This Settlement Agreement (the “Settlement”) is made and entered into as of March 22, 2002, by and among the following Parties (as further defined below): (a) Plaintiffs, on behalf of themselves and each member of the Plaintiff Settlement Class; and (b) McDonald’s. This Settlement is intended by the Parties to fully, finally, and forever resolve, discharge, and settle the Released Claims (as defined herein), subject to the terms and conditions herein.
WHEREAS, Plaintiffs commenced the state court class action cases, described collectively herein as “the Litigation,” which assert statutory and common law claims against McDonald’s; and
WHEREAS, McDonald’s denies any and all liability with respect to any and all facts and claims previously and currently alleged in the Litigation; and
WHEREAS, sharply contested issues of both law and fact exist concerning the allegations and claims made against McDonald’s in the Litigation; and
WHEREAS, Plaintiffs’ Counsel have conducted an extensive investigation into the facts and law relating to the Litigation; and
WHEREAS, Plaintiffs’ Counsel have fully analyzed and evaluated the merits of all Parties’ contentions and this Settlement as it impacts upon all Parties, including the individual members of the Plaintiff Settlement Class and the general public, and the likelihood that the actions, if not settled now, will be protracted and expensive, and are satisfied that the terms and conditions of this Settlement—including the issuance of an apology by McDonald's, the payment by McDonald's of $10 million to a cy pres fund, the establishment by McDonald's of an advisory board, and McDonald's enhanced disclosures regarding the ingredients of its food products—are fair, reasonable, adequate and equitable, and that a settlement of the Litigation is in the best interests of the Plaintiff Settlement Class, as defined below, and the general public; and
WHEREAS, McDonald’s desires to settle the Litigation on the terms and conditions herein set forth, for the purposes of avoiding further burden, expense, inconvenience, and interference with its ongoing business operations, and to dispose of burdensome and protracted litigation and therefore has determined that settlement of this Litigation on the terms set forth herein is in its best interests; and
WHEREAS, subsequent to the filing of the Litigation, McDonald’s has made certain disclosures concerning the source of ingredients in its food products, which are available at McDonald’s Internet website and McDonald's Restaurants.
NOW THEREFORE, in consideration of the covenants and agreements set forth herein, Plaintiffs, the Plaintiff Settlement Class and McDonald’s, themselves and through their undersigned counsel, agree to the settlement of the Litigation, subject to court approval, under the following terms and conditions.
1. 1. Definitions
1.1 1.1 “Effective Date” means the date upon which the time to appeal or otherwise seek appellate review of each of the events described in Paragraph 1.2 (a) through (c) below has expired or, appeals having been taken, the date upon which said appeals have been finally resolved without the possibility of further appeal.
1.2 1.2 “Final Approval” of this Settlement means the last date by which all of the following have occurred:
(a) Judgment is entered in the Illinois Action approving this Settlement;
(b) The California Action, the New Jersey Action, and the Washington Action are dismissed with prejudice; and
(c) The Circuit Court of Cook County, Illinois, has made an award of incentive payments to the Representative Plaintiffs.
1.3 1.3 “Judgment” means the judgment to be rendered by the Circuit Court of Cook County, Illinois, in the Illinois Action, approving this Settlement.
1.4 1.4 The “Litigation” means and includes the following individual cases, each of which was filed as a proposed class action:
· · Sharma, et al. v. McDonald’s Corporation; and McDonald’s Restaurants of Washington, Inc., filed on May 1, 2001 in the Superior Court of King County, Washington, No. 01-2-12267 (the “Washington Action”);
· · Makker, et al. v. McDonald’s Corporation; and McDonald’s Restaurants of California, Inc., filed, on May 10, 2001 in the Alameda County Superior Court, California, No. 841162-4 (the “California Action”);
· · Block v. McDonald’s Corporation, filed on or about June 6, 2001 in the Circuit Court of Cook County, Illinois, No. 01 409137 (the “Illinois Action”); and
· · Zimmerman v. McDonald’s Corp., filed on June 27, 2001 in the Superior Court of New Jersey, Camden County, No. L 4057 01 (the “New Jersey Action”).
1.5 1.5 “McDonald’s” means McDonald’s Corporation, McDonald’s Restaurants of Washington, Inc., McDonald’s Restaurants of California, Inc., McDonald’s Restaurants of Texas, Inc., and Haljohn Holdings, Inc.
1.6 1.6 “McDonald’s Restaurants” means any restaurant in the United States operated by McDonald’s, McDonald’s franchisees, or any entity owned in whole or in part by McDonald’s.
1.7 1.7 “Parties” means the Representative Plaintiffs, the Plaintiff Settlement Class and all of its members, and McDonald’s, and “Party” means any of said Parties.
1.8 1.8 “Plaintiffs” means the Representative Plaintiffs (as defined in Paragraph 1.13 herein) and members of the Plaintiff Settlement Class.
1.9 1.9 “Plaintiffs’ Counsel” means: The Law Offices of Harish Bharti; Hagens Berman LLP; Edelman, Combs & Latturner, LLC; Block & Block, P.C.; The Law Offices of Arvind Mahendru; Ashish Mahendru; Davis, Cedillo & Mendoza, Inc.; Caddell & Chapman, P.C.; Kalikman & Masnik; and Berger & Montague, P.C.
1.10 1.10 “Plaintiff Settlement Class” means all persons resident in the United States including, but not limited to, vegetarians and Hindus, who: (i) have consumed food products from or at McDonald’s Restaurants in the United States since July 23, 1990; and (ii) have concerns, objections, or dietary restrictions, whether ethical, moral, religious, philosophical, or health-related, with respect to the consumption of beef or meat; and who do not opt out.
1.11 1.11 “Released Claims” means all claims or causes of action, including “Unknown Claims” as defined below, that have been or could have been asserted by Plaintiffs, members of the Plaintiff Settlement Class, or any of them (on their own behalf and/or on behalf of the proposed class or the general public) against McDonald’s or Releasees in the Litigation, and that are based upon facts, transactions, events, occurrences, acts, disclosures, statements, advertisements, omissions, or failures to act concerning whether or not food products served at McDonald’s Restaurants contain any type of meat (for purposes of this Paragraph, "meat" includes but is not limited to beef) or meat by-products (for purposes of this Paragraph, "meat by-products" includes but is not limited to anything derived in whole or in part from any type of meat), are cooked in oils containing any type of meat or meat by-products, or are flavored with any type of meat or meat by-products. Released Claims include but are not limited to claims based upon or related to any alleged unlawful, unfair, fraudulent or deceptive business or trade practice, breach, offense, or violation of any state or federal statutory or common law or administrative provision or regulation.
1.12 1.12 “Releasees” means McDonald’s and its predecessors, partners, subsidiaries, divisions, parent corporations, licensees, franchisees, employees, agents, suppliers, vendors, distributors, representatives, attorneys, accountants, insurance carriers, officers, directors, stockholders and any entity owned in whole or in part, directly or indirectly, by McDonald’s (and their respective heirs, executors, administrators, successors and assigns), or others involved in any way with the operation or activity associated with or related to McDonald’s Restaurants.
1.13 1.13 “Representative Plaintiffs” means the persons named as plaintiffs in the Second Amended Complaint filed in the Illinois Action.
1.14 1.14 "United States" means the 50 states of the United States of America, the District of Columbia, and all territories and possessions of the United States of America.
1.15 1.15 “Unknown Claims” means all Released Claims which Plaintiffs and any members of the Plaintiff Settlement Class do not know or suspect to exist in their favor at the time of the release which, if known by them, might have affected their settlement with the Releasees, or might have affected their decision not to object to this Settlement.
2. 2. Filing of Second Amended Complaint and Certification of Plaintiff Settlement Class
2.1 2.1 For the purposes of settlement and the proceedings contemplated herein, the Parties stipulate and agree that, on or before March 29, 2002, a Second Amended Complaint shall be drafted by Plaintiffs’ counsel and filed in the Illinois Action by stipulation of the parties, with the approval of the Circuit Court of Cook County, Illinois, and in conjunction with a motion for preliminary approval of the Settlement. The Second Amended Complaint shall be substantially in the form of Exhibit A to this Settlement. By this stipulation of the Parties, and on motions made by the respective Illinois counsel, all counsel for Plaintiffs and McDonald’s who are not admitted to practice before the Circuit Court of Cook County, Illinois shall, with court approval, be admitted to practice pro hac vice.
2.2 2.2 For the purposes of settlement and the proceedings contemplated herein, the Parties stipulate and agree that a nationwide Plaintiff Settlement Class shall be certified in accordance with the definition of “Plaintiff Settlement Class” contained in Paragraph 1.10 of this Settlement. The Representative Plaintiffs shall represent the Plaintiff Settlement Class for settlement purposes and shall be appointed as Plaintiff Settlement Class representatives. Plaintiffs’ Counsel shall be appointed as counsel for the Plaintiff Settlement Class. McDonald’s consent to the filing of the Second Amended Complaint and nationwide class certification shall be for settlement purposes only and shall have no effect for any other purpose.
2.3 2.3 As part of the settlement process, the Parties shall apply to the Circuit Court of Cook County, Illinois, for entry of an order, substantially in the form of Exhibit B to this Settlement (the “Order Permitting Second Amended Complaint to be Filed and Conditionally Certifying a Plaintiff Settlement Class”), conditionally certifying the Plaintiff Settlement Class in accordance with the definition set forth in Paragraph 1.10 of this Settlement, determining that the Representative Plaintiffs adequately represent the Plaintiff Settlement Class and shall be its class representatives, and appointing Plaintiffs’ Counsel as Plaintiff Settlement Class counsel.
2.4 2.4 The filing of the Second Amended Complaint, the certification of the nationwide Plaintiff Settlement Class, the appointment of the Representative Plaintiffs to act as the Plaintiff Settlement Class representatives, and the appointment of Plaintiffs’ Counsel to act as Plaintiff Settlement Class counsel shall be binding only with respect to this Settlement. In the event that Final Approval does not occur for any reason, the Order Permitting Second Amended Complaint to be Filed and Conditionally Certifying a Plaintiff Settlement Class, and all of its provisions, shall be vacated by its own terms, and the Litigation shall revert to its status with respect to the complaints and class certification as existed prior to the date of this Settlement.
3. 3. Settlement Amount
3.1 3.1 The Settlement Amount shall consist of $10 million, to be placed in a cy pres fund for distribution to charitable and/or other tax-exempt organizations to be mutually agreed upon by the Parties on or before the Effective Date. Such funds shall be divided, to the extent practicable, as follows: 60 percent to vegetarian organizations; 20 percent to Hindu and/or Sikh organizations; 10 percent to children’s nutrition and/or children’s hunger relief organizations; and 10 percent to organizations promoting the understanding of Jewish law, standards and practices with respect to Kosher foods and dietary practices, and the observance of such standards by persons of the Jewish religion. Where appropriate and practicable, donations to organizations shall be designated for use to benefit educational programs and children’s programs. The Parties agree that the following principles govern the selection of organizations to share in the cy pres fund:
(a) (a) The organizations’ nonprofit status;
(b) (b) The organizations’ dedication to the values of Hindu, Sikh and other beef-less dietary rules, vegetarianism, Kosher dietary rules, and the purposes set forth above (as applicable to the category of the organization);
(c) (c) The organizations’ exclusive or majority concentration of services in the United States;
(d) (d) The organizations’ geographical reach within the United States; and
(e) (e) The organizations’ willingness to use the donation for the stated purpose (e.g., children, education, vegetarianism and/or nutrition).
3.2 3.2 In accordance with Paragraph 7.1, in the event an appeal is filed from the Judgment, McDonald’s shall place the $10 million designated for the cy pres fund into an interest bearing escrow account, with escrow costs to be paid by said interest. Once the conditions set forth in Paragraph 7.1 have been satisfied, the funds in the escrow account (including interest) shall be disbursed to the organizations set forth in Paragraph 3.1 above. In the event the Settlement is not approved, the funds in the escrow account (including interest) shall be paid to McDonald’s.
4. 4. Apology and Enhanced Disclosures
4.1 4.1 McDonald’s agrees to issue an apology (the “Apology”) at the time McDonald's provides notice pursuant to Paragraph 13.1 herein. The Parties acknowledge that the Apology is a material part of the consideration for this Settlement. The Apology will be disseminated on McDonald's Internet website and will be accessible through links displayed on the “Press Releases” and “Nutrition Facts” pages of that website. In addition, McDonald’s will publish the Apology once each in the specialized publications listed in Paragraph 13.1, at the time McDonald’s provides notice in accordance with Paragraph 13.1. Reference to the existence of an Apology shall be made in the notice. The Apology will be posted on McDonald's Internet website for a period of 75 days. McDonald’s will take no action to limit the dissemination of copies of the Apology. McDonald's will have no obligation to publish or otherwise disseminate the Apology after the expiration of the 75 day period referred to above.
4.2 4.2 Upon the provision of notice pursuant to Paragraph 13.1 below, and not before, this Settlement and each of the exhibits hereto, including the Apology, may be posted on the Internet websites maintained by Plaintiffs’ Counsel.
4.3 4.3 The Apology shall be in the form attached hereto as Exhibit C.
4.4 4.4 McDonald's will circulate to managers of McDonald's Restaurants no later than forty-five (45) business days after the Effective Date instructions for how restaurant employees should respond to customer inquiries concerning the nutritional/ingredient content of McDonald's menu items, and with direction as to where accurate information can be obtained.
5. 5. Advisory Board
5.1 5.1 McDonald’s shall establish an advisory board (the “Advisory Board”), whose primary charge shall be to make reports to McDonald’s about the following matters:
a. Describing the vegetarian, non-beef, and non-meat eating categories of consumers, as well as the dietary restrictions that correspond to each such category.
b. Providing general guidelines that companies should follow if they choose to market to these constituencies.
c. Providing information about how vegetarians can insure that their diet contains the nutrients they need for good health.
5.2 5.2 The Advisory Board shall present reports and make recommendations to at least three McDonald’s executives with responsibilities appropriate to the subjects of the reports and recommendations. McDonald's agrees to consider in good faith the Advisory Board's reports and recommendations.
a. The term of the Advisory Board shall extend to the completion of the report and recommendations listed above, but shall in no event be shorter than one year or longer than three years.
b. The Advisory Board shall meet at least semi-annually or quarterly, as the Advisory Board shall determine.
c. Plaintiffs and McDonald’s shall jointly select members of the Advisory Board, with the expectation that most members will have academic and/or consumer education backgrounds.
d. McDonald’s will pay for the formation, meetings and reports of the Advisory Board, with the limitation that the total cost to McDonald’s will not exceed $40,000.
e. e. McDonald’s shall make certain of its employees, such as McDonald’s dietician, available as resources for, or ex officio members of, the Advisory Board.
6. 6. Releases
6.1 6.1 Upon the Effective Date, each of the Plaintiffs and the members of the Plaintiff Settlement Class, as well as the present, former, and future respective heirs, executors, administrators, representatives, agents, attorneys, partners, successors, predecessors-in-interest, trustees and assigns of Plaintiffs and each member of the Plaintiff Settlement Class, shall be deemed to have, and by operation of the Judgment, shall have, fully, finally, and forever settled, released, relinquished and discharged any and all Released Claims, including but not limited to all Unknown Claims, against the Releasees.
6.2 6.2 Plaintiffs and each of the members of the Plaintiff Settlement Class, or any of them, may hereinafter discover facts in addition to or different from those which they know or believe to be true with respect to the subject matter of the Released Claims, but Plaintiffs and each of the members of the Plaintiff Settlement Class, upon the Effective Date, shall be deemed to have, and by operation of the Judgment shall have, fully, finally, and forever settled and released any and all Released Claims, known or unknown, suspected or unsuspected, contingent or non-contingent, whether or not concealed or hidden, which now exist, or heretofore have existed upon any theory of law or equity now existing or coming into existence in the future. Thus, Plaintiffs and each of the members of the Plaintiff Settlement Class shall be deemed to have, and by operation of the Judgment shall have, waived and relinquished, to the fullest extent permitted by law, the provisions, rights, and benefits of any law of the United States or any state or territory of the United States, or principle of common law, which is similar, comparable, or equivalent to Section 1542 of the California Civil Code, which provides:
A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.
6.3 6.3 The Complaints in the California Action, the New Jersey Action and the Washington Action shall be dismissed with prejudice concurrent with Final Approval of the Settlement.
7. 7. Funding and Distribution of Settlement Benefits
7.1 7.1 Distribution of the cy pres fund and other settlement benefits shall be completed within fifteen (15) business days of the Effective Date. McDonald’s counsel shall deliver to Plaintiffs' Counsel written confirmation that such payments have been made, including copies of checks that were delivered by McDonald’s to the individual organizations.
8. 8. Incentive Awards
8.1 8.1 McDonald's will set aside $48,000 for incentive payments to the Representative Plaintiffs. The decision of who receives incentive payments and the amount of the incentive payments, subject to an aggregate maximum of $48,000, will be left to the discretion of the Circuit Court of Cook County, Illinois. Neither Plaintiffs' Counsel nor McDonald's will oppose the award of an incentive payment up to $4,000 to any Representative Plaintiff. Should the Court award less than $48,000 in incentive payments, the balance of the $48,000 will be paid into the cy pres fund described herein.
9. 9. Notice and Administrative Costs
9.1 9.1 McDonald’s shall bear all costs of providing notice to the Plaintiff Settlement Class and administering this Settlement. McDonald’s shall not be required to reimburse Plaintiffs’ counsel or their employees or clients (including the Representative Plaintiffs, and members of the Plaintiff Settlement Class) for any costs they may incur in connection with complying with the tax laws and/or otherwise implementing this Agreement.
10. 10. Attorneys’ Fees and Costs
10.1 10.1 Plaintiffs’ counsel shall make application to the Circuit Court of Cook County, Illinois, for an award of attorneys’ fees, costs and expenses, not to exceed $2.452 million. McDonald’s agrees not to oppose such application for attorneys’ fees, costs and expenses.
11. 11. Announcement of Settlement
11.1 11.1 The Parties agree that the public announcement of the Settlement (including the Apology) will not occur until notice is commenced pursuant to Paragraph 13.1 herein. The fact of the Settlement, and the terms of the Settlement, shall remain strictly confidential until it is filed with the Circuit Court of Cook County, Illinois, as part of the motion for preliminary approval of the Settlement.
12. 12. Settlement Approval
12.1 12.1 The Settlement will be submitted to the Circuit Court of Cook County, Illinois, for approval. As soon as possible after the signing of this Settlement, Plaintiffs and McDonald's shall file motions seeking a preliminary approval order, in the form of Exhibit D, preliminarily approving this Settlement as fair, just, reasonable and adequate, approving notice to the Plaintiff Settlement Class as described in Paragraph 13.1 below, and setting a hearing to consider final approval of the Settlement and any objections thereto.
13. 13. Notice
13.1 13.1 Subject to the approval of the Circuit Court of Cook County, Illinois, as set forth in Paragraph 12.1 above, the Parties agree that as soon as practicable after Preliminary Approval, a notice of the pendency of the action and the proposed settlement, substantially in the form of Exhibit E, shall be published once in USA Today and once each in the following specialized publications (or, if timely notice cannot be accomplished in any of those listed below, in comparable publications):
(a) (a) Vegetarian Times;
(b) (b) Vegetarian Voice;
(c) (c) India Abroad (U.S. distribution only);
(d) (d) India Tribune;
(e) (e) India West; and
(f) (f) The Forward.
14. 14. Settlement Order and Judgment
14.1 14.1 At or before the final approval hearing, Plaintiffs shall move for a Settlement Order and Judgment, substantially in the form of Exhibit F, granting final approval of this Settlement as final, fair, reasonable, adequate, and binding on all members of the Plaintiff Settlement Class who have not excluded themselves, and awarding attorneys’ fees, costs and expenses, ordering that the Settlement Amount set forth in Paragraph 3.1 be delivered as provided in this Settlement, ordering the releases as set forth in Section 6, and entering judgment in the Illinois Action. McDonald’s shall also file papers in support of final approval of the Settlement.
15. 15. Right to Withdraw
15.1 15.1 The notice described in paragraph 13.1 above shall permit any prospective Plaintiff Settlement Class member (except Representative Plaintiffs) to elect not to be part of the Plaintiff Settlement Class and not to be bound by this Settlement, if, within such time as is ordered by the Circuit Court of Cook County, Illinois, and contained in the notice, the affected person mails a valid opt-out notice, all as more fully described in the notice attached hereto as Exhibit E. At least ten (10) days prior to the final approval hearing, Plaintiffs’ Counsel shall prepare a list of the persons (the “Settlement Opt-Outs”) who, pursuant to the notice described herein, have sought to exclude themselves from the Plaintiff Settlement Class in a valid and timely manner, and shall file that list in the Circuit Court of Cook County, Illinois, with service (and proof of service) on McDonald’s counsel. Notwithstanding anything else contained in this Settlement, if more than two hundred (200) of the prospective members of the Plaintiff Settlement Class opt out, then McDonald’s may, at any time prior to or at such hearing, notify Plaintiffs’ Counsel that it has elected to terminate this Settlement. In that event, this Settlement shall become null and void; the Litigation may continue and, pursuant to Paragraphs 2.2 and 2.4 hereof, any order authorizing the filing of the Second Amended Complaint and/or conditionally certifying or approving certification of a settlement class shall be vacated.
16. 16. Jurisdiction
16.1 16.1 The Circuit Court of Cook County, Illinois, will retain continuing jurisdiction to oversee and enforce the terms of the Settlement.
17. 17. Miscellaneous
17.1 17.1 Best Efforts. The Parties and their counsel shall use their best efforts to cause the Circuit Court of Cook County, Illinois, to give preliminary approval to this Settlement as promptly as possible, to take all steps contemplated by this Settlement to effectuate the Settlement on the stated terms and conditions, and to obtain final approval of this Settlement.
If to Plaintiffs or Plaintiffs’ Counsel:
Harish Bharti, Esq………………………………………….