Opinion
CASE NO. C 01-03213 MMC
March 28, 2003
TIMOTHY F. RYAN, SAMANTHA P. GOODMAN, MORRISON FOERSTER LLP, Los Angeles, CA, Attorneys for Defendant BRENDAN TOURS.
JOHN J. DACEY, JAMES M. SITKIN, DACEY SITKIN, San Francisco, CA, Attorneys for Plaintiff Diane Fabiano.
CLASS ACTION
STIPULATION FOR DISMISSAL AND ORDER STIPULATION
WHEREAS, there are only 13 members of the proposed class, which is insufficiently numerous to justify class treatment, and therefore the parties have agreed that this lawsuit is not a proper class action; and
WHEREAS, Plaintiff has not filed any motion for class certification and no formal Notice has been given to any potential class members of the pendency of this lawsuit; and
WHEREAS, the parties have agreed to enter into the Settlement Agreement attached hereto as Exhibit "A";
It is hereby stipulated and requested that Plaintiff's lawsuit be dismissed with prejudice.
ORDER
IT IS HEREBY ORDERED that the class allegations and Plaintiff's lawsuit is dismissed with prejudice.
SETTLEMENT AGREEMENT, AGREEMENT FOR DISMISSAL, AND MUTUAL GENERAL RELEASE
THIS SETTLEMENT AGREEMENT, AGREEMENT FOR DISMISSAL, AND MUTUAL GENERAL RELEASE is between Diane Fabiano ("Plaintiff") and Brendan Tours ("Defendant"). Plaintiff and Defendant will be referred to collectively as the "Parties".
RECITALS
A. A dispute arose concerning Plaintiff's performance of services for Defendant, and Plaintiff filed a lawsuit against Defendant entitled Diane Fabiano v. Brendan Tours, which was and is pending in the United States District Court for the Northern District of California, Case No. C 01-03213 MMC (the "Lawsuit"). Although the Complaint indicated that this would be a class action lawsuit, the parties have agreed that it is not a proper class action lawsuit and Plaintiff has not filed any motion for class certification.
B. It is the intention of Defendant and Plaintiff to fully, finally and forever resolve, compromise and settle the Lawsuit, and any and all claims, charges, disputes, grievances, and complaints, suspected and unsuspected, known and unknown, that exist or may exist between them, including but not limited to all acts and omissions related to the performance of services by Plaintiff for Defendant, and any claims Plaintiff has or may have against past or present employees of Defendant.
In consideration of the above recitals, the covenants and Agreements contained herein and other good and valuable consideration, Defendant and Plaintiff agree as follows:
AGREEMENT
1. Payment. In consideration of Plaintiff's promises and Agreements set forth herein and in complete satisfaction of Plaintiff's claims against Defendant, Defendant agrees to pay Plaintiff the sum of $14,000. ("Settlement Sum"). The settlement sum shall be made by check payable to "Diane Fabiano and her attorneys of record, Dacey Sitkin." Said check shall be mailed to the offices of Plaintiff's attorneys of record, John J. Dacey and James M. Sitkin, within forty-five (45) days of the receipt by Defendant's attorneys of record, Timothy F. Ryan of Morrison Foerster LLP, of (1) the Court's order dismissing Plaintiff's lawsuit with prejudice, and (2) the Agreement executed by Plaintiff and her counsel. In the event that the Court does not dismiss Plaintiff's lawsuit with prejudice, this Settlement Agreement will be ineffective and Plaintiff will not be entitled to the Settlement Sum. Defendant's payment of the Settlement Sum is in full satisfaction and settlement of Plaintiff's known and unknown disputed claims against Defendant and in return for the General Release and other promises set forth herein.
2. Taxes. Plaintiff agrees that Defendant will be issuing an I.R.S. form 1099 in connection with this Settlement and that Plaintiff assumes full responsibility for the taxability of the amount paid to her. In the event that the IRS or other taxing authority determines that Plaintiff owes taxes which have not been paid, and attempts to collect such taxes from Defendant, Plaintiff agrees to indemnify Defendant regarding said taxes.
3. Dismissal of Actions. With regard to any proceeding other than the Lawsuit, Plaintiff agrees to execute any document(s) necessary to effect the dismissal with prejudice of any and all lawsuits, claims, charges and actions filed by her and pending against Defendant and/or Newman's South Pacific Vacations, Waterways Vacations, JSM Principal Management, LLC ("the related companies"), and their employees, officers, owners, directors, board members, partners, or successors while acting in such capacities. Counsel for Plaintiff shall file said document(s) with the Court upon delivery of payment as specified in Paragraph 1. Plaintiff agrees not to initiate or reinstate any suit, charge, grievance or administrative proceeding based upon the matters herein released.
4. Confidentiality.
(a) Non-Disclosure. For and in consideration for the mutual promises as set forth in this Agreement, the Parties agree and promise not to disclose the reasons for the settlement or the negotiations in regard thereto except to their attorneys, tax or financial advisors, or in response to lawful subpoena or court order, or inquiry by federal or state tax authorities. The parties also agree not to discuss the terms or substance of the settlement or the allegations that are the substance of the Lawsuit, with anyone, including any media organization, even though the settlement and lawsuit have been filed and are a matter of public record. Plaintiff's attorneys also agree to keep such information referred to in this paragraph 4(a) confidential. The Parties acknowledge that the promises of confidentiality, as set forth herein, are material and essential considerations.
(b) Inquiries Regarding Controversy. Whenever the Parties or their attorneys receive specific inquiry regarding the manner in which the controversies encompassed by this Agreement were resolved, except as specified in paragraph 4(a), they will satisfy their confidentiality obligations by responding substantially as follows (or by words which convey the same meaning):
There was a dispute regarding Plaintiff's performance of services for Defendant, but all such matters were resolved in a mutually satisfactory and voluntary manner.
(c) Substance of Documents Confidential. The Parties and their attorneys also agree not to disclose the existence of, substance, contents, or terms of any and all documents produced by the Parties in connection with the Lawsuit, except as required by lawful subpoena and/or otherwise required by force of law. The Parties and their attorneys also further agree and warrant that they will not make available to any person, firm or entity for use, inspection or copying at any time, any documents which were obtained or created, or which in any other manner relate to the Lawsuit, including, but not limited to, documents maintained on magnetic tape, computer disks or other similar file storage. The Parties and their attorneys also agree that if any such documents and/or testimony regarding any such documents are requested and/or subpoenaed, that counsel of record for the Parties will be notified of the existence, substance and contents of each and every such request and/or subpoena and the name of the person(s) requesting such information.
(d) Liquidated Damages. The Parties agree that if Plaintiff or Defendant breach any confidentiality requirement of this Agreement, the Parties will pay $5,000.00 liquidated damages to the prevailing party. These liquidated damages shall be presumed to be the amount of damage sustained by any such breach, because it is impracticable and/or extremely difficult to fix the actual damage resulting from any such breach.
5. Non-Assistance With Other Litigation. Plaintiff agrees that she will not assist, encourage, permit or authorize any other person to institute a claim or action on her behalf or as part of a class action against Defendant, or any of its owners, officers, directors, employees, board members, partners, subsidiaries, parents, successors, divisions and/or affiliates, that relates in any way to the matters released by Plaintiff in this Agreement.
6. No Obligation to Employ. Plaintiff acknowledges that as material consideration for Defendant's promises herein, Plaintiff is not eligible to perform any services for Defendant nor for employment with Defendant in any capacity, and forever waives any claim of right and/or entitlement thereto. Plaintiff agrees not to apply to perform services for Defendant or for employment with Defendant, and farther acknowledges and agrees that Defendant has no obligation to consider Plaintiff for employment or to hire or employ Plaintiff in any capacity at any time now or in the future. In the event that Plaintiff accepts employment or performs services for Defendant in violation of the foregoing provision without obtaining a waiver, she agrees that her employment and/or performance of services shall be immediately terminated, and further waives any and all legal and/or equitable claims in relation thereto.
7. Waiver of Breach. Plaintiff or Defendant may waive or excuse, in writing, the failure of either to perform any provision of this Agreement; provided, however, that any such waiver shall not preclude the enforcement of this Agreement upon any subsequent breach, whether or not similar in character.
8. Enforcement. The Parties agree that in the event a dispute arises concerning the terms of this Agreement or concerning the enforcement of any of the rights or obligations arising herefrom, upon written request of any party to this Agreement such dispute shall be referred to final and binding arbitration under the Employment Dispute Resolution rules of the American Arbitration Association. The Parties further agree that the prevailing Party in such arbitration shall be entitled to such reasonable attorneys' fees and court costs as may be fixed by the arbitrator. The Parties acknowledge and agree that the appropriate venue for any action or arbitration instituted to enforce any of the rights or obligations arising herefrom shall be in San Francisco, California.
9. Mutual General Release. Except for the Agreements and obligations set forth herein, Plaintiff, on behalf of herself and her representatives, heirs, successors, assigns, devisees, and executors, and Defendant on behalf of itself and its representatives, heirs, successors, assigns, devisees, and executors, do hereby completely release and forever discharge each other, including their heirs, executors, successors, owners, assigns, and the related companies, without limitation, including Defendant's and the related companies present and former respective board members, officers, directors, shareholders, partners, owners, successors, agents, employees, representatives, attorneys, and insurers while acting in such capacities (collectively the "Defendant Released Parties"), from all claims, rights, demands, actions, obligations, liabilities, indebtedness, and causes of action, of any and every kind, nature and character whatsoever, which they may now have, have ever had, or may have in the future against each other, prior to the date of the execution of this Agreement by the Parties, including but not limited to any and all rights and claims arising out of Plaintiff's performance of services for Defendant, including, but not limited to, any and all rights and claims whether based on tort, contract or any federal, state or local law, statute or regulation (collectively, the "Released Claims"). By way of example, and not in limitation of the foregoing, the Released Claims shall include any claims based upon or related to the Civil Rights Act of 1964, Title VII, as amended, 42 U.S.C. § 2000 et seq., the Civil Rights Act of 1991, and The California Fair Employment and Housing Act, as well as any claims asserting wrongful termination, wrongful constructive termination, harassment, assault, sexual battery or battery, breach of contract, breach of the covenant of good faith and fair dealing, negligent or intentional infliction of emotional distress, negligent or intentional misrepresentation, negligent or intentional interference with contract or prospective economic advantage, defamation, invasion of privacy, claims related to disability, and including any and all claims or causes of action that were brought or could have been brought in the Lawsuit. Released Claims shall also include, but not be limited to, claims for severance pay, bonuses, sick leave, vacation pay, life or health insurance, or any other fringe benefit. Released Claims shall also include any right to appeal the dismissal of claims. The Parties also release each other from any and all obligations for attorneys' fees and costs incurred in regard to the above claims or otherwise.
10. Mutual Waiver and Relinquishment of Unknown Claims. It is understood that this is a full and final release covering all unknown and unanticipated injuries, debts, claims, or damages to the Parties which may have arisen, or may arise, in connection with any act or omission by the Parties prior to the date of execution of this Agreement. For that reason, the Parties hereby waive all rights or benefits, which they may have under the terms of Section 1542 of the California Civil Code, which provides as follows:
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.
11. Successor. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, as well as upon their heirs, agents, executors, successors, administrators, and attorneys.
12. Non-Admission of Liability or Wrongdoing. It is understood and agreed that this is a compromise settlement of disputed claims, or potential disputed claims, and the furnishing of the consideration for this Agreement shall not be deemed or construed as an admission of liability, responsibility or wrongdoing by any party at any time for any purpose. It is further agreed and understood that this Agreement is being entered into solely for the purpose of avoiding further expense and inconvenience from prosecuting or defending the Lawsuit. Defendant expressly denies that it ever engaged in any wrongdoing in relation to this matter, and expressly denies liability for any and all claims alleged by Plaintiff.
13. Voluntary Agreement. The undersigned Parties acknowledge that they have entered into this Agreement voluntarily, without coercion and based upon their own judgment and not in reliance upon any representation or promise made by any other party other than those contained herein. The Parties have read this Agreement, and they are fully aware of its contents and of its legal effect and all waivers herein are knowing and voluntary.
14. Entire Agreement. This Agreement constitutes the entire Agreement, written, oral and implied, among the Parties, and it supersedes and replaces all prior negotiations, proposed Agreements and Agreements, written, oral and implied. All prior understandings or Agreements not embodied herein are of no force or effect. It is expressly understood and agreed that this Agreement may not be amended or modified in any respect, except by a writing duly executed by all the Parties hereto or their authorized representatives.
15. Cooperation. Each of the Parties signing this Agreement warrant and represent that they shall execute and deliver any and all instruments, Agreements, documents or other writings, and shall perform all other acts deemed to be necessary to effect the terms and purposes of this Agreement.
16. Severability. The Parties have attempted to create an Agreement that is lawful and enforceable in all respects. Should any provision of this Agreement, or any portion thereof, be declared or be determined to be illegal, invalid, void, or otherwise unenforceable, such invalidity shall not affect the enforceability of the remaining terms hereof. Moreover, in the event that any term hereof is found or deemed to be illegal or otherwise invalid and unenforceable, the Parties shall attempt to negotiate a valid new provision concerning the same subject matter. In the event that the Parties are unable to agree upon the terms of a new provision, upon written request of any party the matter shall be submitted to final and binding arbitration pursuant to the rules of the American Arbitration Association then in existence.
17. Execution of Counterparts. This Agreement may' be executed in one or more counterparts, or duplicates of originals, all of which, taken together, shall constitute one and the same instrument.
18. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California.
19. Warranties. The Parties represent and warrant that they have the power and authority to enter into this Agreement and that they have not transferred, assigned or hypothecated to any third party any of their rights released in this Agreement. Plaintiff further warrants that, other than the Lawsuit, she has not initiated or filed any charge, lawsuit, action or claim of any kind whatsoever against the Defendant Released Parties.
IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement on the following days and year.