ACCESS NOW, INC. v. AMBULATORY SURGERY CENTER GROUP, LTD.

1. Introduction

Access Now and Settling Defendants, as proponents of the class settlements, bear the burden of demonstrating that these Agreements represent a fair and reasonable resolution of class members’ discrimination claims. See, e.g., In re General Motors Corp. Pick-Up Fuel Tank Products Liability Litigation, 55 F.3d 768, 785 (3rd Cir. 1995), cert. denied, 516 U.S. 824 (1995); Holmes, 706 F.2d 1144, 1147 (11th Cir. 1983). As discussed below, these Agreements are so flawed that the parties do not come close to satisfying this burden and the Court must, therefore, reject these Settlement Agreements.

Determining the propriety of a settlement is committed to the sound discretion of the district court. See, e.g., Sterling v. Stewart, 158 F.3d 1199, 1201 (11th Cir. 1998); Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984). Because "the [class action] settlement process is more susceptible than adversarial adjudications to certain types of abuse," Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1214 (5th Cir. 1978), cert. denied, 439 U.S. 1115 (1979)³, the Court has a "heavy duty to ensure that any agreement is ‘fair, adequate, and reasonable.’" Piambino v. Bailey, 757 F.2d 1112, 1139 (11th Cir. 1985) (internal citation omitted), cert. denied, 476 U.S. 1169 (1986); see also Holmes, 706 F.2d at 1147; United States v. City of Hialeah, 899 F. Supp. 603, 606 (S.D. Fla. 1994), aff’d, 140 F.3d 968 (11th Cir. 1998).⁴

When assessing the propriety of a class action settlement agreement, the court’s discretion is also limited in two other respects. First, the court cannot sanction a proposed settlement that is either collusive or contrary to public policy. See, e.g., United States v. City of Alexandria, 614 F.2d 1358, 1362 (5th Cir. 1980). Second, the Court does not have the authority to modify the terms of a class action settlement agreement; the agreement must be approved or rejected as a whole. See, e.g., Brooks v. Georgia State Bd. of Elections, 59 F.3d 1114, 1119-20 (11th Cir. 1995); Holmes, 706 F.2d at 1160 ("Courts are not permitted to modify settlement terms or in any manner to rewrite the agreement reached by the parties.").

The Court must ensure the fairness of a negotiated settlement agreement and may not modify it. Accordingly, because of the myriad of procedural defects of the Agreements before this Court, the Court must reject the Agreements.

³In Bonner v. City of Prichard, 661 F.2d 1206 (5th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit decided prior to October 31, 1981.