in the united states district court for the eastern … · 2017-12-07 · 2016, asserting the same...

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

APRIL NGUYEN, individually and on behalf of all others similarly situated,

Plaintiff,

v.

OUTERWALL, INC., et al.,

Defendants.

Civil Action No. 16-cv-00611

BRETT BOYER, individually and on behalf of all others similarly situated,

Plaintiff, v. OUTERWALL, INC., et al.,

Defendants.

Civil Action No. 17-cv-00853

DECLARATION OF GERALD D. WELLS, III IN SUPPORT OF PLAINTIFF’S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND

CERTIFICATION OF SETTLEMENT CLASSES I, Gerald D. Wells, III, declare as follows:

1. I am a founding member of the law firm of Connolly Wells & Gray, LLP (the

“Firm”).

2. The Firm was founded in October of 2013. Prior to this, I was a partner in the law

firm of Faruqi & Faruqi, LLP (“F&F”). While at F&F, I was either the chair or co-chair of the

firm’s employment practices group.

3. I have been personally involved in all aspects of this litigation from the initial

investigation through its resolution.

4. I make this Declaration in support of Plaintiffs’ Motion for Final Approval of

Case 5:16-cv-00611-LS Document 45 Filed 12/06/17 Page 1 of 21

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Class Action Settlement and Certification of Settlement Classes (“Plaintiffs’ Motion”), which

seeks final approval of the Settlement Agreement.1 The matters set forth herein are stated within

my personal knowledge.

5. I am submitting this declaration to put before the Court certain documents and

facts supporting final approval of the Settlement and to demonstrate that the requirements of

Rule 23 are satisfied here for purposes of certifying the Settlement Class and the California Sub-

Class.

6. A true and correct copy of the Settlement Agreement, with its exhibits, is attached

hereto as “Exhibit 1.”

7. Attached as Exhibit 2 is a true and correct copy of the Declaration of Mark Patton,

the Senior Director of Operations at Settlement Services, Inc., the Claims Administrator for the

Settlement, regarding administration procedures for the Notice and Class reaction to same.

(“Patton Decl.”).

8. Attached as Exhibit 3 is a true and correct copy of the Declaration of Amanda

Beane, attorney from firm of Perkins Cole, representing Defendant Coinstar in this Action,

regarding dissemination of Short Notice to American Council of Blind Braille Forum and

National Federation of the Blind Braille Monitor. (“Beane Decl.”).

FACTS AND PROCEDURAL BACKGROUND

9. Plaintiff April Nguyen filed a class action lawsuit on February 8, 2016 (the

“Nguyen Lawsuit”), alleging that Defendant’s Coinstar Kiosk’s violated the Americans with

Disabilities Act, 42 U.S.C. §§ 12101 et. seq. (“ADA”), in that they were not independently

useable by persons who are blind or visually-impaired, and sought to represent a class of “all

1 All capitalized terms not otherwise defined in this declaration have the same meaning given them in the Settlement Agreement (“Agreement”).


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legally blind individuals who have been and/or are being denied access to Coinstar kiosks within

the United States, excluding the state of California.” Plaintiff Nguyen’s lawsuit sought a

declaratory judgment, injunctive relieve and attorney’s fees and costs.

10. Also on February 8, 2016, Plaintiff Brett Boyer filed a class action lawsuit

alleging that Coinstar’s Kiosks violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101

et. seq., as well as the California Unruh Act, Cal. Civ. Code § 51 et seq. (“Unruh”), and

California Disabled Persons Act, Cal. Civ. Code § 54 et seq. (“CDPA”), in that they were not

independently useable by persons who are blind or visually-impaired and sought to represent a

class of “all legally blind individuals who have been and/or are being denied access to Coinstar

kiosks within the state of California.” Plaintiff Boyer also sought a declaratory judgment,

injunctive relief and attorneys’ fees and costs. In addition, Plaintiff Boyer sought statutory

damages available under Unruh and the CDPA for the proposed class.

11. The Southern District of California dismissed Plaintiff Boyer’s initial complaint

for procedural reasons on October 24, 2016. Plaintiff Boyer refiled his claims on November 6,

2016, asserting the same factual allegations set forth in the Nguyen lawsuit, but limiting his

claims to a proposed California Class (the “Boyer Lawsuit”). By joint motion, the Boyer

Lawsuit was transferred to the Eastern District of Pennsylvania on February 21, 2017, and

consolidated with the Nguyen Lawsuit on March 16, 2017.

12. On November 7, 2016, Plaintiff Nguyen and Defendant engaged in a settlement

conference before Magistrate Judge Elizabeth T. Hey.

13. Based on that in-person settlement conference, and months of subsequent

settlement negotiations between the Parties, with the assistance of Judge Hey, the Parties were

able to agree on the general terms of the settlement.

14. However, it took months of further negotiations between the Parties before the


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Agreement was finalized and memorialized.

15. Throughout these negotiations, Plaintiffs Nguyen and Boyer were apprised of the

status of the negotiations and provided input regarding the material terms of the evolving

settlement.

16. The Settlement represents an excellent result that will provide significant benefits

to the Settlement Class and the California Sub-Class while removing the risk and delay

associated with further litigation.

17. My co-counsel and I recommend the proposed Settlement as an excellent result in

light of the factual and legal risks of continued litigation. In recommending the Settlement as

fair, reasonable and adequate, Class Counsel have considered, among other things, the events

underlying Plaintiffs’ claims and the possible defenses to those claims, and the information

gleaned from documents provided by the Defendant.

18. All of this information provided us with a thorough understanding of the strengths

and weaknesses of Plaintiffs’ claims and the risks associated with further litigation.

19. Class Counsel also relied upon their collective experience litigating and resolving

other class actions.

20. In short, my co-counsel and I believe that this Settlement is fair and reasonable

because it requires Defendant to modify its Coinstar Kiosks so that they are compliant with the

requirements of the ADA, and provides for an 18-month monitoring period to ensure that all

modifications required by the Settlement remain effective well after the closure of this

litigation. In essence, the Settlement provides now what Plaintiffs had sought at trial under the

ADA – remediation of Defendant’s kiosks to render them independently accessible to the blind.

21. Further, the Settlement also provides for the establishment of the California

Settlement Fund, which shall consist of $500,000.00. This amount was made available to


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California Sub-Class members who submitted Valid Claims Forms, which permitted them to

receive their pro rata portion of the California Settlement Fund, up to $4,000.00 per California

Sub-Class member.

22. Indeed, $4,000.00 represents the statutory maximum an individual can receive for

a violation of Unruh, and four times the amount permitted under the CDPA.

23. At the time of this Declaration, approximately 61 members of the California Sub-

Class have submitted claim forms, and would be eligible to receive the full statutory maximum

of $4,000.00.

24. Additionally, Defendant has agreed to pay separately both the administrative fees

(up to $25,000.00 to administer this Settlement) and attorney’s fees and costs (up to

$210,000.00). Therefore, the California Settlement Fund shall not be reduced by fees and

expenses normally borne by the class in such settlements.2

CLASS COUNSEL BELIEVES THAT THE PROPOSED SETTLEMENT SATISFIES THE APPLICABLE FACTORS CONSIDERED BY COURTS IN THE THIRD CIRCUIT

WHEN REVIEWING PROPOSED CLASS ACTION SETTLEMENTS

25. Before agreeing to the proposed Settlement, Class Counsel assessed its merits

using various factors typically used by counsel in this type of case including the factors used by

courts in the Third Circuit to assess proposed class action settlements. Class Counsel believes

that the proposed Settlement is fair, reasonable, and adequate when the applicable factors are

considered. Those factors include: (1) the complexity, expense, and likely duration of the

litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the

amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing

2 Indeed, the only way the California Settlement Fund could be diluted would be if the administrative fees exceed $25,000.00. In such an instance, the excess costs would be deducted from the California Settlement Fund. Such deductions would be necessary if, for example, the number of claimants in this matter far exceeded the number of claimants in analogous settlements. At present, Class Counsel does not anticipate such a dilution.


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damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the

defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement

fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement

fund to a possible recovery in light of all the attendant risks of litigation.

26. The complexity, expense, and likely duration of the litigation justify final

approval of the Settlement. Litigation of the Nguyen Lawsuit and the Boyer Lawsuit has gone

on for almost two years and will require significant expense and additional litigation should the

Settlement not be approved. Indeed, I am personally involved in another ADA case regarding

accessibility issues for the blind that involves significant use of experts.

27. The reaction of the Classes to the Settlement has been positive in that Plaintiffs’

Counsel received no objections to the Settlement, nor any opt-outs from the California Sub-Class

prior to the deadline of December 1, 2017. Additionally, 61 California Sub-Class members filed

valid claims, ensuring that each will receive the statutory maximum under Unruh of $4,000.00.

28. The stage of the proceedings and the amount of discovery completed justifies

approval of the Settlement. The Parties have exchanged significant information and engaged in

numerous arms-length settlement discussions. Accordingly, Class Counsel were armed with the

necessary information in order to assess any proposed settlement. Moreover, this proposed

settlement was facilitated through the guidance of Magistrate Judge Hey.

29. The risks of establishing liability and damages also counsel approval of the

Settlement. Class certification, liability, and establishing damages would be hotly contested

issues should this matter continue to be litigated in the absence of the Settlement reached by the

Parties.

30. The risks of maintaining the class action through the trial justifies approval of the

Settlement as well. Based on my experience litigating class action cases, it is clear that


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Defendant would have vigorously opposed class certification in the absence of this Settlement.

The risks associated with class certification increase the risk of maintaining the proposed

Classes, and therefore supports settlement.

31. The ability of the Defendant to withstand a greater judgment is inapplicable for

the nationwide Settlement Class in that the Settlement Class members are receiving the

declaratory and injunctive relief they have requested. Indeed, this Settlement allows them to

achieve now what would have taken years of additional litigation to obtain – Defendant’s

agreement to remediate the Coinstar Kiosks so that they are accessible to visually-impaired

individuals. For the California Sub-Class, Defendant’s ability to pay was not an issue in the

settlement negotiations.

32. The range of reasonableness of the Settlement, in light of the best possible

recovery and all the attendant risks of litigation, strongly counsels approval of the Settlement.

Indeed, the Settlement provides the nationwide Settlement Class with all of the relief sought –

remediation of the Coinstar Kiosks. Moreover, with respect to the California Sub-Class, the

61members who submitted a Valid Claim Form will obtain the statutory maximum of $4,000.00.

33. In addition, there is no fraud or collusion by the Parties. Rather, the proposed

Settlement was negotiated over the course of many months between experienced counsel and, as

noted above, with the help and oversight of Magistrate Judge Hey.

34. Further, Class Counsel have developed a comprehensive understanding of the

merits of the case through our work on this matter. In our view, when we agreed to the proposed

Settlement, we had obtained sufficient information about the strengths and weaknesses of the

claims and defenses to make a reasoned judgment about the desirability of settling the case the

terms proposed. In Class Counsel’s view, the stage of litigation and amount of discovery weigh


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in favor of preliminarily approving the Settlement.

35. Importantly, no money from the California Settlement Fund will revert back to

the Defendant.

36. Rather, the amounts remaining in the California Settlement Fund after distribution

will be distributed to the cy pres, as approved by the Court, in conformity with the Agreement.

37. The Parties shall present the Court with a list of potential proposed cy pres

recipients at the Final Approval hearing.

THE COURT SHOULD CERTIFY THE PROPOSED SETTLEMENT CLASS FOR SETTLEMENT PURPOSES

38. Plaintiffs seek certification of the following nationwide Settlement Class:

All Legally Blind individuals who attempted but were unable to access or who were deterred from accessing those products or services available at Coinstar Kiosks in all 50 states and the District of Columbia during the time period starting on February 8, 2014 for all states and the District of Columbia excluding California and February 8, 2013 in California and continuing through July 14, 2017.

39. In addition, Plaintiff Boyer also seeks certification of the following California

Sub-Class:

All Legally Blind individuals who attempted, but were unable to access or who were deterred from accessing those products or services available at Coinstar Kiosks in California during the time period starting on February 8, 2013 and continuing through July 14, 2017.

THE PROPOSED SETTLEMENT CLASSES MEET THE

REQUIREMENTS OF RULE 23(A)

40. In Class Counsel’s view the proposed Settlement Classes satisfy the requirements

of Rule 23 for class certification for settlement purposes. Federal Rule of Civil Procedure 23(a)

requires 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


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fairly and adequately protect the interests of the class.

41. In Class Counsel’s view, the Classes are so numerous that joining all members is

impracticable. Data from the 2010 Census indicates that more than 8 million people in the

United States have difficulty seeing, and the National Federation for the Blind has reported that,

as of 2014, there are over 760,000 individuals in California with a visual disability. Moreover,

Defendant does not contest numerosity. As a result, Class Counsel suggests that the numerosity

requirement is readily met in this matter.

42. Second, there are questions of law or fact common to the Settlement Classes,

including whether members of the Settlement Classes were deterred from and/or encumbered by

independently using Defendant’s Coinstar Kiosks as a result of the touchscreen interface.

43. Third, Plaintiffs’ claims are typical of the proposed Settlement Classes because all

claims of the Plaintiffs and the Settlement Classes arise from the use of the touchscreen interface

on Defendant’s Kiosks. There are no unique facts or circumstances that would render any claims

atypical.

44. Fourth, in Class Counsel’s view, Plaintiffs are adequate representatives because

their interests are not in conflict with the Settlement Classes. Instead, Plaintiffs and members of

the Settlement Classes share the common goals of modifying Defendant’s Coinstar Kiosks so

that they are independently accessible to all visually-impaired individuals.

45. Indeed, Plaintiffs expended considerable time and effort in assisting Class

Counsel in the prosecution of this matter against Defendant. For example, Plaintiffs spent time

assisting with the development of the case, providing information to Class Counsel and

remaining apprised of the settlement discussions. Further, Plaintiff Nguyen attended the

November 8, 2016 settlement conference with Judge Hey and assisted Class Counsel at the

conference. In addition, Plaintiff Boyer made himself available during the course of the


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settlement conference.

46. Moreover, per the terms of the proposed settlement, Plaintiffs have agreed to

review Defendant’s proposed modifications to the Coinstar Kiosks and provide input regarding

the same. Thus, Plaintiffs have effectively agreed to continue to work for the Settlement Classes

on a going forward basis. This alone amply demonstrates their commitment to the Settlement

Classes.

47. In short, based on their conduct to date (and their commitment going forward),

Plaintiffs have clearly demonstrated their adequacy to serve as class representatives.

THE PROPOSED SETTLEMENT CLASSES MEET THE REQUIREMENTS OF RULE 23(B)

48. Class Counsel also suggest that Plaintiffs meet the requirements of Rule 23(b)(1)

and/or Rule 23(b)(2) for purposes of certifying the nationwide Settlement Class for settlement

purposes.

49. Plaintiffs meet the requirements of Rule 23(b)(1) because a ruling by this Court

on the issue of whether Defendant’s touchscreen interface on its Coinstar Kiosks violated the

ADA would impair the rights of any plaintiffs who were not a party to this individual action.

50. Rule 23(b)(2) permits class actions in cases like this one, where the party

opposing the class has acted or refused to act on grounds generally applicable to the class. Here,

an injunction requiring modification of Defendant’s kiosks would provide relief to all members

of the Settlement Class. As the Settlement Agreement clearly demonstrates, the modification of

Defendant’s kiosks is at the heart of the proposed settlement.

THE PROPOSED CALIFORNIA SUB-CLASS MEETS THE REQUIREMENTS OF RULE 23(B)(3)

51. Rule 23(b)(3) requires that the questions of law or fact common to all members of

the class predominate over questions pertaining to individual members and that class action is


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superior to other available methods of adjudication.

52. Here, the common nucleus of operative fact is that all members of the proposed

California Sub-Class are Legally Blind and have allegedly faced the same common barrier.

53. Additionally, class action treatment here is superior in that resolution of the

California Sub-Class claims will require a review of common evidence, namely Defendant’s

touchscreen interface for its Coinstar Kiosks.

54. Absent this Settlement, the members of the California Sub-Class would be

required to adjudicate their claims individually through separate lawsuits asserting largely

duplicative claims. Given the relatively moderate statutory relief at issue, as well as the expense

and duration of proving violations of California law, it is highly unlikely that individual

members of the proposed California Sub-Class would be able to seek relief for Defendant’s

statutory violations of Unruh and the CDPA absent class certification.

55. Accordingly, there is no better method available than class action for the

adjudication of the claims of Plaintiff Boyer and members of the California Sub-Class.

56. Thus, Class Counsel suggests that Plaintiff Boyer meets the requirements for

certification of the California Sub-Class for settlement purposes pursuant to Rule 23(b)(3).

RULE 23(G) IS SATISFIED

57. Finally, certifying a class requires the Court, under Rule 23(g), to examine the

capabilities and resources of counsel for the class to determine whether they will provide

adequate representation to the class. Here, Class Counsel have substantial experience handling

class actions and other complex litigation.

58. As the Court is undoubtedly aware, a firm’s experience is based on the experience

of its attorneys. As the primary attorney responsible for the prosecution of this matter on behalf

of the Firm, the Court should look to my relevant experience.


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59. I am a graduate of both Temple University and Temple University School of Law

(J.D. 2001). I am licensed to practice law in Pennsylvania, New Jersey, and California. In

addition, I am admitted to practice before the United States Supreme Court, the United States

Courts of Appeals for the Third, Eighth, Ninth, and Eleventh Circuits, the United States District

Courts for the Eastern District of Pennsylvania, Eastern District of Michigan, Northern District

of Illinois, Northern, Southern, Central and Eastern Districts of California, and District Court of

New Jersey.

60. I have significant complex commercial litigation, having spent the last fifteen

years litigating exclusively complex litigation matters.

61. My complex litigation experience includes serving as class counsel in such cases

as In re Bristol-Myers Squibb ERISA Litig., No. 02-cv-10129 (S.D.N.Y.) (settlement of ERISA

claims of 40,000 class members for $41.22 million plus structural plan changes valued at up to

$52 million); In re Westar Energy Inc. ERISA Litig., No. 03-4032-JAR (D. Kan.) ($9.25

million cash settlement); In re Federal Home Loan Mortgage Corp. Securities & Derivative

Litig., No. 04-md-1584 (S.D.N.Y.) (settlement of ERISA claims for $4.65 million plus

additional ameliorative measures); In Re RCN ERISA Litig., Master File No. 04-cv-5068 (D.

NJ.) ($5.375 million cash settlement); and Falk v. Amerada Hess Corp., No. 03-CV-2491-

FSH-PS ($2.25 million in cash plus structural remedies valued at up to $23.8 million).

62. I have also helped obtain the following settlements in opt-out class actions:

Weaver v. Edward D. Jones & Co., L.P., Nos. 08-cv-529, 08-cv-540 (N.D. Ohio) (settlement of

state and federal wage and hour claims for up to $19 million); Tobin v. A.G. Edwards & Sons,

Inc., No. 08-cv-338 (S.D. Cal.) (settlement of state and federal wage and hour claims for up to

$12 million); In re: AXA Wage and Hour Litig., No. 06-cv-4291 (N.D. Cal.) (settlement of state

and federal wage and hour claims for $6.5 million); In re M.L. Stern Overtime Litig., No. 07-cv-


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118 (S.D. Cal.) (settlement of $945,960 for state and federal wage and hour claims of 219 class

members).

63. In this District alone, I have been actively involved in the following class actions:

Graudins v. Kop Kilt, LLC, No. 14-2589-RBS, 2017 U.S. Dist. LEXIS 25926 *29 (E.D. Pa. Feb.

24, 2017) (granting final approval of settlement of state and federal wage claims and noting that

the result achieved “would not have been achieved without counsel’s skill and experience”);

Magness v. Walled Lake Credit Bureau et al, No. 12-CV-06586-LDD (E.D. Pa.) (class-wide

resolution of FDCPA litigation); In re Janney Montgomery Scott Financial Consultant Litig.,

No. 06-cv-3202-BMS (E.D. Pa.) (settlement of state and federal wage and hour claims for up to

$2.88 million) and In re Chickie’s & Pete’s Wage and Hour Litigation, Master File No. 12-cv-

6820-RBS (E.D. Pa.) (settlement on behalf of opt-in plaintiffs, obtaining 100% recovery of the

back wages allegedly owed).

64. My Firm’s experience and expertise has been recognized by courts across the

country. For example, CWG was appointed to the executive committee prosecuting the claims in

the consolidated action styled In re 2014 RadioShack ERISA Litig., Master File No. 4:14-cv-959-

O (N.D. Tex.) and served as co-lead counsel in the action styled Gedek v. Perez, et al. (In Re

Kodak ERISA Litig.), No. 6:12-cv-06051 (W.D.N.Y.) (settlement for $9.7 million in ERISA class

action). The Firm also served as class counsel in the following cases: Bergman v. Kindred

Healthcare Inc., et al., No. 10cv191 (N.D. Ill.) (obtaining final approval of $700,000 settlement

in state-wide class action alleging violations of wage and hour laws); Hellmann v. Cataldo, et

al., No. 12-cv-2177 (E.D. Mo.) (in ERISA action, obtaining final approval for $800,000

settlement class).

65. Moreover, Class Counsel (comprised of my Firm and Kalikhman & Rayz, LLC)

also satisfy the requirements of Rule 23(a)(4) as they have served as class counsel in other class


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actions, including serving as class counsel in an FDCPA class action styled Magness v. Walled

Lake Credit Bureau et al, No. 12-CV-06586 (E.D. Pa.) (final approval granted class- wide

settlement of $550,000 for 31,000 member class); Volyansky v. Hayt, Hayt & Landau, LLC, No.

13-3360 (E.D. Pa.) (final approval granted and statutory cap in damages recovered for settlement

class where plaintiff alleged FDCPA violation) Ebner v. United Recovery Systems, LP, No. 14-

CV-06881-WB (E.D. Pa.) (final approval granted and statutory cap of $500,000 in damages

recovered for settlement class where plaintiff alleged FDCPA violation). In addition, my Firm

and Kalikhman & Rayz, LLC also served as class counsel in a class action styled Kotchmar v.

Movie Tavern Partners, LP, et al., No. 15-cv-04061-MAK (E.D. Pa.) (final approval granted for

class-wide settlement of $750,000). In addition, both myself and attorneys at Kalikhman &

Rayz, LLC served as class counsel in an action styled Avangard Auto Finance, Inc. v. Great

American Ins. Co., No. 10-cv-6849-JRP (E.D. Pa.).

66. Importantly, I have been involved in all aspects of the prosecution and resolution

of both the Nguyen Lawsuit and the Boyer Lawsuit.

67. In short, Class Counsel have done substantial work to investigate potential claims

at issue here and have vigorously pursued the interests of the Settlement Classes throughout the

litigation.

68. For these reasons, the Court should certify the Settlement Classes for settlement

purposes and appoint Connolly Wells & Gray, LLP and Kalikhman & Rayz, LLC as Class

Counsel.

CLASS NOTICE AND THE CLAIMS PROCEDURE WERE EFFECTIVE

69. In accordance with the Court’s Preliminary Approval Order, as well as the terms

of the Settlement Agreement, publication of the approved form of Class Notice was effectuated

by mailing the Class Notice to 69 organizations serving Legally Blind individuals.


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70. Additionally, the Claims Administrator established both a website

(www.coinstarkiosksettlement.com) and a toll-free phone line so that Settlement Class Members

could call have multiple avenues to obtain information regarding the proposed settlement.

71. Class Notice was also published in the Braille Monitor and the Braille Forum.

72. Class Notice advised all recipients that Settlement Class Members that they had

the right to object to either the Settlement and/or request for an award of attorneys’ fees and

reimbursement of expenses if an individual thought one or both were not fair, reasonable and

adequate.

73. Class Notice also advised all California recipients how to file a claim with respect

to the California Settlement Fund.

74. To date, not a single objection has been filed, nor has a single member of the

California Sub-Class chosen to opt out of the California Settlement Fund.

75. In Class Counsel’s view, Plaintiffs’ Class Notice met or exceeded the standards

for due process and Rule 23. Class Counsel believe that dissemination of the Class Notice and

California Notice as described above, along with an Internet website presence resulted in a very

high percentage of actual notice to the Settlement Class members and California Sub-Class

members, ensuring that the proposed notice and overall notice plan meet the mandates of due

process and the requirements of Rule 23.

ATTORNEYS’ FEES, EXPENSES, AND THE CASE CONTRIBUTION AWARD

76. Under the ADA, Class Counsel are entitled to an award of reasonable attorneys’

fees and expenses.

77. Defendant has agreed, upon approval by the Court, to pay up to $210,000 to Class

Counsel for attorneys’ fees and costs.

78. That amount was detailed in the Class Notice and included information for those


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who wished to object to any or all of these requests.

79. Importantly, any award of attorneys’ fees and costs approved by the Court, up to

$210,000, will be paid by Defendant independent of the California Settlement Fund.

80. During the period from inception of this Litigation through May 24, 2016, Class

Counsel performed 313.4 hours of work in connection with this Litigation.

81. Notably, this time does not include any time devoted by Class Counsel for

preparing for and attending any final approval hearing scheduled by the Court.

82. Moreover, Class Counsel’s time does not include the significant time Class

Counsel anticipates spending in monitoring Defendant’s remediation of its Coinstar Kiosks.

Indeed, it is my experience that in class action settlements that do not involve monitoring, I

typically expend significant additional time overseeing the resolution of the case, the claims

process, and/or answering calls from purported class members who have questions after the final

approval hearing.

83. The total dollar value of Class Counsel’s time (the “lodestar”) is $166,295.00.

Below is a summary of the time and lodestar incurred by each firm.

84. Should the Court approve the amount of $210,000.00, this would result in a

modest enhancement of approximately $43,000.00. Such a modest enhancement is justifiable

not only for the nationwide remediation results obtained by Class Counsel, but also for the post-

settlement work required by Class Counsel that is not factored into our lodestar.

Connolly Wells & Gray, LLP

85. Connolly Wells & Gray, LLP (“CWG”) is the firm I co-founded with Robert J.

Gray and Stephen E. Connolly in August 2013.

86. CWG incurred a total lodestar of $144,320.00, which is based on 262.4 hours of

work by its attorneys. The rates listed below are on the current hourly rates regularly charged by


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each of the attorneys who assisted in the prosecution of the Litigation. The hourly rates for the

attorneys are the same as the regular current rates charged for their services.

Name Position Hours Billed

Hourly Rate

Total Lodestar

Gerald D. Wells, III Partner 127.5 $550.00 $70,125.00

Robert J. Gray Partner 53.65 $550.00 $29,507.50

Stephen E. Connolly Partner 87.25 $550.00 $47,987.50

Total 268.4 $147,620.00

87. The hourly rates charged here are the same rates that have been accepted by

courts in other complex class actions.3

88. The attorneys at CWG were the principle attorneys on this matter. Thus, much of

my time, and my partners’ time was spent on: (i) investigating the potential claims; (ii)

researching the legal issues involved; (iii) drafting the initial pleadings; (iv) preparing for and

attending the settlement conferences, including the in-person conference and the multiple

telephonic conferences Magistrate Judge Hey held; (v) negotiating with defense counsel; and (vi)

drafting the Settlement Agreement and its ancillary documents.

89. In addition, as Plaintiff Boyer’s counsel in other matters, the attorneys at CWG

were also responsible for keeping Mr. Boyer abreast of any and all developments in the matter.

Kalikhman & Rayz, LLC

90. Kalikhman & Rayz, LLC has served as co-counsel since the inception of this

Litigation.

91. Kalikhman & Rayz, LLC incurred a total lodestar of $18,675.00, which is based

on hours of work by its attorneys. The rates listed below are on the current hourly rates regularly 3 Notably, my firm’s rates have not been adjusted since our inception. Thus, this actual hourly rate has been approved by sister courts in this District on numerous occasions.


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charged by each of the attorneys who assisted in the prosecution of the Litigation. The hourly

rates for the attorneys are the same as the regular current rates charged for their services in non-

contingent matters and/or which have been accepted by courts in other complex class actions.

Name Position Hours Billed

Hourly Rate

Total Lodestar

Arkady “Eric” Rayz Partner 45 $415.00 $18,675.00

92. The attorneys at Kalikhman & Rayz, LLC were the principal attorneys

responsible for keeping Plaintiff Nguyen abreast of developments in this matter. They also

reviewed various pleadings and attended the in-person settlement conference before Magistrate

Judge Hey.

93. The hourly rates utilized by Class Counsel in computing its lodestar are at or

below their usual and customary hourly rates charged for complex class action litigation. No

upward adjustment in billing rates were made, notwithstanding the contingency and risk of the

matters involved, the opposition encountered, the preclusion of other employment, the delay in

payment, or other factors present in this Litigation which would justify a higher rate of

compensation.

94. The time and services provided by Class Counsel for which fees are sought in the

petition are reflected in contemporaneously maintained records of each of the firms. All of the

services performed by Class Counsel in connection with this Litigation were reasonable and

necessary in the prosecution of this case. No time is included in the fee petition for work in

connection with the fee petition and expense application.

95. Class Counsel allocated work in this case to maximize efficiency, assigning tasks

both amongst the firms and within each of their respective firms with the goal of minimizing

duplication of effort. In addition, every effort was made to assign work within and amongst the


19

firms to minimize fees in the case.

96. Notably, Class Counsel have had their rates and fee request routinely approved by

sister courts in the Eastern District of Pennsylvania. See, e.g., Kotchmar v. Movie Tavern

Partners, LP, et al., No. 15-cv-04061-MAK (E.D. Pa.); Graudins v. Kop Kilt, LLC, No. 14-cv-

2589-RBS, 2017 U.S. Dist. LEXIS 25926 (E.D. Pa. Feb. 24, 2017); Volyansky v. Hayt, Hayt &

Landau, LLC, No. 13-cv-3360-GAM (E.D. Pa.); Magness v. Walled Lake Credit Bureau et al,

No. 12-CV-06586-LDD (E.D. Pa.).

97. Finally, the lodestar of Class Counsel does not account for the future time that

Class Counsel will devote to this matter as part of their testing and monitoring efforts of

Defendant’s remediation plan. Nor does it account for the time Class Counsel will spend in

responding to Settlement Class Members inquiries should this matter become Final.

CLASS COUNSEL EXPENSES

98. Class Counsel's lodestar figures do not include charges for expense items. Each

firm bills expense items separately and such charges are not duplicated in any of the firm’s

billing rates.

99. Class Counsel incurred a total of $1,456.05 in unreimbursed expenses in

connection with the prosecution of this Litigation. These expenses include filing fees, expenses

incurred to serve the complaint, client meetings, and costs incurred by Class Counsel in attending

hearings/settlement conferences. The expenses incurred by Class Counsel are reflected on the

books and records of each of the firms.

100. Notably, although certain of the expenses were incurred at or near the inception of

the Litigation, no firm has sought an upward adjustment, or mark-up, of the actual expense

incurred.

101. The expenses incurred were reasonable and necessary to prosecute this class


20

action.

102. Further, these expenses do not account for the future expenses that Class Counsel

will incur as part of their testing and monitoring efforts of Defendant’s remediation plan.

103. Pursuant to the Settlement Agreement, any reimbursement of expenses approved

by the Court will be paid from the amount Defendant agreed to pay for attorney’s fees and costs,

up to $210,000.00.

CASE CONTRIBUTION AWARDS

104. The proposed Case Contribution Awards to each of the Named Plaintiffs is also

appropriate as courts across the country routinely grant such awards in recognition of the

contribution the named plaintiff(s) have made to the case and the benefit they helped confer to

the settlement class.

105. Here, the Plaintiffs provided assistance that enabled Class Counsel to successfully

prosecute this matter and reach the Settlement, including (1) submitting to interviews with Class

Counsel, (2) providing Class Counsel with information, (3) keeping themselves apprised of the

status of the settlement negotiations, and (4) in the case of Plaintiff Nguyen, attending the

settlement conference. Their efforts were a substantial benefit to the Settlement Class and the

California Sub-Class.

106. Moreover, post-settlement, Plaintiffs will retain active roles in reviewing,

commenting and testing Defendant’s modifications to the Coinstar Kiosks.

107. Importantly, the Case Contribution Awards are subject to this Court’s approval

and will be paid independently of the California Settlement Fund, and will not dilute the amount

payable to California Sub-Class members.

108. Accordingly, I believe the requested Case Contribution Awards are eminently

appropriate.


21

CONCLUSION

109. Plaintiffs and Class Counsel respectfully submit that the Settlement is an excellent

result for the Settlement Classes in this case. Class Counsel recommend the Settlement as fair,

reasonable, and adequate, and they request that this Court: (1) finally approve the Settlement

Agreement, (2) certify the proposed class and sub-class for settlement purposes and appoint

Class Counsel.

I declare under penalty of perjury that the foregoing is true and correct. This

Declaration was executed on December 6, 2017, in King of Prussia, Pennsylvania.

/s/ Gerald D. Wells, III Gerald D. Wells, III


EXHIBIT 1

Case 5:16-cv-00611-LS Document 45-1 Filed 12/06/17 Page 1 of 74

Class Settlement Agreement and Release Case No. 5:16-cv-00611-LS; Case No. 2:17-cv-00853

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

APRIL NGUYEN, individually and on behalf of all others similarly situated

Plaintiff(s),

v.

OUTERWALL INC.,

Defendant(s).

Civil Action No. 5:16-cv-00611-LS

BRETT BOYER, individually and on behalf of all others similarly situated

Plaintiff(s),

v.

OUTERWALL INC.,

Defendant(s).

Civil Action No. 2:17-cv-00853

CLASS SETTLEMENT AGREEMENT AND RELEASE

1. Introduction and Recitals

1.1 This Settlement Agreement (together with all exhibits, the “Agreement”) is

entered into by and between Coinstar, LLC (“Coinstar”) (formerly known as “Outerwall Inc.”)

and April Nguyen and Brett Boyer (“Named Plaintiffs”), individually and on behalf of a class of

persons similarly situated. Coinstar and Named Plaintiffs (individually and on behalf of the

Settlement Class, defined herein) shall each be referred to as a “Party” and shall jointly be

referred to as “Parties.”

1.2 Named Plaintiff April Nguyen filed a class action complaint against Coinstar in

United States District Court for the Eastern District of Pennsylvania on February 8, 2016 (the


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“Nguyen Lawsuit”). The Nguyen Lawsuit was assigned the civil action number 5:16-cv-00611-

LS and was assigned to the Honorable Lawrence F. Stengel. Nguyen alleged that Coinstar’s

Kiosks violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et. seq., in that they

were not independently useable by persons who are blind or visually-impaired, and sought to

represent a class of “all legally blind individuals who have been and/or are being denied access

to Coinstar kiosks within the United States, excluding the state of California.” Nguyen sought a

declaratory judgment, injunctive relief and attorneys’ fees and costs.

1.3 Named Plaintiff Brett Boyer filed a class action complaint against Coinstar in the

Southern District of California on February 8, 2016. The Boyer Lawsuit was assigned the civil

action number 16-cv-306-LAB and was assigned to the Honorable Larry Alan Burns. Boyer also

alleged that Coinstar’s Kiosks violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101

et. seq., as well as the California Unruh Act, Cal. Civ. Code § 51 et seq., and California Disabled

Persons Act, Cal. Civ. Code § 54 et seq., in that they were not independently useable by persons

who are blind or visually-impaired. Boyer sought to represent a class of “all legally blind

individuals who have been and/or are being denied access to Coinstar kiosks within the state of

California.” Boyer also sought a declaratory judgment, injunctive relief and attorneys’ fees and

costs. Boyer’s first complaint was not served properly and, on October 24, 2016, the court

dismissed the claim without prejudice. Boyer re-filed his complaint on November 6, 2016 (the

“Boyer Lawsuit”). The Boyer Lawsuit asserts the same factual allegations as the Nguyen

Lawsuit but is limited to a California putative class. The cases are related in regard to the

injunctive relief sought and federal claims asserted.

1.4 The Parties agree that this Agreement is intended to resolve both the Nguyen

Lawsuit and the Boyer Lawsuit. The Parties took the steps to transfer the Boyer Lawsuit to the


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Eastern District of Pennsylvania by filing with the Southern District of California a Joint Motion

to Transfer on February 16, 2017. The Southern District of California ordered that the case

would be transferred to the Eastern District of Pennsylvania on February 21, 2017. The case was

assigned Civil Action No. 17-cv-00853 in the Eastern District of Pennsylvania. On March 13,

2017, April Nguyen and Brett Boyer and Coinstar jointly moved to consolidate the Boyer

Lawsuit with the Nguyen Lawsuit. On March 16, 2017, the Eastern District of Pennsylvania

consolidated the two cases for all pretrial purposes. The Parties agree that, as a result: (a) Boyer

is the Named Plaintiff representing the California Sub-Class defined in Section 3.8 below in the

transferred and consolidated action; and (b) this Agreement includes the addition of the claims

under California law contained in the Boyer Lawsuit filed in the Southern District of California.

The consolidated and transferred action of both the Nguyen Lawsuit and the Boyer Lawsuit is

referred to in this Agreement collectively as the “Lawsuit.” The claims at issue in the Lawsuit

are set forth in the “Consolidated Complaint” referenced herein.

1.5 Defendant Coinstar has denied and continues to deny the Named Plaintiffs’

claims and any liability.

1.6 The Parties have engaged in a mediation session and settlement negotiations

including a settlement conference before Magistrate Judge Elizabeth T. Hey. The Named

Plaintiffs and Class Counsel believe that the claims have substantial merit and that they would

meet the standards for class certification. Defendant has asserted its various defenses, including

the extent to which the asserted law applies to Coinstar’s Kiosks. Defendant also believes and

has asserted that the claims are inappropriate for class certification. Both parties recognize that

the ultimate outcome on the merits is uncertain, and have considered the length and expense of

continued proceedings without settlement.


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1.7 The Parties therefore now wish to effect a complete resolution and settlement of

all claims and controversies relating to the allegations of the Named Plaintiffs and the Settlement

Class (including the California Sub-Class), and to resolve their differences and disputes by

settling the Lawsuit. For purposes of this Agreement, Defendant stipulates to the definition of

the Settlement Class (including the California Sub-Class), to the Named Plaintiffs serving as

Class Representatives, and to Class Counsel serving as counsel to the Class. The Named

Plaintiffs and Class Counsel acknowledge that they desire to settle on the terms and provisions in

this Agreement and believe it is fair, reasonable, and adequate and in the best interests of the

Named Plaintiffs and the Settlement Class, including the California Sub-Class.

1.8 The terms of all Exhibits attached hereto are fully incorporated into this

Agreement and are an integral part thereof. The terms of this Agreement, where applicable, are

fully incorporated into all Exhibits and are, where applicable, an integral part thereof. To the

extent that there are any conflicts or inconsistencies between the terms of this Agreement and

any of the Exhibits, the terms of this Agreement shall control.

2. No Admission of Liability. By agreeing to and voluntarily entering into this

Agreement, there is no admission or concession by Coinstar, direct or indirect, express or

implied, that it has violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et. seq., or

any other related federal, state, or local law, regulation, order, or rule. In addition, there is no

admission or concession by Coinstar, direct or indirect, express or implied, that it has violated

the Unruh Civil Rights Act, California Civil Code §§ 51 et seq., or the Disabled Persons Act,

California Civil Code §§ 54 et seq.

3. Definitions. In addition to the terms defined elsewhere in the Agreement, the

following terms shall have the meanings set forth below.


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3.1 “Claims Administrator” will mean the Claims Administrator mutually agreed

upon by the Parties and approved by the Court and its employees, and agents, which was selected

by the Parties to provide notice and the other duties described in this Agreement.

3.2 “Claims Period” means the period of time set forth in the Notice during which

time a California Sub-Class Member may submit a claim form seeking their portion of the

California Settlement Fund. The Claims Period shall be no less than sixty (60) days from the

date of the initial dissemination of the Notice.

3.3 “Claim Form” means the form as approved by both the Parties and the Court that

shall be included with the Notice and that a California Sub-Class Member must submit in order

to recover a payment pursuant to Section 11.

3.4 “Claim Form Instructions” means the instructions as approved by both the Parties

and the Court that shall be included with the Notice regarding how a California Sub-Class

Member can receive a portion of the California Settlement Fund.

3.5 “Class Counsel” means Arkady “Eric” Rayz and Demetri A. Braynin at

Kalikhman & Rayz, LLC, 1051 Country Line Road, Ste. A, Huntingdon Valley, PA, and Gerald

D. Wells, III and Robert J. Gray at Connolly Wells & Gray, LLP at 2200 Renaissance

Boulevard, Suite 275, King of Prussia, PA 19406.

3.6 “California Settlement Amount” shall mean the sum of $500,000.00 to be

deposited in an interest-bearing escrow account within ten business days of the Effective Date.

The escrow account shall be established and maintained by the Claims Administrator.

3.7 “California Settlement Fund” shall mean the California Settlement Amount and

any interest earned thereon.


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3.8 “California Sub-Class” means all Legally Blind individuals who attempted, but

were unable to access or who were deterred from accessing those products or services available

at Coinstar Kiosks in California during the time period starting on February 8, 2013 and

continuing through the entry of the Preliminary Approval and Scheduling Order.

3.9 “California Notice” means the Notice advising the California Sub-Class of the

California Settlement Fund.

3.10 “Case Contribution Awards” shall mean the monetary amount which may be

awarded by the Court in recognition of the Named Plaintiffs’ assistance provided in the

prosecution and resolution of this Action, as well as their duties and responsibilities outlined in

this Agreement.

3.11 “Court” means the U.S. District Court for the Eastern District of Pennsylvania.

3.12 “Compliance Date” means the date by which Defendant certifies to the Court that

it has fully complied with Section 7 of this Agreement.

3.13 “Consolidated Complaint” shall mean the complaint filed with the Court detailing

the allegations of both Named Plaintiffs. The Consolidated Complaint shall be filed either prior

to or contemporaneously with the Parties seeking Preliminary Approval.

3.14 “Cy Pres Fund” means any amount remaining in the California Settlement Fund

after the payments to the California Sub-Class. The Cy Pres Fund shall be payable to the entity

ordered by the Court as part of Final Approval. Prior to Final Approval, the Parties shall jointly

suggest to the Court three separate Cy Pres recipients from which the Court may choose if it so

desires.


- 7 -


3.15 “Cy Pres Recipient” means the entity(ies) that are selected by the Court for

distribution of all or part of the Cy Pres Fund. The Parties agree to present potential Cy Pres

Recipients to the Court in the motions for preliminary and final approval.

3.16 “Dispute Resolution” means the process described in Section 13 herein.

3.17 “Effective Date” means the date by which all of the following have occurred:

a. The Parties have executed the Settlement Agreement;

b. The Parties have submitted to the Court and the Court has entered the

following: (a) the Preliminary Approval and Scheduling Order, and (b) the Final Order; and

c. The Final Order has become Final.

3.18 “Eligible Claimant” means a California Sub-Class Member who has a Valid

Claim and does not opt out from the monetary portion of this Agreement.

3.19 “Fairness Hearing” means a hearing held by the Court before Final Approval and

after Notice, the Claims Period, the deadline to object, and any responses to any objections have

been filed with the Court.

3.20 “Final” means with respect to any judicial ruling or order approving this

settlement, that (i) the time has expired to file an appeal, motion for rehearing, or petition for writ

of certiorari with respect to such judicial ruling or order with no timely appeal, motion for

hearing or petition for writ of certiorari having been made, as the case may be, or (ii) a timely

appeal has been taken from the judicial ruling or order and the judicial ruling or order has been

affirmed with no further right of appeal or rehearing because the time has expired or a petition

for rehearing and/or a writ of certiorari has been denied, or (iii) if, following an appeal, a timely

petition for rehearing and/or a writ of certiorari has been granted, the judicial ruling or order has

been affirmed.


- 8 -


3.21 “Final Approval” means the approval of this Agreement by a United States

District Court judge under Federal Rule of Civil Procedure 23(e) after Notice to the Settlement

Class and a Fairness Hearing.

3.22 “Final Order” means entry of an Order, substantially in the same form as

Exhibit F hereto, that (i) approves the Settlement as fair, reasonable, and adequate and enter

judgment finally approving the Settlement; (ii) approves or modifies the Plan of Allocation

regarding distribution of the California Settlement Fund; (iii) orders an award of attorneys’ fees,

costs, and expenses, and the amount of those fees, costs, and expenses, as contemplated by this

Agreement; (iv) determines whether the Named Plaintiffs shall be awarded a Case Contribution

Award and, if so, the amount of said award; and (v) appoint a Magistrate to oversee compliance

with the terms of this Settlement during the Remediation Period (defined in Paragraph 7.2) and

Monitoring Period (defined in Paragraph 6). Defendant will not take any position with respect to

the matters described in clauses (iii) or (iv) of this Section, so long as disposition of those matters

is in accordance with the provisions of this Agreement.

3.23 “Coinstar Kiosk” means a Coinstar-branded automated kiosk that permits

individuals to exchange their coins for cash or a value product and is located at a retail store

within the United States.

3.24 “Legally Blind” individuals include all persons with visual impairments who

require the use of alternative techniques to accomplish tasks for which people without disabilities

use sight. Some people who meet this definition have limited vision. Others have no vision.

3.25 “Notice” means notice of this agreement as provided in Section 10 herein,

including Notice to Settlement Class Members regarding the terms of this Settlement Agreement,

attached as Exhibits A (the Long Form Notice), B (the Short Form Notice), and/or the Email


- 9 -


Notice or materially identical thereto. Unless otherwise indicated, “Notice” includes the

California Notice. The “Email Notice” means either the Long Form Notice or the Short Form

Notice sent by the Claims Administrator via electronic mail.

3.26 “Notice Deadline” means the date by which the Claims Administrator shall

disseminate Notice. Absent agreement by the Parties, the Notice Deadline shall be thirty (30)

days after the Court’s entry of an Order granting Preliminary Approval of the Settlement.

3.27 “Preliminary Approval” means the initial approval by the Court of the terms of

this agreement, which shall occur prior to any Notice being provided to the Settlement Class in

accordance with Section 10 herein. A draft Proposed Order Granting Motion for Preliminary

Approval of Class Settlement; Certifying Settlement Class; Directing Issuance of Settlement

Notice; and Scheduling Hearing on Final Approval is attached as Exhibit C.

3.28 “Coinstar” means “Coinstar, LLC,” formerly known as Outerwall Inc., and any of

its directors, officers, employees, partners, principals, agents, shareholders, attorneys,

accountants, auditors, advisors, consultants, personal or legal representatives, tenants,

households, predecessors, successors, parents, subsidiaries, affiliates, divisions, heirs, assigns, or

related or affiliated entities of Coinstar, LLC.

3.29 “Review Proceeding” means an appeal, motion for reargument, motion for

rehearing, petition for a writ of certiorari to the Supreme Court of the United States or other writ.

3.30 “Settlement Class” means all Legally Blind individuals who attempted but were

unable to access or who were deterred from accessing those products or services available at

Coinstar Kiosks in all 50 states and the District of Columbia during the time period starting on

February 8, 2014 for all states and the District of Columbia excluding California and February 8,


- 10 -


2013 in California and continuing through the entry of the Preliminary Approval and Scheduling

Order.

3.31 “Settlement Class Member” means any member of the Settlement Class.

3.32 “Settlement Website” means the website created by the Claims Administrator for

the purpose of administering this agreement. This website shall contain information for class

members relating to the proposed settlement including the contact information for Class Counsel,

the Claims Administrator, any telephone number maintained by the Claims Administrator, and

an ability to request/view the Long Form Notice and/or Short Form Notice.

3.33 “Valid Claim” means a member of the California Sub-Class who, between

February 8, 2013 and the date the Court enters the Preliminary Approval and Scheduling Order,

attempted but were unable to access or who were deterred from accessing products or services

available at Coinstar Kiosks in California, provided that such attempt and/or incident is

documented in a Claim Form that is signed and timely submitted in accordance with Section 11

herein.

4. Conditions Precedent. This Agreement shall be conditioned upon and shall be

effective only upon the occurrence of all of the following events.

4.1 The Boyer Lawsuit has been transferred and consolidated with the Nguyen

Lawsuit and the Named Plaintiffs have filed a “Consolidated Complaint,” which Coinstar shall

not oppose.

4.2 Class Counsel and Coinstar have moved jointly for, and the Court has entered, an

order granting Preliminary Approval of this Agreement.


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4.3 Upon Preliminary Approval of this Agreement and approval of the Notice and the

procedures for providing Notice, Notice has been provided to the Settlement Class in accordance

with such procedures.

4.4 A Fairness Hearing has been held in accordance with Federal Rule of Civil

Procedure 23(e)(2).

4.5 The Court has granted Final Approval of this Agreement, dismissed the claims of

the Lawsuit in accordance with the terms set forth herein after a Fairness Hearing has been

conducted (subject to the Court’s retaining jurisdiction pursuant to Sections 13 and 15 herein).

All such orders and approvals have become Final.

5. Settlement Purposes Only. This Agreement is for settlement purposes only.

Neither the fact of, nor any term or provisions contained in, this Agreement or its exhibits, nor

any action taken under it shall constitute, be construed as, or be admissible in evidence as (1) any

admission of the validity of any claim or fact alleged by the Named Plaintiffs and Settlement

Class in this Lawsuit or any other pending or subsequently filed action; (2) evidence of any

wrongdoing, fault, violation of law, or liability of any kind by Coinstar regarding the claims in

the Lawsuit; (3) an admission by Coinstar of any claim or allegation made in this Lawsuit or the

previously filed Nguyen Lawsuit or Boyer Lawsuit; nor (4) admission by the Named Plaintiffs,

Settlement Class, or Class Counsel of the validity of any fact or defense asserted against them in

the Lawsuit or the previously filed Nguyen Lawsuit or Boyer Lawsuit.

6. Term of Agreement. This Agreement shall expire eighteen (18) months after the

Compliance Date of the Agreement (the “Monitoring Period”).


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7. Injunctive Relief to the Settlement Class.

7.1 Coinstar Kiosks. In accordance with the provisions in this Agreement, and for the

purpose of making them accessible to Settlement Class Members, Coinstar shall modify one

Coinstar Kiosk at each retail location as described in 7.1.1-7.1.3 below (hereafter the “Nonvisual

User Interface”). Except as otherwise provided for herein, Coinstar shall in its sole discretion

determine the order by which it remediates the Coinstar Kiosks. In a retail establishment with

more than one Coinstar Kiosk, Coinstar shall have the sole discretion with respect to which

Coinstar Kiosk to modify.

7.1.1 Modifications to tactile keypad. Coinstar shall ensure that a functional

and tactile keypad exists on each modified Coinstar Kiosk. The parties agree that the keypads

that currently exist on the kiosks comply with this section, so long as they are functional (unless

Section 8.2 applies);

7.1.2 Addition of a headphone jack. Coinstar will add a 3.5mm headphone jack

that will autonomously detect a Coinstar Kiosk’s text-to-speech features when compatible

headphones are connected to it. Coinstar will not be responsible for providing compatible

headphones to Settlement Class Members or other consumers;

7.1.3 Addition of text-to-speech output. Coinstar will add text-to-speech output,

via audio through the headphone jack, to convey the text and controls necessary to browse and

use the Coinstar Kiosks, and to present any special offers and/or ancillary services offered by

Coinstar that Coinstar makes available to sighted customers at that Coinstar Kiosk using its

visual interface. Coinstar is not required to add text-to-speech output for any advertising of

third-party products and services which does not impact the price of the transaction at the time of

the transaction;


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7.1.4 To the extent it has not already done so, Coinstar will affix a label to each

Coinstar Kiosk which provides a toll-free number for its customer assistance programs for retail

customers;

7.1.5 Coinstar represents and warrants that for locations with one or more

Coinstar Kiosks, those kiosks are located in an individual retail establishment.

7.2 Timeline for Development of the Nonvisual User Interface. Within six (6)

months of the Effective Date, Coinstar will present its intended design of Nonvisual User

Interface to the Named Plaintiffs and Class Counsel. Named Plaintiffs and Class Counsel will

have 30 days after this presentation to provide feedback to Coinstar. After receiving this

feedback, Coinstar will have eleven (11) months to develop a functional prototype of the

Nonvisual User Interface and to present it to Named Plaintiffs and Class Counsel. Named

Plaintiffs and Class Counsel will have 30 days after this presentation to provide feedback on the

functional prototype to Coinstar. Coinstar must obtain the Named Plaintiffs’ approval of the

functional prototype of the Nonvisual User Interface for Coinstar Kiosks before Coinstar begins

to modify any Coinstar Kiosks pursuant to this Agreement. The Named Plaintiffs will not

unreasonably withhold such approval. Any dispute regarding the Nonvisual User Interface shall

be subject to the dispute resolution process described in Section 13.

7.2.1 Upon receiving the presentation from Coinstar and subsequent approval

by the Named Plaintiffs, Class Counsel shall advise the Court that the functional prototype of the

Nonvisual User Interface has been developed.

7.3 Coinstar shall modify one Coinstar Kiosk at each retail location in

accordance with Section 7.1 of this Agreement during the Remediation Period (which is defined

in Section 7.3.4 infra.).


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7.3.1 Coinstar shall use reasonable and diligent efforts to complete the

modifications described in Section 7.1 as soon as possible following Final Approval, but under

no circumstances shall the Remediation Period last longer than five years from the Effective

Date.

7.3.2 Coinstar shall first remediate the Coinstar Kiosks specifically identified in

the Consolidated Complaint (“Test Coinstar Kiosks”). Upon complete remediation of the Test

Coinstar Kiosks, Coinstar shall (i) notify Class Counsel of the completion of their remediation

and (ii) remediate the remaining Coinstar Kiosks based on a schedule (including time and

location) that Coinstar deems appropriate.

7.3.3 After remediation of the Test Coinstar Kiosks, the Named Plaintiffs and/or

Class Counsel shall periodically check the Nonvisual User Interface at the Test Coinstar Kiosks.

Should any issues with the useability of the Nonvisual User Interface arise, Class Counsel shall

promptly notify Coinstar in a manner consistent with Section 13. Thereafter, the Parties shall

meet and confer regarding how to address the issue. Any dispute arising from this section shall


7.3.4 Upon remediating one Coinstar Kiosk at each location so as to comply

with Sections 7.1.1-7.1.4, Coinstar shall certify to Class Counsel that all remediations are

complete. Class Counsel shall then have thirty (30) days to test the veracity of this statement.

Should Class Counsel determine that such remediations are complete, the Parties shall jointly

advise the Court of the completion of all remediations set forth in this Agreement. The date of

said Court submission shall be referred to as the “Compliance Date.” The period of time

between the start of the Timeline for Development of the Nonvisual User Interface in Section 7.2

and the Compliance Date shall be referred to as the “Remediation Period.”


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7.4 Coinstar will use reasonable and diligent efforts to ensure that any telephonic

customer assistance programs for retail customers are prepared, by the Compliance Date, to

assist blind or visually-impaired users with using the Nonvisual User Interface.

7.5 By the time Coinstar first begins modifying the Coinstar Kiosks in accordance

with Section 7.3 above, Coinstar shall make reasonable and diligent efforts to ensure that blind

and visually-impaired customers have a method for reporting any problems with using the

Nonvisual User Interface. These efforts may include, but are not limited to, Coinstar allowing

customers to report any problems with the Nonvisual User Interface via Coinstar’s customer

assistance line. Throughout the Remediation Period and Monitoring Period, Coinstar shall

maintain at least one method for individuals to report issues regarding the Coinstar Kiosks.

7.5.1 To the extent feasible, Coinstar shall promptly address any problems

identified by blind or visually-impaired customers and reported to Coinstar through the means

set forth in Section 7.5.

7.5.2 Should any problem identified and reported to Coinstar in a manner

consistent with Section 7.5 that Coinstar, in its estimation, believes is systematic, Coinstar shall

notify Class Counsel within thirty (30) days of the initial reporting. Thereafter, the Parties shall

meet and confer regarding how to address the issue. Any dispute arising from this section shall


7.6 Coinstar shall make reasonable efforts to provide Class Counsel with a schedule

of proposed modifications to its Coinstar Kiosks one (1) month prior to the first modification.

After Coinstar provides this initial schedule, Coinstar shall provide Class Counsel with updated

schedules of proposed modifications to its Coinstar Kiosks every three (3) months through the

Term of this Agreement. The schedules may be subject to change by Coinstar, and Coinstar will


- 16 -


make reasonable efforts to notify Class Counsel of any such changes at reasonable intervals.

Any schedule for proposed modifications to Coinstar Kiosks that Coinstar adopts shall comply

with Sections 7.1-7.3 of this Agreement. Coinstar shall also provide Class Counsel with written

updates describing any modifications to its Coinstar Kiosks that have occurred pursuant to

Sections 7.1-7.3 of this Agreement every three (3) months through the Remediation Period.

7.7 Upon receiving notification from Coinstar of the completion of all required

remediation, Class Counsel shall advise the Court that the Remediation Period has expired and

that the Monitoring Period has begun.

8. Monitoring.

8.1 During the Monitoring Period, the Named Plaintiffs and Class Counsel will serve

as monitors for purposes of compliance with this Agreement. In this capacity, they shall

determine if any accessibility issues arise with respect to Coinstar Kiosks and the Legally Blind.

Named Plaintiffs and Class Counsel can begin their monitoring of Coinstar’s compliance with

Section 7 pursuant to Section 8 of this Agreement at any time after remediation begins.

8.1.2 Should either of the Named Plaintiffs or Class Counsel determine there are

any issues with the usability of the Nonvisual User Interface, Class Counsel shall promptly

notify Coinstar in a manner consistent with Section 13. Thereafter, the Parties shall meet and

confer regarding how to address the issue. Any dispute arising from this section shall be subject

to the dispute resolution process described in Section 13.

8.1.3. During the Monitoring Period, one or more of Class Counsel may post

information on their firm’s website indicating that Settlement Class Members can report to Class

Counsel (1) whether a kiosk is modified according to the terms of this Agreement or (2) whether

agreed-upon modifications are functioning.


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8.1.4. The Monitoring Period shall last for eighteen (18) months after the

Remediation Period as described in Paragraph 6, at which time Class Counsel shall notify the

Court that the Monitoring Period has ended.

8.2 Maintenance of the Nonvisual User Interface. Without interfering with Coinstar’s

discretion to remove a Coinstar Kiosk, leave a Coinstar Kiosk non-functional for all users, or

repair Coinstar Kiosks within time periods it deems reasonable, Coinstar will make reasonable

and diligent efforts to maintain the Nonvisual User Interface at each Coinstar Kiosk modified

pursuant to Section 7.1 so that it is operable to the same extent the Coinstar Kiosk is operable for

non-visually impaired users.

8.3 Disputes relating to maintenance of Nonvisual User Interface. Any dispute

regarding Coinstar’s maintenance of the Nonvisual User Interface during the Monitoring Period

that is identified by the Named Plaintiffs and/or Class Counsel shall be governed by the dispute

resolution procedures in Section 13 of this agreement.

9. Payments to Individual Named Plaintiffs.

9.1 Payments to the Individual Named Plaintiffs. Within ten business (10) days after

the Effective Date, Coinstar shall make any Court-approved Case Contribution Awards to the

Named Plaintiffs. Such Case Contribution Awards shall not exceed $2,500.00. In the event that

the Court reduces the amount that is to be paid to Named Plaintiff April Nguyen or Named

Plaintiff Brett Boyer, Coinstar shall only have to pay the amount authorized by the Court.

9.2 Plaintiff Brett Boyer’s California Relief. Named Plaintiff Brett Boyer shall be

entitled to receive his portion of the Settlement Fund, provided he complies with the

requirements set forth in Section 11 and submits a Valid Claim.

10. Preliminary Approval, Notice to the Settlement Class, and Objections.


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10.1 Promptly after execution of this Agreement, the Parties shall (1) jointly file the

Agreement, including the attached Exhibits, with the Court; (2) file a joint motion for

preliminary approval of the Agreement with the Court; and (3) notify the Court of the filings and

request entry by the Court, on the earliest date acceptable to the Court, of the Preliminary

Approval and the Proposed Scheduling Order attached as Exhibit C.

10.2 Notice Procedures. Pursuant to Section 3.26, the Claims Administrator will

provide Notice to the Settlement Class utilizing the Notices attached as Exhibits A-B and in

accordance with the following plan:

10.2.1 Notice to the Settlement Class regarding injunctive relief shall be

disseminated as follows:

a) Claims Administrator shall electronically mail the Notice to the

following organizations serving Legally Blind individuals: National Federation of

the Blind, American Council of the Blind, National Council of State Agencies for

the Blind, National Council on Independent Living, and National Disability

Rights Network. Class Counsel shall request that these organizations distribute

the Notice to the following email list serves, which exist to provide information

relevant to Legally Blind individuals: [email protected], cabs-

[email protected], and the American Council of the Blind’s email list serve;

b) Claims Administrator shall publish the Notice in the Braille

Monitor and the Braille Forum;

c) Claims Administrator shall establish and maintain a settlement

website containing information regarding this Settlement, including, among other

things, (i) this Settlement Agreement, (ii) the Short Form Notice and/or the Long


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Form Notice, (iii) a list of frequently asked questions to be agreed to by the

Parties, (iv) any orders entered by the Court regarding the Settlement, and (v) a

means by which putative class members of the California Sub-Class can request a

claim form. The website and links contained therein, including but not limited to

the Notice, shall be established and maintained so that it can be readily accessible

using reading software technology for the visually-impaired; and

d) The Claims Administrator shall send via email, in a format readily

accessible using reading software technology for the visually-impaired, the Claim

Form and/or Notice to any individual who requests said document during the

Claims Period.

10.2.2 In addition to the above, the California Notice shall be disseminated as

follows:

a) The Claims Administrator shall contact the following list of

organizations in California to determine the contact information for each organization,

and, to the extent feasible (i.e., the organization still exists and is willing to provide an

email address), shall email a copy of the California Notice to each organization:

AFB AccessWorld Magazine Blind & Visually Impaired Center of Monterey County Braille Institute of America California Department of Rehabilitation: Orientation Center for the Blind

California School for the Blind Center for Blind and Visually Impaired Community Center for the Blind East Bay Center for the Blind Guide Dogs for the Blind Guide Dogs for the Desert

Guide Dogs of America Junior Blind of America Lions Center for the Blind Matilda Ziegler Magazine for the Blind San Diego Center for the Blind and Vision Impaired Santa Clara Valley Blind Center Society For The Blind


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The Hatlen Center for the Blind Vista Center Access to Independence Center for Independence of Individuals with Disabilities Center for Independent Living Central Coast Center for Independent Living Community Access Center Community Resources for Independent Living Dayle McIntosh Center Disability Services and Legal Center Disabled Resources Center, Inc. Independent Living Center of Kern County Independent Living Resource Center Independent Living Resource Center San Francisco Independent Living Resources of Solano and Contra Costa Counties Independent Living Services of Northern California

Marin Center for Independent Living Placer Independent Resource Services Resources for Independence Central Valley Rolling Start Center for Independent Living Services Center for Independent Living Silicon Valley Independent Living Center Southern California Rehabilitation Services, Inc. Alta California Regional Center American Association of People with Disabilities American Council of the Blind American Foundation for the Blind Bay Area Outreach Recreation Program Californians for Disability Rights Central Valley Regional Center Disability Rights California Easter Seals (Bay Area)

Easter Seals (nationwide) Far Northern Regional Center Golden Gate Regional Center North Bay Regional Center Paralyzed Veterans of America Paralyzed Veterans of America (Bay Area) Redwood Coast Regional Center Regional Center of the East Bay San Andreas Regional Center San Francisco Lighthouse for the Blind United Spinal Association Valley Mountain Regional Center California Foundation for Independent Living Centers FREED Center for Independent Living


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10.2.3 At least fourteen (14) days before the Fairness Hearing, the Claims

Administrator will provide declarations to the Court, attesting that they disseminated notice

consistent with this Settlement Agreement.

10.3 The Parties shall ask the Court to order the following procedures for objections:

Any Settlement Class Member may object to the proposed Agreement by filing, within sixty (60)

days of the Notice Deadline, written objections with the Clerk of the Court. Only such objecting

Settlement Class Members shall have the right, and only if they expressly seek it in their

objection, to present objections orally at the Fairness Hearing. Responses by Coinstar and Class

Counsel to any timely-filed objections shall be made no less than fourteen (14) business days

before the Fairness Hearing.

11. Monetary Relief to California Sub-Class and Claims Procedure.

11.1 Monetary Settlement Funds. To satisfy and settle all claims for damages of the

California Sub-Class regarding violations of California law alleged in the Consolidated

Complaint, Coinstar shall pay $500,000.00 (the California Settlement Amount), which shall be

deposited into the California Settlement Fund, to be allocated among Eligible Claimants in the

manner set forth in this paragraph 11.

11.2 Date of Payment. Within ten business (10) days after the Effective Date, Coinstar

shall transfer to an interest-bearing trust account the California Settlement Amount. All interest

earned on the account shall be added to the California Settlement Fund. The California

Settlement Fund shall not be used, either directly or indirectly, to make any payments under this

settlement other than those listed in this Paragraph 11. Once this Agreement becomes Final, no

portion of the California Settlement Fund shall revert back to Coinstar under any circumstance.


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11.3 The Claims Administrator shall: (1) establish and maintain the Settlement

Website; (2) provide Notice to Settlement Class Members in a manner consistent with Section

10and as Ordered by the Court; (3) distribute the Claim Forms to California Sub-Class Members;

(4) receive and track returned Claim Forms; (5) obtain supplemental information from claimants,

as necessary; (6) receive and forward to the Parties and Court requests to opt-out; (7) verify the

validity of each Claim Form submitted and certify those who are Eligible Claimants; (8)

administer and disburse awards from the California Settlement Fund; and (9) perform such other

duties as agreed by the Parties and/or Ordered by the Court that are necessar

in the united states district court for the eastern … · 2017-12-07 · 2016, asserting the same...

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