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

4. The Agreements’ Dispute Resolution Mechanism is Burdensome and Unlikely to Afford Complete Relief to Class Members

In lieu of encouraging fast resolutions of small problems which arise under the Agreements, and the remedying of lack of compliance with these Agreements, the "Dispute Resolution Procedures" purport to provide a mechanism whereby class members may bring complaints to the attention of Settling Defendants and, subsequently, the district court. However, as with other aspects of these Agreements, the "benefits" conferred by this dispute resolution scheme are largely illusory and, in any event, heavily weighted in favor of Settling Defendants. While the United States favors dispute resolution before involving the Court, the proposed dispute resolution procedures are burdensome, expensive, and ineffective, and are thus another ground for this Court’s rejection of these Settlement Agreements.

The dispute resolution mechanism set forth in these Agreements is wholly deficient for various reasons. First, the procedures are burdensome. In order to invoke the dispute resolution procedures, a class member must provide written notice to the Settling Defendants. Section V.A(1)&(2). Such notice must describe in great detail the facts and circumstances of the dispute, including references to all specific provisions of the Agreement, the remedial action sought, and any arguments supporting the class member's position. Section V.A(2)(a), (b). The Settling Defendants has 20 days after receipt of the class member's notice to respond. Moreover, the class members must engage in negotiations, for an indefinite period of time before seeking mediation with the assigned Magistrate Judge. Section V.A(2)(d). This onerous process substantially interferes with prospects of informal resolutions and could substantially delay supplemental relief.

Second, the dispute resolution provisions set forth "Standards" that the Parties must follow in any dispute resolution procedure. Section V.B(1). According to these "Standards," if the Settling Defendant merely asserts that it is unable to implement the terms of the Agreement, or is unable to meet the deadlines set forth in the Agreement, then the Parties must negotiate a "substitute modification" in lieu of compliance with the Agreement. Id. "Substitute modification" means "an alternative access improvement that will not be more expensive or otherwise burdensome for Settling Defendant than the one that Settling Defendant is unable to implement, and one that is consistent with the purpose of this Agreement." Id. Settling Defendant can simply contend, without any supporting evidence, that they can not comply with the Agreement. The class members are subsequently forced to negotiate a "substitute modification," which may result in even less access.

In sum, the dispute resolution scheme is highly weighted in favor of Settling Defendants and are designed to delay effective relief under the terms of the Agreements.