McDonald's Memorandum Opinion and Order

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CHANCERY DIVISION

PENELOPE BAIM BLOCK; VANDANA )

MAKKER; BALA M. KRISHNA; )

TY C. GEARHARDT; BRIJ M. SHARMA; )

CHARANJIT SINGH; LISA M. BERTINI; )

JEFFREY I. ZIMMERMAN; MUKESH )

SANJAY AGARWAL; and SAVITA REDDY, )

)

Plaintiffs, ) No. 00 CH 9137

)

v. ) Calendar 10

)

McDONALD’S CORPORATION, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

The parties are seeking final approval of their class action settlement agreement ("Settlement"). By order entered May 1, 2002, this Court preliminarily approved the Settlement. Notice was published pursuant to Court order in USA Today, Vegetarian News, Satya, India Abroad (U.S. distribution only), India Tribune, India West, and The Forward. Approximately 2000 opt-outs and 600 objections to the Settlement have been received.

A. Background

In their consolidated class action complaint, Plaintiffs allege deceptive practices in the sale of French fries and hash browns by Defendant McDonald’s Corporation ("McDonald’s"). Plaintiffs allege that McDonald’s represented in widespread advertising that its French fries and hash browns were cooked only in vegetable oil. McDonald’s did not disclose to consumers that its French fries and hash browns are prepared in oil containing beef tallow or beef extract, a fact of great materiality to persons such as Plaintiffs who have ethical, religious, or moral objections to the consumption of meat or beef products. McDonald’s denies liability and argues that if Plaintiffs sought to litigate, there would be little likelihood of obtaining class action certification or succeeding on the merits. In addition to the action sub judice, similar class actions were filed in the states of California, New Jersey, Texas and Washington.

After conducting extensive discovery, counsel for Plaintiffs and McDonald’s engaged in mediation sessions conducted by the Honorable Eugene F. Lynch, a retired California state court and U.S. District Court Judge. After two days of mediation, the parties elected to enter into the Settlement. As a result, the complaint in the action sub judice was amended to include the names of plaintiffs participating in the Settlement who represented putative classes in the state court class actions pending in California, New Jersey, and Washington. The named plaintiffs in the Texas class action declined to participate in the Settlement and were not joined as parties plaintiff in the action sub judice. Subsequently three Texas residents were added as parties plaintiff.

B. Plaintiff Settlement Class

The Plaintiff Settlement Class, which was provisionally certified by order entered May 1, 2002, is defined as follows: all persons resident in the United States (including the District of Columbia and territories and possessions), including, but not limited to, vegetarians and Hindus, who (i) have consumed French fries and hash browns from or at McDonald’s Restaurants since July 23, 1990 and (ii) have concerns, objections, or dietary restrictions, whether ethical, moral, religious, philosophical, or health-related, with respect to the consumption of beef or meat.

C. The Nature of the Settlement

1. Relief to Class:

a. Monetary Component:

McDonald’s will pay the Settlement amount of $10 million. Those funds will be placed in a cy pres fund for distribution to charitable or other tax-exempt organizations to be mutually agreed upon by the parties on or before the effective date of the Settlement. The distribution will occur as follows: 60% to vegetarian organizations; 20% to Hindu or Sikh organizations or both; 10% to children’s nutrition or hunger relief organizations or both; and 10% to organizations promoting the understanding of Jewish law, standards and practices with respect to Kosher foods and dietary practices, and the observance of such standards by persons of the Jewish religion.

The following principles will govern the selection of the organizations that will share in the cy pres fund: (a) the nonprofit status of the organization; (b) the dedication of the organization to the values of beef-less dietary rules, vegetarianism, Hindu, Sikh, or Kosher dietary rules, as well as the purposes set forth above as they apply to the category of the organization; (c) the amount of concentration of services in the United States by the organization; (d) the geographical reach of the organization within the United States; and (e) the willingness of the organization to use the donation for the stated purpose (e.g., children, education, vegetarianism and/or nutrition). The selection of the recipient organizations and distribution of money from the cy pres fund will be subject to Court approval, thereby establishing a bifurcated selection and distribution process.

b. Non-Monetary Components:

McDonald’s Published Apology
McDonald’s will publish a written apology in specialized publications aimed at members of the Plaintiff Settlement Class. The apology is broadly written so as to encompass all members in the Plaintiff Settlement Class, namely Hindus, vegetarians and others who need to make informed dietary decisions while dining at McDonald’s United States restaurants.
Establishment of a Vegetarian Nutrition Advisory Board
McDonald’s will create and fund a Dietary Practice/Vegetarian Advisory Panel (the "Advisory Board") whose charge will be to advise McDonald’s about vegetarian, non-beef, and non-meat eating categories of consumers as well as the dietary restrictions that correspond to those categories. The Advisory Board will function as a neutral, objective body, with recommendatory authority focused on nutrition. It shall exist for at least one year and the parties shall jointly select its members. McDonald's will consider reports and recommendations made to it by the Advisory Board. The Advisory Board will provide general guidelines that companies could follow if they elect to market to the select constituencies. The Advisory Board will also provide information regarding how vegetarians can safeguard their dietary concerns for obtaining adequate nutrients for good health.
Enhancement of McDonald’s Ingredient Disclosure Policies

McDonald’s will issue enhanced disclosures to identify the source of its flavorings and will circulate instructions articulating how restaurant employees should respond to customer inquiries concerning the ingredient content of menu products. The circulation of instructions will occur at least once a year for five years.

2. Monetary Relief to Named Plaintiffs:

Up to $4000 may be awarded to each named Plaintiff in incentive awards, not to exceed $48,000 in the aggregate.

3. Attorneys’ Fees and Costs:

McDonald’s has agreed not to oppose a Court award of attorneys’ fees and costs in an amount not to exceed $2,452,000. McDonald’s will pay the attorneys’ fees and costs outside of the cy pres fund.

II. CLASS ACTION SETTLEMENT STANDARDS IN ILLINOIS

Illinois law provides that approval of class a action settlement should be granted if the settlement is fair, reasonable, and adequate. People ex rel. Wilcox v. Equity Funding Life Ins. Co., 61 Ill. 2d 303, 335 (1975). The best interests of all those who will be affected by the settlement, including any subclass, fraction of or absent class members, must be considered. Waters v. Chicago, 95 Ill. App. 3d 919, 924 (1^st Dist. 1981). The legal and factual questions presented by the settlement should not be judged by the same criteria applied at a trial. Wilcox, 61 Ill. 2d at 316. Likewise, the settlement approval hearing should not be turned into a trial. Id. The proponents of a class action settlement carry the burden of proof to demonstrate that the compromise reached is fair, reasonable, and adequate. Waters, 95 Ill. App. 3d at 925.

When determining whether a settlement offer is fair, reasonable, and adequate, the following factors, (the "Korshak factors"), are among those to be considered:

The strength of the plaintiffs’ case on the merits weighed against the terms of the settlement;
The ability of the defendant to pay;
The complexity, length and cost of further litigation;
The amount of opposition to the settlement;
The presence of collusion in reaching a settlement;
The reaction of class members to the settlement;
The opinion of competent counsel as to the reasonableness of the settlement; and
The stage of the proceedings and the amount of discovery completed.

City of Chicago v. Korshak, 206 Ill. App. 3d 968, 972 (1^st Dist. 1990). The Korshak factors are not meant to be exhaustive. Langendorf v. Irving Trust Co., 244 Ill. App. 3d 70, 77 (1^st Dist. 1992).

III. DISCUSSION

But for settlement, this cause could not be certified as a class action. Establishing the identity of customers and the facts attending each purported class member’s purchase of French fries or hash browns would require several million individual evidentiary hearings because receipts of purchases are not ordinarily retained. Similar individual evidentiary hearings would have to be conducted among the Hindus, vegetarians, and others who object to consuming beef or meat to ascertain the consequences of such consumption. The case sub judice would not be manageable as a class. Moreover, proving liability on the merits is problematic. The Plaintiffs face a substantial risk of obtaining no relief if litigation against McDonald’s were pursued. Additionally, Plaintiffs would not acquire the non-monetary aspects of the Settlement through litigation.

A. Objections

Plaintiffs contend that there are millions of putative class members. However, after extensive national publicity, widespread publication of the class notice, Internet solicitation, and circulation to select organizations of objection forms and opt-out forms, only approximately 600 objections and 2000 opt-outs have been received. Although interested groups and individuals raise a number of objections, the principal objections relate to the selection process of the cy pres recipients and to the distribution of the cy pres funds. Additional objections encompass the amount of the cy pres fund; the propriety of certain cy pres recipients; the lack of damage awards to individual Plaintiffs; the exclusion of Muslims, African-Americans, animal rights groups, diabetics and other groups from the Settlement; the adequacy of class representation and class counsel; the exclusion of the named Texas class action Plaintiffs from the Settlement; collusion; the authority of the Advisory Board; the adequacy of the apology; the sufficiency of enhanced disclosures; the scope of the release; and attorneys’ fees.

The Cy Pres Fund
a. The Amount of the Cy Pres Fund

VLAN, a non-profit organization created for the purpose of protecting the legal rights of vegetarians, and other objectors contend that the $10 million cy pres fund is inadequate. VLAN suggests that this Court consider McDonald’s system-wide sales figures for a two-month period, which total $6.9 billion. VLAN, however, does not support its argument as to why McDonald’s total sales figures should be used. Plaintiffs’ initial settlement demand was $75 million and McDonald’s initial offer was $5 million. The parties ultimately accepted the recommendation of Judge Lynch of a cy pres fund of $10 million. The $10 million figure was arrived at after two days of mediation with an experienced, highly respected mediator. $10 million is a substantial sum when viewed in relation to the weakness of the Plaintiffs’ case.

b. The Cy Pres Fund Recipient Selection Process

The majority of the arguments raised by the objectors assert that because certain individual charities were not selected or recommended to share in the cy pres fund, the Settlement is unfair. VLAN objects to the fact that neither Plaintiffs nor McDonald’s provided VLAN or the Court with a list of cy pres recipients prior to the objector deadline date. VLAN is not objecting to the concept of a cy pres settlement, but only that it would like to be included in the selection process. Over a period of months, the Plaintiffs and McDonald’s independently researched potential recipient organizations, solicited and reviewed proposals, and conducted telephone meetings to determine which organizations would be best suited for inclusion in the cy pres distribution. The parties, together with the Court, developed a bifurcated procedure that requires Court approval of selected recipient organizations. Upon submission, the Court will exercise its oversight authority to approve or disapprove of selected recipient organizations. Moreover, the selection process followed by the Plaintiffs and McDonald’s occurs in accordance with applicable legal precedent. Objection to the identity of cy pres fund recipients is premature because of the bifurcated selection process that has been established and incorporated into the Settlement.

c. The Propriety of Certain Cy Pres Fund Recipients

VLAN contends that Kosher groups and children’s groups are improper cy pres fund recipients. VLAN suggests that the Kosher representative is inadequate because of his involvement with one of the attorneys in the suit. VLAN also asserts that claims involving children have never been a part the litigation and therefore children’s groups are improper recipients. The issue of the inadequacy of class representatives is addressed below. With respect to the children’s groups, nutritional education of children is a legitimate purpose that is encompassed within the interests of the putative class.

d. The Cy Pres Fund Distribution Process

Cy pres settlements function to indirectly benefit a class where, as here, distribution to individuals is not feasible. See generally, 2 Herbert B. Newberg & Alba Conte, Newberg on Class Actions §11.20 (3^rd ed. 1992); Shepherd, Damage Distributions in Class Actions: The Cy Pres Remedy, 39 U.Chi.L.Rev.448 (1972). The Settlement Class as a whole will benefit through the funding of programs that address the interests of the Settlement Class members.

e. Lack of Damage Awards to Individual Plaintiffs

Some objectors assert that the Settlement is deficient because it does not monetarily award individual class members. Any individual who objected that he or she was not being individually compensated had the option to opt-out and pursue an individual claim against McDonald’s. This objection is not grounds to thwart a Settlement that benefits the class as a whole.
Exclusion of Specific Groups

a. Muslims

Certain Muslim objectors contend that the Settlement disregards class members of the Muslim faith, principally those who observe the Islamic dietary laws of Halal. The objectors state that the Muslim community, approximately 7 million in the United States, comprises a large portion of the putative class. Approximately 2000 Muslims have elected to opt-out of the Settlement. The objectors allege that no efforts were made to contact or solicit Muslim groups prior to the receipt of the objections. Additionally, the objectors argue that Muslims are excluded from the benefits of the Settlement for the following reasons: (1) Muslims do not practice Hindu, Sikh, or Kosher, the three faiths identified in the Settlement; (2) Muslims are meat-eaters and therefore should not be grouped with vegetarians or included in their benefit award under the Settlement; (3) the Muslim subclass was excluded from the Settlement negotiations; and (4) the Advisory Board does not include a member of the Muslim community.

Both Plaintiffs and McDonald’s deny that Muslims or any other putative members of the Settlement class are excluded from the benefits provided for in the Settlement. Moreover, Muslims did not bring suit against McDonald’s despite the nationwide publicity associated with the dispute and will nevertheless receive benefits under the Settlement. The parties also contend that opt-outs should not be viewed as objectors to the Settlement because it is impossible to determine the exact reason why an individual elected to opt-out. All that can be ascertained is that the opt-outs have retained their right to sue in the future should they so desire.

b. African-Americans

An objection is raised that African-Americans are not properly represented by the Settlement. To the extent that African-Americans fall within the class definition, they are represented and benefit from the Settlement.

c. Animal Rights Groups

An objection is raised concerning the fact that animal rights groups are not being considered as cy pres fund recipients. However, the Settlement Class is comprised of people who consumed French fries or hash browns at McDonald’s. The premise of the suit involves providing humans with information to make meaningful dietary choices. The suit does not encompass animal rights issues.

d. Diabetics

An objection that the Settlement discriminates against diabetics is raised because they are not specifically mentioned. This group did not initiate a class action. To the extent that diabetics fall within the class definition, they will benefit from the Settlement.

e. Other Groups

There is also an objection that Jains, Seventh Day Adventists, and Buddhists were excluded from the Settlement. These groups did not file suit either. Furthermore, it is not practical to attempt to identify every potential group that may or may not be affected by the dispute. To the extent that these groups come within the class definition, they will benefit from the Settlement.

3. Adequacy of Class Representation

VLAN asserts that conflicts of interest exist between class representatives who have relationships with attorneys involved with the litigation, thereby making them improper class representatives. By order entered August 19, 2002, this Court dismissed Penelope Baim Block as a class representative because of the appearance of a conflict arising from a relationship with an attorney. There is no evidence to suggest that a conflict of interest exists with respect to any other class representative.

4. Adequacy of Class Counsel

Certain objectors raise issues concerning the adequacy of class counsel. Declarations have been filed detailing the experience of counsel. Counsel for Plaintiffs have extensive experience in class action litigation.

5. Exclusion of the Named Texas Class Action Plaintiffs from the Settlement

In the original Texas class action three individuals were named as Plaintiffs (collectively the "Texas Plaintiffs"). The Texas Plaintiffs were invited by their attorneys, the Caddell law firm ("Caddell"), to participate in the litigation sub judice, but they declined. At some point, the Texas Plaintiffs discharged Caddell because of their objection to settlement of the litigation. Subsequently, Caddell was granted leave to withdraw by the Texas trial court. Caddell then filed an appearance in the action sub judice and caused three different Texas residents to be named as additional parties Plaintiff (collectively the "Current Texas Plaintiffs"). The Texas Plaintiffs object to the inclusion of the Current Texas Plaintiffs as class representatives and request to be recognized as class representatives in the litigation sub judice. The Texas Plaintiffs contend that because a lack of communication existed between themselves and Caddell, they were denied the benefit of their status as parties Plaintiff. The Texas state court has previously dealt with this issue by honoring the Texas Plaintiffs’ discharge of the Caddell firm.

The Texas Plaintiffs also assert that because they were abandoned and never advised that they were removed as parties to the Illinois suit, collusion existed. They further contend that the Current Texas Plaintiffs should not be compensated under this Settlement. The Current Texas Plaintiffs were joined to the action sub judice to prevent a "reverse auction" from occurring. See, Reynolds v. Benefit Nat'l Bank, 288 F.3d 277 (7th Cir. Ill. 2002). A reverse auction is "the practice whereby the defendant in a series of class actions picks the most ineffectual class lawyers to negotiate a settlement with the hope that the … court will approve a weak settlement that will preclude other claims against the defendant." Id. The Texas Plaintiffs were not abandoned; they discharged their attorneys. Moreover, they never were parties to the action sub judice.

6. Collusion

Certain objectors contend that the Settlement or incentive payments are the result of collusion. The payment of incentive awards is appropriate if such payment is required to induce an individual to take part in the suit. Cook v. Niedert, 142 F.3d 1004 (7th Cir. Ill. 1998). Extensive discovery preceded the Settlement negotiations. Judge Lynch attested to the adversarial nature of the mediation proceedings. Compromise, by definition, requires cooperation. No evidence of collusion has been adduced.

7. Authority of the Advisory Board

VLAN argues that the Advisory Board lacks power since there is no mandate that McDonald’s implement any of the proposals made by the Advisory Board. The purpose of the Advisory Board is to function as a neutral, objective body, with authority to make recommendations to McDonald’s on nutrition related matters. The Advisory Board is not an advocacy body created to promote the interests of select groups. The Advisory Board will be comprised of nutrition experts who will advise McDonald’s on relevant dietary restrictions and guidelines that the company and others can use when marketing to persons following those restrictions.

8. Adequacy of the Apology

a. Sufficiency of the Language of the Apology

The Texas Plaintiffs object to the Settlement because they believe that the apology issued by McDonald’s is insincere and does not demonstrate McDonald’s regret for its non-disclosure practices. They also assert that the publications selected by McDonald’s to circulate the apology are directed toward specific groups rather than toward the general public and that they are of limited readership. USA Today is a mainstream publication in which notices of nationwide class actions are routinely published. Moreover, the circulation in the various other targeted publications underscores McDonald’s efforts to reach class members. The apology by McDonald’s is the product of the mediation process.

b. Value of the Apology

Some objectors contend that the apology made by McDonald’s is of no value. They contend that the apology is valueless because it was obtained from McDonald’s only after litigation ensued. The objectors do not explain how the timing of the apology relates to its value. Harish Bharti, the attorney who filed the initial class action on behalf of Hindu customers, stated that the apology was the most important aspect of the relief sought by his clients. The apology carries significant value for a significant segment of the class.

9. Sufficiency of Enhanced Disclosures

An objection is raised that the enhanced disclosures by McDonald’s are inadequate because they omit the restraint of future non-disclosure practices. McDonald’s has agreed to identify the source of its "natural flavors", thereby exceeding the requirements of the Food and Drug Administration. Additionally, McDonald’s will circulate instructions about the ingredient content of its menu items to restaurant managers so that they may properly address any future customer inquiries.

10. Scope of the Release

According to VLAN, the release contained in the Settlement is overbroad. VLAN does not want McDonald’s to be released from claims involving undisclosed "meat" ingredients in foods other than French fries and hash browns. The release contained in the Settlement is an outgrowth of the mediation process and is fair and reasonable.

11. Attorneys’ Fees

VLAN asserts that attorney’s fees are unsupported by the present record. Any discussions regarding attorneys’ fees are premature at this juncture of the litigation. The Court will conduct separate hearings with respect to the award of attorneys’ fees.

B. Analysis of the Korshak Factors

To grant final approval of a class action settlement a court must determine whether the terms of the settlement are fair, reasonable, and adequate. Wilcox, 61 Ill. 2d at 335. Analysis of the facts of the case utilizing the eight Korshak factors assists the court in making its determination.

First, the strength of the Plaintiffs’ case on the merits must be weighed against the terms, both monetary and non-monetary, of the proposed Settlement. This is the most significant factor in determining whether a settlement should be approved. Korshak, 206 Ill. App. 3d at 972. This Court has observed that but for settlement, the case sub judice would not be manageable as a class action. This Court also has suggested that proving liability would be problematic. The class has received a public apology and will benefit from the establishment of a $10 million cy pres fund. The agreement by McDonald’s to enhance disclosures about their menu items and to create an Advisory Board focused on nutrition provides additional relief to all putative class members. Distribution of funds to qualified national organizations will maximize the actual benefit that class members will receive. The non-monetary components of the Settlement provide significant further relief that could not be achieved through litigation of the case. Because of the serious manageability and evidentiary problems associated with this litigation, the Court finds that this factor supports a finding in favor of granting final approval of the Settlement.

Second, the ability of McDonald’s to pay according to the terms of the Settlement is not in contention.

Third, the Court must review the complexity, length and cost of further litigation of this case. The objectors contend that this case is no more complex than other national class action suits. However, the objectors fail to cite any other local or national class action that involved the purchase of items where: (a) none of the parties to the suit possessed any evidence identifying the purchaser or documenting how many items were actually purchased; (b) the majority of the purchasers of the items are not complaining about the items; and (c) there is an absence of physical, economic, or severe emotional injury caused by the items. McDonald’s further contends that if final approval is not granted, additional discovery to litigate the class certification issue would be required. Not only would the litigation be resumed in Illinois, but also in the four other states where class action suits were filed. Moreover, the issues of class manageability, proof of damages, and whether a claim for relief could even be sustained would involve lengthy and expensive litigation. The Court believes that settlement by the parties presents significant economies. Extensive litigation has already occurred in this case. A majority of the benefits obtained by the Plaintiffs through the Settlement would not be obtainable through trial. Further litigation of this class action would be complex, lengthy and expensive and not in the best interests of the class members.

Fourth, the amount of opposition to the Settlement must be reviewed by the Court. The Plaintiffs contend that the response generated from the class to the Notice "strongly favors" a determination that the Settlement is fair, reasonable, and adequate. The majority of the approximately 600 objections received originated from active solicitations that were conducted on certain websites and through select organizations. The majority of the objectors failed to identify themselves as class members. Several hundred Muslim objections out of approximately seven million Muslim Americans who observe Halal is a comparatively small number of objections. Approximately 2000 elected to opt-out of the Settlement and cannot be viewed as objectors since it is impossible to determine why they elected to opt-out of the Settlement. The Court finds that none of these facts detract from granting final approval.

Fifth, the Court must determine whether collusion was present between the parties in reaching the Settlement. The objectors questioned the propriety of approving the incentive payments. However, there is nothing collusive with respect to paying incentives to class representatives. This case was highly contested and hard fought from the inception. Judge Lynch, who mediated the settlement negotiation process, attested to the adversarial nature of the proceedings. No evidence of collusion has been adduced.

Sixth, the reaction of the class members to the Settlement must be reviewed. The parties contend that considering the fact that the majority of objections occurred due to active solicitation, the overall extent of objection to the Settlement is very small. Moreover, most objections relate to the identity of the cy pres recipients, not the settlement benefits or the settlement procedures. The Court agrees and finds that the majority of the class favors approval of the Settlement.

Seventh, the Court will weigh the opinion of competent counsel in determining the reasonableness of the Settlement. Both Plaintiffs and McDonald’s utilized experience counsel in this case and their opinions about the Settlement are very important. Those counsel support final approval of the Settlement. Additionally, Judge Lynch submitted a declaration that in his opinion, the Settlement is fair, reasonable, and adequate. The Court finds no persuasive reason to find against this factor being satisfied.

And eighth, the Court must review the stage of the proceedings and the amount of discovery that has been completed. Plaintiffs state that discovery in the California, Texas, New Jersey and Illinois cases was significant prior to McDonald’s decision to settle the matter. McDonald’s produced thousands of documents and conducted numerous depositions of named Plaintiffs. This Court believes that the parties have conducted significant discovery enabling them to conclude that reaching a settlement is in the best interests of the parties as well as in the best interests of the settlement class. Settlement of this dispute will bring an efficient and beneficial resolution to the claims asserted by the Plaintiffs.

IV. CONCLUSION

There is no serious objection to the concept of utilizing cy pres distribution to eliminate the prohibitive costs of separately proving and distributing each class member’s damages or to the amount of the cy pres fund. The two-step selection process agreed to by the parties obligates the parties to work together to recommend suitable recipient organizations that meet the established criteria. The Court retains the right of final approval of cy pres fund recipients. The non-monetary components of the Settlement could be achieved only through settlement and are of significant consequence to those who filed the various class actions. Experienced, capable counsel vigorously contested the litigation and mediation, and no evidence of collusion exists. The Court finds that the proponents of the Settlement have met their burden to establish that the Settlement is fair, reasonable, and adequate. The Court finds that the Settlement is fair, reasonable, and adequate and is in the best interests of the class.

WHEREFORE, IT IS HEREBY ORDERED that the Settlement is approved.

Enter:

___________________________________

Richard A. Siebel – 1778

Dated: October 30, 2002