Number range CHAPTER

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

)

ACCESS NOW, INC, et. al, )

) CASE NO.

) 00-723-CIV-MORENO

Plaintiffs, )

)

v\. )

)

)

CUNARD LINE LIMITED, CO., and )

CARNIVAL CORPORATION, )

)

Defendants. )

)

**OBJECTIONS OF *AMICUS CURIAE* UNITED STATES**

**[TO PROPOSED CLASS ACTION SETTLEMENT AGREEMENT]{.underline}**

**I. INTRODUCTION**

In November 2000, plaintiffs Access Now, Inc. and Edward Resnick, a
disabled individual who uses a wheelchair for mobility \[hereinafter
collectively referred to as "Access Now"\] filed an amended complaint
alleging violations of Title III of the Americans With Disabilities Act,
42 U.S.C. §§ 12181-12189 ("ADA"), due to accessibility barriers on
eleven of defendant Carnival Corporation's ("Carnival") cruise ships
docked in Florida. Less than one year later, in May 2001, the parties
filed a proposed class action settlement agreement that purports to
settle all accessibility claims -- both ADA-based claims as well as
claims arising under state accessibility laws -- on behalf of a class of
disabled individuals nationwide. This agreement, if endorsed by the
Court, would cover each of Carnival's 15 existing cruise ships and, at
Carnival's discretion, an unlimited number of cruise ships in specified
classes to be constructed in the future.

It is the role of the Attorney General to enforce the ADA "in the public
interest" and to ensure that alleged violations are remedied. Moreover,
private enforcement actions are authorized by Title III of the ADA. The
Department of Justice has only once before (in [Access Now, Inc. v. The
May Dep't Stores, Co.]{.underline}, C.A. 00-148-CIV-MORENO) objected to
a voluntary settlement of ADA claims between private litigants. However,
this settlement so favors Carnival, and so limits future ADA enforcement
actions on behalf of persons with disabilities, that the United States
must object to its approval.

*Amicus curiae* United States of America strongly urges the Court to
reject this settlement on numerous grounds. First, the [May]{.underline}
settlement is so procedurally flawed that its endorsement would
compromise the legal interests of both the greater disability community
and the United States. These procedural flaws range from defective class
notice, to an overly broad release provision, to an excessively broad
class definition that includes claims outside the amended complaint
which the class representative has no standing to represent. Indeed, the
agreement's release provision is so expansive that it would preclude
***any*** future state or federal disability-related discrimination
complaints by class members against Carnival in perpetuity -- thereby
affording Carnival a license to discriminate against future disabled
passengers.

Judicial endorsement of the [Carnival]{.underline} Agreement would,
moreover, compromise the Department of Justice's ability to effectively
regulate a large segment of the cruise ship industry. As places of
public accommodation, cruise ships must comply with all applicable Title
III requirements. The Department of Justice is statutorily-tasked with
the responsibility for issuing and enforcing regulations for Title-III
covered public accommodations. Final regulatory design standards for new
construction or alteration of passenger vessels ([i.e]{.underline}. -
ships built or altered after January 1993) are, however, still likely
some time away. The Department is not "bound" by the
[Carnival]{.underline} Agreement, and whatever substantive requirements
result from the Department's rulemaking process will apply to Carnival
irrespective of the Agreement. However, as a practical matter, the
Department's enforcement of these forthcoming regulations would be
significantly hampered since: (i) class members would be precluded from
bringing complaints alleging that Carnival had violated these
regulations to the Department's attention; and, (ii) the Department
could be foreclosed from using or referencing individual class members'
complaints should it bring a future enforcement action under 42 U.S.C. §
12188(b)(1)(B) against Carnival alleging violation(s) of these
regulations.

Taken together, the [Carnival]{.underline} agreement's flaws strongly
counsel against judicial approval of the settlement. While voluntary
settlement of litigation is always a laudable goal, neither the parties
nor this Court can sacrifice the claims of absent disabled class members
in order to avoid litigation.

**II. BACKGROUND AND PROCEDURAL HISTORY**

The original [Carnival]{.underline} complaint, filed in August 2000,
alleged that then-defendant Cunard Limited violated Title III of the ADA
due to the "existence of barriers to accessibility" on both the QE2 and
the Caronia -- two ships operated by Cunard, who is, in turn, owned by
Carnival. [See]{.underline} Complaint ¶ 10 (filed Aug. 28, 2000) (Docket
#1). The complaint sought injunctive relief only on behalf of two named
plaintiffs \-- Access Now and Edward Resnick. Since then, the case has
had several procedural twists, including multiple amendments to the
complaint, so that the operative amended complaint now covers 11 ships
owned or operated by Carnival (rather than Cunard) and a class
definition that includes disabled persons nationwide. [See]{.underline},
[e.g.]{.underline}, Amended Complaint (filed Nov. 1, 2000) (Docket #14);
Second Agreed Motion to Amend Complaint to Add Class Allegations (filed
May 18, 2001) (Docket #40).

At the behest of the Court, the [Carnival]{.underline} parties also
entered into settlement negotiations in early 2001. These negotiations
bore fruit and, in mid-April 2001, the parties filed a proposed class
action settlement agreement, as well as an accompanying motion for
conditional class certification. [See]{.underline} Joint Motion to
Conditionally Certify Class Action, for Fairness Hearing, a Stay, and
Settlement Hearing (filed April 18, 2001) (Docket \# 31); Joint Notice
of Agreement in Principle/Stipulation (filed Feb. 6, 2001) (Docket #25).
However, at a status conference a few weeks later, the Court dismissed
the motion for conditional class certification (and accompanying
settlement agreement) without prejudice based on the conditional class
aspect of the parties' agreement. [See]{.underline} Order Denying Motion
to Amend Complaint and Order Denying Motion for Class Certification
(filed May 2, 2001) (Docket #35). Thereafter, on May 18, the parties
filed their renewed motion for class certification and a revised class
action settlement agreement. [See]{.underline} Joint Motion for Class
Certification, a Fairness Hearing, a Stay, and Settlement Approval
(filed May 18, 2001) (Docket \# 41). The revised class action settlement
agreement was attached to the Joint Motion and designated a as "Exhibit
1." [See]{.underline} Joint Motion, Ex. 1 \[hereinafter
"[Carnival]{.underline} Agreement"\]. Other than deleting the
"conditional" aspect of the previous agreement, the substance of the
revised [Carnival]{.underline} agreement does not materially deviate
from the terms of the original agreement. In this Joint Motion, the
parties sought certification of a class consisting of:

> all persons who have been or will qualify as having a "disability," as
> that term is defined by 42 U.S.C. § 12102(2), and who have been or
> will be a guest on or otherwise have been or will be adversely
> affected by the design or construction of or the policies, practices,
> or procedures relating to ticket sales, physical accessibility, or the
> provision of auxiliary aides and services for the following \[15
> Carnival cruise ships\].

[Carnival]{.underline} Agreement ¶ 1.1. (This class definition remained
unchanged from the class proposed by the parties in the original
[Carnival]{.underline} settlement agreement.)

Accompanying this renewed motion for class certification was a proposed
class notice. [See]{.underline} \[Proposed\] Notice of Class
Certification, Proposed Settlement, and Fairness Hearing (lodged May 18,
2001). The [Carnival]{.underline} parties proposed that the class notice
be distributed by: (i) mailing a copy of the settlement agreement and
notice to each member of Access Now; (ii) publishing a copy of the
notice in the Paralyzed Veterans of America's magazine (published under
the name *PN magazine*), *New Mobility* magazine, and the newsletter of
the National Federation for the Blind (published under the name *Braille
Monitor*); and (iii) posting a copy of the notice on the Access-Able.com
web site. [See]{.underline} Carnival Joint Motion, \[Proposed\] Order
Granting Conditional Class Certification, Setting Hearing to Consider
Approval of Settlement, and Staying Further Proceedings at 2-3.

Shortly thereafter, the district court granted the parties' pending
motions for class certification and for a fairness hearing.
[See]{.underline} Order Granting Joint Motion for Class Certification
and Setting Hearing to Consider Approval of Settlement (filed May 29,
2001) (Docket #47) \[hereinafter "Class Order"\]. In this brief Order,
the Court held that the proposed class satisfied the requirements of
Fed. R. Civ. P. 23(a) and 23(b). [Id]{.underline}. at 3.[^1] The Court
also scheduled a settlement hearing for September 18, 2001.
[Id]{.underline}.[^2] Finally, the Court approved the parties' proposed
class notice and distribution scheme. [Id]{.underline}. at 4;
[see]{.underline} [also]{.underline} Notice of Class Certification,
Proposed Settlement, and Fairness Hearing (filed May 29, 2001) (Docket
\# 48) \[hereinafter "Class Notice"\]. Objections to the Carnival
agreement must be filed no later than 30 days prior to the settlement
hearing. ([i.e]{.underline}. - August 24, 2001). [See]{.underline} Class
Notice at 4-5.

**III. ARGUMENT**

A. [The Terms of the Carnival Agreement Are Neither Fair, Adequate, Nor
Reasonable\
to All Class Members and the Agreement Should Not Receive Judicial
Approval]{.underline}

Access Now and Carnival, as proponents of the class settlement, bear the
burden of demonstrating that the [Carnival]{.underline} Agreement
represents a fair and reasonable resolution of class members'
discrimination claims. [See]{.underline}, [e.g.]{.underline}, [In re
General Motors Corp. Pick-Up Fuel Tank Products Liability
Litigation]{.underline}, 55 F.3d 768, 785 (3rd Cir. 1995), [cert.
denied]{.underline}, 516 U.S. 824 (1995); [Holmes v. Continental Can
Co.]{.underline}, 706 F.2d 1144, 1147 (11th Cir. 1983). As discussed
below, the [Carnival]{.underline} Agreement is so procedurally flawed
that neither party can satisfy this burden. With problems ranging from
an overbroad class definition that exceeds the scope of the Amended
Complaint, to an overly expansive release provision that purports to
release all future state and federal disability claims in perpetuity,
the Agreement is simply too flawed to be deemed fair to all class
members. The Court must, therefore, reject the settlement agreement.

> **1. Standard of Review: The Court Has A Heavy Duty to Ensure the
> Fairness of a Negotiated Class Action Settlement Agreement**

While Rule 23(e) mandates judicial approval of negotiated class action
settlement agreements, the rules do not provide any standards for such
approval. As a consequence, determining the propriety of a settlement is
committed to the sound discretion of the district court.
[See]{.underline}, [e.g.]{.underline}, [Sterling v.
Stewart]{.underline}, 158 F.3d 1199, 1201 (11th Cir. 1998); [Bennett v.
Behring Corp.]{.underline}, 737 F.2d 982, 986 (11th Cir. 1984).

Although judicial discretion to approve a settlement is broad, it is
not, however, without limits. In particular, the Eleventh Circuit has
cautioned that "the \[class action\] settlement process is more
susceptible than adversarial adjudications to certain types of abuse."
[Pettway v. American Cast Iron Pipe Co.]{.underline}, 576 F.2d 1157,
1214 (5th Cir. 1978), [cert. denied]{.underline}, 439 U.S. 1115
(1979).[^3] As a result, the Court has a "heavy duty to ensure that any
agreement is 'fair, adequate, and reasonable.'" [Piambino
v. Bailey]{.underline}, 757 F.2d 1112, 1139 (11th Cir. 1985) (internal
citation omitted), [cert. denied]{.underline}, 476 U.S. 1169 (1986);
[see also]{.underline} [Holmes]{.underline}, 706 F.2d at 1147; [United
States v. City of Hialeah]{.underline}, 899 F. Supp. 603, 606 (S.D. Fla.
1994), [aff'd]{.underline}, 140 F.3d 968 (11th Cir. 1998);
[accord]{.underline} [Grunin v. Int'l House of
Pancakes]{.underline}, 513 F.2d 114, 123 (8th Cir.) ("Under Rule 23(e)
the district court acts as a fiduciary who must serve as a guardian of
the rights of absent class members . . . \[T\]he court cannot accept a
settlement that has not been shown to be fair, reasonable, and
adequate."), [cert. denied]{.underline}, 423 U.S. 864 (1975).[^4]

When assessing the propriety of a class action settlement agreement, the
court's discretion is also limited in two other respects. First, the
court cannot sanction a proposed settlement that is either collusive or
contrary to public policy. [See]{.underline}, [e.g.]{.underline},
[United States v. City of Alexandria]{.underline}, 614 F.2d 1358, 1362
(5th Cir. 1980); [City of Hialeah]{.underline}, 899 F. Supp. at 609;
[Shurford v. Alabama State Bd. of Educ.]{.underline}, 897 F. Supp. 1535,
1547 (M.D. Ala. 1995). Second, the Court does not have the authority to
modify the terms of a class action settlement agreement; the agreement
must be approved or rejected as a whole. [See]{.underline},
[e.g.]{.underline}, [Brooks v. Georgia State Bd. of
Elections]{.underline}, 59 F.3d 1114, 1119-20 (11th Cir. 1995);
[Holmes]{.underline}, 706 F.2d at 1160 ("Courts are not permitted to
modify settlement terms or in any manner to rewrite the agreement
reached by the parties.").

> **2. The [Carnival]{.underline} Agreement Is So Procedurally Flawed
> That Endorsement\
> of the Agreement Would Undermine the Legal Interests of Disabled\
> Persons Nationwide**

The [Carnival]{.underline} Agreement suffers from several procedural
deficiencies. These procedural problems include an excessively broad
class definition that includes that includes claims outside the Amended
Complaint which the named plaintiff has no standing to represent, as
well as an overly expansive release provision that precludes class
members from litigating future disability-related complaints arising
under state or federal law against Carnival. Each of these areas are
discussed more fully below.

(a) [The class definition is too broad and goes beyond the scope of
    claims raised in the amended complaint]{.underline}

In this case, what began as an individual ADA-based action on behalf of
Access Now and one mobility-impaired plaintiff (Resnick) against
Carnival regarding the physical accessibility of eleven Carnival cruise
ships docked in Florida, has now blossomed in the [Carnival]{.underline}
Agreement into a global class action settlement purporting to settle
every present or future disability-based discrimination claim by a
nationwide class of disabled individuals against all existing
Carnival-owned cruise ships (15) and an unlimited number of ships of
certain classes to be built in the future. As a result, the Agreement
reaches too far -- both in terms of its class definition and the scope
of covered claims -- and should not, therefore, receive judicial
approval.

The class definition set forth in the [Carnival]{.underline} Agreement,
and certified by the Court in May 2001, potentially covers every
disabled individual in the country. As noted above, the
[Carnival]{.underline} class includes not only all persons with
disabilities within the meaning of the ADA who have been (or will be)
passengers on one of the Carnival cruise ships enumerated in the
Agreement, but also all disabled individuals who "otherwise have been or
will be adversely affected by the design or construction of or the
policies, practices, or procedures relating to ticket sales, physical
accessibility, or the provision of auxiliary aides or services\[.\]"
[See]{.underline} discussion [supra]{.underline} p. 4;
[Carnival]{.underline} Agreement ¶ 1.1. This expansive class definition
is procedurally problematic for two reasons.

First, the Carnival class definition purports to cover claims that are
outside the scope of the Amended Complaint. This Complaint contains a
single cause of action alleging that eleven Carnival cruise ships docked
in Florida are in violation of the ADA due to the existence of certain
enumerated physical barriers to accessibility, including: improperly
installed ramps, doors, and doorways; inaccessible guest rooms and
bathrooms; and inaccessible elevators and telecommunication devices that
lacked the requisite accessible features and/or markings.
[See]{.underline} Amended Complaint ¶¶ 17-24. The [Carnival]{.underline}
Agreement, however, goes much further. The Agreement's expansive class
definition includes not only claims regarding physical inaccessibility
of the covered cruise ships, but also claims with respect to "policies,
practices, or procedures concerning ticket sales . . . or the provision
of auxiliary aides and services." In addition, the
[Carnival]{.underline} Agreement expands the scope of covered cruise
ships from the eleven ships docked in Florida that were named in the
Amended Complaint, to all fifteen existing Carnival cruise ships
(wherever docked) and an unlimited number of as-yet unbuilt "future
ships" in the Spirit and Conquest classes. [See]{.underline} Carnival
Agreement ¶¶ 1.1, 1.2. Since the Agreement goes beyond the scope of
claims raised in the Amended Complaint, and these "new" claims do not
share the same factual or legal predicate as the claims alleged in this
Complaint, they cannot properly be made part of the settlement
agreement. [See]{.underline} [National Super Spuds, Inc. v. New York
Mercantile Exchange]{.underline}, 660 F.2d 9, 18 (2nd Cir. 1981) ("If a
judgment after trial cannot extinguish claims not asserted in the class
action complaint, a judgment approving a settlement in such an action
should not be able to do so either."); [cf]{.underline}. [TBK Partners,
Ltd. v. Western Union Corp.]{.underline}, 675 F.2d 456, 460-61 (2nd Cir.
1982) (holding that class action settlement agreement enjoining class
members from prosecuting claims that were not part of class complaint
was properly approved by district court since the released claims arose
out of the identical factual predicate as the claims in the
complaint).[^5]

Second, the Agreement's class definition not only goes beyond the claims
raised in the Amended Complaint, but also includes persons (and claims)
whom the named plaintiff -- Resnick -- has no standing to represent. It
is axiomatic that Resnick, as the sole individual class representative,
must have Article III standing to raise each class claim or subclaim on
behalf of the class. [See]{.underline}, [e.g]{.underline}.,
[Prado-Steiman ex rel. Prado v. Bush]{.underline}, 221 F.3d 1266, 1280
(11th Cir. 2000) ("\[E\]ach \[class\] claim must be analyzed separately,
and a claim cannot be asserted on behalf of a class unless at least one
named plaintiff has suffered the injury that gives rise to that
claim."); [see]{.underline} [also]{.underline} [Griffin v.
Dugger]{.underline}, 823 F.2d 1476, 1482 (11^th^ Cir. 1987) ("\[A\]ny
analysis of class certification must begin with the issue of
standing."); 1 [Newberg on Class Actions]{.underline} §§ 2.05 -.06 (3d
ed. 1992) (representative plaintiffs must be members of the class they
seek to represent and cannot acquire standing to sue by bringing action
on behalf of others who suffered injury) (collecting cases). Yet the
only injury-in-fact personally alleged by Resnick in the Amended
Complaint concerns the physical inaccessibility of Carnival cruise ships
for mobility-impaired customers such as himself. [See]{.underline}
Amended Complaint ¶¶ 9-11. Nowhere, for example, does Resnick allege
that Carnival charged him a higher price for a cruise ticket than
non-disabled passengers, prevented him from boarding unless accompanied
by a fully-mobile adult companion, or refused to provide him with
adequate or appropriate "auxiliary aides or services." Resnick thus
properly cannot represent a class (or subclass) of individuals raising
claims regarding Carnival's "ticketing policies" or provision of
"auxiliary aides or services." As Chief Justice Burger cautioned in the
context of a class action by a farmworkers' union:

> A named plaintiff cannot acquire standing to sue by bringing an action
> on behalf of others who suffered injury which would have afforded them
> standing had they been named plaintiffs; it bears repeating that a
> person cannot predicate standing on an injury which he does not share.
> Standing cannot be acquired through the back door of a class action.

[Allee v. Medrano]{.underline}, 416 U.S. 802, 828-29 (1974) (Burger,
C.J., concurring in part and dissenting in part). Thus, because Resnick
has no standing to represent the expansive class set forth in the
[Carnival]{.underline} Agreement, the Agreement must be rejected.
[See]{.underline} [Amchem Products, Inc. v. Windsor]{.underline}, 521
U.S. 591, 62‑22 (1997) (holding that Rule 23\'s class action
requirements apply to negotiated class action settlement agreements, and
stating that "\[t\]he safeguards provided by Rule 23(a) and (b)
class-qualifying criteria . . . are not practical impediments - checks
shorn of utility - in the settlement context.)

> \(b\) The Agreement's release provision is overly expansive,
> precluding all\
> disability-related discrimination actions by class members -- whether\
> [based on state or federal law -- in
> perpetuity                                        ]{.underline}

In addition to these class definition problems, the
[Carnival]{.underline} Agreement is also procedurally flawed due to its
overly broad release provisions. These releases provisions are so
expansive that they not only exceed the claims stated in the
[Carnival]{.underline} complaint, but also purport to preclude any
future disability-related complaints by class members against Carnival
regardless of the cause of action, type of relief sought, or
conduct/barrier at issue. Simply put, the terms of this release are so
one-sided in favor of Carnival that the Court could, on this basis
alone, reject the [Carnival]{.underline} Agreement.

Spanning more than two pages, the [Carnival]{.underline} Agreement\'s
broad release provisions collectively provide that, in exchange for
Carnival making modifications to its cruise ships' accessibility as
specified in the Agreement, [see]{.underline} [Carnival]{.underline}
Agreement ¶¶ 2.1 - 2.2, class members forever release, with prejudice,
any and all claims against Carnival under state or federal accessibility
laws. [See]{.underline} [id]{.underline}. at ¶¶ 4.2 - 4.9. Of particular
relevance here are two specific paragraphs addressing the scope of
claims released by class members under the Agreement. First, in a
paragraph entitled "Release and Covenant Not to Sue," the Agreement
provides that class members, upon entry of final judgment

> shall forever release, remise, acquit, satisfy, and discharge Carnival
> and all other Released Persons from any and all claims that any one or
> more of them had, now has or in the future will or may have for
> injunctive relief under Title III of the ADA involving ships that are
> subject of this Settlement Agreement (hereinafter, collectively, the
> "Released Claims").

[Carnival]{.underline} Agreement ¶ 4.2. Shortly thereafter, in the
"Related Claims" paragraph, the Agreement further defines the "Released
Claims" listed above as including, but not limited to:

> any and all actions, claims and causes of action arising out of or
> predicated upon allegations: a) that Carnival and/or any other
> Released Person did not comply with the ADA in violation of any
> federal law, Florida law, or any state law; b) that any modifications
> made pursuant to this Agreement comply with any and all ADA
> requirements; and c) of a failure to provide the proper disclosure in
> connection with marketing cruises of disabled persons.

Carnival Agreement ¶ 4.4.

Taken together, the claims released by these two provisions are
exceedingly broad. For while paragraph 4.2 purports to release "only"
present or future Title III-based ADA claims (which is itself overly
broad), paragraph 4.4 casts an even wider net by purporting to preclude
future claims under ***both*** the ADA ***and*** state accessibility
laws. Because of their broad scope, these release provisions are
procedurally improper and threaten to negatively impact the legal
interests of the greater disability community.

First, public policy considerations dictate that prospective waivers of
individuals' civil rights -- whether arising out of the ADA or other
anti-discrimination statutes -- are highly disfavored.
[See,]{.underline} [e.g]{.underline}., [Alexander v. Gardner-Denver
Co.]{.underline}, 415 U.S. 36, 51-52 (1974) ("\[There can be no
prospective waiver of an \[individual's\] rights under Title VII.");
[Adams v. Philip Morris, Inc.]{.underline}, 67 F.3d 580, 584 (6th Cir.
1995) (\"A\[\] \[party\] cannot purchase a license to discriminate\");
[Uherek v. Houston Light and Power Co.]{.underline}, 997 F. Supp. 789,
792 (S.D. Tex. 1998) ("A party may validly waive \[Title VII\] claims
that exist on the day she signs a release, but not future claims.");
[see]{.underline} [also]{.underline} [Rivera-Flores v. Bristol-Myers
Squibb Caribbean]{.underline}, 112 F.3d 9, 10-12 (1st Cir. 1997)
(holding [past]{.underline} ADA claims subject to waiver so long as
release was knowing, voluntary, and "given in exchange for additional
benefit"). Thus, because the [Carnival]{.underline} Agreement's release
provisions purported waiver of all future state or federal accessibility
claims by class members violates public policy, the Agreement must be
rejected. [See]{.underline}, [e.g.]{.underline}, [City of
Alexandria]{.underline}, 614 F.2d at 1362 (noting judicial duty to
ensure class action settlement agreements are neither illegal nor
contrary to public policy); [Shurford]{.underline}, 897 F. Supp. at 1547
(same).

Moreover, by extinguishing all future federal and state
disability-related actions by class members, the Agreement's release
provisions preclude recovery of compensatory or punitive damages by
persons living in states permitting such relief. Indeed, because many
states provide substantial monetary remedies for violations of state
accessibility laws or regulations, some class members may find
litigating their discrimination claims more advantageous under state law
than under Title III of the ADA where only equitable relief is available
for private actions.[^6]

Third, the release would bar future litigation by class members against
Carnival concerning accessibility issues or architectural barriers left
unaddressed by the Agreement. Operation of the release provision would,
for example, thus preclude such future hypothetical actions as: (1) an
ADA-based injunction action by a disabled passenger who uses a
wheelchair claiming that he could not board the M/V Carnival Destiny at
the Port of Miami because ramps and gangways for embarking and
disembarking the ship were not accessible; (2) a class action for
injunctive and monetary relief under both the ADA and state law by
disabled individuals alleging that Carnival discriminated against blind
and mobility-impaired passengers by requiring them to travel with
ticketed "able-bodied" companions; (3) a complaint for monetary relief
under California's Unruh Civil Rights Act by an HIV positive passenger
alleging that Carnival discriminated against him by refusing to treat
him in the M/V Elation's on-board medical facility and by ordering him
to disembark at the next port of call after Los Angeles. In short, this
release provision guarantees Carnival absolute immunity from any and all
future disability-related litigation by class members --- whether
arising under federal or state law, whether for damages or injunctive
relief, and whether or not the future claims concern accessibility
issues addressed by the Agreement. As with other aspects of the
Agreement, this open-ended release provision thus provides a windfall to
Carnival at the expense of future legal claims of the larger disability
community.

Finally, the overly expansive scope of the release provision could also
compromise the Department of Justice's independent authority to enforce
the ADA. The Department of Justice is the federal agency with primary
responsibility for enforcing Title III of the ADA and its implementing
regulations against public accommodations, including cruise ships.
[See]{.underline} 42 U.S.C. §§ 12181 - 12189; 28 C.F.R. pt. 36 (1994);
[see]{.underline} [also]{.underline} [Stevens v. Premier Cruise Lines,
Inc.]{.underline}, 215 F.3d 1237, 1241-43 (11th Cir. 2000) (holding that
Title III of the ADA applies to foreign-flag cruise ships operating in
United States waters). In keeping with this responsibility, the
Department has the statutory authority to conduct compliance reviews of
entities covered by Title III, investigate alleged violations, and, when
necessary and appropriate, commence a civil action in district court for
equitable relief, civil penalties, and/or monetary damages for the
aggrieved party or parties. 42 U.S.C. § 12188(b). Because the Agreement
precludes class members from raising "any claims" in the future against
any of the existing or future ships covered by the Agreement \--
including, potentially, the filing of ADA-based complaints with the
Department \-- the Department's ability to fully and effectively enforce
the ADA against Carnival would be undermined.

Taken together, the procedural deficiencies underlying the
[Carnival]{.underline} Agreement's broad release provision --
particularly the release of all future state or federal disability
discrimination actions - thus counsel against judicial endorsement of
this Agreement. [See]{.underline}, [e.g.]{.underline}, [National Super
Spuds]{.underline}, 660 F.2d at 18-19 (reversing district court's
approval of class settlement agreement with over broad release provision
that provided for uncompensated release of unliquidated potato futures
contracts that were not encompassed within the class complaint
concerning liquidated contracts); [Petruzzi's, Inc. v. Darling-Delaware
Co., Inc.]{.underline}, 880 F. Supp. 292, 299-301 (M.D. Pa. 1995)
(rejecting class settlement requiring release of all class members'
claims when only one-half of class received any direct economic benefit
from agreement).

B. [The Class Notice Is Constitutionally Defective and Will Reach Only A
Minuscule\
Portion of Class Members]{.underline}

The [Carnival]{.underline} Agreement must also be rejected because the
class notice is defective in terms of both its content and method of
distribution. With a distribution scheme primarily relying on notice
published in three limited-circulation magazines, only a tiny faction of
the potentially millions of class members will be adequately informed of
the [Carnival]{.underline} Agreement prior to the settlement hearing.
Such a limited distribution scheme satisfies neither due process nor
Rule 23\'s statutory notice requirements. In addition, the content of
the class notice is constitutionally suspect because nowhere does the
notice describe either the substantive terms of the Agreement or the
breadth of released claims. Given the critical role of class notice in
the approval of class action settlements under Rule 23(e), these
deficiencies -- whether considered individually or collectively --
preclude judicial endorsement of the [Carnival]{.underline} Agreement.

> **1. The Notice's Limited Distribution Scheme Satisfies Neither Due
> Process\
> Nor Rule 23\'s Statutory Requirements**

Because class action litigation under Rule 23 has a preclusive effect on
class members, both procedural due process and statutory considerations
require that notice of a proposed settlement be disseminated to the
class prior to final judicial approval. [See]{.underline} [Eisen v.
Carlisle & Jacquelin]{.underline}, 417 U.S. 156, 172-77 (1974); Fed. R.
Civ. P. 23(c)(2), 23(e). At a minimum, due process demands that such
notice must be "reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them
an opportunity to present their objections." [Mullane v. Central Hanover
Bank & Trust Co.]{.underline}, 339 U.S. 306, 314 (1950).

Beyond this basic due process standard, the nature and degree of notice
required largely depends on the types of claims covered by the
settlement and the identity of interests among class members. For class
actions seeking (or seeking to compromise) only claims for injunctive or
declaratory relief where there is likely to be a high degree of class
cohesiveness and unity ([i.e]{.underline}. - classes certified under
Rule 23(b)(1) or (b)(2)), Rule 23(e) vests broad discretion in district
courts with respect to the content and mechanics of class notice.
[See]{.underline} Fed. R. Civ. P. 23(e) (authorizing district courts to
order class notice "in such manner as the court directs"). Federal
courts have thus generally upheld published notices in such actions so
long as they adequately inform interested parties of the pendency of the
lawsuit, provide a summary of the agreement's general terms, and inform
parties of their respective rights thereunder. [See]{.underline},
[e.g.]{.underline}, [Mendoza v. United States]{.underline}, 623 F.2d
1338, 1350-51 (9th Cir. 1980), [cert. denied]{.underline}, 450 U.S. 912
(1981); [Allen v. Alabama State Bd. of Educ.]{.underline}, 190 F.R.D.
602, 606-07 (M.D. Ala. 2000); [Stanley v. Darlington County School
Dist.]{.underline}, 879 F. Supp. 1341, 1372-73 (D.S.C. 1995), [rev'd in
part on other grounds]{.underline}, 84 F.3d 707 (4th Cir. 1996); 2
[Newberg on Class Actions]{.underline} § 8.32.

On the other hand, in class actions where individual interests are
stronger and class interests less cohesive \-- typically, claims for
monetary relief certified under Rule 23(b)(3) \-- both Rule 23(c) and
due process demand stronger procedural protections for absent class
members. [See]{.underline}, [e.g.]{.underline},
[Holmes]{.underline}, 706 F.2d at 1155-59 (explaining differences in
procedural protections afforded (b)(2) and (b)(3) classes in terms of
class cohesiveness); [Battle v. Liberty National Life Ins.
Co.]{.underline}, 770 F. Supp 1499 (N.D. Ala. 1991) (comparing due
process and statutory notice requirements under Rule 23(b)(2) and Rule
23(b)(3)), [aff'd]{.underline}, 974 F.2d 1279 (11th Cir. 1992), [cert.
denied]{.underline}, 509 U.S. 906 (1993); [Stanley]{.underline}, 879 F.
Supp. at 1372 (noting "more rigorous" class notification standards
enumerated by Rule 23(c)). Thus, in these cases, both due process and
Rule 23(c)(2) mandate that absent class members be given both (i) "the
best notice practicable under the circumstances, including individual
notice to all members that can be identified through reasonable
efforts," and (ii) an opportunity to exclude themselves or "opt-out" of
the class and lawsuit. Fed R. Civ. P. 23(c)(2); [see]{.underline}
[also]{.underline} [Eisen]{.underline}, 417 U.S. at 173-76 (individual
notice must be sent to identifiable class members under Rule 23(c)(2)
regardless of expense).

Viewed through the lens of these statutory and due process requirements,
the [Carnival]{.underline} class notice cannot withstand scrutiny.
First, since the [Carnival]{.underline} Agreement's release provisions
purport to bar future state law-based claims for monetary relief,
[see]{.underline} [Carnival]{.underline} Agreement ¶¶ 4.2 - 4.5, 4.8,
class members should have been afforded both individual (actual) notice
and an opportunity to opt-out of the settlement. Because only a tiny
fraction of class members received actual notice, and because no class
members were afforded the opportunity to opt-out of the settlement, the
[Carnival]{.underline} Agreement must be rejected. [See]{.underline}
Carnival Agreement ¶ 3.6 (emphasizing that class members cannot opt-out
of [Carnival]{.underline} settlement); Class Order at 4.[^7]

As noted above, the [Carnival]{.underline} Agreement's release provision
is exceedingly broad, barring class members from litigating not only
future ADA-based equitable actions, but also claims for compensatory or
punitive damages under applicable state accessibility laws.
[See]{.underline} discussion [supra]{.underline} pp. 12-17. Where, as
here, a class action settlement agreement purports to bar future
litigation of individual monetary claims, this Circuit has held that due
process requires that class members receive actual -- rather than
published -- notice and an opportunity to opt-out irrespective of
whether the class has been nominally certified under Rules 23(b)(1) or
(b)(2). [See]{.underline} [Holmes]{.underline}, 706 F.2d at 1153-61
(reversing district court's approval of proposed class action settlement
because class members in (b)(2) class not provided opportunity to
opt-out and separately litigate Title VII-based back pay claims);
[Johnson v. General Motors Corp.]{.underline}, 598 F.2d 432, 437 (5th
Cir. 1979) (holding that, although actual notice was not required to
bind absent class members in a 23(b)(2) class action seeking only
injunctive and declaratory relief, "due process requires that it be
provided before individual monetary claims may be barred");
[Battle]{.underline}, 770 F. Supp. at 1517 (surveying Eleventh Circuit
caselaw and concluding that "due process required individual notice and
the right to opt-out before the personal pecuniary claims of absent
class members could be barred, even \[when\] the case has been certified
under (b)(2)") (internal quotations omitted). That
[Carnival]{.underline} class members were afforded neither of these
procedural protections thus precludes approval of the
[Carnival]{.underline} Agreement.[^8]

Moreover, even assuming that the [Carnival]{.underline} Agreement's
expansive release provision does not necessitate these
constitutionally-enhanced procedural measures, the notice is nonetheless
defective under the more lenient "reasonableness" standard governing
class notice under Rule 23(e). The primary flaw underlying the
[Carnival]{.underline} class notice concerns its limited means of
distribution. The Court's Class Order adopts the parties' proposed
publication scheme and provides that notice need only be disseminated by
(i) mailing a copy of the settlement and class notice to each member of
Access Now; (ii) publishing a copy of the class notice in PVA's magazine
(published under the name *PN magazine*), *New* *Mobility* magazine, and
the newsletter for the National Federation for the Blind (published
under the name *Braille Monitor*); and (iii) posting an electronic copy
of the notice on the "Access-Able.com" web site. [See]{.underline} Class
Order at 4.

Yet, taken together, these publications -- *PN magazine*, *New
Mobility*, and the *Braille Monitor* -- have a combined *worldwide*
print circulation of just over 83,000 subscribers -- ***less than 1%***
of the approximately 53 million disabled persons the parties estimate to
be potential class members. [See]{.underline} Ex. 2; [see]{.underline}
[also]{.underline} Memorandum of Law in Support of Joint Motion for
Class Certification, Final Fairness Hearing, and Approval of Settlement
at 8 (filed May 18, 2001) (Docket #42).[^9] Moreover, while it is
unknown how frequently the members of the disability community have
accessed the electronic class notice on the Access-Able.com website, it
is highly unlikely that this web site -- or the notice posted thereon --
will be accessed with sufficient frequency to reasonably apprise class
members of the pendency of this settlement agreement.[^10]

With this understanding, the class notice ordered by the district court
can hardly be deemed reasonably calculated to reach all putative class
members. Again, while actual notice is not constitutionally required
under Rule 23(e), common sense dictates that a notice reaching less than
1% of putative class members is neither fair nor reasonably calculated
to apprise *all* class members of the settlement. By comparison, notices
approved under Rule 23(e) for nationwide (or even statewide) class
actions generally cast a much wider net than the [Carnival]{.underline}
notice by dissemination through a combination of methods, including:
mailing notices to class members; publishing notices in large newspapers
or magazines with circulations covering the affected geographic areas;
providing copies of notices to advocacy organizations with statewide
constituencies; posting notices in locations frequented by class
members; and/or ensuring extensive media coverage of the settlement.
[See]{.underline}, [e.g]{.underline}., [Mendoza]{.underline}, 623 F.2d
at 1350-52; [Allen]{.underline}, 190 F.R.D. at 606; [Wyatt ex rel.
Rawlins v. Sawyer]{.underline}, 105 F. Supp. 2d 1234, 1240 (M.D. Ala.
2000); [Stanley]{.underline}, 879 F. Supp. at 1372-73.[^11]

Because publication of the [Carnival]{.underline} notice fell far short
of these well-established benchmarks for adequate notice under Rule
23(e), it is likely that only a small fraction of class members will be
informed of the [Carnival]{.underline} Agreement prior to the settlement
hearing. That the notice will not likely reach the vast majority of
class members thus raises serious constitutional concerns sufficient to
preclude judicial endorsement of the [Carnival]{.underline} Agreement.

**2. The Content of the Notice is Insufficient to Apprise Class Members
of Either**

> **the Substance of the Agreement or the Breadth of Released Claims**

Moreover, in addition to its limited distribution scheme, the content of
the [Carnival]{.underline} class notice cannot withstand scrutiny.
First, and perhaps most important, the notice fails to inform class
members that approval of the Agreement would have the effect of
releasing any state-law based claims for monetary relief they may have
against Carnival -- both presently and in the future -- for disability
discrimination relating to one (or more) of the covered cruise
ships.[^12] This omission alone is sufficient to preclude endorsement of
the Agreement. [See]{.underline} [National Super Spuds]{.underline}, 660
F.2d at 16-18 (rejecting class action settlement when,
[inter]{.underline} [alia]{.underline}, the notice "did not adequately
apprise class members \[with unliquidated futures contracts\] . . . that
these too were being placed on the block"); [Johnson]{.underline}, 598
F.2d at 438 ("Before an absent class member may be forever barred from
pursuing an individual damage claim, however, due process requires that
he receive some form of notice . . . that his damage claims may be
adjudicated as part of it.")

Second, the class notice's generic description of the substantive terms
of the [Carnival]{.underline} Agreement does not pass constitutional
muster. While a class notice is not required to provide a complete
description of the underlying class settlement agreement, due process
requires that the notice nonetheless give class members a basic
understanding of the terms of the agreement. [See]{.underline},
[e.g.]{.underline},

[Mullane]{.underline}, 339 U.S. at 314 (due process requires that
"notice must be of such a nature as reasonably to convey the required
information"); [National Super Spuds]{.underline}, 660 F.2d at 21
(constitutionally adequate notice must "'fairly apprise the . . .
members of the class of the terms of the proposed settlement'"
([quoting]{.underline} [Grunin]{.underline}, 513 F.2d at 122);
[Mendoza]{.underline}, 623 F.2d at 1351-52 (class notices "must present
a fair recital of the subject matter and proposed terms" of the
settlement agreement) (internal quotations and citation omitted);
[Battle]{.underline}, 770 F. Supp. at 1522 (notice sufficient so long as
it "properly identifie\[s\] the plaintiff class and generally
describe\[s\] the terms of the settlement"). Such a description is
important because it provides class members with sufficient information
to make informed decisions regarding whether to investigate further
and/or come forward to object. [See]{.underline} [Mullane]{.underline},
339 U.S. at 314 (noting that due process right to notice "has little
reality or worth unless one is informed that the matter is pending and
can choose for himself to appear or default, acquiesce or contest");
[Mendoza]{.underline}, 623 F.2d at 1352; [Battle]{.underline}, 770 F.
Supp. at 1522.

The [Carnival]{.underline} class notice, however, falls far short of
providing class members with a basic understanding of the
[Carnival]{.underline} Agreement's substantive accessibility provisions.
Indeed, the notice contains only a *single sentence* describing its
accessibility terms: "Under the terms of the Settlement Agreement,
Carnival has agreed that it will make substantial modifications to its
ships and to its policies relating to those ships in order to enhance
their accessibility to individuals with disabilities." Class Notice at
3. Such a brief, generic description of the Agreement's accessibility
provisions hardly provides class members with a sufficient understanding
of the settlement terms to determine whether to object to the Agreement.
Nowhere, for example, does the notice: (i) summarize the"substantial
modifications" being made to the covered ships; (ii) identify the
corporation's agreed-to policy changes; (iii) describe how these changes
enhance onboard accessibility; or, (iv) detail the time frame(s) for
these modifications and policy changes. Without these crucial pieces of
information, due process is offended because absent class members simply
cannot make informed decisions about their legal rights.

C. [Approval of the Carnival Agreement Would Frustrate the Ongoing
Rulemaking Process Regarding Passenger Vessels Such as Cruise
Ships]{.underline}

In addition to its role as the primary ADA enforcement agency for Title
III-covered entities, [see]{.underline} discussion [supra]{.underline}
p. 16, the Department of Justice is also tasked by Congress with the
responsibility for promulgating regulations to implement the public
accommodations requirements of Title III. [See]{.underline} 42 U.S.C. §
12186(b). Since final regulatory design standards for passenger vessels
-- such as cruise ships -- are still likely several years away, approval
of the [Carnival]{.underline} Agreement would compromise the Department
of Justice's ability to enforce the design standards to be established
by these future regulations.

Title III of the ADA prohibits discrimination "on the basis of
disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any place of
public accommodation." 42 U.S.C. § 12182(a). A "place of public
accommodation," in turn, is defined as a facility, operated by a private
entity, whose operations affect commerce and fall within one (or more)
of the 12 broad categories of statutorily-enumerated facilities.
[Id]{.underline}. at § 12181(7). These categories include,
[inter]{.underline} [alia]{.underline}, places of lodging, restaurants,
places of exhibition or entertainment, service establishments, and
places of recreation. [Id]{.underline}.

The Department of Justice has concluded -- and the Eleventh Circuit
agreed in [Stevens]{.underline} -- that cruise ships constitute places
of public accommodation and are, therefore, subject to Title III of the
ADA. [See]{.underline}, [e.g.]{.underline}, [Stevens]{.underline}, 215
F.3d at 1241; 45 Fed. Reg. 35546 (July 26, 1991) [reprinted
in]{.underline} 28 C.F.R. pt. B at 587 (preamble to final DOJ
regulations noting that the term "facility" in 28 C.F.R. § 36.104
includes mobile public accommodations such as cruise ships, floating
restaurants, and mobile health units); Title III Technical Assistance
Manual III-1.2000(D) (1994 Supp.). As places of public accommodation,
cruise ships must comply with all Title III requirements, except new
construction and alteration requirements, applicable to their provision
of goods and services within the areas of the ship that function as
public accommodations such as passenger cabins, restaurants, and retail
shops. At present, these requirements include: (1) establishing
non-discriminatory eligibility criteria that permit individuals with
disabilities to fully and equally enjoy any cruise-related services,
facilities, or accommodations; (ii) making reasonable accommodations in
policies, practices or procedures for disabled passengers; (iii)
ensuring that no individual with a disability is denied cruise-related
services or otherwise treated differently than other individuals because
of the absence of auxiliary aides or services; (iv) removing
architectural or communications barriers that are structural in nature
when such barrier removal is "readily achievable;" and (v) if not
"readily achievable," using alternate means that are readily achievable.
[See]{.underline} 42 U.S.C. §§ 12182(a), 12182(b)(2)(A)(i) - (v).

Pending issuance of final regulations, the Department of Justice has
also determined that the regulations governing new construction or
alterations in Title III-covered facilities do not apply to cruise
ships, boats, or other conveyances.[^13] As the Department noted in the
preamble to the "new construction" regulations:

> \[C\]ommenters raised questions about the applicability of this part
> to places of public accommodation operated in mobile facilities (such
> as cruise ships, floating restaurants, or mobile health units). Those
> places of public accommodation are covered under this part . . . .
> Thus the requirements of subparts B \[28 C.F.R §§ 36.201 - .213\] and
> C \[28 C.F.R §§ 36.301 - .310\] would apply to those places of
> accommodation . . . . \[¶\] However, standards for new construction
> and alterations of such facilities are not yet included in the
> Americans With Disabilities Act Accessibility Guidelines for Buildings
> and Facilities (ADAAG) adopted by § 36.406 and incorporated in
> appendix A. The Department will therefore not interpret the new
> construction and alterations provisions of subpart D \[28 C.F.R §§
> 36.401 - .407\] to apply to the types of facilities discussed here,
> pending further development of specific requirements.

28 C.F.R. pt. 36, App. B at 587; [see]{.underline} [also]{.underline}
ADA Title III Technical Assistance Manual III-5.3000.[^14]

While the regulatory process has commenced with respect to accessibility
standards for cruise ships, this process is not yet complete. In August
1998, the Access Board -- an independent federal agency authorized by
the ADA to develop minimum accessibility guidelines for buildings,
facilities, and transportation vehicles -- created the Passenger Vessel
Access Advisory Committee ("PVAAC") to provide recommendations for
regulations regarding accessibility guidelines for passenger vessels
such as cruise ships. [See]{.underline} Recommendations for
Accessibility Guidelines for Passenger Vessels: Final Report at 1-2
(Dec. 2000) [available at]{.underline}
http://www.access-board.gov/pvaac/commrept \[hereinafter "PVAAC Final
Report"\].[^15] For two years, PVAAC studied ways to achieve access for
disabled persons on passenger vessels in light of various design
considerations relating to the marine environment, as well as for the
varying types and sizes of vessels. [Id]{.underline}. In December 2000,
PVAAC presented its report to the Access Board detailing its
recommendations for accessibility guidelines governing passenger vessels
and shore facilities. [See]{.underline} PVAAC Final Report. It is
anticipated that, once the Access Board subsequently issues its notice
of proposed rulemaking, takes comments, then issues its final
guidelines, the Department of Justice will assess the Board's final
guidelines and determine whether to adopt them (in whole or in part) as
the "new construction" standards for places of public accommodation on
cruise ships. The Justice Department's final rulemaking process will
include a notice of proposed rulemaking, a public comment period,
development of a final rule, and then, finally, publication of the final
rule.

Because final regulations with respect to cruise ships have not yet been
issued, the net effect of the [Carnival]{.underline} Agreement will be
to hamper the Department of Justice's ability to enforce these future
regulations. To be sure, the Department is not "bound" by the
[Carnival]{.underline} Agreement, and whatever substantive requirements
result from the Department's rulemaking process will apply to Carnival
irrespective of the Agreement. However, as a practical matter, the
Department's enforcement of these forthcoming regulations would be
significantly hampered since: (i) class members would be precluded from
bringing complaints alleging that Carnival had violated these
regulations to the Department's attention; and, (ii) the Department
could be foreclosed from using or referencing individual class members'
complaints should it bring a future enforcement action under 42 U.S.C. §
12188(b)(1)(B) against Carnival alleging violation(s) of these
regulations. Indeed, the Agreement plainly anticipates the issuance of
future regulations and specifically precludes class members from using
violation of such regulations by Carnival as a basis for suit against
the corporation. [See]{.underline} Carnival Agreement ¶ 4.8 ("Plaintiffs
agree not to claim any violation of any future statute, regulation, or
other requirement as to cruise vessels as a result of the modifications
agreed to herein."); [see]{.underline} [also]{.underline}
[id]{.underline}. at ¶¶ 4.2, 4.4 (defining released claims). Given that
Carnival bills itself as "the largest, most popular, and profitable
cruise line in the world," Carnival Corporation, 2000 Annual Report 2
(2000) (excerpted copy attached as Ex. 4), and that the expansive class
definition potentially encompasses over 50 million disabled persons
nationwide, the Agreement's purported exemption of Carnival from
compliance with future regulations applicable to "new construction" on
cruise ships could significantly undermine the force and effect of these
regulations.

While it is, of course, impossible at this time to predict precisely
what accessibility standards will be established by future regulations,
it is nonetheless instructive to compare the Agreement's substantive
terms with the recommended guidelines set forth in the PVAAC Final
Report. For example, with respect to the Holiday class of ships, the
Agreement requires Carnival to provide six so-called "fully-accessible"
cabins, and ten "semi-accessible" cabins, for a total of 16 "accessible"
cabins. [See]{.underline} Carnival Agreement ¶ 1.1 (designating names
and classes of cruise ships covered by the settlement agreement);
[see]{.underline} [also]{.underline} [id]{.underline}. at Ex. 1, §
III(A); Ex. 2, § 2. The PVAAC Final Report, on the other hand, would
require a minimum of 21 ***fully-accessible*** staterooms on ships of
this size. [See]{.underline} PVAAC Final Report, Ch. 7, § 224.2 & Table
224.2; [see]{.underline} [also]{.underline} [Lloyd's Register of Ships:
1999-2000 Millenium Issue]{.underline}, Vol. A-G 854 (1999)
(specifications for Carnival's Celebration Holiday-class cruise ship)
(Ex. 5); [Lloyd's Register of Ships]{.underline}, Vol. H-O 190, 497
(specifications for Carnival's Holiday and Jubilee Holiday-class cruise
ships) (Ex. 6).[^16] The PVAAC Final Report, moreover, provides detailed
technical and scoping recommendations for accessible passenger cabins --
including the living, dining, and sleeping areas; toilet and bathing
facilities; cabinets; sinks; and storage rooms -- areas with respect to
which the Carnival Agreement is largely silent. [Compare]{.underline},
[e.g.]{.underline}, PVAAC Final Report, ch. 7, §§ 224.1 - 905.4
[with]{.underline} [Carnival]{.underline} Agreement, Ex. 1, §
III(A)-(E). Again, while it is unknown at this time what technical and
scoping requirements final regulations while codify for new construction
or alterations of cruise ships, this limited comparison suggests that
the accessibility standards set forth in the [Carnival]{.underline}
Agreement may ultimately prove to be less demanding than the standards
imposed by final regulations. Disabled passengers traveling on
Carnival's cruise ships would thus be receiving a "second-class"
cruising experience as compared to either other Carnival passengers, or
disabled passengers on other cruise lines -- a result plainly at odds
with the ADA's non-discriminatory mandate.

D. [Other Considerations Counseling Against Approval]{.underline}

Finally, it bears noting that the [Carnival]{.underline} case is not the
only ADA-based action that Access Now has recently settled. Since
October 1997, Access Now has filed over 330 ADA-based complaints in
Florida federal courts alone. [See]{.underline} Ex. 7 (PACER printout).
Many of these cases have been settled as class actions with nationwide
applicability. [See]{.underline}, [e.g]{.underline}., [Access Now, Inc.
v. AHM CGH, Inc.]{.underline}, 2000 WL 1809979 (S.D. Fla. July 12,
2000); [Access Now, Inc. v. Ambulatory Service Center Group,
Ltd.]{.underline}, 197 F.R.D. 522 (S.D. Fla. 2000); [see]{.underline}
[also]{.underline} [Access Now, Inc. v. The May Dept. Stores,
Co.]{.underline}, C.A. No. 00-148-CIV-Moreno (S.D. Fla. filed Aug. 5,
2000) (pending class action settlement agreement). Indeed, of the over
300 ADA-based complaints Access Now has filed in Florida district
courts, **[every]{.underline}** action concluded to date (235/330) has
been disposed of by settlement agreement or other method short of trial.
[See]{.underline} Ex. 7 (PACER printout); Ex.. 1 at p. 4 (statement by
Access Now representative).[^17]

The United States, like Access Now and other disability-rights advocacy
organizations, is committed to strong enforcement of Title III of the
ADA in order to ensure full accessibility of public accommodations for
disabled individuals. However, settlement of class-wide ADA claims must
not become so paramount that the rights of disabled class members are
unduly compromised in the process. As one district court in this Circuit
noted when rejecting a class action settlement agreement:

> The paramount question before the court is whether the proposed
> settlement is fair to ***all*** members of the plaintiff class. The
> court cannot sacrifice claims of absent class members in order to
> avoid litigation.

[Reynolds v. King]{.underline}, 790 F. Supp. 1101, 1111 (M.D. Ala. 1990)
(emphasis in original). Bearing this caution in mind, the Court must be
wary of Access Now\'s willingness to agree to this global settlement of
a nationwide class action on terms that are a disservice to the legal
interests of absent class members and the public interest.

**IV. CONCLUSION**

For the foregoing reasons, the United States objects to the
[Carnival]{.underline} settlement and urges the Court to disapprove this
agreement.

DATED: Aug. 17, 2001

> Respectfully submitted,
>
> Ralph F. Boyd, Jr.
>
> Assistant Attorney General
>
> Civil Rights Division
>
> Guy A. Lewis
>
> United States Attorney
>
> John L. Wodatch, Chief
>
> Philip Breen, Special Legal Counsel
>
> Renee Wohlenhaus, Deputy Chief
>
> Disability Rights Section
>
> [                                               ]{.underline}
>
> Gretchen E. Jacobs
>
> Trial Attorney
>
> Disability Rights Section
>
> Civil Rights Division
>
> U.S. Department of Justice
>
> P.O. Box 66738
>
> Washington, D.C. 20035-66738
>
> \(202\) 514-9584
>
> \(202\) 307-1198 (fax)
>
> \[gretchen.jacobs@usdoj.gov\]
>
> Counsel for *Amicus Curiae*
>
> United States of America

[CERTIFICATE OF SERVICE]{.underline}

I hereby certify that on this \_\_ day of August, 2001, true and correct
copies of **Objections of Amicus Curiae United States to Proposed Class
Action Settlement Agreement** were served by Federal Express, postage
pre-paid, on the following parties:

Matthew W. Dietz

Brickell Bayview Centre, Suite 1920

80 Southwest 8th Avenue

Miami, FL 33130

Thomas R. Julin

Hunton & Williams

1111 Brickell Avenue - Suite 2500

Miami, FL 33131

Carolyn Doppelt Gray

Epstein Becker & Green, P.C.

1227 25th Street, N.W.

Washington, D.C. 20037

> [                                               ]{.underline}
>
> Gretchen E. Jacobs

[^1]: ^?^ While the Court's Class Order does not specify under which
    subparagraph of Rule 23(b) the Carnival class was being certified,
    the United States assumes for purposes of this memoranda that the
    class was certified under Rules 23(b)(1) and (b)(2) since these were
    the grounds on which the parties sought class certification.
    [See]{.underline} Joint Motion at 2.

[^2]: ^?^ The fairness hearing was subsequently rescheduled by the Court
    for Sept. 25, 2001 in light of the Jewish holidays.
    [See]{.underline} Order Rescheduling Fairness Hearing (filed Jun. 6,
    2001). (Docket #49).

[^3]: ^?^ In [Bonner v. City of Prichard]{.underline}, 661 F.2d 1206
    (5th Cir. 1981) (*en banc*), the Eleventh Circuit adopted as binding
    precedent all decisions of the former Fifth Circuit decided prior to
    October 31, 1981.

[^4]: ^?^ The Eleventh Circuit has also identified several factors for
    district courts to consider when assessing the fairness of class
    actions settlement agreements. These factors are: the likelihood of
    success at trial; the range of possible recoveries; the complexity,
    expense and likely duration of the lawsuit; the substance and degree
    of opposition to the settlement; and the stage of the proceedings at
    which the settlement was achieved. [Bennett]{.underline}, 737 F.2d
    at 986; [see]{.underline} [also]{.underline} [Leverso v. Southtrust
    Bank]{.underline}, 18 F.3d 1527, 1530 & n. 6 (11th Cir. 1994); [In
    re Motorsports Merchandise Antitrust Litigation]{.underline}, 112 F.
    Supp. 2d 1329, 1333 (N.D. Ga. 2000); [Austin v. Hopper]{.underline},
    15 F. Supp. 2d 1210, 1219 (M.D. Ala.\
    1998).

[^5]: ^?^ While the Amended Complaint briefly mentions two Carnival
    documents discussing the corporation's ticketing policies for
    disabled passengers, [see]{.underline} Amended Complaint ¶¶ 10-11,
    these materials are apparently discussed only to support the
    allegation that Carnival's cruise ships are not accessible to
    disabled passengers. Nowhere does this Complaint raise a cause of
    action alleging that Carnival violated the ADA by, for example,
    refusing to book disabled passengers absent a paying "able-bodied"
    adult companion.

[^6]: ^?^ [Compare]{.underline}, [e.g]{.underline}., 42 U.S.C. § 12188
    (ADA Title III remedies and procedures) [with]{.underline} Ark.
    Code. Ann. § 16-123-107 (1999) (intentional acts of disability
    discrimination liable for compensatory and punitive damages); A.R.S.
    §§ 41-1492 - 41-1992.11 (providing private right of action for
    discrimination by public accommodation under Arizonans With
    Disabilities Act and permitting recovery of monetary damages); Cal.
    Civ. Code § 54.1 (2001) (permitting recovery of not less than
    \$1,000 for each violation of state disability law); D.C. Code Ann.
    §§ 2-1402.31, 2-1403.16 (2000) (providing private right of action
    for injunctive and monetary relief for disability-based
    discrimination by a public accommodation); Colo. Rev. Stat. §
    24-34-602 (1998) (violators of Colorado Anti-Discrimination Act
    liable for damages ranging from \$50-500 per occurrence); Fla. Stat.
    Ann. §§ 413.08, 760.07, 760.11(5) (West 1998) (disability
    discrimination by place of public accommodation gives rise to cause
    of action for "compensatory damages, including . . . mental anguish,
    loss of dignity, and any other intangible injuries, and punitive
    damages"); Lou. Rev. Stat. Ann. § 2256 (West 2001) (disabled
    individuals subjected to unlawful discrimination "shall have the
    right to any and all remedies under the law" including compensatory
    damages, attorney's fees, and costs); Mass. Gen. Laws. Ann. ch. 272
    § 98 (West 2001) (authorizing damages for disability-based
    discrimination); Mo. Rev. Stat. §§ 213.065, 213.111 (2000)
    (prohibiting discrimination in places of public accommodation and
    authorizing courts to award "actual and punitive damages"); N.J.
    Stat. Ann. § 10:5-13 (West 2001) (authorizing prevailing parties in
    disability discrimination actions to recover "all remedies available
    in common law tort actions"); N.Y. Exec. Law §§ 296, 297 (McKinney
    2001) (authorizing damages for violations of public access law); Or.
    Rev. Stat. §§ 659.121, 659.425(2000) (authorizing compensatory
    damages and punitive damages not to exceed \$2,500 for unlawful
    discrimination by public accommodation); R.I. Gen. Laws §§ 42-87-2,
    42-87-4 (2000) (permitting victims of disability discrimination to
    bring actions for equitable relief, compensatory and/or punitive
    damages, "or for any other relief that the court deems
    appropriate"); S.C. Code Ann. § 43-33-540 (Law Co-op 2000) (civil
    damages not to exceed \$5,000 available for disabled individuals
    subject to discrimination); Tex. Civ. Code Ann. § 121.004(b) (Vernon
    1995) (imposing \$100 penalty for each violation of Texas
    Architectural Barriers Act); Utah Code Ann. §§ 13-7-3, 13-7-4 (2000)
    (discrimination by place of public accommodation subject to "civil
    action for damages and any other remedy available in law or
    equity"); Vt. Stat. Ann. §§ 4502, 4506 (2000) (prohibiting
    discrimination by public accommodations and authorizing private
    enforcement actions for injunctive relief, as well as compensatory
    or punitive damages).

[^7]: ^?^ Pursuant to the class notice distribution scheme approved by
    the Court, only the members of Access Now received individual mailed
    copies of the class notice and settlement agreement.
    [See]{.underline} Class Order at 4. Access Now is comprised of
    approximately 500 members, including both disabled and non-disabled
    individuals. [See]{.underline} Amended Complaint ¶ 6; Ex. 1
    (excerpts from Access Now's web site). Given that the putative
    [Carnival]{.underline} class may well encompass millions of disabled
    individuals, it cannot be said that notice mailed to less than 500
    class members is reasonably calculated to apprise *all* class
    members of the pendency of the settlement. [See]{.underline}
    [Eisen]{.underline}, 417 U.S. at 173 (individual notice satisfying
    procedural due process must be sent to "all class members whose
    names and addresses may be ascertained through reasonable effort"
    regardless of expense).

[^8]: ^?^ Nor can it be argued that publication of the
    [Carnival]{.underline} class notice may be deemed to satisfy the
    requisite actual notice. For not only are the circulations of these
    magazines extremely limited, [see]{.underline} discussion
    [infra]{.underline}, but publication -- even in the largest
    circulation newspapers or magazines -- is rarely a constitutionally
    acceptable substitute for individual, mailed notice.
    [See]{.underline}, [e.g.]{.underline}, [Eisen]{.underline}, 417 U.S.
    at 175 ("'\[N\]otice by publication ha\[s\] long been recognized as
    a poor substitute for actual notice and . . . its justification
    \[is\] 'difficult at best.'") ([quoting]{.underline} [Schroeder v.
    City of New York]{.underline}, 371 U.S. 208, 213 (1962));
    [Mullane]{.underline}, 339 U.S. at 313-15 (holding publication of
    notice in local newspaper constitutionally insufficient, and noting
    "\[i\]t would be idle to pretend that publication alone . . . is a
    reliable means of acquainting interested parties of the fact that
    their rights are before the courts").

[^9]: ^?^ According to recently-released figures by the U.S. Census
    Bureau, about 1 in 5 Americans -- or about 53 million people --
    identify themselves as having some type of disability.
    [See]{.underline} United States Census Bureau*, Americans With
    Disabilities: 1997* (March 2001), [available at]{.underline}
    http://www.census.gov/hhes/www/disable/sipp/disable97.html. This is
    also the figure cited in the parties' class certification brief. To
    be sure, it is impossible to know precisely how many of these 53
    million disabled individuals have booked or will book a cruise on
    one of Carnival's cruise ships covered by the Agreement. However,
    given the breadth of the class definition -- a definition that
    encompasses not only disabled individuals who have, or may in the
    future be, guests on a covered cruise ship, but also disabled
    persons "adversely affected" by Carnival's policies practices, or
    procedures regarding ticket sales, physical accessibility, or
    auxiliary aides or services -- it is arguable that the class
    includes virtually every disabled Americans since every such person,
    whether or not they book a cruise, may be said to be "adversely
    affected" by Carnival's discriminatory practices or policies.

[^10]: ^?^ As of the date of filing of this memorandum, the Carnival
    class notice had not been posted on the Access-Able.com web site.
    [See]{.underline} Declaration of Gretchen E. Jacobs ¶ 3 (dated Aug.
    17, 2001). In any event, according to statistics maintained by the
    website, this site is "visited" by approximately 15,000 - 20,000
    users per month. [See]{.underline} id. at ¶ 2. Thus, posting an
    electronic copy of the [Carnival]{.underline} class notice on this
    web site -- even indulging the unlikely scenario that
    [every]{.underline} visitor to the site also accesses and reads the
    separately-linked notice -- does not appreciably add to the
    circulation of the class notice. Even including all monthly visitors
    to this site, the class notice is still being disseminated through
    publication (83,000) and posting on the Access-Able.com web site
    (20,000) to less than 1% of the 53 million potential class members.

[^11]: ^?^ For example, in [Allen]{.underline}, Rule 23(e)'s notice
    requirements were held satisfied in an action challenging Alabama's
    teacher certification process when the class notice was published in
    eight major daily newspapers, mailed to presidents of all Alabama
    colleges and universities offering teaching credentials, and posted
    at these institutions. 190 F.R.D. at 606. In [Wyatt]{.underline},
    notice regarding settlement of a class action challenge to the
    Alabama mental health system was held sufficient when the notice was
    mailed to patients, legal guardians, and mental health advocacy
    organizations with statewide constituencies; published in newspapers
    within each city housing a mental health facility; and, discussed
    extensively in press releases and news conferences. 105 F. Supp. 2d
    at 1240.

[^12]: ^?^ Indeed, the notice is not only silent with respect to the
    release of state law claims, but gives the misleading impression
    that the [Carnival]{.underline} litigation involves (and, thereby,
    releases) only ADA-based accessibility claims. In the "Description
    of the Litigation" section, the notice states that the "sole
    purpose" of plaintiffs in bringing this action was to bring
    Carnival's cruise ships into compliance with the ADA. Class Notice
    at. 3. The notice then goes on to state: "No monetary damages of any
    sort are sought or permitted for private litigants under Title III
    of the ADA." Taken togther, these statements suggest that the
    [Carnival]{.underline} case raises only ADA claims and neither
    addresses, nor releases, causes of action for monetary damages under
    state accessibility laws.

[^13]: ^?^ The ADA mandates more stringent accessibility standards for
    most public accommodations designed, constructed, or altered after
    January 26, 1993. [See]{.underline} 42 U.S.C. § 12183; 28 C.F.R. §§
    16.401 - .402. The Department of Justice has promulgated final
    regulations governing so-called "new construction" which set forth
    detailed scoping requirements ([i.e]{.underline}. - what has to be
    accessible) and technical standards ([i.e]{.underline}. - how access
    is to be achieved) for these facilities. [See]{.underline} 28 C.F.R.
    pt.36, appendix A, Standards for Accessible Design. Public
    accommodations constructed before January 1993 (and not subsequently
    altered after that date), must still comply with the ADA's
    non-discrimination and "barrier removal" provisions, but they need
    not meet the ADA standards. [See]{.underline} 42 U.S.C. §§
    12182(b)(2)(iv) - (v).

[^14]: ^?^ With respect to Title III-covered facilities providing
    transportation services, the Department of Justice shares regulatory
    authority with the Department of Transportation ("DOT"). See 42
    U.S.C. §§ 12184(a), 12186(a)(1). DOT is responsible for issuing
    regulations to implement Title III's transportation vehicle (as
    opposed to public accommodation) requirements. [Id]{.underline}. at
    § 12186(a)(1). As with the Department of Justice, DOT has determined
    that the ADA covers passenger vessels such as cruise ships. 56 Fed.
    Reg. 45,584, 45,600 (1991). Like the Department of Justice, DOT is
    still in the process of establishing regulatory standards for new
    construction or alteration of passenger vessels. [See]{.underline}
    49 C.F.R. pt. 37, App. D, § 37.109; 49 C.F.R. § 37.5(f).

[^15]: ^?^ Created in 1973, the Access Board is an independent federal
    agency with responsibility for, among other things, ensuring the
    barrier-free design of federal buildings and other projects subject
    to the Architectural Barriers Act. [See]{.underline} Rehabilitation
    Act of 1973, Pub. L. No, 93-112, § 502 (1973) (codified at 29 U.S.C.
    § 792); [see]{.underline} [also]{.underline}
    http://www.access-board.gov/about/boardhistory.htm (summarizing
    history and jurisdiction of the Access Board). The Board's present
    membership includes representatives from 12 federal agencies, one of
    whom is the Department of Justice. [See]{.underline} 29 U.S.C. §
    792(a)(1)(B). Under the ADA, the Access Board is authorized to issue
    minimum design guidelines under Titles II and III that the
    Department of Justice must not go beneath; however, by law, the
    Department must issue final rules to enforce Titles II and III.
    [See]{.underline} 42 U.S.C. § 12204.

[^16]: ^?^ According to [Lloyd's Register of Ships]{.underline}, each of
    Carnival's three existing Holiday-class ships -- Jubilee,
    Celebration, and Holiday -- have approximately 720 cabins.
    [See]{.underline} [id]{.underline}. For passenger vessels of this
    size, the PVAAC Final Report recommends 3% of the total number of
    cabins (referred to as "staterooms") to be fully accessible to
    disabled passengers. [See]{.underline} PVAAC Final Report, ch. 7,
    Table 224.2.

[^17]: ^?^ Access Now's web site (www.adaaccessnow.org) states that one
    of the organization's primary goals is to "obviate the necessity and
    expense of going to trial" through settlement agreements.
    [See]{.underline} Ex. 1 at p.1.