, 2013), and are found to have been informed where the parties exchanged evidence and

information prior to negotiations. See Moshogiannis, 2012 WL 423860, at *5 (holding that settlement

was fair, reasonable, and adequate where, inter alia, “the parties conducted a significant amount of

informal discovery”). Here, the Settlement was reached only after Plaintiff did significant informal

discovery and necessary formal discovery, engaged in a productive settlement conference with the

assistance of Magistrate Judge Ryu, and engaged in additional arms’ length negotiations with City of

Oakland to finalize the terms of the Settlement Agreement. See Ex. 1 (Jones’ Dec.) at ¶¶ 3-7.

Accordingly, the Court should have no doubt that the proposed Settlement is the product of serious,

informed non-collusive negotiations and should presume its fairness.

Second, the Settlement is free of any defects. A court is likely to find a settlement free from

obvious deficiencies when it provides a real, immediate benefit to the class despite numerous risks.

See Tableware, 484 F. Supp. 2d. at 1080. Here, the injunctive relief afforded is significant in light of

the serious risks Plaintiff faced in obtaining any relief for the class. The operation and governance of

commercial electric scooters throughout the City of Oakland led to novel and never before decided

issues related to a denial of full and equal access under the ADA and other similar laws, where the

obstruction is a moveable object rather than a stationary fixture. Although Plaintiff survived the City’s

Motion to Dismiss, Plaintiff faced serious risks of not ultimately prevailing of her claims. If Plaintiff

was ultimately unsuccessful, precedent may be set preventing Settlement Class members from

bringing the same or similar claims in the future, without the benefit of the injunctive relief obtained

her by Plaintiff. But under the Settlement Agreement, class members receive immediate, meaningful

injunctive relief that substantially enhances the City’s Program and will provide better protections to


22

disabled persons full and equal access to the City’s Pedestrian Rights of Way. Consequently, there

should be no doubt that the Settlement, which preserves all claims for monetary relief against

Defendant, is not “obviously deficient.” See, e.g., Tableware, 484 F. Supp. 2d at 1080 (“Based on [the]

risk and the anticipated expense and complexity of further litigation, the court cannot say the proposed

settlement is obviously deficient . . .”).

Third, the Settlement does not provide preferential treatment to any individual class member.

As discussed above supra Section IV.E, the Settlement provides blanket injunctive relief that applies

equally to every Settlement Class Member such that each class member will receive identical benefits.

Finally, the Settlement falls well within the range of possible approval. “In determining

whether the proposed settlement falls within the range of reasonableness, the Court evaluates the

relative strengths and weaknesses of the Plaintiffs’ case, and balances Plaintiffs’ expected recovery

against the value of the settlement offer.” Bickley v. Schneider Nat’l, Inc., No. 08-cv-05806-JSW,

2016 WL 4157355, at *1 (N.D. Cal. April 25, 2016) (citing Cotter v. Lyft, Inc., 176 F. Supp. 3d 930,

935 (N.D. Cal. 2016)). Generally, satisfaction of the previous three factors is sufficient to satisfy this

prong. See Dilts v. Penske Logistics, L.L.C., No. 08-cv-0318-CAB, 2014 WL 12515159, at *3 (S.D.

Cal. July 11, 2014) (finding that the settlement fell within the range of possible approval “given the

fact that the settlement [was] the product of serious, informed and non-collusive negotiations, ha[d]

no obvious defects, and [did] not improperly grant preferential treatment”).

For these reasons, Plaintiff and proposed Class Counsel firmly believe that the Settlement is

fair, reasonable, and adequate, and as such, should be preliminarily approved.

VII. SINCE THE SETTLEMENT PROVIDES INJUNCTIVE RELIEF ONLY AND DOES NOT RELEASE ANY MONETARY CLAIMS, NO NOTICE IS REQUIRED

In Rule 23(b)(3) class action cases, class members are entitled to receive the “best notice

practicable” under the circumstances. Rannis v. Recchia, 380 F. App’x 646, 650 (9th Cir. 2010). But

in Rule 23(b)(2), settlements that—like this one—provide for only injunctive relief and preserve class


23

members’ claims for monetary relief, federal courts in this District and across the country have

uniformly held that notice to the class is not required. See, e.g., Lilly, 2015 WL 1248027, at *9 (Tigar,

J.) (concluding class notice unnecessary because “even if notified of the settlement, the settlement

class would not have the right to opt out from the injunctive settlement and the settlement does not

release the monetary claims of class members”); Kim, 2012 WL 5948951, at *4 (Beeler, J.)

(concluding notice unnecessary because “the settlement does not alter the unnamed class members’

legal rights” to pursue monetary relief); Stathakos, 2018 WL 582564, at *3–4 (Gonzalez Rogers, J.)

(relying on Lilly and citing other federal courts across the country in determining that class notice is

not required in injunctive-only settlements). That is the case here. Even if notice was sent, class

members would not have the right to opt out of the Settlement. See Lilly, 2015 WL 1248027, at *9;

Dukes, 564 U.S. at 362 (Rule 23 “provides no opportunity for . . . (b)(2) class members to opt out”).

Accordingly, no notice to the class should be required.

/ / /

/ / /

/ / /


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VIII. CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that the Court: (i) certify the

Settlement Class for settlement purposes; (ii) appoint Dee Ann Evans as the class representative; (iii)

appoint J. Randall Jones of Kemp Jones LLP as class counsel; (iv) grant preliminary approval of the

proposed Settlement Agreement; (v) schedule the final approval hearing; and (vi) grant such further

relief the Court deems reasonable and just.

Dated: January 21, 2020 Respectfully submitted,

DEE ANN EVANS, individually and on behalf of all others similarly situated,

By: /s/ J. Randall Jones___________ KEMP JONES, LLP J. Randall Jones Spencer H. Gunnerson Michael J. Gayan THE LAW OFFICE OF HAKIMI AND SHAHRIARI Anoush Hakimi PHIPPS MAYES PLLC Martin J. Phipps Attorneys for Plaintiffs and Proposed Class


anoush hakimi (state bar no. 228858) anoush ......2 days ago · avenue, san francisco, california...

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