johnson fistel, llpusawastecaclassactionsettlement.com/content/documents/settlement agreement.pdfi 2...

SUPPLEMENTAL DECLARATION OF FRANK J. JOHNSON IN SUPPORT OF PLAINTIFF’S

UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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JOHNSON FISTEL, LLP Frank J. Johnson, Esq. (SBN 174882) [email protected] Phong L. Tran, Esq. (SBN 204961) [email protected] Chase M. Stern (SBN 290540) [email protected] 655 West Broadway, Suite 1400 San Diego, CA 92101 Telephone: (619) 230-0063 Facsimile: (619) 255-1856

Counsel for Plaintiff, EAGLE CANYON OWNERS’ ASSOCIATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN DIEGO

EAGLE CANYON OWNERS’ ASSOCIATION, on behalf of itself and all others similarly situated,

Plaintiff,

vs.

USA WASTE OF CALIFORNIA, INC., and DOES 1-100, inclusive,

Defendants,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 37-2018-00005897-CU-BC-OTL

[Case Assigned for all Purposes to Hon. John S. Meyer, Dept. C-64] SUPPLEMENTAL DECLARATION OF FRANK J. JOHNSON IN SUPPORT OF PLAINTIFF EAGLE CANYON OWNERS’ ASSOCIATION’S UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

DATE: November 15, 2019 TIME: 10:30 a.m. DEPT.: C-64

Complaint Filed: February 1, 2018

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I, Frank J. Johnson, hereby declare as follows:

1. I am a partner in the law firm, Johnson Fistel, LLP (“Johnson Fistel”), counsel for

Plaintiff Eagle Canyon Owners’ Association (“Eagle Canyon” or “Plaintiff”) and the proposed Class

in the above-captioned Action. As such, I am fully familiar with the facts, pleadings, and history of

litigation in this Action. Unless otherwise indicated, the statements in this declaration are based upon

my personal knowledge, and if called to do so, I could and would competently testify to them.

2. I make this supplemental declaration in support of Plaintiff’s Unopposed Motion for

Preliminary Approval of Class Action Settlement (“Motion”) and pursuant to the Court’s

August 1, 2019 Tentative Ruling requiring modification of the parties’ Settlement Agreement and

Release (“Agreement”). Attached hereto as Exhibit 1 is a true and correct copy of the Court’s

August 1, 2019 Tentative Ruling.

3. Specifically, the Court’s August 1, 2019 Tentative Ruling required two modifications

to the Agreement: (1) removal of the §1542 waiver for the Class, as forth in ¶ 62 of the Agreement

and (2) the additional term that if there is a residual that is to be paid to the Cy Pres Recipient, the

parties shall return to the Court with a report as to any undistributed funds remaining, including the

amount of the funds and explaining why the funds cannot be distributed to the Class.

4. On August 2, 2019, I personally attended the hearing on the Motion on behalf of

Plaintiff and the proposed Class. At the hearing, the parties advised the Court they needed additional

time to consider whether they were agreeable to the Court’s required modifications to the Agreement

and, if so, to prepare and execute a revised Agreement incorporating the same. The Court then

advised the parties that, upon their submission of a revised Agreement, it would sign the [Proposed]

Preliminary Approval Order. The Court also indicated that, in light of the parties’ representation

regarding the time required to complete the Notice Program, a final approval hearing could be set

approximately 90 days from the date of the Court’s Preliminary Approval Order.

5. Since the hearing on the Motion, the parties have executed a revised Agreement

incorporating the Court’s required modifications, as set forth above. Specifically, the revised

Agreement removes the §1542 waiver for the Class as previously set forth in ¶ 62 of the Agreement

and adds the additional term regarding any potential residual to be paid to the Cy Pres Recipient as

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set forth in ¶ 56, subsection (c) of the revised Agreement. A true and correct copy of the revised

Agreement is attached hereto as Exhibit 2.

6. The parties have also revised the [Proposed] Preliminary Approval Order to insert a

date (approximately 90 days out) for a final approval hearing in accordance with the Court’s

Department Rules. A true and correct copy of the revised [Proposed] Preliminary Approval is

attached hereto as Exhibit 3.

I declare under penalty of perjury under the laws of the State of California that the foregoing

is true and correct to the best of my personal knowledge and belief.

Executed this thirteenth day of August, 2019, at San Diego, California.

FRANK J. JOHNSON

EXHIBIT 1

123

John S. Meyer JudgeSUPERIOR COURT OF CALIFORNIA,

DEPT.: EVENT DATE: EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - August 01, 2019

08/02/2019 10:30:00 AM C-64

COUNTY OF SAN DIEGO

August

01, 2019

JUDICIAL OFFICER:John S. Meyer

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE:

CASE TYPE:Civil - Unlimited Breach of Contract/Warranty

Motion Hearing (Civil)

37-2018-00005897-CU-BC-CTL

EAGLE CANYON OWNERS ASSOCIATION VS USA WASTE OF CALIFORNIA INC[E-FILE]

CAUSAL DOCUMENT/DATE FILED:stolo

Plaintiff Eagle Canyon Owners' Association, on behalf of itself and all others similarly situated, seekspreliminary approval of a class settlement.

The Court will not approve a §1542 waiver for the Class, as forth in Paragraph 62 of the SettlementAgreement.

The Court requires the additional term that if there is a residual that is to be paid to the cy pres recipient,the parties shall return to the Court with a report as to any undistributed funds remaining, including theamount of the funds and explaining why the funds cannot be distributed to the Class.

Calendar No.: Event ID: TENTATIVE RULINGS 2114708 32Page: 1

EXHIBIT 2

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COUNTY OF SAN DIEGO

3 EAGLE CANYON OWNERS' ASSOCIATION,) Case No. 37-2018-00005897-CU-BC-OTL on behalf of itself and all others similarly )

4 situated, ) [Case Assignedfor all Purposes to ) Hon. John S. Meyer, Dept. C-64]

5 Plaintiff, ) )SETTLEMENTAGREEMENTAND

6 vs. ) RELEASE )

7 USA WASTE OF CALIFORNIA, INC., and ) DOES 1-100, inclusive, ) Complaint Filed: February 1, 2018

8 ) Defendants, )

9 ) )

10 ______________ )

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28 PLAINTIFF EAGLE CANYON OWNERS' ASSOCIATION'S OPPOSITION TO DEFENDANT USA

WASTE OF CALIFORNIA, INC. 'S DEMURRER TO AMENDED COMPLAINT

1 TABLE OF CONTENTS

2 Page

3 I. RECITALS .......................................................................................................................... 1

4 II. AGREEMENT ..................................................................................................................... 2

5 III. DEFINITIONS ..................................................................................................................... 2

6 IV. CONSIDERATION FOR SETTLEMENT .......................................................................... 5

7 V. CERTIFICATION OF THE CLASS ................................................................................... 7

8 VI. PRELilvIINARY APPROVAL ............................................................................................ 7

9 VII. DISCOVERY & DISCLOSURE ......................................................................................... 8

10 VIII. SETTLEMENT ADMINISTRATOR .................................................................................. 8

11 IX. NOTICE TO CLASS MEMBERS ....................................................................................... 9

12 X. FINAL APPROVAL ORDER AND JUDGMENT ........................................................... 12

13 XI. ALLOCATION AND DISTRIBUTION OF NET SETTLEMENT FUND TO SETTLEMENT CLASS MEMBERS ................................................................................ 12

14 XII. DISPOSITION OF RESIDUAL FUNDS AFTER DISTRIBUTION TO THE

15 SETTLEMENT CLASS MEMBERS ................................................................................ 14

16 XIII. EFFECT OF TERMINATION .......................................................................................... 15

17 XIV. RELEASE .......................................................................................................................... 16

18 xv. PAYMENT OF ATTORNEYS' FEES, EXPENSES AND SERVICE AWARD ........... .17

19 XVI. TERMINATION OF SETTLEMENT ............................................................................... 18

20 XVII. NO ADMISSION OF LIABILITY .................................................................................... 19

21 XVIII. MISCELLANEOUS PROVISIONS .................................................................................. 20

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1

Settlement Agreement and Release (Case No.: 37-2018-00005897-CU-BC-CTL)

1 This Settlement Agreement and Release ("Agreement") is made and entered into this_ day

2 of June, 2019, by and among (1) Plaintiff Eagle Canyon Owners' Association, ("Plaintiff' or "Eagle

3 Canyon"), for itself and on behalf of the putative Class it seeks to represent (as defined below), and

4 (2) Defendant USA Waste of California, Inc. ("Defendant" or "USA Waste"). The Agreement is

5 intended by Plaintiff and Defendant ( collectively, the "Parties") to fully, finally, and forever resolve,

6 discharge, release, and settle the Released Claims (as defined below) upon and subject to the te1ms

7 and conditions hereof, and is submitted pursuant to California Code of Civil Procedure § 382 and

8 California Rule of Court 3.769 for approval of this Court.

9 I.

10

RECITALS

WHEREAS, Plaintiff filed a lawsuit against USA Waste that is currently pending in the

11 Superior Court of the State of California, San Diego County, entitled: Eagle Canyon Owners'

12 Association v. USA Waste of Calzfornia, Inc., Case No.: 37-2018-00005897-CU-BC-CTL (the

13 "Litigation" or "Action");

14 WHEREAS, Plaintiff has asserted claims, on its own behalf and on behalf of a putative class

15 ofallegedly similarly situated USA Waste customers, seeking monetary damages and other statutory,

16 declaratory or injunctive relief against USA Waste arising out of USA Waste's contracting for and

17 provision of waste collection, disposal and/or recycling services to certain commercial and/or

18 industrial customers in California;

19 WHEREAS, USA Waste denies Plaintiffs allegations of wrongful conduct, liability, and/or

20 damages in their entirety, and has asserted numerous procedural and substantive defenses to

21 Plaintiff's claims.

22 WHEREAS, counsel for Plaintiff and the Class (proposed "Class Counsel") have conducted

23 a thorough investigation of the facts and legal theories relating to and forming the basis of the claims

24 alleged in the Litigation based upon the information available and provided by Defendant, including

25 through an extensive, multi-phase discovery and fact-finding process in preparation for and as part

26 of a multi-session, arm's-length mediation process before the Honorable Howard B. Wiener (Ret.).

27 WHEREAS, Plaintiff and Class Counsel have concluded, based upon the aforementioned

28 litigation record and factual investigation, and talcing into account the sharply_ contested issues

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1 involved, the expense and time necessary· to prosecute the Litigation through trial, and subsequent

2 potential appeals, the risks, costs, and uncertainties of further prosecution of the Litigation, and the

3 substantial benefits to be provided to the Settlement Class Members pursuant to this Agreement, that

4 a settlement with USA Waste on the terms set forth herein is fair, equitable, adequate, reasonable,

5 and in the best interests of Plaintiff and the Settlement Class Members. The Parties have therefore

6 agreed to settle the Litigation on the terms set forth herein.

7 II. AGREEMENT

8 NOW THEREFORE, intending to be legally bound and acknowledging the sufficiency of

9 the consideration and undertakings set forth below, USA Waste, USA Waste's Counsel, Class

10 Counsel, and Plaintiff hereby stipulate and agree that, in consideration of this Agreement and upon

11 the Court's entry of a Final Order and Judgment approving this Agreement, all claims of Plaintiff and

12 the Settlement Class Members against USA Waste in the Action, shall be settled, compromised, and

13 released upon the terms and conditions set forth herein.

14 ID. DEFINITIONS

15 In addition to the terms defined at various points within this Agreement, the following Defined

16 Terms apply throughout this Agreement and the attached exhibits:

17 1. "Action" or "Litigation" means the class action lawsuit, styled Eagle Canyon Owners

18 Association v. USA Waste of California, Inc., originally filed in the U.S. District Court for the

19 Southern District of California, and following voluntary dismissal, later filed in the Superior Court

20 of the State of California, County of San Diego, which is currently pending before the Hon. John S.

21 Meyer.

22 2. "Allocation Formula" means the formula by which the cash payments that Settlement

23 Class Members are eligible to receive under the Settlement are calculated in accordance with

24 Section XI of this Agreement.

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3. "Class" means for purposes of this Settlement:

All open market commercial and industrial customers who were parties to a written Service Agreement with USA Waste of California, Inc., or any affiliated entity providing waste collection, disposal, or recycling services under the Waste Management trade name in California at any time from January 1, 2012 through

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December 31, 2016, excluding only those customers who contracted with Defendant for the first time starting on or after January 1, 2015.

4.

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6.

7.

"Class Counsel" means the firm of Johnson Fistel, LLP.

'~Class Period" means January 1, 2012 through the date of Preliminary Approval.

"Court" means the Superior Court of the State of California, San Diego County.

"Cy Pres Recipient" means the Consumer Federation of California (CFC), subject to

7 approval by the Court, which shall receive any remainder from the Settlement Fund after the

8 completion of the distribution process described in paragraph 56, infra.

9 8. "Defendant's Counsel" means the law firms of Yoka & Smith, LLP, and Baker

10 Botts LLP.

11 9. ,r!i.ffective Date" means thirty-five (35) days after Final Approval if there is no appeal,

12 or five (5) days after any appeals are resolved or otherwise terminated.

13 10. "Escrow Account" means the interest-bearing account to be established by the

14 Settlement Administrator consistent with the terms and conditions described in Section VIII of this

15 Agreement.

16 11. "Final Approval" means the date the Court enters an Order and Judgment granting

17 final approval of the Settlement.

18 12. "Final Approval Hearing" means the hearing to be held by the Court to determine

19 (a) whether the Settlement is fair, adequate, and reasonable; (b) whether the Final Approval Order

20 should be entered; and ( c) and whethyr to approve Class Counsel's application for attorneys' fees and

21 reimbursement of expenses, and for a service award to Plaintiff.

22 13. "Final Approval Order" means the order and judgment that the Court enters upon

23 finally approving the Settlement.

24 14. "Notice" means the three forms of Notice of the Settlement that the Parties shall

25 request the Court to approve in connection with the Motion for Preliminary Approval of Class Action

26 Settlement, substantially in the forms of Exhibits 1-3 to the Preliminary Approval Order, Exhibit A

27 hereto.

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1 15. ''Notice Deadline" means the date by which the Settlement Administrator is required

2 to send out Notice, which shall not be later than forty-five ( 45) days before the Final Approval

3 Hearing or as otherwise ordered by the Court.

4 16. ''Notice Program" means the methods described in this Agreement and attached

5 exhibits for providing Notice to members of the Class, including their opportunities to object to or

6 exclude themselves ("opt-out") from participation in the Settlement. A complete description of the

7 contemplated Notice Program is provided in Section IX of this Agreement.

8 17. "Open market commercial and industrial customers" refers to those commercial

9 (front-end loader serviced) or industrial (roll-off serviced) customers that contracted directly with

10 USA Waste or its affiliates operating under the Waste Management trade name for their waste

11 collection, 4isposal, and/or recycling services in the state of California, and not as part of a franchise <II

12 agreement or national account arrangement.

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18.

19.

"Parties" means Plaintiff and Defendant.

"Preliminary Approval" means the date that the Court enters, without material change,

15 an Order preliminarily approving the Settlement in the form jointly agreed upon by the Parties.

16 20. "Released Claims" means all claims to be released as specified in Section XIV of this

17 Agreement. The "Releases" means all of the releases contained in Section XN of this Agreement.

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21.

22.

"Released Parties" means those persons or entities released by paragraph 61, infra.

"Releasing Parties" means Plaintiff and all Settlement Class Members, including each

20 of their respective heirs, assigns, beneficiaries, and successors.

21 23. "Settlement" means the settlement into which the Parties have entered to resolve the

22 Action. The terms of the Settlement are as set forth in their entirety in this Agreement and the attached

23 exhibits.

24 24. "Settlement Administrator'' means Epiq Class Action & Claims Solutions, Inc.,

25 subject to approval by the Court, to serve the notice and administrative functions described in

26 paragraphs 37-40, 45-47, and 53-55, infra.

27 25. "Settlement Class Members" means all members of the Class who do not timely and/or

28 properly opt out of the Settlement (in accordance with the terms of this Agreement and Preliminary

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I Approval Order) and who are therefore entitled to receive a disttibution of funds following Final

2 Approval of the Settlement (in accordance with the terms of this Agreement).

3 26. "Settlement Fund" means the $7,850,000 common fund established under Section IV

4 of this Agreement.

5 27. "Settlement Website" means the website that the Settlement Administrator will

6 establish as soon as practicable following Preliminary Approval, but prior to the commencement of

7 the Notice Program, as a means for Class members to obtain notice of and information about the

8 Settlement, through and including hyperlinked access to this Agreement, the long-form Notice, the

9 order preliminarily approving this Settlement and such other documents as Class Counsel and counsel

10 for USA Waste agree to post or that the Court orders posted on the website, at URL of Class Counsel's

11 and c/Jjunsel for USA Waste's agreement (e.g., USAWasteClassSettlement.net). The Settlement

12 Website shall not include any advertising and shall not bear or include USA Waste or Waste

13 Management logos or trademarks. Ownership of the Settlement Website URL shall be transferred to

14 USA Waste within 10 days of the date on which operation of the Settlement Website ceases.

15 IV.

16

CONSIDERATION FOR SETTLEMENT

28. In exchange for the mutual promises and covenants in this Agreement, including,

17 yvithout limitation, the Releases as set forth in Section XIV of this Agreement, within ten (10)

18 calendar days following Preliminary Approval, USA Waste shall pay or cause to be paid the sum of

19 Seven Million Eight Hundred Fifty Thousand Dollars ($7,850,000.00) into the Escrow Account to

20 create the Settlement Fund as set forth herein.

21 29. Upon the creation of the Settlement Fund, the funds therein may be invested in

22 interest-bearing short-term instruments - to be agreed upon by Class Counsel and Defendant's

23 Counsel -that are backed by the full faith and credit of the United States Government or that are fully

24 insured by the United States Government or an agency thereof (the "Instruments"). The interest

25 proceeds and the principal may thereafter be reinvested as they mature in similar Instruments, bearing

26 in mind the liquidity requirements of the Escrow Account to ensure that it contains sufficient cash

27 available to pay all invoices, taxes, fees, costs, and expenses, and other required disbursements, in a

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1 timely manner. Except as otherwise specified herein, the Instruments at all times will remain in the

2 Escrow Account.

3 30. The Settlement Fund at all times shall be deemed a "qualified settlement fund" within

4 the meaning of United States Treasury Reg. § 1.468B-l. All taxes {including any estimated taxes,

5 and any interest or penalties relating to them) arising with respect to the income earned by the

6 Settlement Fund or otherwise, including any taxes or tax detriments that may be imposed upon USA

7 Waste or its counsel with respect to income earned by the Settlement Fund for any period during

8 which the Settlement Fund does not qualify as a "qualified settlement fund" for the purpose of federal

9 or state income taxes or otherwise ( collectively "Taxes"), shall be paid out of the Settlement Fund.

10 USA Waste and its counsel, and Pla~ntiff and Class Counsel, shall have no liability or responsibility

11 f@r any of the Taxes. The Settlement Fund shall indemnify and hold USA Waste and its counsel, and

12 Plaintiff and Class Counsel, harmless for all Taxes (including, without limitation, Taxes payable by

13 reason of any such indemnification).

14 31. The Settlement Fund shall be used for the following purposes, to the extent such

15 purposes are approved by the Court:

16 a. Distribution of payments to the Settlement Class Members pursuant to

1 7 Section XI of this Agreement.

18 b. Payment of the Court-ordered award of Class Counsel's attorneys' fees and

19 reimbursement of expenses pursuant to Section XV of this Agreement.

20 c. Payment of any Court-ordered service award to Plaintiff pursuant to

21 Section XV of this Agreement.

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d.

e.

Payment of the costs of Notice and administration of the Settlement.

Payment of any Taxes, including without limitation, taxes owed as a result of

24 accrued interest on the Escrow Account.

25 f. Payment of any additional fees, costs, and expenses not specifically

26 enumerated in subparagraphs (a) through (e) above, subject to approval of Class Counsel and counsel

27 for USA Waste.

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6 Settlement Agreement and Release (Case No.: 37-2018-00005897-CU-BC-CTL)

1 V. CERTIFICATION OF THE CLASS

2 32. Within sixty [ 60] days of execution of this Agreement, and through the Motion for

3 Preliminary Approval of the Settlement, Plaintiff and Class Counsel shall seek certification from the

4 Court of a Class, for settlement purposes only, defined as follows:

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All open market commercial and industrial customers who were parties to a written Service Agreement with USA Waste of California, Inc., or any affiliated entity providing waste collection, disposal, or recycling services under the Waste Management trade name in California at any time from January 1, 2012 through December 31, 2016, excluding only those customers who contracted with Defendant for the first time starting on or after January 1, 2015.

33. For purposes of this Settlement only, USA Waste agrees to the certification of the

10 Class. Nothing in this Agreement shall be construed as an admission by Defendant or other Released

1.:1 Persons that the Litigation is amenable to class certification for purposes of a trial @r contested

12 proceeding. If the Court declines to approve the Settlement, or if the Court changes the Class

13 composition or the terms of the Settlement in any material way not acceptable to USA Waste after

14 reasonable consultation with Class Counsel, or if certification of the Class or approval of the

15 Settlement is reversed, or if certification of the Class or approval of the Settlement is changed upon

16 appeal or review in any material way not acceptable to USA Waste after reasonable consultation with

17 Class Counsel, USA Waste shall have the right to tenninate the Settlement pursuant to Section XVI

18 of this Agreement

19 34. In the event Final Approval of this Settlement is not granted by the Court and/or the

20 Settlement embodied herein does not become effective, the Parties shall be returned to the status quo

21 ante, and the Litigation shall proceed as if this Agreement had never been negotiated or executed and

22 no Class had been certified.

23 VI.

24

PRELIMINARY APPROVAL

35. Upon execution of this Agreement by all Parties, Class Counsel shall promptly move

25 the Court for an Order preliminarily approving this Settlement substantially in the form of Exhibit A,

26 hereto (the "Preliminary Approval Order"). The Motion for Preliminary Approval shall request that

27 the Court: (i) approve the terms of the Settlement as within the range of fair, adequate, and reasonable;

28 (ii) provisionally certify the Class pursuant to California Civ. Code § 1781, for settlement purposes

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1 only; (iii) approve the Notice Program set forth herein and approve the fonn and content of Notice;

2 (iv) approve the procedures set forth in and pursuant to this Agreement for members of the Class to

3 exclude themselves from or opt out of the Settlement, or to object to the Settlement; (v) stay the

4 Action pending Final Approval of the Settlement; and (vi) schedule a Final Approval Hearing.

5 VII. DISCOVERY & DISCLOSURE

6 36. The Parties have engaged in substantial discovery during nearly three years of

7 litigation. In addition, USA Waste has cooperated and will continue to cooperate with Class Counsel

8 by providing reasonably available data to permit Class Counsel and/or the Settlement Administrator

9 to ascertain and provide Notice to the Class members and perform the Allocation Formula provided

IO herein. Such information shall be provided no later than ten (10) calendar days after Preliminary

.. 11 Approval.

12 VIII. SETTLEMENT ADMINISTRATOR

13 37. The Settlement Administrator shall administer various aspects of the Settlement as

14 described in this Agreement and perform such other functions as are otherwise specified for the

15 Settlement Administrator elsewhere in this Agreement, including, but not limited to (i) providing

16 Notice, as described in Section IX of this Agreement and (ii) distributing the Settlement Fund in

17 accordance with the te1ms of this Agreement. Class Counsel and Defendant's Counsel will jointly

18 oversee the performance of the Settlement Administrator. The Settlement Administrator agrees to be

19 subject to the jurisdiction of the Court with respect to the administration of the Settlement and the

20 allocation and distribution of the Settlement Fund pursuant to the terms of the Agreement.

21 38. All Settlement Administrator fees, charges, and expenses, not to exceed $170,000

22 without further approval from the Parties and without further order of the Court, shall be paid from

23 the Settlement Fund within thirty (30) days of Class Counsel's and Defendant's Counsel's mutual

24 receipt and approval of an invoice evidencing the same.

25 39. The duties of the Settlement Administrator, in addition to other responsibilities that

26 are described in this Agreement, are as follows:

27 a. Obtain from USA Waste each Class member's name and address or email

28 address information (to the extent it is available), and, to the extent necessary, verify and update the


1 addresses received through the National Change of Address database, for the purpose of

2 disseminating Notice and later mailing settlement checks to the Settlement Class Members.

3 b. Establish and maintain a Post Office box for receipt of any Class member's

4 request for exclusion from the Settlement;

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C.

d.

Establish and maintain the Settlement Website;

Establish and maintain an automated toll-free telephone line for Class

7 members to call with Settlement-related inquiries, and answer the questions of the Class members

8 who call with or otherwise communicate such inquiries;

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e.

f.

g,

Respond to any mailed Class member inquiries;

Process all requests for exclusion from the Settlement;

Provide weekly reports and, no later than five (5) days after the end of the Opt-

12 Out Period, a final report to Class Counsel and Defendant's Counsel that summarizes the total number

13 ofrequests for exclusion received and.other pertinent information;

14 h. At Class Counsel's request in advance of the Final Approval Hearing, prepare

15 an affidavit to submit to the Court that, inter alia, identifies each Class member who timely and

16 properly requested exclusion from the Class;

17 1. Process and transmit distributions to the Settlement Class Members from the

18 Settlement Fund pursuant to the Allocation Formula;

19 J. Pay invoices, expenses, and costs upon approval by Class Counsel and

20 Defendant's Counsel, as provided in this Agreement; and

21 k. Administer the Escrow Account as described in this Agreement, and any other

22 Settlement-administration-related function at the instruction of Class Counsel and Defendant's

23 Counsel.

24 IX.

25

NOTICE TO CLASS MEMBERS

40. Upon Preliminary Approval of the Settlement, at the direction of Class Counsel, the

26 Settlement Administrator shall implement the Notice Program provided herein. In doing so, the

27 Settlement Administrator shall use the forms of Notice, attached as Exhibits 1-3 to the Preliminary

28 Approval Order, Exhibit A hereto. The Notice shall include, among other information: (i) a

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1 description of the material terms of the Settlement; (ii) a date by which Class members may exclude

2 themselves from or "opt out" of the Class; (iii) a date by which Settlement Class Members may object

3 to the Settlement; (iv) the date upon which a Final Approval Hearing will occur; and (v) the address

4 of the Settlement Website by which Class members may access this Agreement and other related case

5 and settlement documents and information. Class Counsel and Defendant's Counsel shall insert the

6 correct dates and deadlines in the Notice before the Notice Program commences, based upon those

7 dates and deadlines set by the Court in the Preliminary Approval Order. Notice and publications

8 provided under or as part of the Notice Program shall not bear or include the Waste Management or

9 USA Waste logos or trademarks, the return address of USA Waste, or otherwise be styled to appear

10 to originate from USA Waste.

11 41. The Notice also shall include a procedure for Class members to exclude themselves

12 from or opt out of the Settlement. A Class member may opt out of the Settlement at any time before

13 the deadline set by the Court by following the proces_s set forth in the Preliminary Approval Order.

14 Any Class member who does not submit a timely or valid request for exclusion from the Settlement

15 shall be bound by the terms of this Agreement.

16 42. The Notice also shall include a procedure for Settlement Class Members to object to

17 the Settlement and/or to Class Counsel's application for attorneys' fees, reimbursement of expenses,

18 and for a service award to Plaintiff. Objections to the Settlement or to the application for fees,

19 reimbursement of expenses and a service award must be mailed to the Clerk of the Court, Class

20 Counsel, and Defendant's Counsel. For an objection to be considered by the Court, the objection

21 must be received by the Court, Class Counsel, and Defendant's Counsel no later than the deadline set

22 by the Court in the Preliminary Approval Order. For an objection to be considered by the Court, the

23 objection must also set forth:

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27 Class member;

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a.

b.

C.

the name of the Action;

the objector's full name, address, and telephone number;

an explanation of the basis upon which the objector claims to be a Settlement

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1 d. all grounds for the objection, accompanied by any legal support for the

2 objection known to the objector or the objector's counsel;

3 e. the number of times in which the objector has objected to a class action

4 settlement within the five (5) years preceding the date that the objector files the objection, the caption

5 of each case in which the objector has made such objection, and a copy of any orders related to or

6 ruling upon the objector's prior such objections that were issued by the tlial and appellate courts in

7 each listed case;

8 f. the identity of all counsel who represent the objector, including any former or

9 cunent counsel who may be entitled to compensation for any reason related to the objection;

10 g. the number of times in which the objector's counsel and/or counsel's law firm

11 have objected to a class action settlement within the five (5) years preceding the date that the objector

12 files the objection, the caption of each case in which the counsel or the firm has made such objection,

13 and a copy of any orders related to or ruling upon counsel's or the firm's prior such objections that

14 were issued by the trial and appellate courts in each listed case;

15 h. any and all agreements that relate to the objection or the process of objecting

16 - whether written or verbal - between objector or objector's counsel and any other person or entity;

17 i. the identity of all counsel representing the objector who will appear at the Final

18 Approval Hearing;

19 j. a list of all persons who will be called to testify at the Final Approval Hearing

20 in support of the objection;

21 k. a statement confirming whether the objector intends to personally appear

22 and/or testify at the Final Approval Hearing; and

23

24 43.

1. the objector's signature (an attorney's signature is not sufficient).

Notice shall be provided to the Class members in three (3) different forms: email

25 notice; mail notice; and long-form notice posted on the Settlement Website.

26 44. Subject to the Court's approval, the email notice shall be substantially in the form of

27 Exhibit 1 to the Preliminary Approval Order, Exhibit A, hereto; the mail notice shall be substantially

28 in the form of Exhibit 2 to the Preliminary Approval Order, Exhibit A, hereto; and the long-form

11


1 notice, which shall be posted on the Settlement Website, attached to the email notice, and available

2 by mail upon request, shall be substantially in the form of Exhibit 3 to the Preliminary Approval

3 Order, Exhibit A, hereto.

4 45. By the Notice Deadline, the Settlement Administrator shall (i) disseminate the email

5 notice to each member of the Class for whom USA Waste has an email address at the email address

6 identified in USA Waste's records; and (ii) mail, via first-class mail postcard, the mail notice to each

7 member of the Class at the address identified in USA Waste' s records. Before mailing any postcards,

8 the Settlement Administrator will verify and update the mailing addresses received through the

9 United States Postal Service's National Change of Address Database. .

10 46. If a mail notice is returned as undeliverable, the Settlement Administrator will use

11 reasonable efforts to locate a current mailing address for the Glass member and re-mail the notice to

12 the current address, if applicable.

13 47. The Settlement Administrator shall provide Class Counsel and Defendant's Counsel

14 a declaration confirming that the Notice Program was completed in a timely manner and identifying

15 any opt-outs that were timely received. Class Counsel shall file that declaration with the Court no

16 less than five (5) court days prior to the commencement of the Final Approval Hearing.

17 x. 18

FINAL APPROVAL ORDER AND JUDGMENT

48. Plaintiff's Motion for Preliminary Approval of the Settlement will include a request

19 to the Court for a scheduled date on which the Final Approval Hearing will occur. Plaintiff and Class

20 Counsel shall file their motion for entry of the Final Approval Order in the form of Exhibit B, hereto,

21 by the deadline set by the Court.

22 49. At the Final Approval Hearing, the Court will detennine whether to enter the Final

23 Approval Order granting final approval of the Settlement, and whether to approve Class Counsel's

24 request for attorneys' fees and reimbursement of expens~s, and for a service award to Plaintiff.

25 XI. ALLOCATION AND DISTRIBUTION OF NET SETTLEMENT FUND TO SETTLEMENT CLASS MEMBERS

26

27 50. All Settlement Class Members will automatically receive a cash settlement payment

28 from the Net Settlement Fund.

12


1 51. The Net Settlement Fund is equal to the Settlement Fund plus any interest earned from

2 the Instruments, less the following:

3 a. the amount of the Court-ordered award of Class Counsel's attorneys' fees and

4 expenses, and/or any other Court ordered award of fees in connection with the Settlement, together

5 with any interest accrued thereon;

6

7

8

9

b.

C.

d.

e.

the amount of any Court-ordered service award to Plaintiff;

the costs of notice and administration;

all applicable taxes; and

other appropriate fees, costs, and expenses not specifically enumerated in

10 subparagraphs (a) through (e) of this paragraph, subject to approval of Class Counsel and counsel for

11 USA Waste.

12 52. All cash payments will be made from the Net Settlement Fund and calculated in

13 accordance with the Allocation Formula described below:

14 a. Twenty percent (20%) of the Net Settlement Fund will be distributed equally

15 on a per capita basis to all Settlement Class Members.

16 b. The remaining eighty percent (80%) of the Net Settlement Fund will be

17 distributed on a pro rata basis. The pro rata basis will be calculated as follows: (i) each Settlement

18 Class Member's total payment to USA Waste during the period from January 1, 2012 to

19 December 31, 2016 will be divided by the total payments made by all Settlement Class Members

20 during the same period; and (ii) that percentage will be multiplied by the remaining eighty percent

21 (80%) of the Net Settlement Fund.

22 53. Within thirty (30) days of the Effective Date, the Settlement Administrator shall

23 distribute the Net Settlement Fund to the Settlement Class Members.

24 54. All Settlement Class Members will be paid by check, which will be issued and mailed

25 by the Settlement Administrator with an appropriate legend, in a form approved by Class Counsel

26 and Defendant's Counsel, to indicate that it is from the Settlement, and will be sent to the addresses

27 that the Settlement Administrator identifies as valid Settlement Class Member addresses. Checks

28 shall be valid for one hundred twenty (120) days. The Settlement Administrator shall make

13


1 reasm;1able efforts to locate the proper address for any Settlement Class Member whose check is

2 returned by the Postal Service as undeliverable and shall re-mail it to the updated address one time.

3 55. The amount of the Settlement Fund attributable to uncashed checks and checks

4 returned to the Settlement Administrator shall remain in the Settlement Fund for nine (9) months

5 from the date that the first distribution check is mailed by the Settlement Administrator, during which

6 time the Settlement Administrator shall make a reasonable effort to locate those Settlement Class

7 Members whose checks were returned to effectuate delivery of such checks to the Settlement Class

8 Members entitled to them. The Settlement Administrator shall make only one attempt to re-mail or

9 re-issl¼C a distribution check. Reissued checks will be valid for ninety (90) days from the re-issuance

10 date.

11 XII. DISPOSITION OF RESIDUAL FUNDS AFTER DISTRIBUTION TO THE SETTLEMENT CLASS MEMBERS

12

13 56. After all issued and re-issued checks have expired, any funds remaining in the Net

14 Settlement Fund, including interest, shall be distributed as follows:

15 a. The remaining funds will first be used to pay any remaining notice and

16 administrative costs, if applicable, subject to approval of Class Counsel and Defendant's Counsel.

17 b. Next, a second distribution will be made to all those Settlement Class Members

18 who cashed their initial checks on a per capita basis, provided that the cost of administering such a

19 distribution is less than fifty percent (50%) of the remaining Net Settlement Fund.

20 c. If the cost of administering such a second distribution is greater than fifty

21 percent (50%) of the remaining Net Settlement Fund or if after a second distribution the Net

22 Settlement Fund has not been exhausted, the remainder of the Net Settlement Fund shall be distributed

23 to the Cy Pres Recipient, if approved by the Court. In such a circumstance, the Parties agree to return

24 to the Court with a report as to any undistributed funds remaining, including the amount of the funds

25 and explaining why the funds cannot be distributed to the Settlement Class Members.

26 d. Thls Settlement is non-reversionary and is not a claims-made settlement. USA

27 Waste shall not be entitled to recover any of the Settlement Fund, or interest earned thereon, after the

28 Effective Date of the Agreement.

14


1 e. No person or entity shall have any claim against Plaintiff, Class Counsel, USA

2 Waste, Defendant's Counsel, or any other person designated by or acting on behalf of Plaintiff, Class

3 Counsel, USA Waste, or Defendant's Counsel, based on any determination or distribution made

4 substantially in accordance with this Agreement and the Settlement contained herein.

5 xm. EFFECT OF TERMINATION

6 57. The grounds upon which this Agreement may be terminated are set forth in

7 Section XVI of this Agreement. In the event of a termination as provided therein, this Agreement

8 shall be considered null and void; all of USA Waste's obligations under the Settlement shall cease to

9 be of any force and effect; the amounts in the Settlement Fund shall be returned to USA Waste in

10 accordance with paragraph 58, infra; and the Parties shall return to the status quo ante in the Action

11 as if the Parties had not entered into this Agre~nent. In addition, in the event of such a termination,

12 the Parties' respective pre-Settlement claims and defenses will be preserved, including, but not

13 limited to, Plaintiff's right to seek class certification and USA Waste's right to seek summary

14 judgment or adjudication of issues and oppose class certification.

15 58. In the event of a termination as provided in Section XVI of this Agreement, the

16 Settlement Fund shall be returned to USA Waste within seven (7) days of termination, less any money

17 that the Settlement Fund has already paid, or incurred an obligation to pay, for Settlement-related

18 costs and expenses.

19 59. This Settlement shall become effective on the Effective Date, unless earlier terminated

20 in accordance with the provisions of Section XVI of this Agreement.

21 60. In the event the Settlement is terminated in accordance with the provisions of

22 Section XVI of this Agreement, any discussions; offers, or negotiations associated with this

23 Settlement shall not be discoverable or offered into evidence or used in the Action or any other action

24 or proceeding for any purpose, without prejudice to Plaintiff's right to seek discovery and class

25 certification, and USA Waste's right to seek dismissal and oppose class certification. In such event,

26 all Parties to the Action shall stand in the same position as if this Agreement had not been negotiated,

27 made or filed with the Court.

28

15


1 XIV. RELEASE

2 61. As of the Effective Date, Plaintiff and each Settlement Class Member, each on behalf

3 of itself, himself, or herself and on behalf of its, his, or her respective heirs, assigns, beneficiaries,

4 and successors, shall automatically be deemed to have fully and irrevocably released and forever

5 discharged USA Waste and each of its present and former parents, subsidiaries, divisions, affiliates,

6 predecessors, successors, and assigns, including, in particular, USA Waste of California, Inc. and all

7 others operating under the Waste Management trade name in the State of California, and the present

8 and former directors, officers, employees, agents, insurers, shareholders, attorneys, advisors,

9 consultants, representatives, partners, joint venturers, independent contractors, wholesalers, resellers,

10 distributors, retailers, predecessors, successors, and assigns of each of them, of and from any and all

11 liabilities, rights, claims, actions, causes ~ action, demands, damages, costs, attorneys' fees, losses,

12 and remedies, whether known or unknown, existing or potential, suspected or unsuspected, liquidated

13 or unliquidated, legal, statutory or equitable, that result from, arise out of, are based upon, or relate

14 to the conduct, omissions, duties, or matters during the Class Period that were or could have been

15 alleged in the Actions, including, without limitation, any claims, actions, causes of action, demands,

16 damages, losses, or remedies relating to, based upon, resulting from, or arising out of USA Waste's

17 performance with respect to the pricing of its services under the contracts; USA Waste's

18 representations with respect to the pricing of its services under its contracts; and USA Waste' s pricing

19 and/or contracting practices, including but not limited to the methods by which charges, fees or

20 surcharges are established, calculated, adjusted, modified, or communicated to customers.

21 62. As of the Effective Date, USA Waste will be deemed to have completely released and

22 forever discharged Plaintiff, and its respective heirs, representatives, and assigns, and present and

23 former attorneys, accountants, experts, consultants, insurers, and agents of each of them, from any

24 and all liabilities, rights, claims, counterclaims, set-offs, actions, causes of action, demands, damages,

25 penalties, costs, attorneys' fees, losses, and remedies, whether known or unknown, existing or

26 potential, suspected or unsuspected, liquidated or unliquidated, legal, statutory, or equitable, that are

27 based upon, or relate to the institution, prosecution, and settlement of the Litigation.

28


1 63. The failure of any member of the Class or Settlement Class Member to receive

2 payment out of the Settlement Fund or to receive actual notice of this Settlement, notwithstanding

3 the good faith efforts of the Settlement Administrator, shall not affect the scope or binding nature of

4 the Releases under this Agreement.

5 64. Nothing in this Agreement shall operate or be construed to release any claims or rights

6 USA Waste has to recover any past, present, or future amounts that may be owed by Plaintiff or by

7 any Settlement Class Member on his/her/its accounts, or any other debts with USA Waste, pursuant

8 to the terms and conditions of such accounts or any other debts.

9 XV. PAYMENT OF ATTORNEYS' FEES, EXPENSES AND SERVICE A WARD

10 65. USA Waste agrees not to oppose Class Counsel's request for attorneys' fees ofup to

11 thirty-three and one-third percent (31.33%) of the Settlement Fund prior to any deductions from the

12 Settlement Fund, and not to oppose Class Counsel's request for reimbursement of expenses of up to

13 $95,000. Any award of attorneys' fees and reimbursement of expenses to Class Counsel shall be

14 payable solely out of the Settlement Fund.

15 66. Class Counsel shall ask the Court to approve a service award of up to ten thousand

16 dollars ($10,000.00) for Plaintiff. Such service award is to be paid from the Settlement Fund. The

17 service award shall be paid to Plaintiff in addition to Plaintiffs individual settlement payment as a

18 Settlement Class Member. USA Waste shall not oppose Class Counsel's request for payment of the

19 service award.

20 67. The Parties negotiated and reached this agreement regarding attorneys' fees,

21 reimbursement of expenses, and the service award in good-faith and at arm's-length, only after

22 reaching agreement on all other material terms of this Settlement and pursuant to the recommendation

23 of the mediator, the Honorable Howard B. Wiener (Ret.).

24 68. The amount of attorneys' fees and reimbursement of expenses awarded by the Court

25 is within the sole discretion of the Court. Any fees and expenses, as awarded by the Court, shall be

26 paid to Class Counsel from the Settlement Fund, as ordered, immediately after the Court executes the

27 Final Order and Judgment awarding such fees and expenses, notwithstanding the existence of any

28


1 timely filed objections thereto or to the Settlement, or potential appeal therefrom, or collateral attack

2 on the Settlement.

3 69. In the event that the Effective Date does not occur, or the Judgment or Order making

4 the award of attorneys' fees and expenses is reversed or modified, or the Settlement is terminated,

5 and such reversal, modification, or termination becomes final, and in the event the award of attorneys'

6 fees and expenses has been paid to any extent, then Class Counsel, including its respective partners

7 and shareholders, shall within five (5) business days from receiving notice from Defendant's Counsel

8 or from a court of competent jurisdiction refund to the Settlement Fund all such fees and expenses

9 previously paid to them from the Settlement Fund plus interest earned thereon.

10 70. Notwithstanding any other provision of this Agreement to the contrary, the award of

11 attorneys' fees and expenses t<hbe paid out of the Settlement Fund shall be considered by the Court

12 separate and apart from its consideration of the fairness, reasonableness, and adequacy of the

13 Settlement, and any order or proceeding relating to the award of attorneys' fees and expenses, or any

14 appeal of any order relating thereto or reversal or modification thereof, shall not operate to, or be

15 grounds to, terminate or cancel this Agreement or the Settlement of the Action, or affect or delay the

16 finality of the Final Judgment approving this Settlement.

17 XVI. TERMINATION OF SETTLEMENT

18 71. This Settlement may be tenninated by either USA Waste or Plaintiff by serving on

19 counsel for the opposing party and filing with the Court a written notice of termination within

20 fourteen (14) days after any of the following occurrences:

21 a. the Court rejects, materially modifies, materially amends or changes, or

22 declines to preliminarily or finally approve the Settlement;

23 b. an appellate court reverses the Final Approval Order, and the Settlement is not

24 reinstated without material change by the Court on remand;·

25 C. any court incorporates into, or deletes or strikes from, or modifies, amends, or

26 changes, the Preliminary Approval Order, Final Approval Order, or the Settlement in a way that USA

27 Waste or Class Counsel seeking to terminate the Settlement reasonably considers material;

28 d. the Effective Date does not occur; or


1

2 72.

e. any other ground for termination provided for elsewhere in this Agreement.

USA Waste also shall have the right to terminate the Settlement by serving on Class

3 Counsel and filing with the Court a notice of termination within fourteen (14) days of its receipt from

4 the Settlement Administrator of the final report specified in paragraph 39, supra, if more than a certain

5 percentage of the Class timely requests exclusion from the Settlement, as set forth in a separate

6 agreement executed between Class Counsel and Defendant's Counsel.

7 73. If, before the Settlement becomes Final, USA Waste files for protection under the

8 Banlauptcy Code, or any similar law, or a trustee, receiver, conservator or other fiduciary is appointed

9 by law, and in the event of the entry of a final order of a court of competent jurisdiction determining

10 the transfer of money to the Settlement Fund by Defendant to be a preference, voidable transfer,

11 fraudulent transferor simiI.ar transaction under the Bankruptcy Code or applicable state law, and any

12 portion thereof is required to be returned to the Defendant out of the Escrow Account, then at the

13 election of Class Counsel, the Parties shall jointly move the Court to vacate and set aside the

14 Judgment, including the releases pursuant thereto.

15 74. In the event of a termination of the Settlement, and after payment of any invoices or

16 other fees or expenses mentioned in this Agreement that have been incurred and are due to be paid

17 from the Escrow Account, the balance of the Settlement Fund shall be refunded and remitted to USA

18 Waste. USA Waste shall have no right to seek reimbursement from Plaintiff or Class Counsel for

19 any funds disbursed from the Escrow Account pursuant to paragraphs 50-55 and 65-70, above.

20 75. In the event of a termination of the Settlement pursuant to this Section, the Parties

21 shall retain all of their pre-Settlement litigation rights and defenses, including Plaintiff's right to seek

22 class certification and USA Waste's right to seek dismissal and oppose class certification.

23 XVII. NO ADMISSION OF LIABILITY

24 76. USA Waste disputes the claims alleged in the Action and does not by this Agreement

25 or otherwise admit any liability or wrongdoing of any kind. USA Waste has agreed to enter into this

26 Agreement to avoid the further expense, inconvenience, and distraction of burdensome and protracted

27 litigation, and to be completely free of any further claims that were asserted or could have been

28 asserted in the Action.

19


1 77. Class Counsel and Plaintiff believe the claims asserted in the Action have merit, and

2 they have examined and considered the benefits to be obtained under the proposed Settlement set

3 forth in this Agreement, the risks associated with the continued prosecution of this complex, costly,

4 and timeMconsuming Litigation, and the likelihood of success on the merits of the Action. Class

5 Counsel have fully investigated the facts and law relevant to tpe merits of the claims, have conducted

6 extensive formal and informal discovery, and have conducted an independent investigation of the

7 challenged practices. Class Counsel and Plaintiff have concluded that the proposed Settlement set

8 forth in this Agreement is fair, adequate, reasonable, and in the best interests of the Class.

9 78. The Parties understand and acknowledge that this Agreement constitutes a

10 compromise and settlement of disputed claims. No action taken by the Parties either previously or in

11 connection with the aegotiations or proceedings connected with this Agreement shall be deemed or

12 construed to be an admission of the truth or falsity of any claims or defenses heretofore made, or an

13 acknowledgment or admission by any party of any fault, liability or wrongdoing of any kind

14 whatsoever.

15 79. Neither the Settlement, nor any act performed or document executed pursu~t to or in

16 furtherance of the Settlement: (i) is or may be deemed to be, or may be used as, an admission of, or

17 evidence of, the validity of any claim made by Plaintiff or any Settlement Class Member, or of any

18 wrongdoing or liability of the Released Parties; or (ii) is or may be deemed to be, or may be used as,

19 an admission of, or evidence of, any fault or omission of any of the Released Parties, in the Action or

20 in any proceeding in any court, administrative agency or other tribunal.

21 80. In addition to any other defenses USA Waste may have at law, in equity or otherwise,

22 to the extent permitted by law, this Agreement may be pleaded as a full and complete defense to, and

23 may be used as the basis for an injunction against, any action, suit or other proceeding that may be

24 instituted, prosecuted or attempted in breach of this Agreement or the Releases contained herein.

25 XVIII. MISCELLANEOUS PROVISIONS

26 81. Gender and Plurals. As used in this Agreement, the masculine, feminine, or neutral

27 gender, and the singular or plural number, shall each be deemed to include the others whenever the

28 context so indicates.

20


1 82. Binding Effect. This Agreement shall be binding upon, and inure to the benefit of, the

2 successors and assigns of the Releasing Parties and the Released Parties.

3 83. Cooperation of Paities. The Parties to this Agreement agree to cooperate in good faith

4 to prepare and execute all documents, to seek Court approval, defend Court approval, and to do all

5 things reasonably necessary to complete and effectuate the Settlement described in this Agreement.

6 This obligation of the Parties to support and complete the Settlement shall remain in full force and

7 effect regardless of events that may occur, or court decisions that may be issued, in the San Diego

8 Superior Court or in any other case in any court.

9 84. Exhibits. Each and every exhibit to this Agreement is an integral and material part of

10 this Agreement and is incorporated herein by this reference as though fully set forth herein.

11 85. Qbligation to Meet and Confer. Before filing any motion in the Court raising a dispute

12 arising out of or related to this Agreement, the Parties shall consult with each other and certify to the

13 Court that they have consulted.

14 86. Non-disparagement. Plaintiff and USA Waste agree that they shall not engage in

15 making or publishing written statements which are disparaging to the reputation of the other or their

16 corporate parents or affiliates.

17 87. Integration. This Agreement constitutes a single, integrated written contract

18 expressing the entire agreement of the Parties relative to the subject matter hereof. No covenants,

19 agreements, representations, or warranties of any kind whatsoever have been made by any Party

20 hereto, except as provided for herein. This Agreement supersedes and replaces any prior agreements

21 between the Parties.

22 88. No Conflict Intended. Any inconsistency between the headings used in this

23 Agreement and the text of the paragraphs of this Agreement shall be resolved in favor of the text.

24 89. Statements to the Media. The Parties and their counsel agree not to assert in any

25 statement made to any media representative (whether or not for attribution) that the Action was

26 commenced or prosecuted by Plaintiff or defended by USA Waste in bad faith or without a reasonable

27 basis, nor will they deny that the Action was commenced and prosecuted and defended in good faith

28 and is being settled voluntarily after consultation with competent legal counsel. In all events, the

21


1 Parties and their counsel shall not make any accusations of wrongful or actionable conduct by any

2 party concerning the prosecution, defenses, and resolution of this Action, and shall not otherwise

3 suggest that the Settlement constitutes any admission of any claim or defense alleged. The Parties

4 and their counsel reserve their right to rebut, in a manner that such party determines to be appropriate,

5 any contention made in any public forum regarding the Action, including that the Action was brought

6 or defended in bad faith or without a reasonable basis.

7 90. Governing Law. The Agreement shall be construed in accordance with, and be

8 governed by, the laws of the State of California, without regard to the principles thereof regarding

9 choice oflaw.

10 91. . Counterparts. This Agreement may be executed in any number of counterparts, each

11 of which sliall be deemed an original, but all of which together shall constitute one and the same ,(

12 instrument, even though all Parties do not sign the same counterparts. Original signatures are not

13 required. Any signature submitted by facsimile or through email of an Adobe PDF shall be deemed

14 an original.

15 92. Jurisdiction. The Court shall retain jurisdiction over the implementation, enforcement,

16 and performance of this Agreement, and shall have exclusive jurisdiction over any suit, action,

17 proceeding, or dispute arising out of or relating to this Agreement that cannot be resolved by

18 negotiation and agreement by counsel for the Parties. The Court shall retain jurisdiction with respect

19 to the administration, consummation, and enforcement of the Agreement and shall retain jurisdiction

20 for the purpose of enforcing all terms of the Agreement pursuant to California Code of Civil

21 Procedure Section 664.6. The Court shall also retain jurisdiction over all questions and/or disputes

22 related to the Notice Program and performance of the Settlement Administrator. As part of its

23 agreement to render services in connection with this Settlement, the Settlement Administrator shall

24 consent to the jurisdiction of the Court for this purpose.

25 93. Notices. All notices to Class Counsel provided for herein, shall be sent by email and

26 facsimile with a hard copy sent by overnight mail to:

27 As to Plaintiff:

28 Frank J. Johnson

22


1 FrankJ@j ohnsonfistel. com Johnson Fistel, LLP

2 655 West Broadway, Suite 1400 San Diego, California 92101

3 Tel: (619) 230-0063 Fax: (619) 255-1856

4 As to USA Waste:

5 Christopher Leyel

6 [email protected] Yoka & Smith LLP

7 445 South Figueroa Street, 3 8th Floor Los Angeles, CA 90071

8 Tel: (213) 427-2300 Fax: (213) 427-2330

9 The notice recipients and addresses designated above may be changed by vvritten notice. Upon the

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request of any of the Parties, the Parties agree to promptly provide each other with copies of .. objections, requests for exclusion, or other filings received as a result of the Notice Program.

94. Modification and Amendment. This Agreement may be amended or modified only

by a written instrument signed by the Parties and their respective counsel and approved by the Court.

95. No Waiver. The waiver by any party of any breach of this Agreement by another

Party shall not be deemed or construed as a waiver of any other breach, whether prior, subsequent, or

contemporaneous, of this Agreement.

96. Authority. Plaintiff and USA Waste represent and warrant that the persons signing

this Agreement on their behalf have full power and authority to bind every person, partnership,

corporation, or entity included within the definitions of Plaintiff and USA Waste to all terms of this

Agreement. Any person executing this Agreement in a representative capacity represents and

warrants that he or she is fully authorized to do so and to bind the Party on whose behalf he or she

signs this Agreement to all of the terms and provisions of this Agreement.

97. Agreement Mutually Prepared. Neither USA Waste nor Plaintiff, nor any of them,

shall be considered to be the drafter of this Agreement or any of its provisions for the purpose of any

statute, case law, or rule of interpretation or construction that would or might cause any provision to

be construed against the drafter of this Agreement.

23


1 98. Independent Investigation and Decision to Settle. The Parties understand and

2 acknowledge that they: (a) have performed an independent investigation of the allegations of fact and

3 law made in connection with this Action; and (b) that even if they may hereafter discover facts in

4 addition to, or different from, those that they now know or believe to be true with respect to the

5 subject matter of this Action as reflected in this Agreement, that will not affect or in any respect limit

6 the binding nature of this Agreement. USA Waste has provided and will provide information

7 sufficient to identify and notify Settlement Class Members and determine the amount of payments to

8 which they are entitled to under the terms of this Agreement. It is the Parties' intention to resolve

9 their disputes in connection with this Action pursuant to the terms of this Agreement now and thus,

10 in furtherance of their intentions, the Agreement shall remain in full force and effect notwithstanding

11 the discovery of any additional facts or law, or changes in law, and this Agreement shall not bs subject

12 to rescission or modification by reason of any changes or differences in facts or law, subsequently

13 occurring or otherwise.

14 99. Receipt of Advice of Counsel. Each Party acknowledges, agrees and specifically

15 warrants that he, she, or it has fully read this Agreement and the Releases contained in Section XIV

16 of this Agreement , received independent legal advice with respect to the advisability of entering into

17 this Agreement and the Releases, and the legal effects of this Agreement and the Releases, and fully

18 understands the effect of this Agreement and the Releases.

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24 Settlement Agreement and Release (Case No.: 37•2018·00005897•CU·BC·CTL)

DocuSign Envelope ID: CA282452-1296-42D3-BBF5-4B26BC6824CF

8/13/2019

1 FOR PLAINTIFF:

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Dated: -------------

Dated: --'r=--/___.;, /_I ___ °{ --

8 FOR DEFENDANT:

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Dated:

13 Dated:

-------------

-------------

By: Its:

USA Waste of California, Inc. By: Its:

James G. Kress 14 Counsel for Defendant

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...

1 FOR PLAINTIFF:

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Dated: -------------

Dated: _r=--/~c) ;'.~/_'7 __

8 FOR DEFENDANT:

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13 Dated: _______ _____ _

Eagle Canyon Owners Association, Inc. By: Its:

~~ Class Couns

James G. Kress 14 Counsel for Defendant

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-,l

l FOR PLAINTIFF:

2 Dated:

3 Eagle Canyon Owners Association, Inc. By:

4 Its:

5 f /d//'j_ ~ 6 Dated: , Frank Johnso · ~

7 Ckiss~

8 FOR DEFENDANT:

61/1.1/11 9 Dated:

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11 ,l -~ 12

8 j( 13 Dated:

I~ 1, Ja es G. Kress

14 ounsel for Defendant

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EXHIBIT 3

1

ORDER PRELIMINARILY APPROVING SETTLEMENT AND PROVIDING FOR NOTICE

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JOHNSON FISTEL, LLP Frank J. Johnson, Esq. (SBN 174882) [email protected] Phong L. Tran, Esq. (SBN 204961) [email protected] Chase M. Stern (SBN 290540) [email protected] 655 West Broadway, Suite 1400 San Diego, CA 92101 Telephone: (619) 230-0063 Facsimile: (619) 255-1856

Counsel for Plaintiff, EAGLE CANYON OWNERS’ ASSOCIATION


COUNTY OF SAN DIEGO

EAGLE CANYON OWNERS’ ASSOCIATION, on behalf of itself and all others similarly situated,

Plaintiff,

vs.

USA WASTE OF CALIFORNIA, INC., and DOES 1-100, inclusive,

Defendants,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 37-2018-00005897-CU-BC-OTL

[Case Assigned for all Purposes to Hon. John S. Meyer, Dept. C-64]

[PROPOSED] ORDER PRELIMINARILY APPROVING SETTLEMENT AND PROVIDING FOR NOTICE

Complaint Filed: February 1, 2018

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WHEREAS, an action pending before this Court is styled Eagle Canyon Owners’ Association

v. USA Waste of California, Inc., Case No. 37-2018-00005897-CU-BC-CTL (the “Litigation” or

“Action”);

WHEREAS, this Court has reviewed and considered (1) Plaintiff’s Motion for Preliminary

Approval of Class Action Settlement based on the Settlement Agreement and Release (the

“Agreement”); (2) the papers filed and arguments made in connection therewith and (3) the

Agreement and the Exhibits attached thereto;

WHEREAS, this Court preliminarily finds that the Action meets all the prerequisites of

California Code of Civil Procedure § 382 and California Civil Code § 1781, including numerosity,

ascertainability, community of interest, predominance of common issues, superiority and typicality,

and that Plaintiff and Class Counsel are adequate representatives of the Class (as defined below); and

WHEREAS, this Court preliminarily finds that the Action was settled as a result of arm’s-

length negotiations, investigation, and discovery sufficient to permit counsel and the Court to act

knowingly, and counsel are experienced in similar litigation,

THEREFORE, for good cause appearing, it is hereby ordered as follows:

1. The Court hereby preliminarily approves the Agreement as filed with the Court on

July 3, 2019, and the terms and conditions of settlement set forth in the Agreement, subject to further

consideration at the Final Approval Hearing, as applicable. All capitalized terms and definitions used

herein have the same meanings as set forth in the Agreement.

2. Pursuant to California Code of Civil Procedure § 382, California Civil Code § 1781,

and California Rules of Court, Rule 3.769(c) and (d), the Court hereby preliminarily approves the

Agreement and certifies for settlement purposes the Class consisting of:

All open market commercial and industrial customers who were parties to a written Service Agreement with USA Waste of California, Inc., or any affiliated entity providing waste collection, disposal, or recycling services under the Waste Management trade name in California at any time from January 1, 2012 through December 31, 2016, excluding only those customers who contracted with Defendant for the first time starting on or after January 1, 2015.

3. Having considered the Notice Program in the Agreement, the Court hereby approves

the contents and form of the Notice attached as Exhibits 1-3 hereto.

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4. The Parties are hereby authorized to administer and supervise the Notice Program as

more fully set forth in the Agreement as follows:

a. Notice shall be provided to Class members in three (3) different forms: email

notice (Exhibit 1 hereto); mail notice (Exhibit 2 hereto); and long-form notice (Exhibit 3

hereto) posted on the Settlement Website.

b. No later than forty-five (45) days before the Final Approval Hearing, the

Settlement Administrator will (i) disseminate the email notice to each Class member for

whom USA Waste has an email address at the email address identified in USA Waste’s

records; and (ii) mail, via first-class mail postcard, the mail notice to each Class member at

the address identified in USA Waste’s records. Before mailing any postcards, the Settlement

Administrator will verify and update the mailing addresses received through the United States

Postal Service’s National Change of Address Database.

c. If a mail notice is returned as undeliverable, the Settlement Administrator will

use reasonable efforts to locate a current mailing address for the Class member and re-mail

the notice to the current address.

d. The Settlement Administrator shall provide Class Counsel and USA Waste’s

counsel a declaration that confirms that the Notice Program was completed in a timely manner

and describes any opt-outs that were timely received. Class Counsel shall file that declaration

with the Court no less than five (5) court days prior to the commencement of the Final

Approval Hearing.

5. The Court finds that the Notice to the Class members regarding settlement of this

Action, including the method of dissemination to the Class members in accordance with the terms of

this Order constitute the best notice practicable under the circumstances and constitute valid, due, and

sufficient notice to all Class members, complying fully with the requirements of California Code of

Civil Procedure § 382, California Civil Code § 1781, California Rules of Court, Rule 3.766, the

California and United States Constitutions, and any other applicable law.

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6. All Settlement Administrator fees, charges, and expenses not to exceed $170,000

without further approval from the Parties and without further order of the Court, shall be paid from

the Settlement Fund within thirty (30) days of Class Counsel’s and Defendant’s Counsel’s mutual

receipt and approval of an invoice evidencing the same.

7. Objections to the Settlement or to the application for fees, reimbursement of expenses,

and a service award must be mailed to the Clerk of the Court, Class Counsel, and USA Waste’s

counsel. For an objection to be considered by the Court, the objection must be received by the Court,

Class Counsel, and USA Waste’s counsel no later than fourteen (14) calendar days before the Final

Approval Hearing. For an objection to be considered by the Court, the objection must also set forth:

a. the name of the Action;

b. the objector’s full name, address, and telephone number;

c. an explanation of the basis upon which the objector claims to be a Class

member;

d. all grounds for the objection, accompanied by any legal support for the

objection known to the objector or the objector’s counsel;

e. the number of times in which the objector has objected to a class action

settlement within the five (5) years preceding the date that the objector files the objection, the

caption of each case in which the objector has made such objection, and a copy of any orders

related to or ruling upon the objector’s prior such objections that were issued by the trial and

appellate courts in each listed case;

f. the identity of all counsel who represent the objector, including any former or

current counsel who may be entitled to compensation for any reason related to the objection;

g. the number of times in which the objector’s counsel and/or counsel’s law firm

have objected to a class action settlement within the five (5) years preceding the date that the

objector files the objection, the caption of each case in which the counsel or the firm has made

such objection, and a copy of any orders related to or ruling upon counsel’s or the firm’s prior

such objections that were issued by the trial and appellate courts in each listed case;

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h. any and all agreements that relate to the objection or the process of objecting

– whether written or verbal – between objector or objector’s counsel and any other person or

entity;

i. the identity of all counsel representing the objector who will appear at the Final

Approval Hearing;

j. a list of all persons who will be called to testify at the Final Approval Hearing

in support of the objection;

k. a statement confirming whether the objector intends to personally appear

and/or testify at the Final Approval Hearing; and

l. the objector’s signature (an attorney’s signature is not sufficient).

8. Any Class member who wishes to opt out of the Class must mail or deliver a written

request for exclusion to the Settlement Administrator, postmarked or delivered no later fourteen (14)

calendar days before the Final Approval Hearing. The written request must state that the Class

member requests exclusion from the Class and must be signed by the Class member. Any Class

member who does not submit a valid and timely request for exclusion will be bound by any judgment

and/or order in this Action.

9. No later than twenty-eight (28) calendar days before the Final Approval Hearing, the

Parties shall file their opening papers in support of their motion for final approval of the Settlement.

No later than seven (7) calendar days before the Final Approval Hearing, the Parties shall file their

reply papers as needed, including as needed to respond to any valid and timely objections. The reply

papers shall be served upon any objector who has complied with the provisions of this Order.

10. The Agreement provides that Johnson Fistel, LLP are Class Counsel to represent

Plaintiff and the Settlement Class Members. The Court hereby designates Johnson Fistel, LLP as

Class Counsel.

11. Any Settlement Class Member may enter an appearance in the Litigation, at his, her,

or its own expense, individually or through counsel of his, her, or its own choice. If no such

appearance is entered, his, her, or its interests as a Settlement Class Member will be represented by

Johnson Fistel, LLP.

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12. The Final Approval Hearing shall be held by the Court on November 15, 2019, at

10:30 a.m., in Department C-64 of the Superior Court for the County of San Diego, 330 West

Broadway, San Diego, California to consider and determine whether: (a) the proposed Settlement of

the Action on the terms set forth in the Agreement should be approved as fair, just, reasonable,

adequate, and in the best interests of the Class; (b) the Final Order approving the Settlement and

dismissing the Action on the merits and with prejudice against the Plaintiff and all Settlement Class

Members should be entered; and (c) to approve Class Counsel’s application for attorneys’ fees,

reimbursement of expenses, and for a service award to Plaintiff.

13. The Final Approval Hearing may, from time to time and without further notice to the

Class members (except those who have filed timely and valid objections), be continued or adjourned

by order of the Court.

14. Counsel for the Parties are hereby authorized to utilize all reasonable procedures in

connection with the administration of the Settlement that are not materially inconsistent with either

this Order or the terms of the Agreement.

IT IS SO ORDERED.

DATED:

HON. JOHN S. MEYER Judge of the Superior Court

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