Case 1:02-cv-02283-EGS Document 1034 Filed 05/10/15 Page 1 of 2

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUヽ 4BIA

JEFFREY BARHAⅣ I,cr

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Plaintinも ,

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CHIEF CHARLES H.RAⅣ

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Civil Action No.02-2283(EGS)

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Defendants.

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JOINT Ⅳ10T10N FOR PttLIMINARY APPROVAL OF
PROPOSED CLASS SETTLEMENT AND,NOTICE TO CLASS,
AND NOTICE OF FAIRNESS HEARING
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By and through their undcrsigned counsel,the class rcpresentatives in this action(`て 〕

Rcpresentatives'')l and the certined class ofPlaintiffs(C011Cctivcly,the``Plainti∬
``Plaintinぽ

Class''or

')and thC United States ofAme五 ca;Sally Jewell,UoS.Sccrctary ofthe lnterior,in her

official ca/pacity;Loretta E.Lynch,the l」 .S.Attorney Gencral,in her offlcial capacity;and
follller― Maor

Richard Murphy(“ MttOr Murphy")ofthe uos,Park Police(thc“ Park Policc")in

his ind市 idual and oincial capacities(collCCt市

ely,the``Fcdcral Deindants'')rcspCCtfi■ lly movc

the Court for an order(1)granting preliminary approval ofthe proposcd Class Settlcment

Agreement;(2)apprOVing the accompanying Notices to the Class,Proof of Claim forln,and
procedures for rnailing,publication and intcmct posting stated in the accompanying proposcd
order;and(3)setting June 15,2015 as the deadline for class lncmber rcsponses to thc noticc,
rcquesting exclusion or asserting ouections.

The Class Representatives are Mary Canales, William Durham, Noah Falk, Jorge Garcia'
Spitz, Mark Allan Jackson, Casey Legler, Charlcie Legler, Sally A. Norton, John Passacantando,
Joseph Phelan. Nicole Prichard, Morgan Ress, Macdonald Scott, Jeri Wohlberg, Lesley Wood,
Samantha Young, and Stephen Zimmerman.

 Case Document 1034 Filed 05/10/15 Page 2 of 2

As described herein, the parties propose the following deadlines:

May 15, 2015 Initial notices sent by mail

June 15, 2015 Deadline for new Claimants to file Proof of Claim Form,2 object, or opt
out

June 22, 2015 Class Administrator ?les ?nal report with Court

June 22, 2015 Parties ?le responses to any objections

2015 Fairness hearing

In support of this Motion, the parties rely on the accompanying memorandum. Also, a
proposed order is enclosed herewith.
Respe tl'ully su mitted,

1 
A 

Carl Messineoi D.C. Bar #450033 VINCENT H. COHEN, JR., [lg Him? 1489
Mara Verheyden-Hilliard, D.C. Bar #450031 Acting United States Attorne
PARTNERSHIP FOR CIVIL JUSTICE
617 Florida Avenue, NW DANIEL F. VAN HWBM #924092

Washington, DC 20001 Chief, Civil Divisio
(202) 232-1180

Attorneys for the Plainti?" Class By: 
ARINA UTGOF WELL.

D.C. Bar #416587
BRIAN P. HUDAK
Assistant United States Attorneys
555 Fourth Street, NW
Washington, DC 20530
(202) 252-2549

Attorneys for the Federal Defendants

 

2 . . .
As re?ected 1n the memorandum, clalmants who participated in the District of

Columbia Settlement will not need to submit a new claim form to be deemed eligible and
participating in the Proposed Settlement. By default, such persons are automatically deemed
participants in the Proposed Settlement without need for further action. Should any wish to opt
out or exclude themselves, they can do so upon their own initiative.

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Case 1:02-cv-02283-EGS Document 1034-1 Filed 05/10/15 Page 1 of 29

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JEFFREY BARHAM, et al.,
Plaintiffs,
v.
CHIEF CHARLES H. RAMSEY, et al.
Defendants.

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Civil Action No. 02-2283 (EGS)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
JOINT MOTION FOR PRELIMINARY APPROVAL OF PROPOSED CLASS
SETTLEMENT, NOTICE TO CLASS, AND NOTICE OF FAIRNESS HEARING
By and through their undersigned counsel, the class representatives in this action (“Class
Representatives”) 1 and the certified class of Plaintiffs (collectively, the “Plaintiff Class” or
“Plaintiffs”) and the United States of America; Sally Jewell, U.S. Secretary of the Interior, in her
official capacity; Loretta E. Lynch, the U.S. Attorney General, in her official capacity; and
former-Major Richard Murphy (“Major Murphy”) of the U.S. Park Police (the “Park Police”) in
his individual and official capacities (collectively, the “Federal Defendants”) respectfully submit
this memorandum of points and authorities in support of their joint motion (“Motion”) for
preliminary approval of the proposed settlement between the Plaintiff Class and the Federal
Defendants (the “Proposed Settlement”).
For reasons set forth herein, the Proposed Settlement, which includes significant
equitable reform and a total monetary component of $2,208,000, warrants preliminary approval

1

The Class Representatives are Mary Canales, William Durham, Noah Falk, Jorge GarciaSpitz, Mark Allan Jackson, Casey Legler, Charlcie Legler, Sally A. Norton, John Passacantando,
Joseph Phelan, Nicole Prichard, Morgan Ress, Macdonald Scott, Jeri Wohlberg, Lesley Wood,
Samantha Young, and Stephen Zimmerman.

 Case 1:02-cv-02283-EGS Document 1034-1 Filed 05/10/15 Page 2 of 29

of this Court, subject to the Court’s final consideration at a fairness hearing. The Proposed
Settlement is (i) fair, reasonable, and adequate, in the best interest of the Plaintiff Class as a
whole; and (ii) satisfies the requirements of Federal Rule of Civil Procedure (“Rule”) 23 and due
process. The monetary relief in the Proposed Settlement is fair, reasonable, and adequate, and,
when combined with settlement payments already made by the District Defendants in this class
action lawsuit, 2 results in payments to members of the Plaintiff Class totaling nearly four times
that received by class members who claimed nearly identical damages in the same conditions of
confinement for September 27, 2002, protest-related arrests in Burgin v. District of Columbia,
Civil Action No. 03-02005 (EGS) (D.D.C.). The attorneys’ fees and expenses in the Proposed
Settlement are likewise reasonable and reflect the considerable time and expenses incurred by
Plaintiffs’ counsel, who ably, diligently, and professionally litigated this case against the Federal
Defendants.
Lastly, and significantly, the Proposed Settlement includes meaningful and important
equitable relief. The parties believe that the changes the Park Police has made and will make to
its policies and procedures for handling mass demonstrations and potential high volume arrests -including in the context of inter-jurisdictional cooperation, which context underlies this matter -will avoid the circumstances that occurred on September 27, 2002 from recurring. This equitable
relief balances the role of the Nation’s Capital as the location of prominent demonstrations and
mass assemblies with the significant national security concerns that exist in protecting the seat of
our Government and its agencies. Further, the reforms in Park Police procedures for responding
to mass demonstrations both serve to “benefit future generations” -- as this Court characterized
2

The “District Defendants” refers to the District of Columbia; MPD; the Mayor of the
District of Columbia in his or her official capacity; former MPD Chief of Police Charles H.
Ramsey in his official and individual capacities; and MPD Assistant Chief of Police Peter A.
Newsham in his official and individual capacities.

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the District Settlement (defined below) in this action -- and establishes a model of “best
practices” for law enforcement.
The District uniquely contains many different law enforcement agencies that have
responsibilities for protests with marches and assemblies that routinely cross multiple federal and
local jurisdictions. The equitable reforms in the Proposed Settlement combined with the relief
obtained through other First Amendment litigation in the District by Class Counsel, as well as
the District’s enactment of the landmark First Amendment Rights and Police Standards Act,
places the Nation’s Capital at the forefront of balancing the needs of law enforcement with
respect for cherished First Amendment rights.
In sum, the Plaintiff Class and the Federal Defendants urge this Court to promptly grant
this Motion to set the course for the Proposed Settlement to be approved in the near future to
conclude this settlement before the trial in Chang v. United States, Civ. A. No. 02-2010 (EGS)
(D.D.C.), which is set to commence on July 1, 2015.
BACKGROUND
I.

PROCEDURAL HISTORY.
The procedural history of this action reveals dedicated efforts by counsel for the Plaintiff

Class (“Class Counsel”) and the Federal Defendants to represent their clients with the upmost
diligence and care.
The Class Representatives commenced this action on November 19, 2002, on their own
behalf and on behalf of those similarly situated who were arrested in Pershing Park on
September 27, 2002, which coincided with meetings in Washington, DC of the International
Monetary Fund and the World Bank (“IMF/WB”). R.1 (Compl.). The Plaintiff Class generally
alleged that the Park Police assisted MPD officers in confining the members of the Plaintiff

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Class in Pershing Park and subsequently physically arresting and detaining them for hours, all
without probable cause.
Subsequently, the Plaintiff Class amended their complaint on three occasions, ultimately
alleging the following general claims against the Federal Defendants: (i) monetary claims against
Major Murphy arising under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics (“Bivens”), 403 U.S. 388 (1971), and Section 1983 of Title 42 of the U.S. Code; and
(ii) injunctive claims against the Federal Defendants seeking a declaratory judgment that
Plaintiffs’ arrests were unlawful and to enjoin federal law enforcement authorities from using in
the future certain practices employed in Plaintiffs’ arrests, and (iii) prayers for expungement
relief. R.216 (3d Amd. Compl.).
The Federal Defendants unsuccessfully sought to dispose of Plaintiffs’ claims in their
favor at the threshold. See Barham v. Ramsey, Civ. A. No. 02-2283 (EGS), 2007 WL 2007335,
at *1 (D.D.C. July 1, 2007). Thereafter, Major Murphy took an unsuccessful appeal of the
Court’s denial of qualified immunity to the D.C. Circuit, which ruled that Major Murphy’s
entitlement to qualified immunity turned on disputed issues of fact. Barham v. Salazar, 556 F.3d
844, 849 (D.C. Cir. 2009).
Also, by Memorandum Opinion and Order dated September 24, 2003 (R.56), the Court,
over the Federal Defendants’ objections, provisionally certified the Plaintiff Class in this action
to consist of “all individuals who were arrested in Pershing Park in the District of Columbia on
September 27, 2002[.]” Barham v. Ramsey, 217 F.R.D. 262, 275 (D.D.C. 2003). 3

3

This provisional certification was subject only to any possible motion for reconsideration
filed by the District Defendants. On October 9, 2003, the District Defendants advised the Court
that they did “not seek the Court’s reconsideration of its provisional decision to certify the
Barham case as a class action.” R.64.

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Before and after these initial rulings, Plaintiffs and the Federal Defendants engaged in
extensive discovery, which at times required judicial intervention to resolve disputes. See, e.g.,
R.355, 479. Since mid-2010, counsel for Plaintiffs and the Federal Defendants have diligently
explored a settlement of this action, including exchanges of legal theories, damages, and
intensive settlement discussions.

Ultimately, due in significant part to Class Counsel’s

exceptional efforts, and the committed assistance of mediator Cornish Hitchcock for portions of
the discussions, the parties have reached the Proposed Settlement.
II.

PLAINTIFFS’ SETTLEMENT WITH THE DISTRICT DEFENDANTS
In February 2010, the District Defendants and the Plaintiff Class reached a tentative

settlement as to the claims pending against the District Defendants (the “District Settlement”).
R.595. After observing the proper prerequisites, the Court granted final approval of the District
Settlement on September 22, 2010.
Prior to the approval of the District Settlement, and due in substantial part to Plaintiffs’
litigation efforts, the Council of the District of Columbia passed the First Amendment Rights and
Police Standards Act which caused wide sweeping reforms of MPD’s policies and practices
concerning mass arrests, including (i) the use of police lines to surround groups of protesters, (ii)
arrests based on demonstrating without a permit, (iii) use of dispersal orders, (iv) conditions of
confinement and restraint imposed on persons arrested in protests, and (v) other improper
techniques MPD allegedly used during the events in Pershing Park on September 27, 2002.
R.595-1 (Mot. Prelim. Approval of District Settlement) at 3-14.
Through its Settlement, the District Defendants agreed to further reforms concerning (a)
document managements systems, (b) litigation hold procedures, (c) preservation of command
center records and data, and (d) procedures for indexing and logging photographic, video, and
other recorded evidence. Id. at 21-22. The District Settlement also provided for individual
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orders annulling class members’ arrests pursuant to prior expungement orders issued by the
Court. Id. at 16.
As to monetary relief, the District Defendants agreed to pay each Class Representative
$50,000 and each other member of the class roughly $18,000, depending on the number of
claimants. Id. at 16-18. The District Defendants also agreed to pay Class Counsel a total of
$2,463,333 in attorneys’ fees and costs, which represented 29.9% of the total, purely monetary,
relief in that settlement. Id. at 23.
DISCUSSION
The relief contemplated by Plaintiffs’ and the Federal Defendants’ Proposed Settlement
is fair, reasonable, and adequate, and complies with all relevant legal authorities. Further, the
parties’ timetable for persons to receive notice, to object, and to opt-out of the proposed
monetary relief are consistent with legal requirements and provide a meaningful opportunity for
those interested in this matter to be heard. In sum, the Court should approve on a preliminary
basis the Proposed Settlement and enter the parties’ proposed schedule to govern further review
of it.
I.

ALL ELEMENTS OF THE PROPOSED
REASONABLE, AND ADEQUATE.

SETTLEMENT

ARE

FAIR,

The Proposed Settlement consists of three general components: (i) certain changes in
Park Police policies concerning mass arrests; (ii) monetary relief for the Plaintiff Class; and (iii)
attorneys’ fees and costs for Class Counsel. These components each, and collectively, constitute
fair, reasonable, and adequate consideration for Plaintiffs’ claims in light of controlling law, the
circumstances of this case, and the respective litigation risk of Plaintiffs and the Federal
Defendants.

Also, in conjunction with the Proposed Settlement, counsel for the Federal

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Defendants have apprised Class Counsel regarding the expungement efforts undertaken by the
Federal Bureau of Investigation (“FBI”) at the request of the District Defendants.
A.

Amendments to the Park Police’s Policies and Procedures Are Meaningful
Reforms and Address the Concerns Underlying Plaintiffs’ Claims.

The Proposed Settlement includes substantive changes in the Park Police’s handling of
mass demonstrations, specifically where issues of arrest may arise in the context of First
Amendment protected activity. These changes address the use of police lines, particularized
probable cause, and the provision of notice, fair warnings, and the opportunity to disperse or
otherwise comply with police orders.

The Class Representatives and Class Counsel have

maintained a determination to achieve meaningful equitable reform in light of the circumstances
underlying the events of this matter to avoid similar occurrences in the future. All parties believe
that not only has this been achieved in this Proposed Settlement, but that the amendments to the
Park Police’s policies and procedures as identified in this agreement serve as a model for law
enforcement policies and procedures in similar contexts. Portions of these amendments are
highlighted below.
1.

Changes to Policies and Practices -- Interagency Coordination During
Mass Arrests.

In the Proposed Settlement, the Park Police has agreed to revise and reissue its
“Memorandum to the Force regarding Coordination with Other Law Enforcement Agencies and
the Handling of Possible Violations by Other Agencies during Such Situations” to include the
following:
If the violation involves use of Force officers to help effectuate high volume
arrests and prevent demonstrators from being free to leave or disperse in a manner
inconsistent with General Order 2108.03, the Force officer in charge shall request
the other agency’s on-site supervisor to provide demonstrators with dispersal
order(s) and an opportunity to comply.

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2.

Changes to Policies and Practices -- Mass Arrest Policies and
Procedures.

In the Proposed Settlement, the Park Police has agreed to revise and reissue its General
Order regarding “High Volume Arrest Procedures” to include the following:
•

In Section 2108.01, entitled “POLICY:”
o

Force officers shall not independently, or at the request of another police
agency, substantially surround or enclose a demonstration group and
prevent them from leaving the area unless either (1) warnings and an
opportunity to disperse have occurred in the situations detailed in General
Order 2108.03A and B, or (2) under the circumstances detailed in General
Order 2108.03C-D.”

•

In Section 2108.03, entitled “HIGH VOLUME ARREST PROCEDURES FOR
NOTICE, CLOSING THE AREA, AND OPPORTUNITY TO DISPERSE:”
o

[A] All arresting officers should be positioned in the rear of the crowd so
they can hear the warnings, which should be issued by a Force Official at
the rank of Lieutenant or above. The crowd shall then be advised, using
sound amplification equipment as needed, that they (the group) are in
violation of a specified law and will be arrested if they do not disperse or
cease their illegal activity. The arresting officers positioned in the rear of
the crowd should give a verbal and/or physical indication to the official
giving the warnings, confirming that they are audible. Reasonable exit
avenue(s) will be made available to allow members of the crowd to exit
the area and the warnings shall inform the crowd where the exit avenue(s)
is located. The warning shall be repeated three times, with approximately

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2 minutes between each warning, to give those who choose not to be
arrested time to leave the immediate closed area. If recorded over the
Force radio, a dispatcher shall be asked to give a time check prior to
issuing each warning.
SAMPLE WARNING: Attention. This is [identify announcing officer] of
the United States Park Police. Because you are in violation of regulations
applicable to this area, that prohibit [describe the violation] your permit to
demonstrate on [describe area] is revoked. You must leave [describe area]
now by using one of the available exists located at [describe available exit
area(s)]. All persons remaining will be arrested. (This is your final
warning. ADD TO LAST WARNING ONLY.)
o

[B] In the event that the crowd is a demonstration [as more fully defined at
36 CFR 7.96(g)(1)(i)] engaging in unlawful acts, no area will be closed
around them by using a police line to encircle, or substantially encircle
them, except when (1) probable cause exists to believe that a significant
number or percentage of the persons located in the area have committed
unlawful acts, (2) the Force has the ability to identify those individuals
and have decided to arrest them, and (3) that the area needs to be closed to
help maintain order and public safety during the arrest process.

o

[E] In situations detailed in Subsection B, in the event that the Force is
requested by another police agency to partially enclose or surround a
demonstration activity due to unlawful violations, the Force OIC shall
work with the other police agency’s OIC to ensure that necessary actions
are taken that exit avenues are clearly made known to demonstrators,
including as necessary the use of amplified warnings. If Force officers are
part of the police line, the exit avenues should be conveyed to those
officers over Force radio and such officers should convey such exit avenue
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information to persons of their own initiative who are seeking to leave the
area.
B.

The FBI Has Taken Appropriate Efforts to Expunge Arrest Records of the
Class Members in Response to Requests Made by the District Defendants
and Is Taking Additional Efforts to Ensure All Records Have Been
Expunged.

As background, expungement and annulment relief was granted by Court Order dated
January 28, 2008 (Dkt. No. 405). Among other relief set forth in that Order, the Court declared
that “The arrests of the Barham Plaintiffs and the absent class members are hereby declared null
and void. Each of the Barham plaintiffs and the individual absent class members is authorized to
deny the occurrence of his or her arrest that day, without being subject to any penalty of perjury,
fraud or other offense premised upon misrepresentation or deception in response to any inquiry,
whether posed orally or in writing. These rights accrue to the full benefit of any absent class
member regardless of whether an individualized entry of a nullification order [see below] is
entered.”
The January 28, 2008 Order also provided for the creation of individualized orders of
annulment, and subsequently for each participating class member the Clerk of Court received
and the Court issued an order that states as follows:

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ORDER
The arrest of [insert name, date of birth, and social security number] on
September 27, 2002, in the District of Columbia is hereby declared null and void.
[Mr. or Ms. insert last name] is authorized to deny the occurrence of his or her
arrest that day, without being subject to any penalty of perjury, fraud, or other
offense premised upon misrepresentation or deception in response to any query,
whether posed orally or in writing.
So Ordered on this ____ day of __________ [date to be inserted]
[signed]
EMMET G. SULLIVAN
United States District Judge
The expungement relief in the January 28, 2008 Order required: “The District of
Columbia shall provide for the expungement of the Barham Plaintiffs’ arrest records and for
those of all absent class members (all persons arrested on September 27, 2002 [in the] mass
arrest of persons that took place in Pershing Park) relating to the September 27, 2002 arrests that
are maintained by the District of Columbia[.]” The Order also required that “The District of
Columbia is to use its best efforts to procure expungement of the September 27, 2002 arrest
records of any Pershing Park case Plaintiff or absent class member in the possession of the
United States Government (including, but not limited to, the Federal Bureau of Investigation),
[or] any state or local government[.]”
Previously in this litigation, the FBI informed Class Counsel of steps it undertook to
expunge the arrests of Class Members from its criminal history information systems.
Additionally, the FBI is now in the process of running the known list of Class Members against
information systems containing criminal history information maintained by the Criminal Justice
Information Services Division (“CJIS”) to confirm that there are no records in any such file for a
Class Member of an arrest made by the Metropolitan Police Department (“MPD”) on or about
September 27, 2002. If the FBI identifies any positive hits from these searches the FBI, through

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counsel, will promptly seek a request from the MPD to expunge these records, and will so advise
Class Counsel of any such request, and will promptly comply with any MPD request to so
expunge, and will advise Class Counsel of any such compliance undertaken.
Once the FBI concludes these efforts and apprises Class Counsel of the results, the
parties anticipate filing a subsequent motion seeking the Court’s approval of a voluntary
dismissal without prejudice of the claims currently pending against the FBI in this matter, which
with the Proposed Settlement will dispense with all remaining claims in this action.
C.

The Monetary Relief for the Plaintiff Class is Fair, Reasonable, and
Adequate.

The Proposed Settlement includes as monetary relief for the Plaintiff Class a maximum
possible settlement fund of $1.64 million dollars to be paid by the U.S. Department of the
Interior on behalf of Major Murphy. The parties reached an agreement on this amount assuming
the total number of arrestees was 386, a class participation rate of 85%, and a projected payment
to each class member of $5,000, rounding to the nearest whole person. This settlement is fair,
reasonable, and adequate to all parties.
First, based on Class Counsel’s significant outreach efforts and success in reaching class
members in the District Settlement, the Proposed Settlement includes a higher assumed
participation.

That is, in the District Settlement, the participation rate exceeded 75%.

Accordingly, the parties here have set an expected participation rate of 85% in calculating the
maximum settlement fund.
Second, establishing a maximum settlement fund based on reasonable assumptions is fair
and reasonable to all involved. It allows the Federal Defendants to have a maximum out of
pocket expenditure, while permitting each member of the Plaintiff class a recovery in the
anticipated recovery range. Should the participation rate be equal to or lower than 328 eligible

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Claimants (85% of the estimated total number of arrestees), each eligible Claimant shall receive
a payment of $5,000. Should the participation rate be higher than 328 eligible Claimants, each
eligible Claimant shall be allocated and awarded a pro-rata share of the Class Fund. This will
result in a payment of some measure less than $5,000. See Proposed Settlement at II.A.2, Ex. 1.
Even were all class members to participate (representing a 100% participation rate), each class
member would still receive $4,248.70.
Third, the total size of the settlement fund and the amount allocated to each Plaintiff
represents fair and adequate consideration for their claims in this action.

Together with

payments from the District Settlement, each member of the Plaintiff Class who participates in
both settlements will have received approximately $21,000 in recovery with the Class
Representatives having received $55,000 each.

These recoveries compare favorably to

recoveries in other similar actions, which were found to be fair, reasonable, and adequate.
For example, each class member in Burgin v. District of Columbia, Civ. A. No. 03-02005
(EGS) (D.D.C.) at R.65, received approximately $6,000. This is so despite the Burgin class
members having been arrested on the same date as Plaintiffs and having been largely merged by
MPD during their physical detention. In other words, as a class, the Burgin arrestees from
Vermont and K suffered identical injury and identical conditions and durations of confinement as
Plaintiffs, but Plaintiffs will in total have received nearly four times the recovery. The total
recovery here for class members is also similar to which the Court found fair, reasonable, and
adequate in Becker v. District of Columbia, Civ. A. No. 01-0811 (PLF) (D.D.C.), a case
involving mass arrests occurring on April 15, 2000.
Fourth, the proposed monetary relief properly balances potential litigation risks that
Plaintiffs might still face should they continue to litigate this action. The Federal Defendants

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have moved for summary judgment in Chang v. United States, Civ. A. No. 02-2010 (EGS)
(D.D.C.), on a number of claims similar to those asserted by Plaintiffs here. Although Class
Counsel believes that the Plaintiff Class would prevail at trial, a recovery against the Federal
Defendants is not a certainty at this time. Indeed, the D.C. Circuit opined that Major Murphy
may still be entitled to qualified immunity should certain disputed issues of fact be resolved in
his favor. Should Major Murphy prevail on that defense, the Plaintiff Class would not be entitled
to monetary relief.
Fifth, under the terms of the Proposed Settlement the Class Representatives are to receive
the same amounts as the class members and have foregone receiving any enhancement. That is,
the Proposed Settlement seeks to compensate all Plaintiffs equally in recognition that the Class
Representative received additional sums to account for their diligent participation in this action
through the District Settlement. The Class Representatives continued to commit time in the years
since the District Settlement to conscientiously evaluate settlement discussions and diligently
advocate for the class members interests.
Sixth, and lastly, the funds for the Proposed Settlement have now been allocated by the
U.S. Department of the Interior on behalf of Major Murphy and the proposed settlement fund is,
thus, already tentatively funded.
In sum, the monetary payment to each class member is fair and adequate in light of its
assumptions, comparisons to other similar cases, the remaining litigation risks in this action, the
equality to all class members, and the promptness with which payment is expected.
D.

Class Counsel’s Attorneys’ Fees and Costs Are Fair, Reasonable, and
Adequate.

The Proposed Settlement provides an award of $568,000.00 to Class Counsel as
attorneys’ fees and costs. When awarding attorneys’ fees in a class settlement, the court has a

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duty to ensure that the claim for attorneys’ fees is reasonable. See Hensley v. Eckerhart, 461
U.S. 424, 433 (1983). Here, the attorneys’ fees and costs in the Proposed Settlement satisfy this
test.
As an initial matter, the attorneys’ fees were negotiated after the amount of recovery to
class members was negotiated, and reflects a negotiation of the Federal Defendants’ potential
exposure on attorneys’ fees less litigation risk that the Plaintiffs may face should this case
proceed to trial. Accordingly, the attorneys’ fees are allocated separately and independently of
the class members’ recovery. Indeed, the award of attorneys’ fees does not decrease the amount
received by the class members.
Further, the attorneys’ fees in the Proposed Settlement satisfy legal precedents for
assessing fairness in cases such as this. “In a true common fund case, the attorneys’ fees would
be taken from a fund shared in common with class plaintiffs; therefore, the amount recovered by
plaintiffs is reduced by the amount awarded in attorneys’ fees.” Hensley v. Wade, 461 U.S. 30,
36 (1983). “The proper measure of [attorneys’] fees in a comon fund case is a percentage of the
fund.” Swedish Hosp. v. Shalala, 1 F.3d 1261, 1263 (D.C. Cir. 1993). This is so because:
the lodestar approach in common fund cases encourages significant elements of
inefficiency . . . [and] if we apply the lodestar method to the common fund case,
then the attorney inefficiently expending an excess amount of time does stand to
gain by that inefficiency if the awarding court does not ultimately recognize the
inefficiency in the far-from-exact testing of the fee award hearing. The danger
that the court will not recognize unreasonably expended hours is magnified by the
fact that in the common fund case the only party having an adverse interest at the
time of the award will be the attorney’s own clients, often a diverse and scattered
group with small individual stakes.
Id.
Here, the Proposed Settlement does not constitute a true common fund as the parties
established a separate attorneys’ fee fund. That is, this case does “not present the typical conflict
of interest between class counsel and class members that underlies the application of the
- 15 -

 Case 1:02-cv-02283-EGS Document 1034-1 Filed 05/10/15 Page 16 of 29

percentage of recovery method” because the class members’ recovery is not affected by the fee
award. In re Vitamins Antitrust Litig., MDL No. 1285, 2001 WL 34312839, at *4 (D.D.C. July
16, 2001) (Hogan, C.J.). Nonetheless, it is appropriate to consider this case to be a “constructive
common fund” case because “the agreement to pay settlement claims and attorneys’ fees yielded
a calculable amount” against which to base a percentage of recovery evaluation.

Id.

Accordingly, the Court should assess the fairness and reasonableness of the attorneys’ fees by
summing the collective relief and analyzing the percentage of that relief assigned to attorneys’
fees in light of existing precedents.
Even were the Court to focus solely on the comparison of the amount of attorneys’ fees
against the settlement fund (and exclude consideration stemming from changes in the Park
Police’s policies), the attorneys’ fees fall comfortably into the range of acceptable class counsel
fees. When all pure monetary components of the Proposed Settlement (settlement fund and
attorneys’ fees and costs) are combined, the total settlement equals $2,208,000.00 with
$568,000.00 set aside for attorneys’ fees and costs. As such, the attorneys’ fees and costs
amount to 25.7% of the monetary relief.

This percentage is consistent with other class

settlements in this District. See Bynum v. District of Columbia, 412 F. Supp. 2d 73, 81 (D.D.C.
2006) (Lamberth, J.) (awarding 33% of total monetary relief as fair and reasonable attorneys’
fees); In re Vitamins Antitrust Litig., 2001 WL 34312839, at *4 (award of 33% fair and
reasonable); see also Federal Judiciary Center, Empirical Study of Class Actions in Four Federal
District Courts: Final Report to the Advisory Committee on Civil Rules, at 69, 90 (1996)
(reporting that most class action fee awards, in its study of 407 class action lawsuits, “were
between 20% and 40% of the gross monetary settlement” and that “attorneys’ fees were
generally in the traditional range of approximately one-third of the total settlement”); Reagan W.

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 Case 1:02-cv-02283-EGS Document 1034-1 Filed 05/10/15 Page 17 of 29

Silber & Frank E. Goodrich, Common Funds and Common Problems: Fee Objections and Class
Counsel’s Response, 17 Rev. Litig. 525, 545-46 (1998) (reporting results of a 1994 study by
National Economic Research Associates that attorneys’ fees in class actions averaged 32% of the
recovery, regardless of case size, and averaged 34.74% when the fees and expenses were added
together). Notably, the percentage of attorneys’ fees in the Proposed Settlement (25.7%) is less
than the percentage in the District Settlement (29.9%) when comparing purely monetary
components, and the Court approved the attorneys’ fees in the District Settlement as fair and
reasonable. R.640 (Order of 9/22/2010).
Additionally, the Class Representatives believe that Class Counsel’s representation in this
litigation has been exceptional, and all agree (including the Federal Defendants) that Class
Counsel expended significant time and energy in capably and diligently representing the Plaintiff
Class. As noted above (supra at 2-5), the procedural history of this case, which has now been
pending for almost 13 years, reflects a hard fought, protracted, complex, and resource-intensive
litigation. The docket alone proves these points, now encompassing more than 1,030 filings.
There is no room for dispute, Class Counsel dutifully and professionally represented the Plaintiff
Class and have achieved significant and impactful results from their efforts. See also R.595-1
(Mot. Prelim. Approval of District Settlement) at 26-28.
Lastly, in this resolution, Class Counsel has forgone any additional recovery of costs and
expenses. Class Counsel has also forgone recovery of additional fees and costs attributed to
necessary services during administration of the class claims.
In sum, the attorneys’ fees are reasonable as a percentage of the recovery, measured
strictly in monetary terms. The benefit to the class from counsels’ services is far greater than
simply the monetary relief as is evidenced by the substantial advancement of key constitutional

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 Case 1:02-cv-02283-EGS Document 1034-1 Filed 05/10/15 Page 18 of 29

rights issues and matters of public integrity in this litigation and the securing of meaningful and
important equitable relief.
II.

THE PARTIES’ PROPOSED SCHEDULE IS FAIR AND COMPLIES WITH ALL
APPLICABLE AUTHORITIES.
The Proposed Settlement, proposed class notice, and opportunity to opt out appropriately

accommodates the due process interests of class members to opt out of the monetary portion of
the class settlement. The notice, hearing and opt-out provisions satisfy and exceed the
requirements of Fed. R. Civ. P. 23(e), which governs settlement notice issuance.
As required by the applicable rule, the proposed notice will issue “in a reasonable manner
to all class members who would be bound by the proposal,” Fed. R. Civ. P. 23(e)(1), the
approval process provides for a fairness hearing, Fed. R. Civ. P. 23(e)(2), a copy of the
settlement agreement is identified, Fed. R. Civ. P. 23(e)(3), while discretionary, the proposed
process provides for a second or supplemental opt-out opportunity for class members, Fed. R.
Civ. P. 23(e)(4), provides a mechanism for class members to present objection, Fed. R. Civ. P.
23(e)(5), and offers a supplemental period of thirty (30) days to complement the original
seventy-five (75) day period manifest in the District Settlement during which any additional
heretofore non-participating class members may submit a proof of claim (Ex. 5).
If an eligible Class Member did not file a timely claim in the District of Columbia
settlement, the process establishes a thirty (30) day supplemental claim period in which he or she
may file a timely and eligible Proof of Claim (Ex. 5) and participate in the proposed settlement
with the Federal Defendants.

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 Case 1:02-cv-02283-EGS Document 1034-1 Filed 05/10/15 Page 19 of 29

A.

Notice is Directed in a Reasonable Manner Pursuant to Rule 23(e)(1).

The distribution and substance of the proposed notice satisfies all requirements for notice
to a Rule 23(b)(3) class, which are the strictest and the fullest notice requirements of any class
type. See Fed. R. Civ. P. 23(c)(2); Proposed Notice, Exs. 2, 3, 4.
Participants to the District Settlement will not need to submit a new claim form to be
deemed eligible and participating in the Proposed Settlement. 4 By default, such persons are
automatically deemed participants in the Proposed Settlement without need for further action.
Should any wish to opt out or exclude themselves, they can do so upon their own initiative.
This streamlined procedure is intended to maximize participation of known class
members. This default procedure will obviate the need to start anew given that notice to, and
extraordinary efforts to reach, the Plaintiff Class has already occurred on a large-scale and wide
sweeping basis in regards to the District Settlement. Notably, the notice and claim period for the
District Settlement, which lasted for 75 days, was already approved by the Court as reasonable
and satisfactory under the mandates of Rule 23.
The Proposed Settlement provides for a supplemental claims period for an additional
thirty (30) days (the “Supplemental Period”) in which any heretofore non-participating class
member, to the extent any may come forward given the thoroughness of outreach efforts in
connection with the District Settlement, may participate and receive compensation in the
Proposed Settlement. Class Counsel are aware of approximately five (5) individuals who may be
eligible class members and who failed to file a timely claim in connection with the District of
Columbia settlement. Efforts are already underway to reach out to those persons, alert them to
4

This approach is consistent with best practices to minimize burdens on claimants and
streamline or eliminate claim procedures that otherwise could function as a barrier or filter to
participation. See e.g., Federal Judicial Center, Judge’s Class Action Notice and Claims Process
Checklist and Plain Language Guide, 2010 at 6.

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 Case 1:02-cv-02283-EGS Document 1034-1 Filed 05/10/15 Page 20 of 29

the Proposed Settlement, and determine if any updates to contact information is needed for
issuance of notice to each. 5
The scope of notice shall include individual notice to all members who can be identified
through reasonable effort. See Fed. R. Civ. P. 23(c)(2)(B). The expansive notice and outreach
efforts in connection with the District Settlement have already resulted in the identification of all
members who can be identified through reasonable effort, an extensive undertaking that reached
85% of the Plaintiff Class.
At the Fairness Hearing for the District Settlement on September 22, 2010, the Court
recognized the “excellent and thorough efforts” to reach the Plaintiff Class which “yielded a
tremendous level of participation by members of the class.” Fairness Hearing Tr. of 9/22/2010 at
at 11.
As reflected in the Plaintiffs’ and the District Defendants’ Joint Motion for Final
Approval of Proposed Class Settlement and Payment Distribution (R. 629), prior notice was sent
to the last known address of all identifiable Class Members, updated as available through the
U.S. Postal Service National Change of Address (“NCOA”) database. The Claims Administrator
also used a commercial third party locator service, the Accurint Service, which draws upon a
broader set of information than the NCOA database including public records and credit report
header information, as an additional source to secure updated addresses for potential Class
Members.

5

For example, this Court filed in the record of this matter a letter from Pola Sieverding (R.
642) who resides on a different continent and who did not timely file a claim in connection with
the District of Columbia settlement. R.642. Class Counsel has already been in direct
communication with Ms. Sieverding in Europe to confirm and update her contact information
and ensure that she has every opportunity to participate in the Proposed Settlement.

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 Case 1:02-cv-02283-EGS Document 1034-1 Filed 05/10/15 Page 21 of 29

The administrator established a unique website for class related information. Information
and hyperlinks to the online Notice and Proof of Claims forms were posted on the front page of
the D.C. Metropolitan Police Department’s website, the D.C. Office of the Attorney General’s
website, and on the front of the Partnership for Civil Justice Fund’s website.
A short form of the Class Notice was published once a week for two weeks, including in
one Sunday edition, in the Washington Post, and in two consecutive weekly editions of the
Washington City Paper. A full page notice was run twice in the national-circulation magazine,
The Nation, and twice in the national magazine, The Progressive, and was posted as an online
banner ad on the website of the Huffington Post.
Using telephone numbers from the Accurint service, the Claims Administrator engaged in
phone banking efforts to call those numbers and reach possible class members who had not yet
filed claims. Class Counsel independently sent email announcements to thousands of persons
who had signed up for updates on the Partnership for Civil Justice Fund’s work generally or the
Barham class action specifically.

Recipients were asked to redistribute the announcement

widely and post on appropriate website and social networking media. Links or “widgets” were
available in the email to enable the recipient to re-transmit the email to friend, post to Facebook
pages or circulate on Twitter. Midway through the claims period, the Claims Administrator sent
postcard reminder notices to known or potential Class Members who had not yet filed a Proof of
Claim. With one month remaining in the claims period, Class Counsel undertook a second email
campaign to encourage persons that time was running out and to file claims if they were eligible.
Class Counsel set up an internet based “E-Card” so that known Class Members (who might have
knowledge of other class members) or anyone would be sent an email notice and announcement
of the settlement and claims process. Class Counsel also republicized the settlement through

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 Case 1:02-cv-02283-EGS Document 1034-1 Filed 05/10/15 Page 22 of 29

news interviews providing the settlement website and other details. See Joint Motion for Final
Approval of Proposed Class Settlement and Payment Distribution at 5-9.
These above-referenced and extensive efforts are believed to have reached and identified
and conveyed notice of this class action and the means to participate in it to “all members who
can be identified through reasonable effort.” See Fed. R. Civ. P. 23(c)(2)(B). Given that this
extensive notice effort also advised that participating class members would receive up to $18,000
in compensation from the District, as well as additional meaningful relief including
expungement, there existed a very strong incentive for everyone who was a class member to
identify themselves and participate.
Given the expansive outreach efforts, above, the Parties believe that all individuals
eligible to participate in the Proposed Settlement and who can be identified through reasonable
effort have already been identified as eligible or participating members to the District
Settlement.
The scope of notice in this Proposed Settlement, hereinafter “Settlement Notice,” will
include individual notice to all eligible Class Members identified through the District Settlement.
The Claims Administrator possesses addresses and/or email addresses for all such persons. A
short-form postcard notice shall be sent to these physical and electronic mail addresses. The
short-form Postcard Notice (Ex. 2) states in plain, easily understood language each component of
disclosure required pursuant to Fed. R. Civ. P. 23(c)(2)(B) (notice requirements for (b)(3)
classes). In addition, the notice directs recipients to the long-form Detailed Notice (Ex. 3), which
is available online or upon request to the Claims Administrator.

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 Case 1:02-cv-02283-EGS Document 1034-1 Filed 05/10/15 Page 23 of 29

The Postcard Notice will also be sent to the current or last known addresses (physical
and/or email) of the approximately five (5) above-referenced persons who may be class members
who did not file a timely claim in connection with the District settlement.
The Postcard notice will also be sent to the last known address of potential class members
to whom notice of the District settlement was transmitted and whose notice was not returned as
undeliverable and who did not participate in the District of Columbia settlement.
Identified class members will be reminded and advised in the Settlement Notice(s) to
update their contact information, if necessary, in anticipation of compensation from the Proposed
Settlement. The NCOA database will be used to update any short-form postcard notices that are
returned as undeliverable, and will be re-sent to any updated address.
The parties believe it is unlikely, given the extensive and successful outreach efforts in
connection with the District Settlement, that additional eligible claimants can be identified
through additional effort beyond the approximately five (5) persons known to Class Counsel
referenced above.
The Parties have agreed to open up the 30-day Supplemental Period in which new Proofs
of Claim (Ex. 5) can be submitted. This will enable persons who failed to file a timely notice of
claim in connection with the District of Columbia settlement to participate in the Proposed
Settlement as well as any other class members who come forward and timely file an eligible
Proof of Claim.
The class action website, www.PershingParkSettlement.com, the same site used for the
District Settlement, will be used to publish the long-form Detailed Notice (Ex. 3). Additional
means of publication of notice will include publication for two consecutive weeks in The
Washington City Paper (See Newspaper Notice, Ex. 4, containing the text of such notice)

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 Case 1:02-cv-02283-EGS Document 1034-1 Filed 05/10/15 Page 24 of 29

through dissemination to the Partnership for Civil Justice’s general email list and list of persons
specifically desiring information regarding Pershing Park related issues, and a link to the class
action settlement website will be posted during the Supplemental Period on the front page of the
website of the Partnership for Civil Justice Fund and on the website of the National Park Service.
Should any new Proofs of Claim be submitted, eligibility will be determined using the
same standards as were applied to determine eligibility under the District Settlement.
Distribution of the Class Fund shall proceed without delay. Unclaimed or undistributed
funds, plus any accumulated interest, will revert to the U.S. Department of the Interior by no
later than nine (9) months following the date of Final District Court Approval and the exhaustion
of any appeals (including any petition for writ of certiorari to the United States Supreme Court).
As discussed in further detail below, although the provision of opt-out rights is
discretionary, the Proposed Settlement permits any Class Member to opt-out of the Proposed
Settlement during the 30-day Supplemental Period. Those individuals who have previously
opted-out or were treated as doing so need take no further action, and remain opted out.
As discussed further below, the Proposed Settlement affords any class member the
opportunity to object within the 30-day Supplemental Period.
The 30-day Supplemental Period for joining, opting out or objections, would be
reasonable standing alone. The combined time of the notice period in the District Settlement (75
days) and the 30-day Supplemental Period is amply generous and constitutes reasonable notice to
the class under Rules 23(c)(2) and 23(e)(1). See Murthy v. Schafer, 579 F. Supp. 2d 110, 111
(D.D.C. 2008) (approving 30 day objection and opt-out period); Oncology & Radiation Assocs.,
P.A. v. Bristol-Myers Squibb Co., Civ. A. No. 01-2313, 2003 WL 21087979, at *2 (D.D.C. May
13, 2003) (Sullivan, J.) (approving 45 day opt-out period); In re Chinese-Mfr. Drywall Prods.

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 Case 1:02-cv-02283-EGS Document 1034-1 Filed 05/10/15 Page 25 of 29

Liab. Litig., MDL No. 2047, 2014 WL 4809520, at *17 (E.D. La. Sept. 26, 2014) (approving 30
day opt-out period from order on preliminary approval); Lowery v. City of Albuquerque, Civ. A.
No. 09–0457, 2013 WL 1010384, at *12 (D.N.M. Feb. 27, 2013) (approving use of 30 day optout period from notice date).
The specific timeline contemplated by the Proposed Settlement is as follows:
•

Initial notices will issue on or by May 15, 2015;

•

The Supplemental Period in which members can submitted new claims or opt-out
or object will last 30 days, up to and including, June 15, 2015.

B.

Provision of a Fairness Hearing Pursuant to Rule 23(e)(2).

As required by Fed. R. Civ. P. 23(e)(2), the proposed process provides for a fairness
hearing, an opportunity for class members to appear themselves or with counsel should they so
choose, and that final approval issue upon a finding that the Proposed Settlement is fair,
reasonable, and adequate.
As per the notice, Class Members who wish to appear at the Fairness Hearing are
required to indicate such interest in writing, postmarked by no later than June 15, 2015.
The parties propose that the Fairness Hearing be set for a date convenient to the Court
after responses to objections are due to be filed, which is June 22, 2015 and, preferably, before
July 1, 2015.
C.

Submission of the Settlement Agreement Pursuant to Rule 23(e)(3).

As required by Fed. R. Civ. P. 23(e)(3), the parties seeking approval have filed as an
exhibit to this motion a copy of the Settlement Agreement. A copy of the Settlement Agreement
shall be posted on the class action website so that it is available to Class Members.

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 Case 1:02-cv-02283-EGS Document 1034-1 Filed 05/10/15 Page 26 of 29

D.

The Opportunity to Opt-Out for Monetary Relief is Fair [Rule 23(e)(4)]

The Proposed Settlement protects class members’ due process rights and affords the
opportunity to opt out of the monetary claims or relief. The law distinguishes between relatively
limited opt out rights for equitable relief from the constitutionally required opt out rights for
monetary relief, which trigger jury entitlement rights.
As the Court is aware, this Court certified the Plaintiff Class under Rule 23(b)(2).
Barham, 217 F.R.D. at 275. Certification under Rule 23(b)(2) is appropriate in civil rights
lawsuits where equitable or injunctive relief is necessary to redress group injuries or to effect
institutional reform through injunctive relief. See Manual for Complex Litigation §21.142 (4th
ed. 2014); Eubanks v. Billington, 110 F.3d 87, 92 (D.C. Cir. 1997) (“civil rights class actions are
frequently certified pursuant to Rule 23(b)(2).”).
There is no mandatory right to opt out of the prospective equitable relief that may issue in
a Rule 23(b)(2) class action. See Tricor Title Ins. Co. v. Brown, 511 U.S. 117, 121 (1994) (per
curiam); Bynum, 412 F. Supp. 2d at 77 (issuing final approval of class action settlement,
pursuant to Rule 23(b)(2) “regarding prospective relief, no member of the class may opt-out.”);
Manual for Complex Litigation §21.142 (4th ed. 2014) (ordinarily, “a Rule 23(b)(2) class action
does not permit opting out”); Fed. R. Civ. P. 23(c)(2)(A) (no mandatory requirement that notice
must issue to a class certified under Rule 23(b)(2)).
“Although not required, this Circuit has held that District Courts have the discretion to
grant opt-out rights in class actions certified pursuant to Fed. R. Civ. P. 23(b)(1) or (2).” Barham,
217 F.R.D. at 274 (citing Eubanks, 110 F.3d at 94). A typical circumstance which may justify
recognition of notice and opt-out rights in a Rule 23(b)(2) class action, is where there are present
demands for both equitable relief (which are resolved by the Court) and monetary relief (which
may be resolved by jury), as is present in the instant case. “[W]here both injunctive and
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 Case 1:02-cv-02283-EGS Document 1034-1 Filed 05/10/15 Page 27 of 29

monetary relief are sought, the need to protect the rights of individual class members may
necessitate procedural protections beyond those ordinarily provided under (b)(1) and (b)(2).”
Eubanks, 110 F.3d at 95; see also Fed. R. Civ. P. 23 advisory committee’s note (2003
amendments).
Consistent with this framework, the Proposed Settlement provides that “[n]o opt outs for
the equitable relief are allowed.” See, e.g., Bynum, 412 F. Supp. 2d at 77 (approving class
settlement against District, allowing opt-outs for monetary relief and that “regarding prospective
relief, no member of the class may opt-out.”).
With respect to opting out opportunities for monetary relief, it is discretionary whether to
provide a second opportunity to opt out after the expiration of a first. See Fed. R. Civ. P. 23(e)(4)
(“the court may refuse to approve a settlement unless it affords a new opportunity to request
exclusion”); Fed. R. Civ. P. 23 advisory committee’s note (2003 amendments) (“Rule 23(e)(3)
authorizes the court to refuse to approve a settlement unless the settlement affords a new
opportunity to elect exclusion in a case that settles after a certification decision. . . .”); Denney v.
Deutsche Bank AG, 443 F.3d 253, 271 (2d Cir. 2006) (“Neither due process nor Rule 23(e)(3)
requires, however, a second opt-out period whenever the final terms change after the initial optout period. Requiring a second opt-out period as a blanket rule would disrupt settlement
proceedings[.]”)
Nevertheless, with respect to monetary claims, the Proposed Settlement allows Class
Members the opportunity during the Supplemental Period to opt-out of the Proposed Settlement.
Should any Class Member assert an objection to the underlying terms, he or she has the ability to
opt-out even notwithstanding that he or she may have already accepted substantial monetary
compensation in the District Settlement of this litigation.

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 Case 1:02-cv-02283-EGS Document 1034-1 Filed 05/10/15 Page 28 of 29

The procedure in the Proposed Settlement provides Class Members with all options
required by Due Process and the applicable rules and even more than what is merely adequate.
With respect to those individuals who, during or before the District Settlement process,
opted out of this lawsuit, each has participated in a separate lawsuit to advance his or her claims
regarding the underlying events. Most, although not all, of these separate opt-out claims have
proceeded to full resolution within their respective lawsuits. Persons who have previously been
deemed to have opted-out need not take any further action.
E.

Provision of Opportunity for Objections Pursuant to Rule 23(e)(5).

As required by Fed. R. Civ. P. 23(e)(5), any Class member may object to the proposal
during the 30-day Supplemental Period using procedures specified in the notice.

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 Case Document 1034-1 Filed 05/10/15 Page 29 of 29

CONCLUSION

For the reasons stated above, this Court should preliminarily approve the settlement.

schedule a hearing for final approval, and approve the proposed form and manner of notice.

The parties jointly urge the Court?s expeditious consideration of this motion and ?x a

date for the Fairness Hearing so that the schedule set forth by the parties, which envisions notice

issuing on or before May 15, 2015, can be adhered to.

Respectfully submitted,




 

Carl Messiheo. D.C. Bar #450033

Mara Verheyden-Hilliard, D.C. Bar #450031
PARTNERSHIP FOR CIVIL JUSTICE

617 Florida Avenue, NW

Washington, DC 20001

(202)232-1180

A ttorneysfor the Plaintiff Class

VINCENT H. COHEN, JR.. D. Ba 471489
Acting United States Attornc
DANIEL F. VAN 110? Bar #924092
Chief, Civil Divisio
ASWELL, 
D.C. Bar #416587
BRIAN P. HUDAK

Assistant United States Attorneys
555 Fourth Street, NW
Washington, DC 20530

(202) 252-2549

 
  
  

 

  

MARINA moor 

Attorneys fer the Federal Defendants

-29-

Case 1:02-cv-02283-EGS Document 1034-2 Filed 05/10/15 Page 1 of 19

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JEFFREY BARHAM,θ ′αl,
Plainti]も

,

C市il Action No.02-2283(EGS)

V.

CHIEF CHARLES HoRAヽ lSEY,α

αム
,

Defendants.

SETTLEMENT AGREEMENT BETWEEN FEDERAL DEFENDANTS AND THE
CLASS REPRESENTATIVES ON BEHALF OF THE PLAINTIFF CLASS
Class representatives Mary Canales, William Durham, Noah Falk, Jorge Garcia-Spitz,

Mark Allan Jackson, Casey Legler, Charlcie Legler, Sally A. Norton. John

Passacantando,

Joseph Phelan, Nicole Prichard, Morgan Ress, Macdonald Scott, Jeri Wohlberg, Lesley Wood,
Samantha Young and Stephen Zimmerman have sued Federal Defendants, the United States

of

America; Sally Jewell, Secretary of the U.S. Department of the Interior, in her official capacity;
Loretta E. Lynch, Attorney General of the United States, in her official capacity; and former-

Major Richard Murphy of the United States Park Police. in both his ottlcial and individual
capacities, in this matter, Barham" et al. v. Ramsey. et al. ,02-CY-02283 (EGS), asserting claims

of constitutional violations pursuant to Bivens v. Six Unknown Named Agents of the Fed.
Bureau of Narcotics, 403 U.S. 3S8 (1971) ("Bivens"), and violations

of 42 U.S.C. $

19g3.

PlaintifTs seek damages, declaratory and injunctive relief and attorneys'f'ees and costs.

In reliance upon the representations contained herein, and in consideration of the mutual
promises, covenants, and obligations in this Settlement Agreement, and for good and valuable

 Case 1:02-cv-02283-EGS Document 1034-2 Filed 05/10/15 Page 2 of 19

consideration, Plaintiffs and Federal Defendants, through their undersigned counsel, agree and
stipulate as follows:

I.

Definitions and General Provisions

A.

Definitions

1.

"Class" --

All individuals who were arrested in Pershing Park in the District of

Columbia on September

27,2002. The class was certified by Judge Emmet G. Sullivan on

September 24,2003 (Dkt. No. 56).

2.

"Class Administrator" or "Administrator" -- The parties have jointly agreed upon

the firm of Gilardi & Co., L.L.C. to serve as Class Administrator.

3.

o'Class Counsel"

or "Plaintiffs' Counsel" -- The

counsel

of

record for the

Plaintiffs and the Class. They are the Partnership for Civil Justice Fund, Carl Messineo and
Mara Verheyden-Hilliard.

4.

"Class Members" --

All

persons within or encompassed by the definition of the

Class -- including, but not limited to, the Class Representatives

-- who have not previously

excluded themselves or been deemed to have opted out of the class action.

5.

"Class Representatives" -- Mary Canales, William Durham, Noah Falk, Jorge

Garcia-Spitz, Mark Allan Jackson, Casey Legler, Charlcie Legler, Sally

A. Norton, John

Passacantando, Joseph Phelan, Nicole Prichard, Morgan Ress, Macdonald Scott, Jeri Wohlberg,

Lesley Wood, Samantha Young and Stephen Zimmerman.

6.

"Claimant(s)" Class members who actually file claims

pursuant

to

the

procedures set forth in this Agreement. "Claimants" also automatically includes Class Members

who submitted a timely and eligible claim in connection with the District Settlement, without

- Page 2 of 19-

 Case 1:02-cv-02283-EGS Document 1034-2 Filed 05/10/15 Page 3 of 19

need

for submission of an additional Proof of Claim form. Class Representatives are also

automatically deemed to be Claimants.

7.

"Class Action Website"

-- Website published on the Internet by the Class

Administrator in order to provide detailed and ancillary information to Class Members. The
website shall publish the Detailed Class Notice, the Proof of Claim form, a toll-free number for
contacting the Class Administrator and any other infbrmation requested by Class Counsel to be

so published or which at the initiative of the Class Administrator is deemed necessary or
appropriate

for

class notice

or

administration purposes. The website address shall be

www. PershingParkSettlement.com.

8.

ooClass

Settlement Fund" -- Sum to be paid by the United States Department of the

Interior on behalf of defendant Richard Murphy, totaling $2,208,000, subject to reversion, which

will be funded and/or distributed

as further described

in this Agreement. The Class Settlement

Fund is comprised of the following two components:

a)

"Class Fund"

--

That portion

of the Class Settlement Fund awarded and

distributed to each of the Class Members and Class Representatives. The total
amount of these funds shall be $1,640,000, subject to allocation, distribution and
potential reversion as described further below.

b)

"Attorneys' Fees and Costs Fund" -- That portion of the Class Settlement Fund
awarded as attorneys' fees and costs, including the costs of class notification and

administration of this settlement, to Class Counsel. The total amount of these
funds shall be $568,000.

- Page 3 of 19-

 Case 1:02-cv-02283-EGS Document 1034-2 Filed 05/10/15 Page 4 of 19

9.

"District Settlement" -- The Class's settlement in this action with the District of

Columbia and related Non-Federal Defendants, over which the Court granted final approval on
September 22,2010 (Dkt. No. 640).

10.

"Equitable Relief' -- The relief specified in Section

III

below entitled "Class-

Wide Prospective Relief."
I

l.

"Federal Defendants" -- The United States of America; Sally Jewell, Secretary of

the U.S. Department of the Interior, in her official capacity; Loretta E. Lynch, Attomey General

of the United States, in her official capacity; and former-Major fuchard Murphy of the United
States Park Police, in both his official and individual capacities.

12.

'Non-Federal Defendants"

-- Any remaining

defendants who are not Federal

Defendants.

13.

"Fairness Hearing"

-- The final hearing on the fairness of this Settlement

Agreement, at which the Court will determine whether to grant Final District Court Approval.

14.

"Final District Court Approval" -- The Order, following submission of this

Settlement Agreement to the Court, by which the District Court grants final approval of the
Settlement Agreement.

15.

Notice documents

a)

"Detailed Notice"-- The document enclosed herewith as Exhibit 1, which shall be
published at the Class Action Website and which

will

be made available in hard

copy upon request to the Class Administrator.
b)

"Postcard Notice"

-- The document enclosed

herewith as Exhibit 2, which

provides notice to the Class Members of this Settlement Agreement. including

directing attention to

the class action web site

- Page 4 of 19-

at

 Case 1:02-cv-02283-EGS Document 1034-2 Filed 05/10/15 Page 5 of 19

www.PershingParkSettlement.com, at which

is published the Detailed Notice

along with additional forms and information.

c)

'Newspaper Notice"

-

The text enclosed herewith as Exhibit 3, which provides

summary notice to the Class Members of this Settlement Agreement and which
shall be published in a newspaper as described herein.

16.

"supplemental Notice and Claim Period"

-- A thirty (30) day period to be

established in connection with the issuance of Preliminary District Court Approval.

17.

"Parties" or "the Parties" -- All parties to this Settlement Agreement, to include

all Plaintiffs and all Federal Defendants.

18.

"Plaintiffs" -- All Class Members who have not opted-out of the Class.

19.

"Preliminary District Court Approval" -- The Order, following submission of this

Settlement Agreement to the Court, by which the District Court grants initial and preliminary
approval of the Settlement Agreement.

II.

Monetary Relief

A.

Monetary Settlement for the Class Members, Class Representatives,
Attorneys' Fees and Administration of the Class Fund

The class-wide monetary settlement is a total of $2,208,000 (two million, two hundred
and eight thousand dollars), subject to reversion

of funds to the U.S. Department of the Interior,

which includes the Class Fund and the Attorneys' Fees and Costs Fund. The fund is broken
down as follows:

1.

The Class Members shall collectively receive a total of $1,640,000.

2.

Each eligible Claimant shall receive compensation from the Class Fund of $5,000

(subject to allocation, distribution and possible reversion of funds to the U.S. Department of the

Interior), subject to the following contingencies.
- Page 5 of 19-

 Case 1:02-cv-02283-EGS Document 1034-2 Filed 05/10/15 Page 6 of 19

i.

Should the participation rate be higher than 328 eligible Claimants (85% of the
total number of arrestees), each eligible Claimant shall be allocated and awarded a

pro-rata share of the Class Fund. This will result in a payment to each of some
amount less than $5,000.

ii.

Should the participation rate be equal to or lower than 328 eligible Claimants

(85% of the total number of arrestees), each eligible Claimant shall receive

a

payment of $5,000. The U.S. Department of the Interior shall receive reversion of
unallocated portion of the Class Fund.

3.

The Class Fund of $1,640,000 is the ceiling on any and all payments to Claimants

by any and all Federal Defendants. including but not limited to payments by Federal Defendant
Richard Murphy or payments made on his behalf by the U.S. Department of the Interior.

4.

The cost of administrating the frrnds and determining or adjudicating subrnitted

claims shall by paid by Plaintiffs' Counsel at no additional cost to Federal Defendants.

5.

The Attorneys' Fees and Costs Fund is a total of $568,000.

6.

With respect to monetary relief, the notice and claim process shall provide Class

Members with an opportunity to request exclusion, or to "opt out," from the monetary portion

of

the Settlement Agreement as provided in Section V below. Opts outs on the monetary relief are
allowed as may be approved by the Court.

B.

Timing of Distribution of Funds to Class Representatives, Fund
Administrator, claimants and payment of Fees and costs

l.

Within fifteen (15) days of Preliminary District Court Approval of this Settlement

Agreement, monies constituting the Class Settlement Fund shall be released by the Federal
Defendants to the Class Administrator, to be placed in an interest-bearing account.

- Page 6

of

19-

 Case 1:02-cv-02283-EGS Document 1034-2 Filed 05/10/15 Page 7 of 19

2.

However, no funds may be distributed to the Class Members or Class Counsel

without both (a) Final District Court Approval of this Settlement Agreement and (b) the
exhaustion of all appeals and any period of time in which an objector or challenger may seek

review by way of a writ of certiorari to the U.S. Supreme Court.

3.

In the event this Settlement Agreement is not upheld on appeal by the D.C.

Circuit, or is reversed upon review by the U. S. Supreme Court, all funds (plus any interest
accumulated in the Class Administrator's interest-bearing account) shall be returned to the U.S.
Department of the Interior.

III.

agrees

Class-Wide Prospective Relief

A.

Changes to U.S. Park Police Policies and Practices

1.

Interagency Coordination Durins Mass Arrests -- The United States Park Police

to revise and reissue its Memorandum to the Force regarding Coordination with Other

Law Enforcement Agencies and the Handling of Possible Violations by Other Agencies during
Such Situations to include the following:

"If the violation involves

use of Force officers to help effectuate high volume arrests and
prevent demonstrators from being free to leave or disperse in a manner inconsistent with
General Order 2108.03, the Force officer in charge shall request the other agency's onsite supervisor to provide demonstrators with dispersal order(s) and an opportunity to
comply."

2.

U.S. Park Police Mass Arrest Policies and Procedures -- The Uniled States Park

Police agrees to revise and reissue its General Order regarding High Volume Arrest Procedures
to include the following:
a. [2108.01 POLICY] Force offtcers shall not independently, or at the request of another
police agency, substantially surround or enclose a demonstration group and prevent them
from leaving the area unless either (1) warnings and an opportunity to disperse have
occurred in the situations detailed in General Order 2108.034 and B, or (2) under the
circumstances detailed in General Order 2108.03C-D.

- Page 7 of 19-

 Case 1:02-cv-02283-EGS Document 1034-2 Filed 05/10/15 Page 8 of 19

b.

[2I08.03 HIGH VOLUME ARREST PROCEDURES FOR NOTICE, CLOSING
THE AREA, AND OPPORTUNITY TO DISPERSE]

i. [A] All alresting officers should be positioned in the rear of the crowd so they can hear
the warnings, which should be issued by a Force Official at the rank of Lieutenant or
above. The crowd shall then be advised. using sound amplification equipment as needed,
that they (the group) are in violation of a specified law and will be arrested if they do not
disperse or cease their illegal activity. The arresting officers positioned in the rear of the
crowd should give a verbal and/or physical indication to the offlrcial giving the warnings,
confirming that they are audible. Reasonable exit avenue(s) will be made available to
allow members of the crowd to exit the area and the wamings shall infbrm the crowd
where the exit avenue(s) is located. The warning shall be repeated three times, with
approximately 2 minutes between each warning, to give those who choose not to be
arrested time to leave the immediate closed area. [f recorded over the Force radio, a
dispatcher shall be asked to give a time check prior to issuing each warning.
SAMPLE WARNING: Attention. This is [identify announcing officer] of the United
States Park Police. Because you are in violation of regulations applicable to this area,
that prohibit [describe the violation] your permit to demonstrate on fdescribe area] is
revoked. You must leave [describe area] now by using one of the available exists located
at [describe available exit area(s)]. All persons remaining will be arrested. (This is your
final warning. ADD TO LAST WARNING ONLY.)

ii. [B] In the event that the crowd is a demonstration [as more fully defined at 36 CFR
7.96(g)(l)(i)l engaging in unlawful acts, no area will be closed around them by using a

police line to encircle, or substantially encircle them. except when (l) probable cause
exists to believe that a significant number or percentage of the persons located in the area
have committed unlawful acts, (2) the Force has the ability to identify those individuals
and have decided to arrest them, and (3) that the area needs to be closed to help maintain
order and public safbty during the arrest process.

iii. [E] In situations

detailed in Subsection B, in the event that the Force is requested by
another police agency to partially enclose or surround a demonstration activity due to
unlawful violations, the Force OIC shall work with the other police agency,s OIC to
ensure that necessary actions are taken that exit avenues are clearly made known to
demonstrators. including as necessary the use of amplified warnings. If Force officers
are part of the police line, the exit avenues should be conveyed to those officers over
Force radio and such officers should convey such exit avenue intbrmation to persons of
their own initiative who are seeking to leave the area.

B.

No Opts Outs for Equitable Relief

No opts outs from the class shall be permiued as to the Equitable Relief.

- Page 8 of 19-

 Case 1:02-cv-02283-EGS Document 1034-2 Filed 05/10/15 Page 9 of 19

IV.

Notice to Class Members and Potential Claimants

A.

Notice to the Class shall be sent as soon as practical after Preliminary District

Court Approval.

B.

The Class Administrator shall send a copy of the Postcard Notice (Exhibit 2) to all

Class Members who can be identified through reasonable effort, including by first class mail to
the last known address of each eligible Class Member under the District Settlement.

C.

The Class Administrator shall use the United States Postal Service (U.S.P.S.)

National Change of Address database to update the address of Class Members whose initial
notice by first class mail is retumed to sender by the U.S.P.S. Under such circumstances, and

where such Class Member's current address

is

discernable, the Class Administrator shall

additionally send a copy of the Postcard Notice (Exhibit 2) by first class mail to the updated
address

of such Class Member.

D.

The Class Administrator shall publish the Detailed Notice (Exhibit 1) on the Class

Action Website.

E.

The text of the Newspaper Notice (Exhibit 3) shall be published by Class Counsel

and/or the Class Administrator in the Washington City Paper once a week tbr two consecutive
weeks.

F.

During the Supplemental Notice and Claim Period, the Class Administrator shall

provide periodic reports to Class Counsel as to the status and progress of the claim submission
and administration process.

G.

The Class Counsel and/or Class Representatives shall also publish or circulate

announcements or shortened versions of the Notice on web sites or e-mail lists
of their selection,

in efforts to reach Class Members.

- Page 9 of 19-

 Case 1:02-cv-02283-EGS Document 1034-2 Filed 05/10/15 Page 10 of 19

V.

Deadlines for Submittins Claim Forms and to Request Exclusion or to Opt Out

A.

As a default, each Class Member who submitted a timely and eligible claim under

the District Settlement shall be deemed an eligible and participating Claimant in this Settlement
Agreement without need to submit an additional Proof of Claim form.

B.

Any Class Member who excluded himself or herself or was deemed to have opted

out of the class action to date shall be deemed to have opted-out of this Settlement Agreement

without need for further action, including, but not limited to, RayMing Chang, Young Choi,
Leanne Lee, and Christopher Zarconi who remain as plaintiffs in Chang v. United States, Civ. A.

No. 02-2010 (EGS) (D.D.C.).

C.

The Notices shall advise Class Members

of the treatments described in

Paragraphs A and B above.

D.

The Notices shall also advise each Class Member that should he or she wish to

exclude himself or herself, he or she must do so by submitting a request for exclusion within the
Supplemental Notice and Claim Period. Specihcally, the Notice shall advise that the court will
exclude from the Class, or allow to "opt out" from the Class, any Class Member who so requests.

Any Class Member wishing to

ooopt

out" or be excluded must so request in writing, by letter

postmarked or received in hand within the Supplemental Notice and Claim Period.

E.

The Notices shall also request that each Class Member who participated in the

District Settlement notift the Claims Administrator of any changes in the Class Member,s
mailing address or other relevant contact information.

VI.

Class Member Obiections

Any Class Member who wishes to object to the terms of this Settlement Agreement shall
be required, by a date specified in the Notices, to submit a written statement to the
Court. with

- Page l0 of 19-

 Case 1:02-cv-02283-EGS Document 1034-2 Filed 05/10/15 Page 11 of 19

copies to counsel, setting forth his or her objections. The statement shall contain the Class

Member's natne, signature, address and telephone number, along with a written statement of his

or her objection(s) to the Settlement Agreement and the reason(s) for the objection(s). Class
Counsel and defense counsel shall each file a response to such objections at least 7 days prior to
the Fairness Hearing.

VU.

Other General Provisions

A.

General Release -- Plaintiffs and all Class Members shall fully release, forgive

and discharge the Federal Defendants, their officers, agents and employees. fbr all claims arising

from or that could have been asserted by Plaintiffs and/or accepting Class Members as a result of

the allegations in the Complaint under any theory

of liability

(including any request for

attorneys' fees and costs in prosecuting this case), including any such claims or lawsuits in any
other proceeding or forum.

B.

No Admission of Liability -- In entering into this Settlement Agreement, there is

no admission of liability by the Federal Defendants or admission of any factual contentions that
have been asserted by Plaintiffs in this

litigation. Plaintiffs do not

suggest or concede a lack

of

merit to their claims or to any factual contention that has been asserted by Plaintiffs in this
litigation.

C.

No Third Party Beneficiar.v Rights -- No third party who is not a Class Member

shall have any rights under the Settlement Agreement.

D.

Non-Severability -- The Parties do not intend this Agreement to be severable

absent express written agreement by the Parties.

E.

Duty to Defend the Agreement -- The Parties and their counsel agree to defend

the Settlement Agreement. Plaintiffs' Counsel may not undertake the representation of

- Page I

I of

19-

 Case 1:02-cv-02283-EGS Document 1034-2 Filed 05/10/15 Page 12 of 19

individuals opting out of the settlement or persons who wish to object to the settlement whether

on monetary or equitable

relief.

Counsel for the Federal Defendants shall take no positions

contrary to, or inconsistent with, the terms of the Settlement Agreement.

F.

Notice and Cure Provision -- In the event of any alleged or actual violation of the

Settlement Agreement, Plaintiffs through counsel shall provide written notice of such to Federal
Defendants through defense counsel. Federal Defendants shall have 60 days to remedy any

violation prior to Plaintiffs seeking enforcement through a breach of contract claim.

G.

Enforcement --

l.

Enforcement Riehts for Monetary Payments -- The United States District Court

for the District of Columbia retains jurisdiction to ensure compliance with
monetary payment terms for a period

the

of three years from the Court's final

approval of settlement of this matter upon the terms herein and the exhaustion of

any appeals (including any petition for writ of certiorari to the United States
Supreme Court).

2.

Enforcement Rights for Equitable Relief --

i.

The U.S. Department of the Interior agrees to finalize the changes to its
General Orders contained in the Equitable Relief within 30 days of the
Court's final approval of this settlement and the exhaustion of any appeals

(including any petition for writ of certiorari to the United States Supreme
Court).

ii.

Plaintiffs' right to enforce the Equitable Relief shall expire three years
following the date of Final District Court Approval and the exhaustion of

- Page 12of19-

 Case 1:02-cv-02283-EGS Document 1034-2 Filed 05/10/15 Page 13 of 19

any appeals (including any petition for writ of certiorari to the United
States Supreme Court).

3.

Except as provided above, the remedy for enforcement of any right created by this

Agreement is by way of a claim for breach of contract claim subject to the notice
and cure provision set forth in Paragraph F above and the other terms of this
Agreement.

H.

Expiration of Asreement -- Unless extended by the Court upon motion of Federal

Defendants, this Settlement Agreement shall expire automatically within three years of the last

of

the following events: Final District Court Approval; disposition of all appealsl denial of any
appeal or petitions for

I.

writ of certiorari to the Supreme Court of the United

States.

Joint Motion for Preliminary Approval -- Within two weeks of the signing of this

Settlement Agreement, the Parties

will file a joint motion for preliminary approval of the

Settlement Agreement.

J.

Class Eligibility and Oualification

-- It is the shared intent and objective

that

eligibility criteria and processes be effective to include all persons who fall within the Class
definition and to exclude from qualification any persons who were not arrested in pershing park
in the District of Columbia on September 27,2002.

l.

The Class Representatives on behalf of the Class and the Federal Defendants
acknowledge the possibility that persons genuinely subject
arrest at Pershing Park

to the underlying

will not be properly identified or documented in

law

enforcement records; and consequently seek to provide sufficient guidance to
enable the Class Administrator to qualifu individuals, in the potential presence

- Page 13 of 19-

of

 Case 1:02-cv-02283-EGS Document 1034-2 Filed 05/10/15 Page 14 of 19

inaccurate or incomplete records, where such individuals were in fact subiect to
the underlying arrest.

2.

The Class Administrator, in consultation with Class Counsel, shall develop or
implement processes for achieving these objectives, within and consistent with
the following guidelines:

i'

The Class Administrator or its designee shall be the determinator of the
class

eligibility of Claimants, consistent with the Class definition approved

by the Court in the settlement of this action.

ii.

A

Claimant shall be deemed eligible

if

his or her identity is or

was

reflected in a government or law enforcement or court record(s) as having
been arrested in connection with the underlying class arrest.

a.

A govemment or law enforcement record is any record created or
issued or maintained by a law enforcement agency, a government
agency or court.

b.

The record need not have been maintained in the exclusive custody

of government, and can be constituted by a law enforcement or
government or court receipt or record issued to the claimant in
relation to the arrest or release.

c.

The record/form/item need not be strictly denominated as
"arrest record"

in

order

to

an

establish class qualification. For

example, any of the following records would be acceptable

if they

evidence identity and class membership: bus/van transport log;

- Page 14 of 19-

 Case 1:02-cv-02283-EGS Document 1034-2 Filed 05/10/15 Page 15 of 19

record ofjudicial release or processing; a property receipt or bag;
citation release or post-and-forfeit form or record, etc.

d.

If

circumstances arise where an individual is identified as being

arrested on the relevant duy, but records are ambiguous or
contradictory as to the location or circumstances of arrest as being
consistent with the qualifuing mass iurest, the Class Administrator
is to provide Class Counsel and counsel for the Federal Defendants

the identity and any other pertinent information pertaining to the
Claimant and request in writing that counsels, upon independent
review of their and law enfbrcement records, advise whether they

possess

any information related to the claimant's class

membership.
3.

The Class Administrator may develop processes or standards to qualifu persons
who are believed or determined by the Class Administrator to have, in fact. been

subject

to the underlying mass affest but whose

arrest

is not properly or

completely documented in law enforcement records, subject to and within the
following guidelines:

i.

Where a Claimant attests to Class membership, but the fact of his or her
arrest is or was not documented

in law enforcement records, the Class

Administrator shall provide to Class Counsel and Defense Counsel the
identity and any other pertinent information pertaining to the Claimant and
request in writing that counsels, upon independent review of their and law

―Pagc 15 of19-

 Case 1:02-cv-02283-EGS Document 1034-2 Filed 05/10/15 Page 16 of 19

enforcement records, advise whether they possess any information related
to the Claimant's Class membership.

ii.

Class qualification may be established where such individual can provide

to the Class Administrator's satisfaction that he or she was, in fact, subject

to the underlying Class arrest through presentation of information and/or
evidence. Such information

or evidence is not intended to be strictly

limited to any particular form or format, and may for example include
photographic evidence of the Claimant under arrest, but must be deemed

sufficiently reliable and relevant for the Class Administrator to make

a

determination, which shall rest in the Class Administrator or designee's
sole judgment.

iii.

ln such circumstances, in addition to whatever other presentation he or she
may make to the satisfaction of the Class Administrator, such Claimant
shall be required to secure and submit sworn and notarized alfidavits fiom

two qualified Class Members attesting that each

possesses personal

knowledge, subject to penalty of perjury, that claimant was subject to the
underlying mass arrest in Pershing Park specifically. For the purposes

of

this subsection, each of the two qualified Class Members shall be required

to

have been qualified based on their arrest being documented and

manifest in law enforcement, government or court records.
4.

The Class Administrator, working

in

conjunction

develop and implement additional criteria

eligibility of persons who were juveniles

or

with Class

standards

at the time of arrest.

- Page 16 of 19-

Counsel, may

fbr determining

the

 Case 1:02-cv-02283-EGS Document 1034-2 Filed 05/10/15 Page 17 of 19

The Class Administrator shall be required to maintain Claimant information and

5.

records

in strict confidentiality, to be used solely for the purposes of

Class

administration.

No cause of action may be brought against any Federal Defendants for any errors

6.

or

omissions made

by the Class Administrator, whether intentional

or

unintentional.

K.

Return

of Documents

Plaintiffs shall retum

documents and any copies thereof produced

to

Federal Defendants all

by Federal Defendants, or any other federal

govemment agency that are subject to a protective order, within 30 days of the termination of the
case and the expiration

L.

ofthe period for any appeals or objections.

Complete Aereement and

Amendments This Agreement constitutes the

complete agreement between the Parties. This Agreement may not be amended except by
written consent of the Parties.

M.

Form of Agreement -- This Agreement may be executed in counterparts, each

of

which constitutes an original and all of which constitute one and the same Agreement.
Facsimiles

of

signatures shall constitute acceptable, binding signatures for purposes

of

this

Agreement.

N.

Non-Federal Defendant Claims -- This Settlement Agreement does not encompass

nor encumber Plaintiffs' advance of claims against non-Federal Defendants.

O.

Drafter

of

Agreement

-- For purposes of

construing this Agreement, this

Agreement shall be deemed to have been drafted by all Parties to this Agreement and shall not,
therefore, be construed against any Party for that reason in any subsequent dispute.

- Page 17 of19-

 Case 1:02-cv-02283-EGS Document 1034-2 Filed 05/10/15 Page 18 of 19

P.

Disclosure

of

Aereement

to Public -- All

parties consent

to the Federal

Defendants' disclosure of this Agreement, and information about this Agreement, to the public.

a.
that

it

Authoritv of Signatories -- Each party and signatory to this Agreement represents

freely and voluntarily enters in to this Agreement without any degree of duress or

compulsion. Undersigned counsel represent and warrant that they are fully authorized to execute
this Agreement on behalf of the persons and entities indicated below.

R.

Choice of Law -- This Agreement is governed by the laws of the United States.

S.

Choice of Venue for Disputes -- The exclusive venue for any dispute relating to

this Agreement is the United States District Court for the District of Columbia.

T.

Binding on Successors -- This Agreement is binding on all eligible Claimants'

successors, transferees, heirs. and

assigns. This Agreement is binding on Class Counsel's

successors, transferees, heirs, and assigns. This Agreement is binding on, and shall inure to the

benefit of, Federal Defendants' successors, transferees, heirs, and assigns.

<MMAINDER OF PAGE LEFT BLANK>
<SIGNATURE PAGES TO FOLLOW>

- Page 18 of 19-

 Case Document 1034-2 Filed 05/10/15 Page 19 of 19

 

Signed and Agra to on this?? _day 2,015, by:

citri?M?essincot D. C. Bar #450033
Mara Verheyden-Hilliard, D.C. Bar #450031

PARTNERSHIP FOR CIVIL JUSTICE VINCENT H. COHEN, JR. D- 3- 471489
FUND Acting United States Attorne
617 Florida Avenue, NW
Washington, DC 20001 DANIEL F. VAN #924092
(202) 232-1180 Chief, Civil Division
Attorneys for the Plaintiff Class
By: 
MARINA UTGOF ELL,

D.C. Bar #416587
BRIAN P. HUDAK
Assistant United States Attorneys
555 Fourth Street, NW
Washington, DC 20530
(202) 252-2561

Attorneys for the Federal Defendants

- Page 19 of19-

Case
Document 1034-3 Filed 05/10/15 Page 1 of 2
Barham1:02-cv-02283-EGS
et al. v Ramsey et al.
Presorted
First-Class Mail
US Postage
PAID
Gilardi & Co

Settlement Administrator
c/o Gilardi & Co. LLC
P.O. Box 8060
San Rafael CA 94912-8060

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Barham, et al. v. Ramsey, et al.
Case No. 02-CV-02283 (EGS)(JMF)
OFFICIAL NOTICE OF PROPOSED
CLASS ACTION SETTLEMENT OF
CLAIMS AGAINST FEDERAL
DEFENDANTS AND FAIRNESS HEARING
To: All persons who were arrested in
Pershing Park in the District of Columbia on
September 27, 2002
Proposed Settlement of to $5,000 per
class member resolving claims against
the Federal Defendants
THIS CARD CONTAINS SUMMARY
INFORMATION ABOUT THE SETTLEMENT.
Visit www.PershingParkSettlement.com
for the full detailed class notice
Update your address by calling 1-877-678-0736.

BRHM1

2D

<<BarCode>>

Postal Service: Please Do Not Mark Barcode
BRHM1-<<Claim7>>-<<CkDig>>
<<FName>> <<LName>>
<<Addr1>> <<Addr2>>
<<City>>, <<State>> <<Zip>>

 Case 1:02-cv-02283-EGS
Document
1034-3
Filed
Page
2 of 2
A proposed settlement has been reached
with the Federal
Defendants
in the05/10/15
class action alleging
the illegality
of the arrests of approximately 400 protesters and others in Pershing Park on September 27, 2002 in Washington, D.C. The
Federal Defendants deny all wrongdoing. This notice informs you of the proposed settlement and describes certain
rights and options you may have.
Who’s included? The class is defined as “all persons who were arrested in Pershing Park in the District of Columbia
on September 27, 2001,” except those persons who have already been deemed to have excluded themselves from the Class.
What is the settlement? The Federal Defendants have agreed to compensate eligible Claimants up to $5,000
each and to enact substantial policy and rule reform within the U.S. Park Police to avoid recurrence. The settlement will
provide $586,000 in attorneys fees and costs to Class Counsel. This amount is separate from and does not reduce or affect the
monies paid to Class Members. This proposed settlement is subject to Court approval. Payment will be made only upon final
approval by the Court. You will be bound by any judgment in this lawsuit unless you exclude yourself.
What you need to do to claim funds. If you received compensation as part of the earlier settlement with the
District of Columbia, you are automatically a part of the Proposed Settlement.  You will be mailed a check unless you exclude
yourself. You need to take no further action except to update your address with the Claims Administrator at 1-877-678-0736.
If you are a class member who did not file a timely and eligible claim in the District of Columbia settlement, you must submit
a Proof of Claim form postmarked by no later than June 15, 2015.
To Exclude Yourself or Object. If you don’t want a payment and don’t want to be legally bound by the
settlement, the court will exclude from the class any member who requests exclusion. You may send a letter stating you
want to be excluded by mail postmarked no later than June 15, 2015 to Barham Class Exclusions c/o Gilardi & Co. LLC,
P.O. Box 8060, San Rafael, CA, 94912-8060 (include your name, current address, telephone and address at date of arrest).
If you previously were deemed excluded, you do not need to exclude yourself again. If you stay in the class, you may object
to the settlement by June 15, 2015. The detailed notice describes how to exclude yourself or object. Strict deadlines apply.
The Court will hold a hearing in this case on MONTH 00, 2015 at X:00 a.m. at the U.S. Court for the District of Columbia
to consider whether to approve the settlement. You may appear at the hearing, or enter an appearance through an attorney at
your own expense, but don’t have to.
This notice provides limited information. The full detailed notice and Proof of Claim form and other information
are available at www.PershingParkSettlement.com. Or call 1-877-678-0736.

 Case 1:02-cv-02283-EGS Document 1034-4 Filed 05/10/15 Page 1 of 17

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Notice of Class Action, Proposed Class Settlement and Hearing
Barham, et al., v. Ramsey, et al., Case No. 02- CV-02283 (EGS)(JMF)

If you were arrested in Pershing Park on September 27, 2002, in
Washington, D.C., you could receive up to $5,000 from a class action
settlement of claims against the Federal Government
•

A settlement involving claims against the Federal Government has been proposed in the class
action lawsuit about the illegality of the arrests of approximately 400 protesters and others in
Pershing Park on Friday, September 27, 2002, in Washington, D.C.

•

The class is “all persons who were arrested in Pershing Park in the District of Columbia on
September 27, 2002,” excepting those who have previously been excluded or opted-out.

•

The proposed settlement with the Federal Government will provide up to $5,000 per class
member in compensation. Attorneys’ fees will be paid separately and will not be deducted
from this amount. In addition, the arrests of class members will be confirmed as expunged.
The class has demanded and the Federal Government has agreed to and has imposed
substantial equitable relief and/or restrictions on police conduct to prevent recurrence.

•

Your legal rights are affected whether you act, or don’t act. Strict deadlines will apply.

Your Legal Rights and Options in this Settlement:
If you filed a timely and
eligible Claim in the
District of Columbia
settlement

You are automatically eligible for the Proposed Settlement with the
Federal Defendants. You do not need to re-submit a Claim form or
take any additional action. Call 1-877-678-0736 to update your
mailing address, if necessary, to receive your payment.

Submit a Claim Form

If you are a class member who did not file a timely and eligible
Claim in the District of Columbia settlement, this is the only way to
get a payment. Deadline: June 15, 2015.

Exclude yourself

Get no payment. This is the only option that allows you to ever be
part of any other lawsuit about the legal claims in this case.
Deadline: June 15, 2015.

Object

Write to the Court about why you don’t like the settlement.
Deadline: June 15, 2015.

Go to a Hearing

Court Fairness Hearing: MONTH 00, 2015.

Do Nothing

Get no payment. Give up rights.

QUESTIONS OR ADDRESS UPDATES? Call 1-877-678-0736

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TABLE OF CONTENTS
BASIC INFORMATION ................................................................................................................ 4
1.

What is in this Notice? .................................................................................................... 4

2.

What is this class action lawsuit about? .......................................................................... 4

3.

Wasn’t there already a settlement with the District of Columbia defendants in this
lawsuit? ........................................................................................................................... 5

4.

If I already received compensation in the settlement with the District of Columbia
Defendants do I need to re-submit forms to be able to participate in this proposed
settlement with the Federal Defendants? ........................................................................ 5

5.

Who must file a Proof of Claim form? ........................................................................... 6

6.

What is the status of the lawsuit? .................................................................................... 6

7.

Why is this a class action? .............................................................................................. 7

WHO IS IN THE SETTLEMENT? ................................................................................................ 7
8.

How do I know if I am part of the settlement? ............................................................... 7

9.

Are there exceptions to being included? What if I “opted out” of the earlier
District of Columbia settlement? .................................................................................... 8

10. Is everyone who was arrested in connection with the Fall 2002 protests in
Washington, D.C., a Class Member? .............................................................................. 8
11. I’m still not sure if I am included. ................................................................................... 8
THE SETTLEMENT BENEFITS – WHAT YOU GET ................................................................ 8
12. What does the settlement provide in terms of money? ................................................... 8
13. How much will my payment be? .................................................................................... 8
14. If I participate in the settlement, will any existing arrest records be sealed or
expunged? ....................................................................................................................... 9
15. What steps have been taken or will be required to be taken by the Settlement
Agreement to prevent a recurrence or future unlawful mass arrest? .............................. 9
HOW TO GET A PAYMENT – SUBMITTING A CLAIM FORM ........................................... 12
QUESTIONS OR ADDRESS UPDATES? Call 1-877-678-0736

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16. How can I get a payment? ............................................................................................. 12
17. How is it determined that I am an eligible class member? ........................................... 12
18. When would I get my payment? ................................................................................... 13
19. What am I giving up to get a payment or stay in the Class? ......................................... 14
EXCLUDING YOURSELF FROM THE SETTLEMENT.......................................................... 14
20. How do I exclude myself from the settlement? ............................................................ 14
21. If I don’t exclude myself, can I later sue the Federal Defendants for the same mass
arrest? ............................................................................................................................ 14
THE LAWYERS REPRESENTING YOU .................................................................................. 15
22. Do I have a lawyer in this case? .................................................................................... 15
23. How will the lawyers be paid? ...................................................................................... 15
OBJECTING TO THE SETTLEMENT ....................................................................................... 15
24. How do I tell the Court that I object to the settlement? ................................................ 15
25. What is the difference between objecting and excluding? ............................................ 16
THE COURT’S FAIRNESS HEARING ...................................................................................... 16
26. When and where will the Court decide whether to approve the settlement? ................ 16
27. Do I have to come to the hearing? ................................................................................ 16
28. May I speak at the hearing? .......................................................................................... 16
IF YOU DO NOTHING ............................................................................................................... 17
29. What happens if I do nothing at all? ............................................................................. 17
GETTING MORE INFORMATION............................................................................................ 17
30. Are there more details about the settlement? ................................................................ 17
31. How do I get more information? ................................................................................... 17

QUESTIONS OR ADDRESS UPDATES? Call 1-877-678-0736

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BASIC INFORMATION
1. What is in this Notice?

The Court has directed that this notice be published because Class Members have a right to know
about a proposed settlement of a class action lawsuit, and about all of your options, before the
Court decides whether to approve the settlement. If the Court approves it and after objections and
appeals are resolved, if any arise at all, an administrator will make the payments that the
settlement allows.
This package explains the lawsuit, the settlement, your legal rights, what benefits are available,
who is eligible for them, and how to get them.
The Court in charge of the case is the United States District Court for the District of Columbia,
and the case is known as Barham, et al. v. Ramsey, et al., Case No. 02-CV-002283. The people
who have sued are called the Plaintiffs and the persons and entities that have been sued are called
the Defendants.
The Federal Government defendants in this case are the United States; Sally Jewell, U.S.
Secretary of the Interior, in her official capacity; Loretta E. Lynch, the U.S. Attorney General, in
her official capacity; and former-Major Richard Murphy of the U.S. Park Police in his individual
and official capacities (collectively referred to as the “Federal Defendants”).
2. What is this class action lawsuit about?

The lawsuit asserts that the Federal Defendants acting together with D.C. Metropolitan Police
Department engaged in the false arrest of a class of individuals in Pershing Park on the morning
of Friday, September 27, 2002.
On the morning of September 27, 2002, there were well-publicized protests at multiple locations
in Washington, D.C., timed to coincide with the Fall meetings of the International Monetary
Fund and World Bank.
Hundreds of persons, including protestors, tourists, legal observers, bystanders, journalists and
others congregated or were present within Pershing Park. By all accounts, the conduct in the park
was peaceful. People were “milling about” the park, many carried protest signs or symbols and
some persons beat on drums.
Some number of persons entered the park on, or with, their bicycle. A bicycle protest, which had
initiated at the Union Station train station, terminated at Pershing Park and many bike protesters
entered the park.
No warnings or orders to disperse were issued to the persons who had assembled, or who were
physically present, within the park.

QUESTIONS OR ADDRESS UPDATES? Call 1-877-678-0736

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Law enforcement, including the United States Park Police and others acting as agents of the
Federal Government, used police lines to surround the park and denied persons the ability to
leave.
The MPD brought mass arrest busses to the park. From the southeast corner of the park, near a
set of steps leading down from the park to the sidewalk, police loaded persons onto the busses
and transported them away.
The Class claims assert that the mass arrest in Pershing Park on September 27, 2002, violated the
Constitution of the United States, including the First and Fourth Amendment rights of those
arrested. It is also asserted that the arrest violated Class Members’ rights under District of
Columbia law to be free of false arrest and that the arrest constituted false imprisonment under
District of Columbia law.
The Class alleges that Richard Murphy was the ranking U.S. Park Police official and that he
ordered officers under his command to enclose the Class in the park and to prevent them from
leaving.
Money damages, equitable relief (or rule/policy reform), and attorneys fees and costs have been
sought against the Federal Government on behalf of the class.
3. Wasn’t there already a settlement with the District of Columbia defendants in

this lawsuit?
Yes. The class claims against the District of Columbia defendants were settled in 2010. The
deadline for participating in that settlement expired in 2010. However, claims against the Federal
Defendants were not settled and remained pending.
The Proposed Settlement would resolve the claims against the Federal Defendants and end the
lawsuit.
4. If I already received compensation in the settlement with the District of

Columbia Defendants do I need to re-submit forms to be able to participate in
this proposed settlement with the Federal Defendants?
No. In order to streamline procedures and maximize participation, the parties have agreed that
every class member who filed a timely and eligible Proof of Claim in connection with the
settlement with the District of Columbia Defendants is automatically and by default a part of the
Proposed Settlement with the Federal Defendants.
If you received compensation as an eligible Class Member in the earlier settlement with the
District of Columbia, you do not have to submit a new Proof of Claim form or take any further
action to be eligible to participate in the Proposed Settlement.
If you received compensation in the settlement with the District of Columbia it is important
that you confirm and, if necessary, update your address and contact information so that
compensation from this settlement, if approved, will be properly directed to you. You can
QUESTIONS OR ADDRESS UPDATES? Call 1-877-678-0736

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contact the Claims Administrator at the following toll-free number to confirm and update your
contact information, including address: 1-877-678-0736.
It is essential that you update your contact information, as unclaimed funds will revert to the U.S.
Government.
5. Who must file a Proof of Claim form?

If you are an eligible Class Member (i.e., you are a person who was arrested in Pershing Park in
the District of Columbia on September 27, 2002) who did not file a timely and eligible Proof of
Claim form in connection with the District of Columbia settlement (i.e., did not receive payment
as part of that settlement), you must file a Proof of Claim form within the time deadlines to
participate in this settlement with the Federal Defendants.
If you are an eligible Class Member who did not file a Proof of Claim in the settlement with the
District of Columbia or if you filed an untimely Proof of Claim form in the settlement with the
District of Columbia, you must file a Proof of Claim form received or postmarked by no later
than June 15, 2015.
The same eligibility verification standards exist for participation in this Proposed Settlement as
existed for the District of Columbia settlement.
Persons who have previously excluded themselves from this litigation (“opted out”) remain
opted out and cannot participate in this settlement.
6. What is the status of the lawsuit?
An initial complaint in this matter was filed on November 19, 2002. On September 19, 2003,
U.S. District Court Judge Emmet J. Sullivan certified the class for declaratory, injunctive and
compensatory relief.

The only federal defendant who is potentially liable to the class for money damages is U.S. Park
Police former-Major (Captain at the time of the events) Richard Murphy, who is sued personally
and in his individual capacity. If an award of damages issued in favor of the class against
Murphy personally, the U.S. Government would decide whether it would indemnify Murphy
(i.e., whether the U.S. Government would pay to the class the damages awarded against Murphy
personally).
On July 10, 2007, Judge Sullivan denied the Federal Defendants’ motions to dismiss and ruled
that the class claims against Richard Murphy personally could proceed. See Barham v. Ramsey,
2007 U.S. Dist. LEXIS 49405 (D.D.C. 2007). Murphy appealed this ruling to the U.S. Court of
Appeals for the District of Columbia Circuit.
On February 20, 2009, the U.S. Court of Appeals ruled that it lacked jurisdiction and could not
address Murphy’s appeal because it turned on issues of fact that, if proven by Murphy, would

QUESTIONS OR ADDRESS UPDATES? Call 1-877-678-0736

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render him immune from further lawsuit or damages. See Barham v. Salazar, 556 F.3d 844 (D.C.
Cir. 2009).
Throughout the case, there has been ongoing and extensive litigation, including scores of
depositions and discovery and motions. The plaintiffs have taken over 100 depositions of defense
witnesses in this case, some number of which extended over multiple days.
The parties have engaged in extensive settlement discussions which have resulted in the
proposed Settlement Agreement that is the subject of this notice.
7. Why is this a class action?
In a class action, one or more people called Class Representatives sue on behalf of people who
have similar claims. In this case seventeen individuals representing a broad cross section of
persons who were arrested have served as Class Representatives.

The class representatives include: protestors who entered the park on foot; protestors who were a
part of the Union Station bicycle protest to draw attention to the effectiveness of non-fossil fuel
based means of transport; nurses who were attending a professional conference in Washington,
D.C., and staying at a hotel that abutted Pershing Park, and who entered the park to see if there
was a speaker to listen to; National Lawyers Guild legal observers; a photo-journalist; and others
who, on their way to work, entered Pershing Park and were not allowed to exit.
They have been active participants in the litigation, on behalf of the class as a whole and have
been subjected to discovery, depositions and other requirements of the lawsuit that has been
active since 2002. All other class members may share in the relief and recovery, if any, from the
litigation without being active participants in the ongoing proceedings and litigation.
In a class action, one court resolves the issues for all Class Members, except for those who
voluntarily exclude themselves or “opt out” from the Class.
U.S. District Court Judge Emmet G. Sullivan is in charge of this class action.
WHO IS IN THE SETTLEMENT?
To see if you will get money from this settlement, you first have to decide if you are a Class
Member.
8. How do I know if I am part of the settlement?
Judge Sullivan decided that everyone who fits the following definition of the Class is a Class
Member: All individuals who were arrested in Pershing Park in the District of Columbia on
September 27, 2002.

All persons who filed timely and eligible Proof of Claim forms in connection with the District of
Columbia settlement are automatically participants in the Proposed Settlement with the Federal
Defendants. Such individuals need to take no further action to receive compensation in this
QUESTIONS OR ADDRESS UPDATES? Call 1-877-678-0736

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Proposed Settlement, but are advised to confirm and, if necessary, update their contact and
mailing information with the Claims Administrator by calling 1-877-678-0736.
It is essential that you update your contact information, as unclaimed funds will revert to the U.S.
Government.
If you are an eligible Class Member who did not file a Proof of Claim in the settlement with the
District of Columbia or if you filed an untimely Proof of Claim form in the settlement with the
District of Columbia, you must file a Proof of Claim form received or postmarked by no later
than June 15, 2015, in order to participate in the Proposed Settlement with the Federal
Defendants.
9. Are there exceptions to being included? What if I “opted out” of the earlier
District of Columbia settlement?
If you fit the description, above, you are a Class Member unless you have already opted out of
this lawsuit, including by filing your own lawsuit over the same underlying events.
If you have been deemed to have previously opted out of this lawsuit you cannot receive
compensation from this Proposed Settlement with the Federal Defendants.
10. Is everyone who was arrested in connection with the Fall 2002 protests in
Washington, D.C., a Class Member?
No. Only if you fit the class description, above, are you a Class Member.
Persons who were arrested, including on September 27, 2002, at locations other than in Pershing
Park are not Class Members.
There were approximately forty people who were arrested on Connecticut Avenue between K
and L Streets, and approximately 150 persons arrested in the vicinity of Vermont Avenue and K
Street, N.W. The class definition does not include these arrests.
11. I’m still not sure if I am included.
If you are still not sure whether you are included, you can ask for free help. You can call 1-877678-0736 or visit www.PershingParkSettlement.com for more information.
THE SETTLEMENT BENEFITS – WHAT YOU GET
12. What does the settlement provide in terms of money?
The Federal Defendants have agreed to create a $1,640,000 fund (hereinafter the “Class Fund”)
to be distributed among all eligible Class Members, in accordance with the Settlement
Agreement, with a maximum payment of $5,000 per class member.

13. How much will my payment be?
If it is determined that you are an eligible Class Member you will be entitled to compensation
from the Class Fund.
QUESTIONS OR ADDRESS UPDATES? Call 1-877-678-0736
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Your share of the fund will depend on the number of eligible Class Members, and is also subject
to a maximum payment of $5,000 per Class Member. Here’s how it works:
The fund has been set up within a framework that assumes an 85% participation rate of persons
believed to have been arrested (approximately 386 persons).
Should the participation rate be equal or lower than 328 eligible Claimants, each eligible
Claimant shall receive $5,000.
Should the participation rate be higher than 328 eligible Claimants, each eligible Claimant shall
be allocated a pro-rata share of the Claimants’ Fund. This will result in a payment to each of
some measure less than $5,000, but no less than $4,248.70 (the amount paid with a 100%
participation rate).
This assumed participation rate is based on the known participation rate in the earlier settlement
with the District of Columbia. Class counsel believes there to be a strong likelihood that
participants to this settlement will receive $5,000 each. However the amount will ultimately be
determined by the number of eligible Claimants.
14. If I participate in the settlement, will any existing arrest records be sealed or

expunged?
Yes. In connection with the earlier settlement with the District of Columbia, the D.C.
Government was ordered by the U.S. District Court to expunge or procure the expungement of
each Class Member’s September 27, 2002, arrest records in the possession of the District of
Columbia government or courts and in the possession of the United States Government,
including the Federal Bureau of Investigation.
The FBI has previously reported to Class Counsel the steps it undertook to expunge the arrests of
Class Members, including both identified arrestees as well as those identified solely as Jane or
John Does, from its criminal history information systems. The FBI is currently re-confirming
that there are no records in its Criminal Justice Information Services Division information
systems containing records of an arrest of any Class member made by the MPD on or about
September 27, 2002. Upon completion of this review, the claims against the FBI will be
dismissed.
15. What steps have been taken or will be required to be taken by the Settlement

Agreement to prevent a recurrence or future unlawful mass arrest?
The attorneys at the Partnership for Civil Justice, the Class Counsel in this case, have undertaken
efforts in the Barham class action and other cases, as well as before the Council of the District of
Columbia, to secure meaningful equitable relief to prevent a recurrence or future unlawful mass
arrest.
During the course of this litigation as a consequence of the events of the Pershing Park mass
arrest and complaints regarding other police conduct in the context of mass demonstrations, the
QUESTIONS OR ADDRESS UPDATES? Call 1-877-678-0736

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Council of the District of Columbia undertook an extensive investigation and enacted new
District of Columbia laws that impose restrictions on the Metropolitan Police Department in the
context of mass demonstrations.
The First Amendment Rights and Police Standards Act of 2004:
•

Establishes restrictions on the use of police lines to surround First Amendment protected
assemblies;

•

Prohibits wrist-to-ankle restraints or flexcuffs in the context of certain mass
demonstration arrests;

•

Affirms that it is not an offense for persons to demonstrate or parade on the sidewalks,
the roadways or other public ways without a permit;

•

Requires police to provide an accurate written statement of options for release from
policy custody in the event of protest-related arrests;

•

Requires the prompt processing of persons arrested in connection with a First
Amendment assembly and, further, requires a supervisory rank officer to “document and
explain” any instance where a protest-related arrestee eligible for and requesting release
is not released within 4 hours from the time of arrest;

•

Establishes that the policy of the District of Columbia is to avoid issuing general orders
to disperse First Amendment activities;

•

Requires, in the limited circumstances where dispersal of a protest may be authorized
under law, that the MPD shall issue one or more audible orders to those assembled using
an amplification system or device, and shall provide persons with an adequate time to
disperse and with a clear and safe route for dispersal;

•

Prohibits the deployment of officers in riot gear to First Amendment assemblies, except
in limited circumstances where there is a danger of violence and, further, requires the
commander at the scene to issue a written report to the Chief which is to be made
available to the public following any deployment of officers in riot gear;

•

Requires officers assigned to First Amendment assemblies are equipped with easily
visible or “enhanced” badge or name identification that remains visible and allows
identification even if officers are wearing riot gear;

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•

Requires that the MPD promulgate regulations that pertain to the particularized First
Amendment interests of reporters and media when present at a First Amendment
protected assembly, including mandating that media not be denied the access that is
available to members of the general public and be granted additional physical access to
areas closed to the general public in order to assist their ability to report on the event. See
also 24 D.C.M.R. §2104 (regulations, as promulgated, which among other things
establish the policy of the MPD is “that media representatives shall have maximum
access to First Amendment assemblies. . . consistent with maintaining public safety. . .”).

In addition, in the context of the Barham litigation, the District of Columbia entered into a
written agreement requiring that the Metropolitan Police Department’s Mass Demonstration
Handbook shall be amended to state and provide written notice to officers that:
•

Parading without a permit, demonstrating without a permit, and participating in a First
Amendment Assembly without a permit are not arrestable offenses;

•

New restrictions relating to the use of police lines have been imposed by the First
Amendment and Police Standards Act of 2004, including specific reference to the
substance of those restrictions. Additionally, the agreement requires such notice also be
included in the standard 40 hour course given to new officers pertaining to “civil
disturbance unit (CDU) training” and including in the standard 8 hour refresher course
required of all officers with CDU responsibilities.

The Plaintiffs allege that in the September 27, 2002, mass arrest, the U.S. Park Police engaged in
joint action with the D.C. Metropolitan Police, including using U.S. Park Police to establish
police lines to surround demonstrators without notice or warnings or orders to disperse. The
Federal Defendants assert that they were simply providing backup assistance to the MPD.
Counsel for both parties have engaged in extensive settlement discussions, including regarding
the promulgation of rules and policy changes that would avoid a recurrence of events as alleged
by Plaintiffs. The Proposed Settlement with the Federal Defendants requires rule and policy
changes on the U.S. Park Police, including:
•

The U.S. Park Police, absent exceptional circumstances, shall not independently or at the
request of another agency (including the D.C. Metropolitan Police Department)
substantially surround or enclose a demonstration group and prevent them from leaving
an area unless warnings and an opportunity to disperse have first issued.

•

Warnings must be audible to the entire demonstration and issued by a U.S. Park Police
official at the rank of Lieutenant or above. Warnings shall be issued using sound
amplification equipment as needed, shall inform the group that they are in violation of a
specific law and will be arrested if they do not disperse or cease specified illegal activity.
Officers shall be positioned in the rear of the crowd to confirm to the official giving the
warning that the warnings are audible even at the rear.

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•

To ensure that there is meaningful opportunity to comply with any dispersal order, exit
avenues will be made available to allow members of the crowd to exit the area and the
warnings shall inform the crowd where the exit avenue(s) is located.

•

Warnings shall be repeated three times, with approximately 2 minutes between each
warning, to give those who choose not to be arrested time to leave the immediate closed
area. If recorded over U.S. Park Police Force radio, a dispatcher will be asked to give a
time check prior to issuing each warning.

•

In the event that the U.S. Park Police is requested to backup or assist by another police
agency, such as the D.C. Metropolitan Police Department, and to partially enclose or
surround a demonstration activity, the U.S. Park Police Officer in Charge (OIC) shall
work with the other agency’s OIC to ensure that exit avenues are clearly made known to
demonstrators, including as necessary through the use of amplified warnings. If U.S. Park
Police officers are part of a police line, the exit avenues should be conveyed to those
officers over U.S. Park Police radio and those officers should convey such exit avenue
information to persons of their own initiative who are seeking to leave the area.

•

Where U.S. Park Police backup or coordinate with other law enforcement agencies,
including the D.C. Metropolitan Police Department, and the other agency seeks U.S. Park
Police to assist in high volume arrests that do not comply with applicable the U.S. Park
Police Orders requiring warnings and opportunities to comply, the U.S. Park Police
Officer In Charge must request that the other agency provide demonstrators with
dispersal orders and an opportunity to comply before effectuating mass arrests.

HOW TO GET A PAYMENT – SUBMITTING A CLAIM FORM
16. How can I get a payment?
If you received compensation as an eligible Class Member in the earlier settlement with the
District of Columbia, you do not have to submit a new Proof of Claim form.

If you are an eligible Class Member who did not file a Proof of Claim in the settlement with the
District of Columbia or if you filed an untimely Proof of Claim form in the settlement with the
District of Columbia, you must file a Proof of Claim form received or postmarked by no later
than June 15, 2015. If you do not timely and properly submit your Proof of Claim Form, you
will not receive any money from the settlement.
A Proof of Claim form available on the internet at www.PershingParkSettlement.com or upon
request to the Claims Administrator. Read the instructions carefully, fill out the form, include all
the documents the form asks for, sign it, and mail it postmarked no later than June 15, 2015.
17. How is it determined that I am an eligible class member?
The Class Administrator shall be the determinator of the class eligibility of Claimants, consistent
with the class definition approved by the Court and the application of certain guidelines.
QUESTIONS OR ADDRESS UPDATES? Call 1-877-678-0736

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All Class Members who previously received compensation as part of the settlement with the
District of Columbia Defendants are automatically and by default deemed to be eligible and
participating in the Proposed Settlement with the Federal Defendants.
The eligibility of any new Claimants who submit a Proof of Claim Form will be determined
using the same guidelines and instructions as were applicable to the District of Columbia
Settlement. These guidelines and instructions were and remain as follows:
Claimants whose identity and arrest can be confirmed by reference to law enforcement or
government records or documents will be deemed eligible.
The Class Administrator will be provided with law enforcement records, include arrest
records, to facilitate this determination.
Please submit with your Proof of Claim Form copies of any documents (not
originals) or materials you have that show that you were subject to the September
27, 2002, mass arrest in Pershing Park.
In the event that a Claimant or arrestee is not accurately reflected in MPD or law
enforcement records, the Class Administrator will review any government or law
enforcement documents or records or items that have been submitted with the Proof of
Claim Form.
Materials submitted by Claimants need not be strictly denominated as an “arrest record”
in order to establish class qualification. For example, any of the following would be
acceptable if they evidence identity and class membership: Citation Release forms, a
Notice to Appear at a Court Hearing, a property receipt or bag, a “post and forfeit” form
or record.
Additional procedures will be available for the Class Administrator to determine class
eligibility in the absence of confirmation through law enforcement records.
18. When would I get my payment?
The Court will hold a hearing on Month 00, 2015, to decide whether to approve the settlement.
If Judge Sullivan approves the settlement, after that, there may be appeals.

If the Court approves the settlement at that hearing, and there are no objections or appeals that
delay proceeding, we anticipate that each eligible Claimant will receive his or her award within
four weeks of the issuance of final approval.
If you do not receive your payment by this date, please do not delay and contact the Claims
Administrator at 1-877-678-0736.

QUESTIONS OR ADDRESS UPDATES? Call 1-877-678-0736

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19. What am I giving up to get a payment or stay in the Class?

Unless you exclude yourself, you are staying in the class, and that means that you can’t sue,
continue to sue, or be part of any lawsuit against the defendants about the legal issues in this
case. It also means that all of the Court’s orders will apply to you and legally bind you.
Claims against the FBI shall be dismissed, without prejudice, upon completion of the
expungement re-confirmation efforts by the FBI. By effect of the proposed Settlement
Agreement with the Federal Defendants, in exchange for your receipt of money and other relief,
you will release the Federal Defendants and its officers from any further claims.
EXCLUDING YOURSELF FROM THE SETTLEMENT
If you don’t want a payment from this settlement, but you want to keep the right to sue or
continue to sue on your own and with your own attorney about the legal issues against the
Federal Defendants in this case, then you must take steps to get out. This is called excluding
yourself or “opting out” of the class. The Court will exclude from the class any member who
requests exclusion.
20. How do I exclude myself from the settlement?
To exclude yourself from the settlement, you must send a letter by mail stating that you want to
be excluded from Barham, et al. v. Ramsey, et al. Be sure to include your name, current address,
current telephone number, your address at the time of the arrest (to facilitate locating you in law
enforcement records) and your signature. You must mail your exclusion request postmarked no
later than June 15, 2015, to:

Barham Class Exclusions
c/o Gilardi & Co LLC
PO Box 8060
San Rafael, CA 94912-8060
If you ask to be excluded, you will not get any settlement payment and you cannot object to the
settlement. You will not be legally bound by anything that happens in this lawsuit. You may be
able to sue or continue to sue defendants in the future for claims related to the underlying arrest.
21. If I don’t exclude myself, can I later sue the Federal Defendants for the same

mass arrest?
No. Unless you exclude yourself, you give up any rights to sue the defendants for the claims that
this settlement resolves.
If you previously excluded yourself or were deemed to have been excluded from the settlement
with the District of Columbia Defendants, you cannot participate in this Proposed Settlement and
you do not need to exclude yourself again.

QUESTIONS OR ADDRESS UPDATES? Call 1-877-678-0736

Page 14

 Case 1:02-cv-02283-EGS Document 1034-4 Filed 05/10/15 Page 15 of 17

THE LAWYERS REPRESENTING YOU
22. Do I have a lawyer in this case?
The Court has certified the Partnership for Civil Justice Fund, including attorneys Carl Messineo
and Mara Verheyden-Hilliard, to represent the Class. These lawyers are called Class Counsel.

You will not be charged for these lawyers. You will not be asked to pay your own personal
money for the services of these attorneys and their associates and staff in litigating this case and
negotiating this settlement.
Only Class Counsel may act on behalf of the class. However, that does not prevent you from
hiring your own lawyer to advise you personally about your rights, options or obligations as a
Class Member in this lawsuit. If you want to be represented by your own lawyer, you may hire
one at your own expense.
23. How will the lawyers be paid?
The parties will ask the Court to approve payment to Class Counsel of $568,000 for the legal
services and costs associated with bringing the class action. The fees would pay Class Counsel
for all services rendered, as well as all costs incurred, from investigating the facts, litigating the
case over the course of 12+ years, the conduct of scores of depositions, extensive briefing,
defending against the appeal of Richard Murphy to the U.S. Court of Appeals, negotiating the
settlement, and services to be performed to facilitate the administration and distribution of funds
(which will be handled primarily by the Class Administrator).

The amount of attorneys fees and costs will not come out of your compensation of up to $5,000,
nor will it reduce the funds available for the Class Members.
The amount of attorneys’ fees and costs are set forth in the Settlement Agreement, and constitute
a payment fund distinct from Claimants’ Funds.
OBJECTING TO THE SETTLEMENT
24. How do I tell the Court that I object to the settlement?
If you are a Class Member, you can object to the settlement agreement if you don’t like any part
of it. You can submit for the Court’s consideration reasons why you think the Court should not
approve it. To object, you must send a letter stating that you object to the proposed settlement
agreement in Barham, et al. v. Ramsey, et al. Be sure to include your name, address, telephone
number, your signature, and the reasons why you object to the settlement.

The attorneys for the Class and for the defendants will be allowed to file with the Court a written
response to any submitted objections.

QUESTIONS OR ADDRESS UPDATES? Call 1-877-678-0736

Page 15

 Case 1:02-cv-02283-EGS Document 1034-4 Filed 05/10/15 Page 16 of 17

If you wish to assert any objections, you are required to submit those to three different places
postmarked by no later than June 15, 2015:
To the Court

To Class Counsel

Clerk’s Office
United States District Court
for the District of Columbia
333 Constitution Ave. NW
Washington, D.C. 20001

Carl Messineo
Barham Class Counsel
Partnership for Civil Justice Fund
617 Florida Ave, N.W.
Washington, D.C. 20001

To Defense Counsel
Marina Utgoff Braswell
Assistant U.S. Attorney
555 Fourth Street, NW
Washington, D.C. 20530

25. What is the difference between objecting and excluding?
Objecting is simply telling the Court that you don’t like something about the settlement. You can
object only if you stay in the Class. Excluding yourself is telling the Court that you don’t want to
be a part of the Class. If you exclude yourself, you have no basis to object because the case no
longer affects you.
THE COURT’S FAIRNESS HEARING
The Court will hold a hearing to decide whether to approve the settlement. You may attend, and
you may ask to speak, but you don’t have to.
26. When and where will the Court decide whether to approve the settlement?

The Court will hold a Fairness Hearing at 0:00 a.m. on day, month 00, 2015, at the United
States District Court for the District of Columbia, 333 Constitution Avenue N.W., Washington,
D.C., 20001. At this hearing, the Court will consider whether the settlement is fair, reasonable
and adequate. If there are any objections, the Court will consider them. Judge Sullivan will also
listen to any Class Members who ask to speak at the hearing. At or after the hearing, the Court
will decide whether to approve the settlement.
27. Do I have to come to the hearing?

No. Class Counsel will respond to any questions that Judge Sullivan may have. But, you are
welcome to come at your own expense. If you send an objection, you don’t have to come to the
Court to talk about it. As long as you mailed your written objection on time, the Court will
consider it. You may also pay your own lawyer to attend, but it is not necessary.
28. May I speak at the hearing?

You may ask the Court for permission to speak at the Fairness Hearing. To do so, you must send
a letter stating that it is your “Notice of Intent to Appear at Fairness Hearing in Barham v.
Ramsey.” Be sure to include your name, address, telephone number and your signature. Your
Notice to Intent to Appear must be postmarked no later than June 15, 2015, and be sent to the
Clerk of the Court, Class Counsel and Defense Counsel at the three addresses set forth in
QUESTIONS OR ADDRESS UPDATES? Call 1-877-678-0736
Page 16

 Case 1:02-cv-02283-EGS Document 1034-4 Filed 05/10/15 Page 17 of 17

question 24, above. You cannot speak at the hearing if you have excluded yourself or opted out
of the Class.
IF YOU DO NOTHING
29. What happens if I do nothing at all?

If you do nothing, your rights will be affected. You will be bound by the terms of the Settlement
and you will be agreeing to a release of the claims that are contained in the Settlement
Agreement. However, if you did not file a timely and eligible claim in this or the earlier
settlement with the District of Columbia, you will not be entitled to any money from the
settlement.
GETTING MORE INFORMATION
30. Are there more details about the settlement?
This notice provides important information the proposed settlement. More details are in the
Settlement Agreement. You can get a copy of the Settlement Agreement by visiting
www.PershingParkSettlement.com.

31. How do I get more information?
You can call 1-877-678-0736 toll free; write to Barham Class Administrator c/o Gilardi & Co.
LLC, P.O. Box 8060, San Rafael, CA, 94912-8060; or visit www.PershingParkSettlement, where
you will find answers to common questions about the settlement, a Proof of Claim Form, plus
other information to help you determine whether you are a Class Member and eligible to receive
money and participate in the Class Settlement Agreement.

QUESTIONS OR ADDRESS UPDATES? Call 1-877-678-0736

Page 17

 Case 1:02-cv-02283-EGS Document 1034-5 Filed 05/10/15 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Notice of Class Action, Proposed Class Settlement and Hearing
Barham, et al., v. Ramsey, et al., Case No. 02- CV-02283 (EGS)(JMF)
A proposed settlement has been reached with the Federal Defendants in the class action
alleging the illegality of the arrests of approximately 400 protesters and others in Pershing Park on
September 27, 2002, in Washington, D.C. The Federal Defendants deny all wrongdoing. This notice
informs you of the proposed settlement and describes certain rights and options you may have.
Who's included? The class is defined as "all persons who were arrested in Pershing Park in the
District of Columbia on September 27, 2001," except those persons who have already been deemed to
have excluded themselves from the Class.
What is the settlement? The Federal Defendants have agreed to compensate eligible Claimants
up to $5,000 each and to enact substantial policy and rule reform within the U.S. Park Police to avoid
recurrence. The settlement will provide $586,000 in attorneys’ fees and costs to Class Counsel. This
amount is separate from and does not reduce or affect the monies paid to Class Members. This
proposed settlement is subject to Court approval. Payment will be made only upon final approval by the
Court. You will be bound by any judgment in this lawsuit unless you exclude yourself.
What you need to do to claim funds. If you received compensation as part of the earlier
settlement with the District of Columbia, you are automatically a part of the Proposed Settlement. You
will be mailed a check unless you exclude yourself. You need to take no further action except to update
your address with the Claims Administrator at 1-877-678-0736. If you are a class member who did not
file a timely and eligible claim in the District of Columbia settlement, you must submit a Proof of Claim
form postmarked by no later than June 15, 2015.
To Exclude Yourself or Object. If you don't want a payment and don't want to be legally bound
by the settlement, the court will exclude from the class any member who requests exclusion. You may
send a letter stating you want to be excluded by mail postmarked no later than June 15, 2015, to
Barham Class Exclusions c/o Gilardi & Co., LLC, P.O. Box 8060, San Rafael, CA, 94912-8060 (include your
name, current address, telephone and address at date of arrest). If you previously were deemed
excluded, you do not need to exclude yourself again. If you stay in the class, you may object to the
settlement by June 15, 2015. The detailed notice describes how to exclude yourself or object. Strict
deadlines apply. The Court will hold a hearing in this case on MONTH 00, 2015, at X:00 a.m. at the U.S.
Court for the District of Columbia to consider whether to approve the settlement. You may appear at
the hearing or enter an appearance through an attorney at your own expense, but don't have to.
This notice provides limited information. The full detailed notice and Proof of Claim form and
other information are available at www.PershingParkSettlement.com. Or call 1-1-877-678-0736.

 Barham v. Ramsey, et al.

Case 1:02-cv-02283-EGS Document 1034-6 Filed 05/10/15 Page
1 ofBe2 Postmarked
Must
No Later Than
June 15, 2015

Barham v. Ramsey Administrator
c/o Gilardi & Co. LLC
P.O. Box 8060
San Rafael, CA 94912-8060

BRHM1

PROOF OF CLAIM FORM
Address Changes. (Please do not use RED INK or pencil.)
Address 1

<<Barcode>> <<ClaimID>>
<<FirstName>> <<LastName>>
<<Addr1>> <<Addr2>>
<<City>>, <<State>> <<Zip>>

Address 2
City
State 

Social Security Number 

—

Date of Birth (MM-DD-YYYY)

—

Home Telephone Number 
—

Zip Code

Work Telephone Number
—

—

—

Cell Phone Number
—

—

Email Address (if you have one)

I wish to make a claim as a class member in Barham, et al. v. Ramsey, et al., Civil Action No. 02-02283 (EGS)(JMF),
United States District Court for the District of Columbia, and hereby attest and submit the following information under
penalty of perjury as follows:
I was arrested in Pershing Park in the District of Columbia on September 27, 2002.
I understand that the class definition does NOT encompass persons by virtue of any arrest at a different location,
other than at Pershing Park, even if the arrest was protest-related.
I understand that there were protest-related arrests elsewhere on September 27, 2002, including at a location
on or near Vermont & K Streets (near a Citibank), and also for a group arrested on or near Connecticut Avenue
between K and L Streets, N.W. By submitting this Proof of Claim form, I attest that I was NOT arrested at these
other locations.
Please note: You do not need to have been a protestor or protesting in order to be a class member. You are a class member
if you were arrested as described above.
Also note: Pershing Park is located in downtown Washington, D.C. along Pennsylvania Avenue and between 14th and 15th
Streets, N.W. Two blocks to the west of Pershing Park is the White House Complex. Immediately to the east of Pershing
Park is Freedom Plaza, an entire city block dedicated to function as an assembly and event area.
Continued on Reverse Side

*CASEFIRST*

1

FOR CLAIMS
PROCESSING
ONLY

OB

CB

DOC

RED

LC

A

REV

B

 Case 1:02-cv-02283-EGS Document 1034-6 Filed 05/10/15 Page 2 of 2
Contact Information Provided At Time of Arrest
This information is requested in order to match claimants against law enforcement records compiled at the time of arrest.
Address Line 1

Address Line 2

City 

State 

Foreign Province 

Foreign Postal Code 

Zip Code

Foreign Country Name/Abbreviation

Submission of Arrest-Related Documents
The Class Administrator will first try to confirm your eligibility by matching your name against police arrest records. If
your name cannot be matched through police arrest records, the Administrator will send you a letter and request additional
information, including that you provide any arrest related documents. If you so choose, you can facilitate this by now
submitting copies (not originals) of any police or court records that show you were arrested (or released, or scheduled to
appear in court, etc.).
 
Please indicate by filling in the circle to the left if you are submitting any arrest related documents with your
claim form. If so, please list those documents that are being submitted below:
 
 
 
Medicare Enrollment Status
This question is asked to satisfy reporting obligations under federal law.
Yes
No Are you presently, or have you ever been, enrolled in Medicare Part A or Part B?
If your answer is yes, then you must complete the Medicare Disclosure Form
(available at www.PershingParkSettlement.com).
By signing this form below, I am attesting that the above information is correct and that:
1.  I am the person identified above and I am over the age of 18, or, if I am a juvenile, my parent or guardian has
signed below.
2.  I have read the Settlement Agreement and the Notice of Settlement to Potential Class Members (each of which is
available at www.PershingParkSettlement.com) or by request made to Class Action Administrator at address below.
Pursuant to 28 U.S.C. §1746, I declare under penalty of perjury that the information given above is true and correct.
Signature:  

 

Dated:  

The information provided herein is private and will be held in strictest confidence. If you have any questions about
this lawsuit write to us at Barham v. Ramsey Administrator at the address below or visit our web site at www.
PershingParkSettlement.com.
Barham v. Ramsey Administrator
c/o Gilardi & Co. LLC
P.O. Box 8060
San Rafael, CA 94912-8060

*BRHM1SECOND*

2

 Case 1:02-cv-02283-EGS Document 1034-7 Filed 05/10/15 Page 1 of 2

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JEFFREY BARHAM, et al.,
Plaintiffs,
v.
CHIEF CHARLES H. RAMSEY, et al.
Defendants.

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Civil Action No. 02-2283 (EGS)

ORDER
On consideration of the parties’ Joint Motion for Preliminary Approval of Proposed Class
Settlement and, Notice to Class, and Notice of Fairness Hearing, it is by the Court hereby
ORDERED that the parties’ motion is GRANTED; and it is further
ORDERED that the proposed Settlement Agreement is preliminarily approved pending
further consideration at a fairness hearing. The proposed notice, use of the proposed short-form
postcard notice, Proof of Claim form, and response deadlines stated in these documents are
approved (June 15, 2015, as deadline to file a Proof of Claim form, request exclusion, and/or
submit any objection). The Court also approves the proposed firm of Gilardi & Co, L.L.C. as
Class Administrator.
On or before May 15, 2015, the Class Administrator will mail and e-mail the short-form
Postcard Notice to the last known physical and electronic mail addresses of (1) all eligible and
participating Class members identified through the District of Columbia settlement process, (2)
each of the approximately five (5) such persons who may be class members but who came
forward after the District deadline had elapsed and did not file a timely claim in connection with
the District Settlement, and (3) to the last known address of potential class members to whom

 Case 1:02-cv-02283-EGS Document 1034-7 Filed 05/10/15 Page 2 of 2

notice of the District of Columbia settlement was transmitted and whose notice was not returned
as undeliverable to the specified address.
By that same date the Class Administrator shall post the long-form Detailed Notice and
Proof of Claim form on the website associated with the class settlement administration
(www.PershingParkSettlement.com).
By that same date and continuing through June 15, 2015, the National Park Service and
the Partnership for Civil Justice Fund shall publish on each’s respective website a link to the
class settlement website.
A modified and shortened form of the Class Notice shall be published for two
consecutive weeks in The Washington City Paper.
The Class Administrator shall file its report with the Court by June 22, 2015.
The parties shall file responses to any objections by no later than June 22, 2015.
A fairness hearing will be held on _____________, 2015 at ________in Courtroom 24A
before Judge Emmet G. Sullivan.
SO ORDERED.
Signed:

Emmet G. Sullivan
United States District Judge