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Kortlever v. Whatcom County

United States District Court, W.D. Washington, Seattle

May 23, 2019

GABRIEL KORTLEVER, SY EUBANKS, and ALL OTHERS SIMILARLY SITUATED, Plaintiffs,
v.
WHATCOM COUNTY, WASHINGTON; WHATCOM COUNTY SHERIFF'S OFFICE, Defendants,

          Bart Freedman, Todd Nunn, Christina A. Elles, Lisa Nowlin, AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION, Attorney for Plaintiffs Gabriel Kortlever, Sy Eubanks, and All Others Similarly Situated.

          [PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND DIRECTING NOTICE TO PLAINTIFF CLASS

          HON. JAMES L. ROBART JUDGE.

         Honorable James L. Robart Plaintiffs Gabriel Kortlever and Sy Eubanks have applied for an order preliminarily approving the settlement of this class action as described in the Settlement Agreement, attached as Exhibit 1 to the Declaration of Lisa Nowlin in Support of Plaintiffs' Motion for Preliminary Approval of Class Action Settlement ("Nowlin Decl."). The Court has considered the Settlement Agreement, the proposed notice, and the briefing and declaration submitted in support of preliminary approval of the settlement and is fully advised.

         THEREFORE, THE COURT FINDS AND CONCLUDES AS FOLLOWS:

         1. Unless otherwise provided herein, all capitalized terms in this Order shall have the same meaning as set forth in the Settlement Agreement.

         2. The Court preliminarily approves the Settlement Agreement and the terms set forth therein-including the relief afforded the Settlement Class, the modest incentive rewards to class representatives, and the payment of attorneys' fees and costs to Class Counsel (including costs for notice and settlement administration)-as being fair, reasonable and adequate. The Settlement Agreement is the result of arm's-length negotiations between experienced attorneys who are familiar with class action litigation in general and with the legal and factual issues of this case in particular.

         3. For purposes of settlement only, this Court certifies this case as a class action under Federal Rule of Civil Procedure 23(b)(2). For the reasons stated in Plaintiffs' Motion for Preliminary Approval of Class Action Settlement, the Class satisfies the elements of Rule 23(a) and Rule 23(b)(2) and thus a class action, for purposes of settlement only, is appropriate.

         4. Pursuant to Fed.R.Civ.P. 23(b)(2), the Court conditionally certifies for settlement purposes only the following Settlement Class: "All non-pregnant individuals with disabling opioid use disorders ("OUD") who are incarcerated, or who will be incarcerated in the future, in the Whatcom County Jail."

         5. In connection with these conditional certifications, the Court makes the following findings:

a. The Settlement Class is sufficiently numerous to meet the requirement of Rule 23(a)(1). The Class includes all non-pregnant individuals with disabling OUD who are incarcerated, or who will be incarcerated in the future, in the Whatcom County Jail and joinder of all such persons would be impracticable. See Fed. R. Civ. P. 23(a)(1).
b. The commonality requirement is satisfied because there are many questions of law and fact common to the Settlement Class that center on Defendants' alleged systemic policy and practice of denying medication used to treat opioid use disorders for non-pregnant individuals in violation of Title II of' the ADA. See Fed. R. Civ. P. 23(a)(2).
c. The typicality requirement is satisfied because Plaintiffs claims, which are based on the alleged discriminatory denial of necessary medication services needed to treat their opioid use disorders, resulting in withdrawal, an increased risk of relapse, and a heightened likelihood of overdose death, are "reasonably coextensive with those of the absent class members." See Fed. R. Civ. P. 23(a)(3).
d. The adequacy of representation requirement is satisfied because Plaintiffs' interests are coextensive with, and not antagonistic to, the interests of the Settlement Class. See Fed. R. Civ. P. 23(a)(4). Further, Plaintiffs are represented by qualified and competent counsel who have ...

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