JOHN BOURGEOIS,
On Behalf of Himself and All Others
Similarly Situated,
Plaintiff,
IN THE
CIRCUIT COURT
FOR
v.
BALTIMORE CITY
MAYOR AND CITY COUNCIL OF
BALTIMORE,
Case No.: 24-C-14-004560 OT
Defendant.
CLASS ACTION SETTLEMENT AGREEMENT
This Class Action Settlement Agreement (“Agreement”) is entered into on
this
day of December 2015, by Plaintiff, John Bourgeois (“Representative
Plaintiff”), acting individually and on behalf of the Class defined below, and
Defendant, Mayor and City Council of Baltimore (“MCC”), by and through their
undersigned counsel, in the above captioned lawsuit. This settlement is subject to
preliminary and final approval by the Court.
I.
RECITALS
1.
This class action lawsuit (“Complaint”) was filed by the Representative
Plaintiff in the Circuit Court for Baltimore City, on August 1, 2014, on behalf of the
following putative Class:
All persons or entities who, no earlier than three years
prior to the filing of this Complaint, and no later than
March 14, 2013, purchased one or more tickets for
admission to an event or events at the Baltimore Arena
where the City or its agents collected charges in excess of
the regular or established price of the ticket.
Excluded from the Class are officials and agents of the
Defendant, as well as any personnel of the Court.
2.
The Complaint, which is hereby incorporated by reference, alleges,
inter alia, that MCC charged Plaintiff and other members of the Class defined
above charges in excess of what was permitted under the Baltimore City Code,
Article 15, § 21. The Complaint asserted one count for money had and received.
3.
In response to the Complaint, MCC filed a motion to dismiss or for
summary judgment, which is hereby incorporated by reference. That motion to
dismiss argued, inter alia, that the Local Government Tort Claims Act barred
Plaintiff’s claims, that Baltimore City Code provisions at issue did not apply, if they
applied they were unconstitutional, and that Plaintiff’s claims were further barred
by the applicable statute of limitations and the doctrine of in pari delicto. Plaintiff
filed a comprehensive opposition to the motion to dismiss or for summary judgment,
opposing each ground for dismissal or judgment asserted by MCC, which is also
incorporated by reference. Following the filing of Plaintiff’s opposition, MCC
withdrew its motion to dismiss or for summary judgment. Subsequently, the Court
ordered that the motion was moot.
4.
The Parties also engaged in formal discovery. Plaintiff propounded
interrogatories and requests for production of documents, to which MCC responded
with hundreds of pages of documents and verified answers to Plaintiff’s
interrogatories.
Following those responses, Plaintiff propounded additional
discovery on MCC to which MCC responded. Plaintiff also subpoenaed documents,
and requested deposition dates for MCC representatives.
2
MCC propounded
interrogatories and requests for production on Plaintiff, to which Plaintiff
responded, producing documents and verified responses to interrogatories.
In
addition, the parties engaged in lengthy, good-faith dialogue in order to resolve
discovery disputes. This dialogue, which was ultimately successful, included the
exchange of numerous letters and other correspondence. Class Counsel and counsel
for MCC conducted extensive analysis and investigation of the facts relating to
nearly one million transactions, and conducted in-depth research into the applicable
law with respect to the claims and defenses and with respect to class certification
issues.
The Parties also conducted informal discovery, including exchanging
information and documents regarding the transactions of the putative Class. Class
Counsel reviewed documentation and other information provided informally by
MCC and other sources relevant to the issues raised in the Complaint, and
interviewed potential witnesses.
5.
The Parties also conducted extensive settlement discussions. These
were lengthy, arduous, and intense arms-length negotiations; which included two
days of face-to-face meetings. As a result of these adversarial settlement
negotiations, a fair, reasonable and adequate Settlement Agreement with respect to
the interests of the Class has been reached, subject to Court approval.
6.
The Parties recognize and acknowledge the benefits of settling this
case, in exchange for the good and valuable consideration set forth below, for an
agreed upon Settlement Class consisting of all persons meeting the Class definition
3
alleged in the Complaint. MCC represents that the Class consists of persons in
approximately 920,000 transactions.
7.
MCC denies the material allegations made against it in the Complaint
and denies any and all liability or wrongdoing with respect to any and all facts and
claims alleged in the Complaint and further denies that the Representative Plaintiff
and Settlement Class have suffered any damages.
8.
The Parties recognize and acknowledge the benefits of settling this
case. The Parties recognize that the outcome of this Action is uncertain, and that a
final resolution through the litigation process would likely require protracted
adversary litigation and appeals, and have taken into account the difficulties and
delays inherent in such litigation. Accordingly, the Parties and their respective
counsel have agreed to resolve the Action as a settlement class action according to
the terms of this Agreement.
Further, Class Counsel has determined that the
settlement on behalf of the settlement class is fair and reasonable and in the best
interest of the Plaintiffs, and Representative Plaintiff John Bourgeois concurs in
that determination. Class Counsel and Representative Plaintiff believe that this
Agreement is fair, reasonable, and adequate.
9.
This Agreement does not constitute, is not intended to constitute, and
will not under any circumstances be deemed to constitute, an admission by either
party as to the merits, validity, or accuracy, or lack thereof, of any of the
allegations, claims, or defenses in this Action.
The Agreement provides for
certification of a conditional Settlement Class, even though the Court has not yet
4
determined whether the Action could properly be brought as a class action, and
MCC maintains that class certification for trial purposes would not be proper under
Maryland Rule 2-231. Accordingly, MCC, solely for the purpose of avoiding the
burden, expense, risk, and uncertainty of continuing these proceedings, and for the
purpose of putting to rest the controversies engendered by the Action, desires to
settle the Action on the terms and conditions set forth herein.
10.
Dahl Administration(“Dahl”) has agreed to act as Settlement
Administrator, at MCC’s own expense, and Dahl will be responsible to report in this
capacity both to the Court and to the Parties as more fully set forth in this
Agreement.
11.
Now, therefore, in consideration of the covenants and agreements set
forth herein, it is hereby stipulated and agreed by the undersigned, on behalf of the
Representative Plaintiff, the Settlement Class, and MCC, that the Action and all
claims of the Representative Plaintiff and the Settlement Class be settled,
compromised, and dismissed on the merits and with prejudice, subject to Court
approval as required by Maryland Rule 2-231, on the terms and conditions set forth
herein.
II.
TERMS OF THE SETTLEMENT
12.
Definitions:
As used herein in the “Definitions” section, the plural of any defined
term includes the singular thereof and the singular of any defined term
includes the plural thereof as the case may be.
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(a)
“Action” means and refers to the action entitled John
Bourgeois v. Mayor and City Council of Baltimore, Case No.
24C14004560 (Cir. Ct. Balt. City).
(b)
“Agreement” shall mean this settlement document,
including all exhibits and any amendments to this Agreement as
finally approved by the Court.
(c)
“Baltimore Arena” means the venue now known as Royal
Farms Arena, formerly known as the First Mariner Arena, located at
201 West Baltimore Street, Baltimore, Maryland 21201.
(d)
“Class Transactions” means all transactions on the Class
Member List (definition (f), below) and any applicable Arena ticket
transactions which qualify the borrower for membership in the
Settlement Class as defined in Paragraph 13 and definition (w) below.
(e)
“Class Counsel” or “Counsel for Representative Plaintiff”
means Benjamin H. Carney and Martin E. Wolf of Gordon, Wolf &
Carney, Chtd.
(f)
“Class Member List” shall mean the list of known class
members provided to Class Counsel by Ticketmaster/Live Nation.
(g)
“Complaint” means the class action lawsuit filed by
Representative Plaintiff in the Circuit Court for Baltimore City, on
August 1, 2014.
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(h)
“Confidential Information” or “Confidential Material”
means the Class Member List, all documents and things provided to
Class Counsel by MCC during the course of the Action that have been
marked “Confidential,” whether by formal discovery or otherwise, and
including all documents and things as described in Paragraph 15 of
this Agreement.
(i)
“Court” shall mean the Circuit Court for Baltimore City.
(j)
“Effective Date” shall mean the earliest of: (i) the date of
final approval of the settlement, if no person objects to or intervenes in
the settlement; (ii) the date on which the Court’s judgment becomes
final, i.e., thirty (30) days after the date the Court finally approves the
settlement, if no appeal by a Class member is filed; (iii) the date of the
final affirmance on appeal; or (iv) the date of the final dismissal of any
appeal.
(k)
“Final Approval” means the Order, approving the
Settlement and certifying the Settlement Class and dismissing with
prejudice all claims raised by the Representative Plaintiff and the
Settlement Class in this case consistent with the Settlement.
(l)
“MCC” means Defendant Mayor and City Council of
Baltimore.
(m)
“MCC’s Counsel” means Sara Gross, Christopher Lundy,
and the Baltimore City Department of Law.
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(n)
“Settlement Notice” means the notice to Settlement Class
Members approved by the Court in the Preliminary Order.
(o)
“Parties”
means
the
Representative
Plaintiff,
the
Settlement Class, and MCC.
(p)
“Person” means an individual, corporation, partnership,
limited partnership, association, joint stock company, estate, legal
representative, trust, unincorporated association, government, or any
political subdivision or agency thereof, and any business or legal entity
and their spouses, heirs, predecessors, successors, representatives, or
assignees.
(q)
“Preliminary Approval Date” means the date the Court
enters the Preliminary Order.
(r)
“Preliminary Order” means the Order, preliminarily
approving the terms and conditions of this Agreement, provisionally
certifying the Settlement Class, and approving the proposed notices to
Settlement Class Members.
(s)
“Released Party” or “Released Parties” means MCC, SMG
Corporation, the Royal Farms Arena and each direct and indirect
subsidiary, affiliate, division, successors, assignors, assignees, and/or
assigns thereof, and their past or present employees, associates,
agents, representatives, attorneys, officers, shareholders, control
persons, advisors, and directors.
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(t)
“Representative Plaintiff” shall mean the named Plaintiff
John Bourgeois.
(u)
“Settlement” means this Agreement and any amendments
to this Agreement as finally approved by the Court.
(v)
“Settlement
Administrator”
shall
mean
Dahl
Administration.
(w)
“Settlement Class,” and “Settlement Class Members,”
shall mean only those persons meeting the class defined in paragraph
13, below, who have not timely excluded themselves from this
settlement as prescribed herein.
13.
Settlement Class.
In consideration for the complete and final settlement of the Action, and for
settlement purposes only, the Parties hereby stipulate and agree that this lawsuit is
maintainable as a settlement class action under Md. Rule 2-231. MCC reserves the
right to contest any motion to certify a class for any purpose other than settlement
of the Action.
Any Settlement Class Member who does not effectively exclude
himself or herself under the procedures described in this Agreement shall, on Final
Approval, become a member of the Settlement Class.
(a)
The class shall be defined as follows:
All persons or entities who, no earlier than August 1,
2011, and no later than March 14, 2013, purchased one or
more tickets for admission to an event or events at the
Baltimore Arena where MCC or its agent collected
charges in excess of the regular or established price of the
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ticket. The class is restricted to bona fide, first-party
ticket purchasers.
Excluded from the Class are officials, employees, and
agents of the Defendant, as well as any personnel of the
Court. Persons or entities who no earlier than August 1,
2011, and no later than March 14, 2013, purchased tickets
for admission to an event or events at the Baltimore
Arena but who later cancelled those purchases and/or
received a refund are also excluded. Further excluded are
those individuals who purchased tickets from entities
other than Ticketmaster, Ticketmaster.com, and the
Baltimore Arena, such as third-party ticket sellers.
(b)
The Parties agree that this lawsuit may proceed as a class action for
settlement purposes, and agree to the Class definition, set forth above, for the
purposes of this Settlement and its implementation. If this Settlement fails to be
approved or otherwise fails to be consummated, MCC reserves all rights to object to
the maintenance of this lawsuit as a class action and any representation or
concession made in this Agreement shall not be considered law of the case or any
form of estoppel in this or any other proceeding. If this Agreement is approved, no
representation or concession made in connection with the Settlement or in this
Agreement shall be considered to have res judicata or collateral estoppel effect or to
give rise to any form of estoppel or waiver in any other proceeding except
proceedings to enforce this Agreement. Further, neither this Agreement nor any
document referred to herein nor any action taken to carry out this Agreement is, or
may be construed as, or may be used as, an admission or concession on any point of
fact or law, or of any alleged fault, wrongdoing, or liability whatsoever.
14.
Class Counsel.
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The Parties agree that Benjamin H. Carney and Martin E. Wolf of Gordon,
Wolf & Carney, Chtd. may be appointed Class Counsel, without prejudice to MCC’s
right to contest appointment of either or both of them as Class Counsel in the event
that this Agreement is not fully implemented in accordance with its terms. If this
Agreement is not approved or otherwise fails to be fully implemented, MCC
reserves all of its rights to object to any subsequent motion to appoint class counsel
in this action.
15.
Confidential Information
“Confidential Material”).
or
Confidential
Material
(collectively
The Parties agree to treat the Confidential Material, including but not
limited to the Class Member List, as confidential and to use the Confidential
Material solely for the purpose of providing the settlement benefits offered by this
Agreement to Settlement Class Members and otherwise implementing the terms of
this Agreement, and for no other purpose whatsoever.
Further, except to the extent authorized by this Agreement, the Parties agree
that they will not disclose the Confidential Material to any third party, except
pursuant to a Court order and in compliance with all federal and state laws.
Nothing in this Agreement shall be deemed or construed to prevent Class Counsel
from sharing information concerning a Class Member’s account with that Class
Member and only that Class Member and her or his agents.
If this Agreement is terminated or canceled pursuant to Paragraph 26 below,
or if the class is decertified pursuant to Paragraph 28 below, Class Counsel shall be
required to return to MCC all Confidential Material, including, but not limited to
11
the Class Member List within five (5) days of a request by MCC to do so, specifying
the
information
to
be
returned,
following
termination,
cancellation,
or
decertification.
16.
Redemption of Settlement Certificate.
(a)
Settlement Certificates
Subject to and upon entry of the Final Approval and further Order of the
Court, MCC will, for each and every Settlement Class transaction, provide the Class
Member in the transaction one Settlement Certificate, each of which may be
redeemed for $3.00 toward the purchase of any ticket to an event at the Baltimore
Arena.
A Class Member must obtain the certificate from the Baltimore Arena
within one (1) year of the Effective Date of this Settlement Agreement.
(b)
E-Notice
Within sixty (60) days of the Effective Date, the Settlement Administrator
shall send an E-mail to a Class Member’s E-mail address (if an E-mail address is
available) informing the Class Member that the Court has granted final approval of
the Settlement (“E-Notice”). The E-Notice will attach the form of Notice attached to
this Agreement as Exhibit B in .pdf format, and the body of the E-mail will include
a PIN Number and a hyperlink which states “CLICK HERE TO GET YOUR
SETTLEMENT CERTIFICATE” (the “Website Link”). The body of the E-mail will
also state will state “YOU CAN VERIFY THE LEGITIMACY OF THIS E-MAIL BY
CONTACTING THE SETTLEMENT ADMINISTRATOR AT 555-555-5555.” By
clicking on the Website link, the Class Member will be taken to a unique page on
12
that Website, which will auto-populate the Class Member’s name and address
information, and which will have a place for the Class Member to enter in the PIN
provided in the E-Notice. By clicking “Submit” the Class Member will certify that
the Class Member is the person whose information is listed on the Website and
permit the download of the Settlement Certificate(s) in PDF form.
(c)
Card Notice
If no E-mail address is available for the Class Member, the Settlement
Administrator shall, within sixty (60) days of the Effective Date, send a post card to
the Class Member’s mailing address by first-class mail (“Card Notice”) in the form
attached as Exhibit B. The Card Notice shall contain a PIN, inform the Class
Member of the Settlement, and direct the Class Member to the Website to redeem
the Settlement Certificate. The Website shall instruct the Class Member to enter
his or her name and current E-mail address, the PIN provided, and certify that the
information entered is true and accurate. Clicking “Submit” will initiate the Class
Member’s Settlement Certificate(s) download in PDF form.
(d)
Registration.
If no E-mail address or mailing address is available for a Class Member, the
Class Member may obtain his or her Settlement Certificate by registering on the
Website to receive his or her Settlement Certificate. On a designated page of the
Website, the Class Member will:

Enter his or her name;

Enter his or her current street address;

Enter his or her current E-mail address;
13

Enter the date and name(s) of each event at the Baltimore Arena or the date
and primary artist of each event at the Baltimore Arena for which the Class
Member purchased or obtained ticket(s);

Upload proof of purchase from the Arena, Ticketmaster, or Ticketmaster.com

Enter the number of ticket(s) purchased or obtained;


For each event for which the Class Member purchased or obtained
ticket(s), enter the manner in which the Class Member purchased each
ticket by checking the appropriate choice provided, which will include the
following: (a) Purchased ticket at the Baltimore Arena with cash; (b)
Purchased ticket at the Baltimore Arena with a credit card bearing the
Class Member’s name; (c) Purchased ticket online via Ticketmaster,; (d)
Purchased ticket online via a reseller of tickets, including, but not limited
to the following websites: Stubhub.com, eBay.com; (e) Purchased ticket by
providing money to a person or entity who was the original purchaser of
the ticket(s) (e.g., reimbursed friend who bought tickets to event); (f)
Received ticket(s) as a gift; and (g) Other (and provide space to explain
how ticket(s) were purchased or obtained).
Certify that the information entered is true and accurate.
(e)
Processing of Registrations.
No registration shall be considered complete until each of these items of
information is accurately entered. The Settlement Administrator will compare the
information entered by the Settlement Class Member with the information on the
Class List or elsewhere in MCC’s database to determine if the person making the
registration is a Class Member. If the Settlement Administrator determines that
the person making the registration is a Class Member, the Settlement
Administrator shall, within thirty (30) days of such determination, send by E-mail
to the Class Member a link to obtain the Settlement Certificate(s) to which the
Class Member is entitled, and shall contemporaneously add that Class Member to
the Class List (unless the person is already on the Class List) and provide Class
Counsel with the information for the subject transaction which is required under
14
paragraph 17 of the Agreement to be provided for each transaction on the Class
List.
If the Settlement Administrator determines that the person making the
registration is not a Class Member or determines that the person making the
registration is a Class Member who has already obtained and/or redeemed his or
her Settlement Certificate(s), the Settlement Administrator shall, within fourteen
(14) days after a completed registration, send the person making the registration an
E-mail informing the person of (a) his or her right to dispute that determination and
(b) the process for disputing the determination should the person wish to do so; and
the Settlement Administrator shall, at the same time, notify Class Counsel of its
determination and provide Class Counsel with the contact information for the
person making the registration.
(f) Disputes.
In the event that the person making the registration disputes the Settlement
Administrator’s determination, the Settlement Administrator shall, within fourteen
(14) days, provide Class Counsel with the basis for the determination together with
any documentation that supports said determination.
The following factors are
grounds for the Settlement Administrator to determine that a registration does not
entitle the person making the registration to a Settlement Certificate:
i. A person certifies that he or she purchased a ticket to an event from a
third-party website (e.g., Stubhub.com, eBay.com, etc.) and not from the
Baltimore Arena box office or Ticketmaster;
15
ii. A person certifies that he or she purchased a ticket to an event from
another person who originally purchased the ticket from the Baltimore
Arena box office or Ticketmaster (e.g., reimbursed a friend or purchased
from third-party re-seller);
iii. A person certifies that he or she purchased a ticket from the Baltimore
Arena’s box office with a credit card bearing the person’s name and MCC’s
sales records do not confirm such a sale;
iv. A person certifies that he or she received a ticket as a gift;
v. A person does not provide adequate proof of purchase from the Arena,
Ticketmaster, or ticketmaster.com.
vi. A person certifies that he or she purchased a ticket from Ticketmaster and
the records indicate that the person already redeemed his or her
Settlement Certificate(s).
If any of the foregoing factors are present, the Settlement Administrator will
not issue a Settlement Certificate to the person making the registration.
(g)
Binding Arbitration.
Class Counsel and/or the person making the registration shall, within
fourteen (14) days of receiving the basis for the Settlement Administrator’s
determination, inform the Settlement Administrator if Class Counsel or the person
making the registration disputes that determination. The parties will use their best
efforts to amicably resolve the dispute, but if it cannot be resolved, the Settlement
Administrator shall engage the Honorable Lawrence Rodowsky at MCC’s expense to
16
review and resolve the dispute in binding arbitration. Judge Rodowsky shall review
all such disputes on a quarterly basis, as follows:
i. Disputes submitted between January 1 and March 31 shall be submitted
on or before March 31 to Judge Rodowsky to be reviewed and resolved.
ii. Disputes submitted between April 1 and June 30 shall be submitted on or
before June 30 to Judge Rodowsky to be reviewed and resolved.
iii. Disputes submitted between July 1 and September 30 shall be submitted
on or before September 30 to Judge Rodowsky to be reviewed and
resolved.
iv. Disputes submitted between October 1 and December 31 shall be
submitted on or before December 31 to Judge Rodowsky to be reviewed
and resolved.
At any point during the administration process, the Settlement Administrator, upon
receipt of further information from the person making the registration or Class
Counsel, may review or modify a prior determination that the person making the
registration is not a Settlement Class Member, in which case the Settlement
Administrator will so notify the person making the registration and Class Counsel.
(h)
Use of Settlement Certificates.
Each Settlement Certificate shall be fully stackable (i.e. each certificate may
be used in conjunction with other vouchers to reduce or pay in full the price of any
good or service), and shall be fully transferable and redeemable by the bearer the
same as cash except that no Settlement Certificate shall be redeemable for tax,
17
gratuity or cash. No change shall be given if a Settlement Certificate is not
redeemed for its full value. Each Settlement Certificate may be redeemed only
once. Each Settlement Certificate may be redeemed in person with the Baltimore
Arena or its agent for a ticket or tickets to any event at the Baltimore Arena. Each
Settlement Certificate may be redeemed when purchasing tickets to events at the
Baltimore Arena directly from the Baltimore Arena. Each Settlement Certificate
shall expire on two (2) years after the Effective Date but may be redeemed prior to
that date in connection with an event occurring after that date. Redemption terms
shall be displayed on each Settlement Certificate. The Settlement Administrator
shall develop a proposed form of the Settlement Certificate and provide it to Class
Counsel no later than fifty (50) days following Preliminary Approval.
The
Settlement Administrator must obtain the consent of Class Counsel as to the form
of the Settlement Certificate.
(i)
Incentive Payment.
Class Counsel will file, and MCC agrees not to oppose or otherwise comment
negatively upon, a motion that MCC pay $3,000.00 as an incentive payment to the
Representative Plaintiff. If approved by the Court, payment shall be made by MCC
to the Representative Plaintiff by check delivered to Class Counsel within sixty (60)
days of the Final Approval of the Court..
(j)
Attorney’s Fees and Costs.
Subject to the approval and further Orders of the Court, MCC agrees
to pay the sum of $420,000.00 to Class Counsel for attorney’s fees and costs.
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The City will disburse the funds to Class Counsel within 60 days of the Final
Approval of the Court.
17.
Settlement Administrator.
The Parties agree to recommend that Dahl Administration be appointed by
the Court to serve as the Settlement Administrator. The Settlement Administrator,
in consultation with Class Counsel, shall use reasonable, good faith efforts to
identify all Class transactions and to determine the number and identity of the
Settlement Class Members under the class definition, and compile a full and
complete Class Member List. To assist in this process, Class Counsel agrees to
provide to Dahl Administration within twenty (20) days after the Preliminary
Approval Date, the Class Member List in readable electronic form (i.e. passwordprotected Excel format).
The Settlement Administrator will certify and submit an affidavit to the
Court and to Class Counsel concerning the Settlement Class Member List. The
Settlement Administrator also will effect notice to the Settlement Class in a form
and manner approved by the Court. The certified Settlement Class Member List
will be in the form of the spreadsheet described above. This detailed Settlement
Class Member List shall be kept confidential by the Settlement Administrator and
shall not be shared with any third party other than Class Counsel and MCC
Counsel.
The Settlement Administrator shall also be responsible for distributing
all Settlement Certificates as described in Paragraph 16, above.
18.
Cost of Administration of Settlement.
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The Parties agree that MCC shall pay all costs of notice and the
administration of the Settlement.
19.
Cooperation.
The Parties and their respective counsel shall reasonably cooperate with each
other so that both sides may adequately monitor all aspects of this Agreement.
20.
Releases.
This Agreement seeks the termination of this lawsuit between the Parties.
(a)
Plaintiffs’ Release.
Upon Final Approval, Representative Plaintiff and each Settlement
Class
Member,
and
each
of
their
respective
spouses,
executors,
representatives, heirs, successors, guardians, wards, agents and assigns, and
all those who claim through them or who assert claims on their behalf shall
be deemed to have fully released and forever discharged the Released Parties
from any claim, right, demand, charge, complaint, action, cause of action,
obligation, or liability for actual or statutory damages, punitive damages,
equitable relief, restitution or other monetary relief of any and every kind, or
any other federal, state, or local law, statute, regulation, or common law,
whether known or unknown, suspected or unsuspected, under the law of any
jurisdiction, which the Representative Plaintiff or any Settlement Class
Member ever had, now have or may have in the future resulting from, arising
out of any acts or omissions that were raised in the Action. This release
20
excludes any and all claims that are unrelated to the factual allegations of
the Complaint on behalf of the Settlement Class.
(b)
MCC’s Covenant Not to Sue the Settlement Class members.
MCC hereby covenants and agrees that neither it nor any of its
successors, assigns, agents or employees will sue or maintain any action at
law or in equity against the Representative Plaintiff or the Settlement Class
members that relates to or arises out of the subject transactions. This release
excludes any and all claims that are unrelated to the factual allegations of
the Complaint on behalf of the Settlement Class.
(c)
Bar to Future Suits.
The release provided in this Agreement is intended to be and shall be
construed to constitute a full and final release of the claims alleged in the
Complaint on behalf of the Representative Plaintiff and the Settlement Class.
Accordingly, Representative Plaintiff and the Settlement Class shall be
enjoined from prosecuting any proceeding against Released Parties with
respect to the conduct, services, fees, charges, acts, or omissions of any
Released Party relating to all matters within the scope of the release in this
section. The Court shall retain jurisdiction to enforce judgment, releases,
and bar to suits contemplated by the Settlement. It is further agreed that
the Settlement may be pleaded as a complete defense to any proceeding
subject to this section.
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21.
Non-Disparagement/No Press Release: It is understood and
agreed that in exchange for the settlement benefits outlined herein, the
Representative Plaintiff and his agents, representatives and attorneys, shall
strictly refrain from and avoid any attempt to defame and/or disparage the
Released Parties, including each of the Released Parties’ employees or agents
regarding any matter related to, or arising from, the Litigation or the
Occurrence.
PROCEDURES FOR EFFECTUATING SETTLEMENT
21.
Full and Final Settlement.
It is the intent and purpose of this
Agreement to effect a full and final settlement of the Representative Plaintiff and
the Settlement Class’s claims against MCC.
22.
Preliminary Approval and Notice Order.
To that end, promptly after
execution of this Agreement, the Representative Plaintiff, on behalf of the
Settlement Class, and MCC shall jointly move the Court for an order preliminarily
approving the settlement and providing for notice pursuant to Md. Rule 2-231 to the
Settlement Class of the pendency of the settlement and for the setting of a hearing
for final approval of the Agreement, and will submit the stipulated proposed
preliminary approval order attached as Exhibit A. All Parties and counsel will use
their best efforts to cause the Court to give preliminary approval to this Settlement
Agreement as promptly and efficiently as possible and to take all steps
contemplated by the Settlement Agreement to effectuate the settlement on the
stated terms and conditions. The Named Plaintiffs and Class Counsel agree to
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recommend the settlement contained in this Settlement Agreement as being in the
best interests of the Settlement Class as a whole under the circumstances.
23.
Giving Notice to the Class. The parties agree to recommend to the
Court that the Settlement Administrator send notice in the form attached as
Exhibit C by E-mail to all E-mail addresses of Class members in MCC’s possession,
or, if a physical address but no E-mail address is available for a Class member or
upon the Class member’s request, to send notice in the form attached as Exhibit D
by first-class mail. In addition, the parties agree to recommend notice by a weekly
advertisement notice of no smaller than 1/8 of a newspaper page in the form
attached as Exhibit E, in the Baltimore Sun Arts and Entertainment section on
each of the three editions (including both Thursday and Friday) following twenty
(20) days after the date of entry of this Order. The Parties further agree that no
later than twenty (20) days following Preliminary Approval, the Settlement
Administrator shall establish the Website on which Class Members can register for
Settlement Certificates as described in paragraph 16(d), and on which the notices
and other documents relating to this lawsuit may be accessed, including but not
limited to the Complaint and the settlement agreement and any orders of the Court
in connection with this settlement. Prior to publishing the Website, the Settlement
Administrator shall permit Class Counsel to review the content of the website and
shall obtain Class Counsel’s consent as to its content. Class Counsel shall have five
(5) days to provide any requested changes to the website or to otherwise provide its
consent to the website’s publication. The Settlement Administrator shall have five
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(5) days after receiving any requested changes to the Website from Class Counsel to
implement said changes. If there is good cause that the deadlines for requesting or
making changes to the Website cannot reasonably be met, however, the failure to
meet the deadlines shall not be considered a breach of this agreement, and the
changes shall be requested or made with reasonable promptness. If the parties
cannot agree to the content of the website, they shall engage the Honorable
Lawrence Rodowsky to review and resolve the dispute in binding arbitration at
MCC’s expense. The Settlement Administrator shall maintain the Website, with
appropriate updates, through the date of expiration of the Settlement Certificates.
III.
CONDITIONS OF SETTLEMENT
24.
Opt-Out Option.
Any potential Settlement Class Member may elect to be excluded from this
Settlement and from the Settlement Class by opting out of the class.
To be
effective, the opt-out must be in writing and mailed or E-mailed or otherwise
delivered to the Settlement Administrator and must be postmarked or delivered to
the Settlement Administrator on or before the last day for mailing or delivering optout requests specified in the Notice of Proposed Class Settlement. Each Settlement
Class Member who does not submit a valid request to opt-out shall become a
member of the Settlement Class and be bound by the settlement and release
provided in this Agreement. The Settlement Administrator shall promptly, and in
no event more than five (5) days after receipt, provide copies of all requests to optout to Class Counsel.
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25.
Approval of the Baltimore City Board of Estimates.
The Settling Parties understand that payment of the Settlement Sum and
attorneys’ fees as set forth in this Agreement is subject to, and contingent upon, the
prior approval of the City’s Board of Estimates. In the event that the Board of
Estimates rejects the settlement, this Agreement will become void and of no legal
effect, upon which time the parties could continue to seek whatever redress which is
available regarding through the Litigation.
26.
Approval of the Court.
This Agreement is subject to final approval by the Circuit Court for
Baltimore City.
At or before the Final Approval hearing conducted after the
approved notice to the Settlement Class, the Parties shall request that the Court
grant Final Approval to the settlement and enter Final Judgment in accordance
with this Agreement, approving this Agreement as final, fair, reasonable, adequate,
and binding and dismissing the Action with prejudice. If these conditions do not
occur, or if the Court does not approve this Agreement or enter the Orders
requested herein, or if the Court enters the judgment provided for herein but either
the judgment is materially modified or reversed upon appellate review, then this
Agreement shall be canceled and terminated unless counsel for both sides, within
ten (10) days from the receipt of a ruling or written notice of circumstances giving
rise to termination, agree in writing to proceed with this Agreement.
26.
Termination of Agreement.
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This Agreement shall only be terminable: (a) at the option of the
Representative Plaintiff or MCC if the Court fails to approve the Settlement; (b) at
the option of MCC if more than ten percent (10%) of Class Members become optouts; (c) at the option of the Representative Plaintiff or MCC if the Court materially
modifies (or proposes to materially modify) this Agreement in order to approve the
Settlement; or (d) upon the mutual agreement of the Representative Plaintiff, on
the one hand, and MCC, on the other hand. Any dispute as to the materiality of
any modification or proposed modification of this Agreement by the Court shall be
resolved by the Court.
27.
Effect of Termination of Agreement.
If this Agreement is terminated or canceled pursuant to Paragraph 26 above,
all obligations under this Agreement, except those found in Paragraph 15, shall
cease to be of any force and effect, and all of the Parties hereto shall be deemed to
have reverted to their respective positions status quo ante with respect to the
Action as if the Settlement had not been entered into, preserving in that event all of
their respective claims and defenses in this case.
Further, the fact of this
Settlement, that MCC did not oppose the certification of any class under the
Settlement, or that the Court preliminarily approved the certification of a
settlement class, shall not constitute any admission, or be used as evidence in any
way, of liability or that any class was appropriately certified for litigation or trial.
28.
Decertification of the Settlement Class if Settlement is Not Approved.
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If the Court does not grant final approval of Settlement, or if the Final
Judgment is reversed in whole or in part on appeal, certification of the Settlement
Class will be vacated and the Parties will be returned to their positions status quo
ante with respect to the Action as if the Settlement had not been entered into,
preserving in that event all of their respective claims and defenses in this case.
Further, the fact of this Settlement, that MCC did not oppose the certification of
any class under the Settlement, or that the Court preliminarily approved the
certification of a settlement class, shall not constitute any admission of liability, or
be used as evidence in any way, that any class was appropriately certified for
litigation or trial.
IV.
APPLICATION FOR ATTORNEY’S FEES, COSTS AND DISBURSEMENTS
29.
All attorney’s fees, costs and disbursements on behalf of or by Class
Counsel shall be paid in accordance with Paragraph 16 of this Agreement or in such
manner as the Court may direct. MCC shall not object to, oppose, or otherwise
comment negatively upon any motion seeking Court approval of attorney’s fees and
costs in the amount specified in Paragraph 16 of this Agreement.
V.
MISCELLANEOUS PROVISIONS
30.
Best Efforts.
The Parties agree that the terms of the Agreement reflect a good-faith, arms’length settlement of disputed claims. The Parties consider the settlement effected
by this Agreement to be fair and reasonable and will cooperate and use their best
efforts to seek approval of the Agreement by the Court, including responding to any
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objectors, intervenors, or other persons or entities seeking to preclude the final
approval of this Settlement Agreement.
31.
Amendments.
This Agreement may be amended or modified only by a written instrument
signed by Class Counsel and MCC’s counsel.
32.
Time Periods.
The time periods and dates described in this Agreement with respect to the
giving of notices and hearings are subject to Court approval and modification by the
Court or by written stipulation of counsel for the Parties.
33.
Entire Agreement.
The terms and conditions set forth in this Agreement constitute the complete
and entire agreement among the Parties hereto relating to the subject matter of
this Agreement, and no representations, warranties or inducements have been
made to any Party concerning this Agreement or its exhibits other than the
representations, warranties, and covenants contained and memorialized in such
documents.
The Parties further intend that this Agreement constitutes the
complete and exclusive statements of its terms as between the Parties hereto.
34.
Plaintiffs’ Authority.
Class Counsel, on behalf of the Representative Plaintiff and the Settlement
Class are expressly authorized to take all appropriate actions required or permitted
to be taken by the Representative Plaintiff and the Settlement Class pursuant to
this Agreement to effectuate its terms, and are also expressly authorized to enter
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into any modifications or amendments to this Agreement on behalf of the
Representative Plaintiff and the Settlement Class.
35.
No Attempt by Parties to Object.
The Representative Plaintiff and Class Counsel, and MCC and MCC’s
counsel, each represent and warrant that they have not nor will they solicit or
support in any fashion any effort by any person (natural or legal), including
themselves, to object to the settlement under this Agreement, or to appeal the
settlement under this Agreement.
36.
Counterparts and Signatures.
This Agreement may be executed in one or more counterparts. All executed
counterparts shall be deemed to be one and the same instrument. Each person
executing this Agreement warrants that such person has the full authority to do so.
In addition, signatures sent in pdf format by email or by facsimile will constitute
sufficient execution of this Agreement.
Counsel for the Parties hereto shall
exchange among themselves original executed counterparts and a complete set of
original executed counterparts shall be filed with the Circuit Court for Baltimore
City in connection with the motion for Preliminary Approval of the settlement.
37.
Binding Nature.
This Agreement shall be binding upon and inure to the benefit of, the
respective heirs, successors, and assigns of the Parties, hereto.
38.
Construing Agreement.
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This Agreement shall not be construed more strictly against one party than
another merely by virtue of the fact that it may have been drafted initially by
counsel for one of the Parties. It is acknowledged that all Parties have contributed
substantially to the preparation of this Agreement.
39.
Waiver.
The waiver by one party of any provision or breach of this Agreement shall
not be deemed a waiver of any other provision or breach of this Agreement.
40.
Applicable Law.
All the terms of this Agreement shall be governed by and interpreted in
accordance with the laws of the State of Maryland and applicable federal law.
41.
Contrary to Law.
Nothing in this Agreement is believed to be contrary to law.
If it is
determined that any provision is in violation of any law, that provision shall be
revised to the extent necessary to make such provision(s) legal and enforceable, and
the invalidity of any provision shall not invalidate this Agreement or its remaining
provisions. In such case, the Agreement shall be construed in such manner to give
effect to the Parties’ intents and purposes in executing this Agreement to the full
extent permitted by law.
42.
Jurisdiction.
The Parties hereto submit to the jurisdiction of the Circuit Court for
Baltimore City for the purpose of implementing the settlement embodied in this
Agreement, and consent to the jurisdiction of this Court following the Effective Date
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over any disputes which later arise in connection with the Agreement or actions
taken pursuant to the Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed by their duly authorized representatives, as of the day and year written
below.
Date: December __, 2015
FOR REPRESENTATIVE PLAINTIFF
AND THE SETTLEMENT CLASS:
By: ______________________________
Benjamin H. Carney, Lead Counsel
FOR THE DEFENDANT MAYOR AND CITY COUNCIL OF BALTIMORE
By:
(SEAL)
George A. Nilson, City Solicitor
Approved as to Form and Legal Sufficiency
APPROVED BY THE BOARD OF ESTIMATES
By:
By:
Clerk
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DATE