TY C. GERHARDT, and JEFFREY            

ZIMMERMAN, et al.,                                                                                             










01 CH 9137

Judge Richard Siebel










            I, HARISH BHARTI, declare the following to be true:

            As one of the lead counsel in this historically important class action lawsuit, I feel impelled, as an officer of the court, as a zealous advocate, and, being Hindu and vegetarian, as a member of the class, to urge this court to remove the power to make decisions about how this $10,000,000 Cy Pres Fund should be distributed from the lawyers, including myself, and to place this responsibility and to grant these rights instead to an Independent, Court-appointed person or group which has personal understanding of the culture of the class members, and which has no personal profit, political, or business motive to influence their  allocation decisions.  This honorable court should further require all counsel of record to make full disclosure to the public and to inquiring organizations.

            I feel I have the right to make this unusual request because I am the attorney who began this action, and without whom, in all likelihood, this action would never have come into existence.  The others came later, and built on my work.

            I represent all California and Washington plaintiffs in this class action. 

On May 1, 2001, I filed the first class action lawsuit in King County Superior Court, Seattle, Washington on behalf of the Washington plaintiffs. 

I filed the second-class action lawsuit in Alameda County Superior Court, in California, on May 9, 2001. I represent six named plaintiffs, BRIJ M. SHARMA, CHARANJIT SINGH, LISA M. BERTINI, VANDANA MAKKER, BALA M. KRISHNA, and TY C. GERHARDT in the case; three from California and three from Washington.   I was admitted Pro Hac Vice in Illinois by an order of this honorable Court.

            I obtained several hundred sworn declarations from class members in support of this litigation.  In addition, I received and acted upon several hundred email messages and voice-mail messages received by my office from class members.  These concerned and injured class members have shown extraordinary commitment and interest in this public interest litigation.

            I have devoted thousands of work hours sharing information and answering questions from literally thousands of interested potential class members regarding this litigation.

            I receive innumerable inquiries virtually on a daily basis from class members, from the media, and from various organizations asking about the manner in which the Cy Pres Fund will be distributed and seeking contributions from it.

              The terms of the proposed settlement preclude individual class members from receiving compensation directly. They may only receive benefits indirectly, through contributions to charitable organizations coming out of the Cy Pres Funds. 

I have, in short, had massive contact with many people reasonably seeking assistance, who can be helped only through appropriate allocation of monies from the Cy Pres Fund to charitable organizations who then will distribute this money.  This contact has made me acutely aware of the breadth of the class and of the wide variety of groups who have been affected adversely by McDonalds’ actions.  This awareness has, in turn, made me particularly sensitive to the issue of making sure that the Cy Pres funds are allocated properly. I am deeply concerned that the funds not be allocated to a relatively small number of interest groups determined by a small number of lawyers with personal preferences or prejudices unrelated to the actual needs and concerns of the class members.   I particularly want to make sure that no deserving organization fails to receive its reasonable share of Cy Pres funds, and that the decisions about how these monies are allocated are made in the best interests of the people actually injured.

I feel I have the right to entertain this concern and to bring it before the court because this class action is the highest form of public interest litigation, brought on behalf of nearly 16 Million potential class members (vegetarians and Hindus).  I am designated as co-lead counsel in the class action Complaint filed in Alameda County Superior Court. As a lead counsel, I feel that my responsibility to my clients and to the class members is even greater than if I were merely one of many counsel with lesser responsibilities.             

            This is public interest litigation in its most profound form.  The way this Court handles the distribution of funds, the sensitivity it shows to the cultural background of the litigants and the creativity the Court shows in making sure that the settlement funds go to meet the purposes of the lawsuit may well become a national model for such class actions for years to come.  

Even McDonald’s has conceded the precedent-making nature of this case.  One of their central witnesses is Sreenath Sreenivasan, a Professor of Journalism at Columbia University.   He said the following in a recent interview with Public Broadcasting Corporation (PBS) “the kind of attention that has been paid to this particular story we have never seen before.  This is an American story, this is someone living in this country who is reacting to something so American as McDonald’s, and that has caused everyone to sit up and pay attention.  McDonalds’ expert is right.

This case has received headline coverage among national and international media outlets including the London Times, Der Speigel, the New York Times, and major newspapers in Canada, Australia, India, Japan, Spain, Colombia and several other countries.  Around the world, the British Broadcasting Corporation (BBC), Australian Broadcasting Corporation, Canadian Broadcasting Corporation, CNN, Fox News, and several other TV networks have given wide coverage to this proposed settlement. 

The class members, media and I have a common concern.  We are all now seeking to determine how this $10,000,000 will be distributed, and particularly whether or not the distribution will be done intelligently, without bias in favor of, or against certain groups, and with sensitivity to the needs of the entire class.

The issue of appropriate allocation has now passed beyond curiosity to deep concern, on my part, on the media’s part, and most important, on the part of the members of the class.

            Several organizations and class members have contacted me to inform me that they are dissatisfied with the process of selection of potential recipients of Cy Pres funds, and particularly with the relative insularity and restrictiveness of those preliminary decisions, resulting in elimination of deserving organizations from participation in funding.  (See attached 80 letters of concern received to date, “Exhibit A”).[1]

I have been personally informed that class members are particularly dissatisfied with the prospect that this large sum of money will be allocated among competing groups by lawyers not fully equipped with proper background and information relating to the Hindu, Sikh and Muslim faiths.  This lack of information affects the selection of Vegetarian organizations as well.






The lawyers who followed me into this litigation received the benefit of a number of discovery and other motions to obtain critical information for the benefit of the clients and class members, which motions I personally filed[2] and fought for on my own, and which resulted in securing substantial rights and information from McDonald’s.  Now, many of these latecomers are perceived by clients and class members as being hostile to certain organizations which class members feel are deserving (even other plaintiffs’ lawyers in this case have referred to additional case(s) as “tag along,” and this case being my idea, see attached email correspondences among plaintiffs’ lawyers, “Exhibit B”).

Further, certain unseemly conflicts of interest have arisen which should be eliminated.  For example, McDonald’s now has significant input in deciding the allocation of the Cy Pres funds.  McDonald’s has made a factor in the allocation process its desire to fund organizations which are associated with its own consultant, potentially rewarding prior employment with McDonald’s through this settlement, a consequence unintended by the Court, and contrary to the spirit of this settlement.  Further, certain groups with which McDonald’s has previously and traditionally been in conflict, such as animal rights’ groups or other groups that aided my efforts to get this litigation started are being shut out of the allocation process through McDonalds’ input.  The bottom line is that McDonald’s has the power, even in settlement, to punish those who fought for the public interest and who deserve to be vindicated now.

            McDonald’s is not the only fly in the allocation ointment.  Some lawyers who had been merely referring counsel, but who now have major decision-making power to determine distribution of funds have personal and/or professional associations with sectarian groups for which these lawyers are now seeking substantial allocations, at the potential expense of other groups with at least equally meritorious claims.  A number of attorneys seeking such “pork barrel” allocations were not even signatories to the “agreement of counsel(see attached agreement of counsel, “Exhibit C”), but joined the process only after the deal points settlement agreement with McDonald’s after the division of the Cy Pres Fund began.

            In sum, conflicts of interest abound, and the likelihood of dissipation of the Cy Pres Funds in an improper manner increases daily.

Before becoming a lawyer, I devoted several years studying various Hindu, Sikh, Buddhist, Muslim, Jainism and Christian scriptures from Swami R. Vaidyanathan, professor of Vedanta, a nuclear scientist-turned Swami, Dr. Weetraganand, M.D., a physician turned Swami, Holy Shankracharya (spiritual leader of India) and other learned spiritual teachers, including, the late Swami Rama (author of “Liviing with the Himalayan Masters”), and his Holiness, Dalai Lama.  I also studied the seventeen volume Bhasha Tika on Sikh scripture Sri Guru Granth Sahib, Vedas, Upnishads, Koran, Muslim law and principles of Arya Samaj and teachings of Swami Dayananda Sarswati.  Based on my studies I am familiar with Hindu, Sikh, Muslim and other religious and vegetarian organizations.  My studies in these related fields, I believe, puts me in a unique position among the lawyers in this particular case to understand the needs of the members of this class.

Despite this background, my input has been largely ignored and despite my objections, very deserving and good organizations have been excluded from the list of organizations asked to submit proposals.  For all intents and purposes, the organizations that have not been selected to submit proposals are in fact closed out of the allocation process (this fact is not being disclosed to those inquiring organizations).  I believe delay in full disclosure to inquiring organizations regarding the status of the selected or rejected list unfairly prejudices their right to file timely objections, if they so desire, consistent with the intent and purpose of the notice of proposed settlement.  I have consistently and repeatedly objected to delay in this full disclosure. 

            I submit that the class-members will be far better served by including the maximum number of eligible organizations.  Limiting the number of recipient organizations by excluding deserving organizations is counter-productive to the purpose of serving the national class certified in this case.  My experience with the allocation process as it has played out up until now and my personal understanding of the cultural background of my clients reinforces the complaints I have heard from class members that the people allocating the money are out of touch with the people whom the money is intended to benefit.

            For the reasons set forth above, I therefore respectfully request that this Court retain control over the $10 million Cy Pres Fund and that it oversee the selection process of Cy Pres Fund recipient organizations.  Consistent with the requests of class members, and with my personal observations of the flaws and shortcomings of the current allocation system, I believe that the interests of the Class would be best served by having a neutral special master or group appointed by this Court with the responsibility and power to determine who will receive the Cy Pres Funds. This group should be one with experience, learning, and understanding of the philosophy and needs of the classes that have secured the settlement, and should have no personal, political, or business ties with the potential recipients of contributions from the Cy Pres Fund.  

Such an appointment is within the discretion and power of the court and would assure both the actual and the perceived fairness of distribution of the Cy Pres Fund among class members.

I emphasize once more that this petition is not for self-promotion.  When I ask the court to appoint special masters with understanding of the full needs and background of the class, and to exclude the lawyers and McDonald’s from these decisions, I include myself as one of the lawyers to be excluded from the decision-making process.

I am in support of the proposed settlement.  I am filing this motion pursuant to direct instructions from my clients.

I respectfully submit this declaration to urge this court to remove the power to make decisions about how this $10,000,000 Cy Pres Fund should be distributed from the lawyers, including myself, and to place this responsibility and to grant these rights instead to an Independent, Court-appointed person or group and further order full disclosure to the public and to inquiring organizations the list of selected and rejected applicants before the deadline for filing objections.

I respectfully move this court to decide this motion on the record without oral argument.  I am in the middle of a long and complex medical negligence trial, involving severe brain damage to a baby consequent to delayed delivery.  This trial is likely to last several weeks into July 2002.  Therefore, I am unable to appear to argue on the motion hearing date of July 9, 2002. 

I certify that attached Exhibits A, B, and C are true and correct copies of records.  I declare under penalty of perjury under the laws of the State of Illinois, and the State of Washington, that the foregoing is true and correct to the best of my knowledge.


Respectfully submitted at Seattle, Washington on this 30th day of June 2002. 








                                                            Harish Bharti, Declarant (admitted pro hac vice)

                                                            Attorney for California and Washington Plaintiffs

5516 17th Ave. NW

Seattle, WA  98107

Phone: (206) 706-6400

Fax:     (206) 706-6401


[1] Letters of concern are being received via facsimile constantly.  Eighty  (80) of these letters have been received in the last 24 hours.  Additional letters received after Sunday June 30, 2002, afternoon, will not be included in Exhibit A.

[2] In December of 2001, I had to cancel my prescheduled family vacation trip to India, work during my Christmas holidays, including on Christmas day to prepare my motions seeking permission of the court to share information with my clients, regarding proposed settlement, review of confidential documents and seek additional discovery, to obtain their informed consent.  Pursuant to my motions and agreements with McDonald’s, I was the only plaintiffs’ lawyer permitted to share the requested information with my clients and I obtained their informed consent.  My motions were opposed by certain other plaintiffs’ counsel in support of McDonald’s.