IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 97-B-2135

COLORADO CROSS-DISABILITY COALITION

and

JULIE REISKIN and DEBBIE LANE, for themselves and all others similarly situated,

Plaintiffs,

v.

TACO BELL CORPORATION,

Defendant.

THIRD AMENDED CLASS ACTION COMPLAINT

Plaintiffs Colorado Cross-Disability Coalition, Julie Reiskin and Debbie Lane, by and through their attorneys Kevin W. Williams and Fox & Robertson, P.C., hereby submit their Third Amended Class Action Complaint for violation of the Americans with Disabilities Act and the Colorado AntiDiscrimination Act.

INTRODUCTION 1. Over seven years after Congress passed our nation’s landmark civil rights law for people with disabilities, Defendant -- which owns, operates, leases and leases to Taco Bell restaurants in Colorado -- has yet to make its restaurants accessible to wheelchairs.

2. On July 12, 1990, Congress enacted the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., establishing the most important civil rights law for people with disabilities in our country's history.
3. Congress explicitly stated that among the purposes of the ADA are: 1. “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;” 2. “to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities, . . .;” and 3. “to invoke the sweep of congressional authority, including the power to enforce the 14th Amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.”
42 U.S.C. § 12101(b). 4. Congress gave commercial businesses one and a half years to implement the Act. The
effective date was January 26, 1992. 5. In spite of this abundant lead time and the extensive publicity the ADA has received
since 1990, Defendant continues to discriminate against people who use wheelchairs in ways that include but are not limited to maintaining fixed barriers designed to cause patrons to form a single line (“queue lines”) that are too narrow to permit passage of people who use wheelchairs, blocking queue lines and maintaining counters too high for people who use wheelchairs.
JURISDICTION -2-

6. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343 and pursuant to its pendent jurisdiction over claims brought under the laws of the State of Colorado.
7. Venue is proper within this District pursuant to 28 U.S.C. § 1391.
PARTIES 8. Plaintiff Julie Reiskin is and was at all times material hereto a resident of Colorado residing at 3645 Milwaukee St., Denver, Colorado, 80205. Ms. Reiskin has multiple sclerosis and is, as a result, substantially impaired in several major life activities. Among other things, Ms. Reiskin requires an electric wheelchair for mobility. 9. Plaintiff Debbie Lane is and was at all times material hereto a resident of Colorado residing at 1421 Pearl Street, No. 1, Denver, Colorado, 80203. Ms. Lane has epilepsy and spastic paraparesis and is, as a result, substantially impaired in several major life activities. Among other things, Ms. Lane requires an electric, three-wheel scooter for mobility. 10. Plaintiff Colorado Cross-Disability Coalition (“CCDC”) is a non-profit corporation incorporated in the State of Colorado. It is a state-wide organization of people with disabilities -including those who use wheelchairs and electric scooters due to mobility impairments -- and their nondisabled allies. CCDC’s purpose is to ensure full participation of all people with all types of disabilities in the entire community. As part of that purpose, CCDC seeks to ensure that people with disabilities have access to -- and do not encounter discrimination in -- places of public accommodation. CCDC
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engages in extensive outreach as well as advocacy and educational efforts to promote access for and combat discrimination against people with disabilities. This effort and this purpose have been and continue to be adversely affected by Defendant’s violations of the ADA and the Colorado AntiDiscrimination Act (“CADA”), C.R.S. § 24-34-601 et seq.
11. Defendant Taco Bell Corporation is a corporation incorporated under the laws of California. Its principal place of business is 17901 Von Karmen Avenue, Irvine, CA 92614. Taco Bell Corporation owns, operates, leases and/or leases to Taco Bell restaurants in Colorado.
CLASS ACTION ALLEGATIONS 12. Plaintiffs Julie Reiskin and Debbie Lane seek to maintain this action as a class action under Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure. The class consists of all people with disabilities who use wheelchairs or electric scooters for mobility who, during the two years prior to the filing of the Class Action Complaint, were denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any Taco Bell restaurant in Colorado on the basis of disability. 13. The class identified in paragraph 12 is believed to consist of well over 1,000 members and joinder of all of such class members in this lawsuit is impracticable. 14. There are numerous questions of law and fact common to the class, including without limitation, the following:
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1. Whether Taco Bell restaurants in Colorado are “public accommodations” under the ADA;
2. Whether Taco Bell restaurants in Colorado are “public accommodations” under C.R.S. § 24-34-601;
3. Whether Taco Bell restaurants in Colorado deny the full and equal enjoyment of their goods, services, facilities, privileges, advantages, or accommodations to people in wheelchairs in violation of the ADA and C.R.S. § 24-34-601; and
4. What measures are legally required to bring Taco Bell restaurants in Colorado into compliance with the ADA and C.R.S. § 24-34-601.
15. The claims of Ms. Reiskin and Ms. Lane are typical of the claims of the members of the class. They -- like all other members of the class -- use a wheelchair or electric scooter for mobility and claim Defendant has violated the ADA and C.R.S. § 24-34-601 by failing to make its Taco Bell restaurants accessible to people in wheelchairs.
16. Ms. Reiskin and Ms. Lane will fairly and adequately protect the interests of the class because they have retained counsel with extensive experience in litigation, including class action litigation. In addition, Plaintiffs’ counsel, Timothy Fox, and counsel for CCDC, Kevin Williams, are thoroughly familiar with issues concerning people with disabilities because both are tetraplegics and both have used an electric wheelchair for over 10 years. Finally, Ms. Reiskin and Ms. Lane have no interests that conflict in any way with those of the class.
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17. This action may be maintained as a class action pursuant to Rule 23(b)(2) because the Defendant’s violations of the ADA and CADA, including but not limited to the maintenance of narrow queue lines and high counters, are applicable to all members of the class. Therefore, an injunction requiring compliance with the ADA and CADA is appropriate and the primary relief sought is injunctive relief.
18. This action may be maintained as a class action pursuant to Rule 23(b)(3) because the many questions of law and fact which are common to class members clearly predominate over individual questions affecting members of the class. The common issues of law and fact relate to issues central to the case, such as whether Taco Bell restaurants in Colorado are public accommodations, whether removing or widening the narrow queue lines, lowering counters and otherwise complying with the ADA in stores built prior to the effective date of the ADA is readily achievable for the Defendant and whether Defendant has violated C.R.S. § 24-34-601. In addition, because Plaintiffs seek only $50 in damages for each instance of discrimination, the minimum amount of damages required by C.R.S. § 24-34-602, there are no individual issues concerning each member’s damages.
19. A class action is superior to other available methods for the fair and efficient adjudication of this controversy because the damages suffered by individual class members are small and because the burden upon such individual litigants may make it difficult and impractical for them to pursue their claims against Defendant.
20. Judicial economy will be served by maintenance of this lawsuit as a class action in that it is likely to avoid the burden which would be otherwise placed upon the judicial system by the filing of
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numerous similar suits by disabled people in the region. There are no obstacles to effective and efficient management of this lawsuit as a class action by this Court.
GENERAL ALLEGATIONS 21. CCDC’s members include many people who use wheelchairs. Many of these people are regular patrons of “fast food” restaurants, including Taco Bell restaurants. 22. On or about July 27, 1997, Plaintiff Julie Reiskin, her stepson, and two of his friends attempted to patronize the Taco Bell at 1265 S. Colorado Boulevard. When Ms. Reiskin approached the counter to place her order, she encountered a series of fixed barriers designed to cause patrons to form a single line, or “queue line.” The width of the lane between the barriers was too narrow for her to traverse in her wheelchair, and Ms. Reiskin’s wheelchair became stuck in the line. 23. Ms. Reiskin told the restaurant employees that she could not get through. The employees said that Ms. Reiskin should go around the line through a section that was cordoned off with a chain. Because the employees did not offer assistance, Ms. Reiskin’s stepson had to unhook the chain. Ms. Reiskin then proceeded down a narrow aisle to the area where customers order food. 24. Ms. Reiskin, her stepson and his friends ordered their dinner. While they waited, another customer ordered, and his food was ready before Ms. Reiskin’s. The aisle, however, was so narrow that the other customer could not get by Ms. Reiskin to pick up his food. In addition, the counter was so high that it was very difficult for Ms. Reiskin to pay the cashier or pick up her food.
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25. In the Taco Bell at 1265 S. Colorado Boulevard, the width of the queue lines is approximately 25 inches. At the point where a 180 degree turn is required, the width is approximately 24 inches.
26. The counter at the Taco Bell at 1265 S. Colorado Boulevard is approximately 41 inches high for its entire length.
27. On May 28, 1998, Plaintiff Debbie Lane attempted to patronize Taco Bell restaurants located at 12480 W. 64th Avenue, Arvada, Colorado and 7221 Pecos, Denver, Colorado. On information and belief, these restaurants were designed and constructed for first occupancy after January 26, 1993.
28. The queue line at the Taco Bell restaurant on W. 64th Avenue was so narrow that it was almost impossible for Ms. Lane to traverse in her scooter. She was forced repeatedly to drive back and forth to try to make the tight turns, causing her to ram the scooter into the condiment stand (which was a boundary for a portion of the queue line) in the process. This caused customers on the other side of the condiment stand to jump with surprise. Other customers began to stare at Ms. Lane as she struggled to make her way through the queue line. This embarrassed Ms. Lane. One customer, seeing the difficulties Ms. Lane was having, commented sarcastically “Wow, this place is really accessible.”
29. In the Taco Bell restaurant on W. 64th Avenue, the width of the queue line is approximately 34 inches. At the point where a 180 degree turn is required, the width is approximately 32 inches.
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30. At the Pecos Street Taco Bell restaurant, Ms. Lane was unable even to try to enter the queue line because it was blocked by a “Godzilla” advertising placard. Thus even though other patrons who did not use wheelchairs were able to traverse the queue line, Ms. Lane was forced to use a segregated path to get to the counter.
31. In the Taco Bell restaurant on Pecos Street, the width of the queue line is approximately 34 inches. At the point where a 180 degree turn is required, the width is approximately 38 inches.
32. The Americans with Disabilities Act Accessibility Guidelines (“ADAAG”), 28 C.F.R. Part 36, Appendix A, specify that the width of an accessible route requiring a turn around an obstruction must be a minimum of 42 inches and that the width at the point of the 180 degree turn must be a minimum of 48 inches. Id. § 4.3.3 and figure 7(b). This standard applies to the queue lines at Taco Bell restaurants in Colorado.
33. The queue lines in the Taco Bell restaurants identified above are narrower than the specifications in the ADAAG, and other Taco Bell restaurants in Colorado have queue lines in which the width is below that required by the ADAAG.
34. ADAAG § 7.2 requires that an area of the counter at least a 36 inches in width be at most 36 inches in height. This standard applies to the counters at Taco Bell restaurants in Colorado.
35. The counter at the Colorado Boulevard Taco Bell restaurant does not meet ADAAG specifications, and other Taco Bell restaurants in Colorado have counters which do not comply with the ADAAG.
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36. The queue lines, counter heights and other features of the Taco Bell restaurants in Colorado discriminate against people in wheelchairs by denying them the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of these Taco Bell restaurants.
37. Ms. Reiskin and Ms. Lane regularly patronize “fast food” restaurants. They plan to patronize such restaurants at least once a week in the future. They would like to -- and are ready, willing and able to -- patronize Taco Bell restaurants when their discriminatory barriers are removed or cured.
38. Many of CCDC’s members patronize “fast food” restaurants, plan to continue to do so in the future and would like to -- and are ready, willing and able to -- patronize Taco Bell restaurants when the discriminatory barriers are removed or cured.
39. In addition, the discriminatory features of Taco Bell restaurants in Colorado, including but not limited to those described above, are generally known to CCDC’s members who are discouraged from patronizing these restaurants. Ms. Reiskin and Ms. Lane now generally avoid patronizing Taco Bell restaurants because they are aware of the discriminatory barriers they will encounter there.
40. Ms. Reiskin and Ms. Lane were injured by the discrimination they encountered at the Taco Bell restaurants identified above and continue to be injured by their inability to patronize this and other Taco Bell restaurants in Colorado. They have also been injured by the stigma of Defendant’s discrimination.
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41. CCDC’s members are injured by their inability to patronize Taco Bell restaurants in Colorado and by the stigma of the discrimination they encounter when they attempt to patronize these restaurants.
42. In addition, Defendant’s actions have caused and continue to cause distinct and palpable injury to CCDC itself.
43. Defendant’s discrimination has been and continues to be a barrier to the full participation of people with disabilities in the state of Colorado and therefore frustrates CCDC’s purpose.
44. Defendant’s discriminatory practice has interfered with and continues to interfere with CCDC’s efforts to make Colorado accessible to people with disabilities and thus makes CCDC’s task more difficult for several reasons:
1. Defendant’s discrimination, in and of itself, makes Colorado less accessible to people who use wheelchairs.
2. In addition, Defendant’s discrimination segregates people with disabilities thereby perpetuating discriminatory attitudes in the public at large.
45. Defendant’s discrimination thus has required and continues to require CCDC to make a greater effort -- and to allocate significant resources -- to counsel those injured by such discrimination, to educate the public that it is wrong and otherwise to counteract the adverse impact of such discrimination. This perceptibly impairs CCDC’s counseling, advocacy and educational missions.
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46. CCDC also has devoted and continues to devote resources -- including but not limited to those devoted to the present lawsuit -- to identify and counteract the sources of discrimination in Colorado, including that of Defendant.
47. CCDC’s injuries are traceable to Defendant’s discriminatory conduct alleged herein and will be redressed by the relief requested.
48. CCDC’s members who use wheelchairs have been injured and will continue to be injured by Defendant’s refusal to comply with the ADA and the CADA and its continued acts of discrimination.
49. The elimination of discrimination such as that of Defendant is at the core of CCDC’s organizational purpose.
50. The individual participation of each injured CCDC member is not indispensable to the proper resolution of this case.
FIRST CLAIM FOR RELIEF (Violation of the Americans with Disabilities Act) 51. Plaintiffs reallege and incorporate by reference the allegations set forth in paragraphs 1 50 above as if fully set forth herein. 52. Title III of the ADA prohibits discrimination by public accommodations on the basis of disability. 42 U.S.C. § 12181 et seq.
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53. Restaurants are public accommodations covered by the ADA. 42 U.S.C. § 12181(7)(B).
54. The Taco Bell restaurants in Colorado are all “public accommodations” under the ADA.
55. Title III applies to “any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). Defendant owns, leases (or leases to) and/or operates places of public accommodation.
56. The ADA defines illegal discrimination to include, in pertinent part: 1. a “failure to remove architectural barriers. . . that are structural in nature, in existing facilities. . . where such removal is readily achievable;” 2. “with respect to a facility or part thereof that is altered . . . in a manner that affects or could affect the usability of the facility or part thereof, a failure to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. Where the entity is undertaking an alteration that affects or could affect usability of or access to an area of the facility containing a primary function, the entity shall also make the alterations in such a manner that, to the maximum extent feasible, the path of travel to the altered area . . . [is] readily accessible to and usable by individuals with disabilities where such alterations to the path of travel . . . are not -13-

disproportionate to the overall alterations in terms of cost and scope (as determined under criteria established by the Attorney General).” and 3. “a failure to design and construct facilities for first occupancy later than 30 months after July 26, 1990 that are readily accessible to and usable by individuals with disabilities . . .” 42 U.S.C. §§ 12182(b)(2)(A)(iv) & 12183(a). 57. On information and belief, removing or widening the narrow queue lines, lowering the counters and otherwise bringing Taco Bell restaurants in Colorado that were designed and constructed for first occupancy before January 26, 1993, into compliance with the ADA is readily achievable. 58. By failing to remove or widen queue lines and lower counter heights and otherwise denying to persons who use wheelchairs the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of the Taco Bell restaurants in Colorado, Defendant has violated the ADA and has injured the Plaintiffs. 59. On information and belief, Defendant has designed and constructed Taco Bell restaurants in Colorado for first occupancy after January 26, 1993, with queue lines and counters that do not comply with the ADAAG and thus Defendant has violated the ADA and has injured the Plaintiffs. 60. Defendant has obstructed its queue lines by placing objects such as advertising placards in the lines, thereby preventing persons who use wheelchairs and scooters from accessing the lines in violation of the ADA and injuring Plaintiffs.
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SECOND CLAIM FOR RELIEF (Violation of C.R.S. § 24-34-601) 61. Plaintiffs reallege and incorporate by reference the allegations set forth in paragraphs 1 60 above as if fully set forth herein. 62. C.R.S. § 24-34-601(1) defines a “place of public accommodation” to include “any place of business engaged in any sales to the public,” including “any place to eat.” 63. The Taco Bell restaurants in Colorado are places of business engaged in sales to the public and places to eat and therefore are places of public accommodation for purposes of § 24-34601. 64. C.R.S. § 24-34-601(2) provides in relevant part that “[i]t is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability . . . the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation . . .” 65. By, among other things, designing and constructing, and/or failing to cure, queue lines or counters that do not comply with the ADAAG, and by obstructing queue lines with placards and the like, the Defendant has discriminated against the Plaintiffs by denying them the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of the Taco Bell restaurants in Colorado in violation of § 24-34-601.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray: 66. That this Court assume jurisdiction. 67. That this Court certify the class of Plaintiffs identified in paragraph 12 pursuant to Rule 23 of the Federal Rules of Civil Procedure. 68. That this Court issue an injunction ordering Defendant to comply with the ADA by removing or widening narrow queue lines, keeping queue lines unobstructed by placards or other objects, lowering counter heights, and otherwise bringing its restaurants into compliance with the ADAAG. 69. That this Court award $50 for each instance of discrimination against each member of the class identified in paragraph 12, the minimum amount required by C.R.S. § 24-34-602 for violations of C.R.S. § 24-34-601. 70. That this Court award reasonable attorneys’ fees and costs. 71. That this Court award such additional or alternative relief as may be just, proper and equitable.
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JURY DEMAND: Plaintiffs demand a jury on all issues which can be heard by a jury. Respectfully submitted, FOX & ROBERTSON, P.C.

Dated:
Address of Plaintiff Colorado Cross-Disability Coalition:
1210 E. Colfax Avenue Suite 405 Denver, CO 80218
Address of Plaintiff Julie Reiskin:
3645 Milwaukee St. Denver, Colorado, 80205
Address of Plaintiff Debbie Lane:

Timothy P. Fox Amy F. Robertson 1675 Larimer Street Suite 610 Denver, CO 80202 (303) 595-9700
Attorneys for Plaintiffs
Kevin W. Williams, Esq. General Counsel Colorado Cross-Disability Coalition 1210 E. Colfax Avenue Suite 405 Denver, CO 80218

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1421 Pearl Street, #1 Denver, Colorado, 80203
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 97-B-2135

COLORADO CROSS-DISABILITY COALITION

and

JULIE REISKIN and DEBBIE LANE, for themselves and all others similarly situated,

Plaintiffs,

v.

TACO BELL CORPORATION,

Defendant.

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiffs Colorado Cross-Disability Coalition, Julie Reiskin and Debbie Lane, by and through their attorneys, Fox & Robertson, P.C. and Kevin W. Williams, Esq., hereby submit this Memorandum in Support of their Motion for Partial Summary Judgment. For the reasons set forth below, Plaintiffs request that this Court declare that two of the restaurants at issue in this litigation -- those at 7221 Pecos Street, Denver, Colorado (“Pecos”) and at 12480 W. 64th Avenue, Arvada, Colorado (“64th Avenue”) -- are in violation of Title III of the Americans with Disabilities Act and order such stores to be brought into compliance with that statute.
INTRODUCTION The Americans with Disabilities Act (“ADA” or “Act”) was passed “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). It is “a comprehensive piece of civil rights legislation which promises a new future: a future of inclusion and integration, and the end of

exclusion and segregation.” H. Rep. 101-485, Pt. 3, 101st Cong., 1st Sess. 26, reprinted in 1990 U.S.C.C.A.N. 445, 449. To effect these goals, the Act, passed on July 26, 1990, requires that facilities constructed after a designated date be readily accessible to people with disabilities and in full compliance with Justice Department standards. Despite this mandate and lead time, the newly-constructed Taco Bell restaurants at Pecos and at 64th Avenue maintain “hospitality lines” or “queue lines”1 -- a “stress-free” system for lining up to receive service -- that are narrower than required by Justice Department regulations and that exclude many patrons who use wheelchairs. Instead of using the hospitality lines, such patrons are expected to access the counter to the side of the line, through an entrance that is -- by design -- blocked by a chain during the busiest hours. This system illegally segregates people who use wheelchairs from other patrons and denies them the benefits of the hospitality line. Because the restaurants are new construction, the lines must be modified to comply with the ADA.

STATEMENT OF UNDISPUTED FACTS
Taco Bell sells fast food through counter service. It also provides various other services
(for example, a drive-through window) and facilities (for example, tables and restrooms) that are
beneficial to its customers. One such service, facility and benefit that Taco Bell provides is the
“queue line” or “hospitality line,” a path bordered by rails leading to the service counter that
permits customers to form a single line. Carlos Azalde, speaking on behalf of Taco Bell,2 stated
that queue lines provide[ ] for . . . a stress-free ordering system for the customer. . . . If you don’t have queue lines, the customers spend an inordinate amount of time jumping from line to line. And typically by the time they get to the front of the line, they don’t even know what they want. So in the queue, they don’t have to worry about what line they are in, they can concentrate on what they want to order. It is a perris

1

Taco Bell uses these terms interchangeably. Deposition of Carlos Azalde (“Azalde

Depo.”) at 23 (Tab 1).

2

Azalde Depo. at 6 (Tab 1) and Exh. 1 (Tab 5); see also id. at 12-13 (Mr. Azalde is in

charge of ADA compliance for Taco Bell).

2

[sic, probably “fairer”] system.

Azalde Depo. at 40 (Tab 1); see also Taco Bell’s Answers to Plaintiffs’ First Set of Interrogatories (“Ans. to Ig.”) 1 (Tab 2) (“the purpose Taco Bell seeks to achieve through utilizing queue lines in serving its customers . . . includes, but is not limited to, faster and fairer service, crowd control, better security (with only one person approaching the register at a time), customer preference and flexibility (during times that are not busy, all customers may approach the counter through the alternative access.)”).
The Pecos and 64th Avenue Taco Bell restaurants do not provide the service, facility and benefit of their hospitality lines to many of their customers who use wheelchairs -- despite the fact that they were built after the effective date of the ADA3 -- because the lines are too narrow to permit passage by a wheelchair. A hospitality line consists of two parallel lanes open at one end and joined at the other. Customers enter the line, proceed along one lane, make a 180-degree turn, and traverse the second lane, the end of which opens toward the cashier. At the Pecos restaurant, the two lanes measure approximately 36 and 37 inches wide, respectively (in any event, less than 42 inches each) and the point where the turn is made measures approximately 42½ inches (in any event, less than 48 inches). Declaration of Dale Stephens ¶¶ 3-4 (Tab 3). At the 64th Avenue restaurant, the two lanes measure approximately 36½ and 36 inches wide, respectively (in any event, less than 42 inches each) and the point where the turn is made measures approximately 34 inches (in any event, less than 48 inches). Declaration of Dale Stephens ¶¶ 6-7 (Tab 3); see also Azalde Depo. at 48, 54 (Tab 1)(Pecos and 64th Avenue stores are of the M90H model, which has 36-inch wide queue lines). These queue lines are not accessible to many people in wheelchairs. See, e.g., Deposition of Debbie Lane at 24-28 (Tab 4).
Taco Bell expects customers who use wheelchairs to go to the side of the line and approach the service counter through an opening adjacent to the counter. See Ans. to Ig. 6 (Tab

3

See Ans. to Ig. 5 (Tab 2) and 28 C.F.R. § 36.401(a)(1) & (2).

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2). This opening is, however, obstructed by a chain that is in place during “busy rush hours when needed for handling heavy customer traffic.” Ans. to Ig. 9 (Tab 2), see also Azalde Depo. at 44-45 (Tab 1). That is, the chain obstructs access to the counter during precisely the times when the most people -- including, logically, the most people in wheelchairs -- patronize a Taco Bell. Furthermore, Mr. Azalde testified that he would not be surprised to learn that the chain was in place -- obstructing access to the counter -- at other times as well. Azalde Depo. at 45 (Tab 1).
Taco Bell claims that their system is designed so that people who use wheelchairs will simply “go in the front of the line” and, if the chain is in place, remove the chain. Azalde Depo. at 41-42 (Tab 1). However, Mr. Azalde conceded that:
If a customer using a wheelchair does not have the manual dexterity to open the chain, he or she would have to get the attention of an employee to unlock the chain. Id. at 42. He did not know what other customers -- who had been waiting a longer time -would think about wheelchair users going to the front. Id. at 40. There was no sign stating that customers in wheelchairs were to proceed to the front of the line. Id. at 44. He did not know how a customer in a wheelchair would keep track of his or her place in line. Id. at 44. When asked how mixed groups of customers in wheelchairs and able-bodied customers should handle the hospitality lines, he responded that he “had never thought through that particular situation.” Id. at 44. It “would be easier if people in wheelchairs could go through the queue with everybody else.” Id. at 45-46. As such, far from being a stress-free system in which customers can concentrate on their orders rather than the line they are in, Taco Bell’s system is stressful and confusing for people who use wheelchairs, requiring them to focus on whether the line is accessible, where to go if not,
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whether it is permissible to remove the chain, how to get the attention of the cashier -- during “busy rush hours” -- to unlock the chain, whether it is appropriate to cut in front of others who have been there longer and, if not, how to tell where they are in line. Finally, of course, it is uncontested that the system segregates people in wheelchairs from other patrons and imposes this confusion only on the former.
ARGUMENT Plaintiffs’ Motion for Partial Summary Judgment should be granted because the testimony of Defendant’s representative, Carlos Azalde, and the undisputed dimensions of the hospitality lines at issue in this motion demonstrate that there is no genuine issue as to any material fact and that Plaintiffs are entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(c). The ADA, like other civil rights laws, should be liberally construed to effect its remedial purpose. Tyler v. City of Manhattan, 849 F. Supp. 1429, 1441 n.20 (D. Kan. 1994); see also Berry v. Stevinson Chevrolet, 74 F.3d 980, 985 (10th Cir. 1996) (Holding that “[a] statute which is remedial in nature should be liberally construed.” (Citations omitted.)); Deavenport v. MCI Telecommunications Corp., 973 F. Supp. 1221, 1224 (D. Colo. 1997) (same)).
I. Taco Bell Has Discriminated Against Plaintiffs by Denying Them the Full and Equal Enjoyment of its Goods, Services, Facilities, Privileges, Advantages, and Accommodations. Title III of the ADA prohibits discrimination on the basis of disability by public
accommodations “in the full and equal enjoyment of [its] goods, services, facilities, privileges, advantages, or accommodations.” 42 U.S.C. § 12182(a). Prohibited discrimination specifically includes
failing to design and construct new facilities so that they are “readily accessible to
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and usable by individuals with disabilities,” § 12183(a)(1),1 that is, built in compliance with the ADA Accessibility Guidelines for Buildings and Facilities (“ADAAG”), 28 C.F.R. Part 36, Appendix A; segregating people with disabilities or providing them with facilities or services that are separate from those of others, § 12182(b)(1)(A)(ii), (B) & (C); and denying people with disabilities the opportunity to benefit from a service or facility or providing a service or facility that is not equal to that provided others. § 12182(b)(1)(A)(i) & (ii). The hospitality lines in the newly-constructed Pecos and 64th Avenue restaurants do not comply with the ADAAG and are designed to segregate customers who use wheelchairs from others and to deny such customers the benefits of the hospitality line. These restaurants are in violation of the Americans with Disabilities Act.

A.

Taco Bell Discriminates Against People Who Use Wheelchairs

Through its Failure to Design and Construct New Facilities in Compliance

with the ADAAG

It is uncontested that the two Taco Bell restaurants at issue in this motion are new

construction.2 At the instruction of Congress, the Department of Justice (“DOJ”) promulgated

the ADAAG as the standards all newly constructed facilities must meet in order to be considered

readily accessible to and usable by individuals with disabilities.3 See 42 U.S.C. § 12186(b) and

1

This provision excepts situations in which “an entity can demonstrate that it is

structurally impracticable” to comply. § 12183(a)(1). Because Taco Bell has designed stores

with 42-inch and wider queue lines, Azalde Depo. at 29-31 (Tab 1), it cannot contend that it is

structurally impracticable to comply with ADA and its regulations.

2

See supra note 3.

3

The Supreme Court has held, that, “[a]s the agency directed by Congress to issue

implementing regulations,” the DOJ’s Title III regulations are “entitled to deference.” Bragdon

v. Abbott, 118 S.Ct. 2196, 2209 (1998) (citing § 12186(b)).

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28 C.F.R. § 36.406(a). The ADAAG requires that, within each Taco Bell, “[a]t least one accessible route shall connect accessible buildings, facilities, elements, and spaces.” § 4.3.2(2). An “accessible route” is
A continuous unobstructed path connecting all accessible elements and spaces of a building or facility. Interior accessible routes may include corridors, floors, ramps, elevators, lifts, and clear floor space at fixtures. ADAAG § 3.5 (emphasis added). Doors and counters are “elements” under the ADAAG. See id. (defining element), § 4.3.9 (doors), §§ 5.2 & 7.2 (counters). Thus there must be at least one accessible route connecting the doors of the Pecos and 64th Avenue restaurants to their service counters. As set forth below, the only two routes from the doors to the service counters at these restaurants -- the hospitality lines and the side access for wheelchair users -- do not comply with the ADAAG and thus Defendant is in violation of the ADA.

1.

Taco Bell’s Hospitality Lines Do Not Comply with the

ADAAG

In order to comply with the ADAAG, the hospitality line could have been designed in

one of two ways. Viewed as an accessible route that makes a turn around an obstruction, the

two lanes would have to be at least 42 inches wide while the point of the turn would have to be

48 inches wide. Viewed as a food service line in which a person in a wheelchair makes a 180-

degree turn, the two lanes could be 36 inches wide if the point of the turn provides a 60-inch

diameter turning radius. Taco Bell’s hospitality lines satisfy neither standard.

An accessible route that makes a turn around an obstruction -- as the hospitality line does

when it requires a patron to make a 180-degree turn around the center barrier -- is required by

ADAAG § 4.3.3 to comply with Figure 7(b):

7

That is, the two lanes are required to be 42 inches wide and the point of the turn, 48 inches. Because the lanes of the queue lines at issue in this motion are less than 42 inches wide and the turns, less than 48 inches wide, see Stephens Decl. at ¶¶ 3-4, 6-7 (Tab 3), neither of the stores at issue in this motion have queue lines that comply with this provision of the ADAAG.
In the alternative, the hospitality line could comply with the ADAAG through § 5, which prescribes the standards for restaurants, or § 4.2, which prescribes general space allowances for wheelchairs. Section 5.5 of the ADAAG requires that food service lines have a minimum clear width of 36 inches with a preferred clear width of 42 inches to permit passage around a person in a wheelchair. See also § 4.2.1 (prescribing 36 inches for continuous passage of a single wheelchair). Taco Bell’s Mr. Azalde affirmed that the food service provision applied to queue lines and that he designed them accordingly. Azalde Depo. at 35 (Tab 1).
To use the hospitality line, however, a person in a wheelchair is required to make a 180degree turn at the point where the two lanes meet. Section 4.2.3 of the ADAAG requires a clear space 60 inches in diameter for a wheelchair to make a 180-degree turn.4 This standard is not met in either of the two restaurants at issue in this motion. See Stephens Decl. at ¶¶ 4 & 7. As such, neither store complies with these provisions of the ADAAG.

1.

The Side Access for Persons Who Use Wheelchairs

Violates the ADAAG.

4

Section 4.2.3 also permits a “T-shaped space” for such turns. Because no T-shaped space

is available in a queue line, the point where a wheelchair makes a 180-degree turn must have a

60-inch diameter.

8

As set forth above, there must be at least one accessible route from the doors at the Pecos and 64th Avenue restaurants to their service counters. ADAAG § 4.3.2(2). Because the hospitality lines do not meet ADAAG standards, they do not constitute accessible routes. The alternative access suggested by Taco Bell -- that people in wheelchairs enter through a side opening near the counter -- also does not satisfy this requirement. By its express terms, the ADAAG requires an accessible route to be “unobstructed.” ADAAG § 3.5 (quoted above). The undisputed facts demonstrate that Defendant’s side access for persons in wheelchairs is purposefully obstructed by a chain during the “busy rush hours,” Ans. to Ig. 9 (Tab 2), and Taco Bell’s Mr. Azalde concedes he would not be surprised to learn that it is so obstructed at other times as well. Azalde Depo. at 45 (Tab 1). Thus neither the hospitality lines nor the side access at the Pecos and 64th Avenue restaurants comply with the ADAAG and no accessible route currently exists.

1.

Taco Bell’s System Does Not Provide Substantially

Equivalent or Greater Access.

Section 2.2 of the ADAAG permits “equivalent facilitation,” that is, “[d]epartures from

particular technical and scoping requirements . . . by the use of other designs and technologies . .

. where the alternative designs and technologies used will provide substantially equivalent or

greater access to and usability of the facility.” (Emphasis added.) The burden is on Taco Bell to

demonstrate that their alternative method qualifies as an equivalent facilitation. Independent

Living Resources v. Oregon Arena Corp., 982 F. Supp. 698, 727 (D. Or. 1997).

Taco Bell’s alternative system provides side access that is not remotely equivalent to,

much less greater than, that of its hospitality line. Defendant contends that its hospitality lines

provide non-disabled customers with a “stress-free” ordering experience. In contrast, patrons

who use wheelchairs must figure out access, unhook a chain or find someone to do it for them,

keep track of where they are in line or deal with the consequences of cutting in line, and quickly

9

determine what they want to order at the end of the ordeal. Most significantly, as demonstrated in Sections I.B and I.C below, the system illegally segregates people in wheelchairs and denies them the ability to benefit from the queue lines. See generally Small v. Dellis, No. Civ. AMD 963190, 1997 WL 853515 (D. Md. Dec. 18, 1997) (stating that, generally, under ADAAG goods and services must be provided in an integrated setting).
A good example of “substantially equivalent or greater access” is provided by the Oregon Arena case. Addressing arena seating for people who use wheelchairs and their companions, that court held that “a high quality folding companion seat is permissible because it provides ‘substantially equivalent or greater access to and usability of the’ Rose Garden as compared to a companion seat that is bolted to the floor.” Id., 982 F. Supp. at 726. By substituting one type of seat for another, the arena did not change the location or sight lines of the seats nor -significantly for the present case -- did it segregate people who use wheelchairs from others. In fact, the use of a different type of chair made it easier for the arena to provide integrated seating. See id., 982 F. Supp. at 725. Similarly, in Caruso v. Blockbuster-Sony Music Entertainment Centre, 968 F. Supp. 210, 218 (D. N.J. 1997), the court held that providing higher quality seating at lower prices in an arena was “equivalent facilitation” to providing an accessible route to the arena’s lawn seating. While the alternative system affected the location of the seating, it did so to improve it and -- in contrast to the present case -- neither segregated people in wheelchairs from others nor offered such people inferior, obstructed, access. Id.
The Oregon Arena case rejected the equivalent facilitation defense with respect to a system that required a person in a wheelchair to request help, make “special arrangements” or “make a fuss.” Id., 982 F. Supp. at 764. The defendant arena -- built after the effective date of the ADA -- had failed to make its suites accessible, but offered to reconfigure any particular suite upon request. The arena argued that this was an “equivalent facilitation,” permissible under § 2.2. The court explicitly and emphatically rejected this defense:
What defendant proposes is not an “alternative design or technology” that provides equivalent or greater access. Rather, defendant proposes a design that
10

creates less access than is required, but -- if given advance notice that a wheelchair user is in route -- defendant will remove some of the barriers and temporarily comply with the ADA. That is unacceptable. . . . Congress has served notice through the ADA that [improvised] solutions no longer are acceptable. In new construction, the facility must be designed to be accessible from day one. Id. Like the “special arrangements” found unacceptable in Oregon Arena, Defendant’s alternative side access for persons who use wheelchairs requires such persons to depend on employees or other customers to simply get to the counter to order their food and potentially to cut in line -- in other words, to “improvise” and “make a fuss.” Further, the side access segregates persons who use wheelchairs from everyone else. This system simply does not provide access that is substantially equivalent to or greater than accessible, ADAAG-compliant queue lines which would permit persons who use wheelchairs to independently access the service counter in the same way that everyone else does.
A. Taco Bell Discriminates Against Patrons Who Use Wheelchairs by Segregating Them from Nondisabled Patrons.
The Americans with Disabilities Act makes it illegal for public accommodations to segregate persons with disabilities from other persons. It does this by providing that:
“[g]oods, services, facilities, privileges, advantages, and accommodations shall be afforded to an individual with a disability in the most integrated setting appropriate to the needs of the individual.” § 12182(b)(1)(B)(emphasis added); see also 28 C.F.R. § 36.203(a). it is illegal discrimination to provide a person with a disability “a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals.” § 12182(b)(1)(A)(iii)(emphasis added); see also 28 C.F.R. § 36.202(c).
11

when separate or different programs are provided for persons with disabilities, such persons “shall not be denied the opportunity to participate in such programs or activities that are not separate or different.” ( § 12182(b)(1)(C)(emphasis added); see also 28 C.F.R. § 36.203(b). These provisions are designed to redress one of the primary findings motivating passage of the ADA: “historically, society has tended to isolate and segregate individuals with disabilities.” 42 U.S.C. § 12101(a)(2). As the legislative history of the Act makes clear, “Providing services in the most integrated setting is a fundamental principle of the ADA.” H. Rep. 101-485, Pt. 2, 101st Cong., 1st Sess. 102, reprinted in 1990 U.S.C.C.A.N. 303, 385. With respect to the integration requirement of Title II, which applies to public services, the legislative history states that, The fact that it is more convenient, either administratively or fiscally, to provide services in a segregated manner, does not constitute a valid justification for separate or different services under Section 504 of the Rehabilitation Act, or under this title. Nor is the fact that the separate service is equal to or better than the service offered to others sufficient justification for involuntary different treatment for persons with disabilities. H. Rep. 101-485, Pt. 3, 101st Cong., 1st Sess. 50, reprinted in 1990 U.S.C.C.A.N. 445, 473.5 The primacy of integration is recognized by the DOJ as well. In its Preamble to Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities with Section-by-Section Analysis and Response to Comments, the DOJ states that: Section 36.203 [of Title 28] addresses the integration of persons with disabilities. The ADA recognizes that the provision of goods and services in an integrated manner is a fundamental tenet of nondiscrimination on the basis of disability. Providing segregated accommodations and services relegates persons with

5

The regulations implementing Title II are to be consistent with those of Title III. See 42

U.S.C. § 12134(c).

12

disabilities to the status of second-class citizens. For example, it would be a violation of this provision to require persons with mental disabilities to eat in the back room of a restaurant . . .
28 C.F.R. Part 36, Appendix B at 593-94 (Jul. 1, 1998 ed.) (quoted in Pinnock v. Int’l House of Pancakes, 844 F. Supp. 574, 582 (S.D. Cal. 1993)(holding that § 12182(b)(1)(B) was not unconstitutionally vague)); see also Small v. Dellis, No. Civ. AMD 96-3190, 1997 WL 853515 (D. Md. Dec. 18, 1997) (quoting 28 C.F.R. § 36.203(a)).
Taco Bell’s system segregates people who use wheelchairs from others in violation of § 12182(b)(1)(B). It provides customer access to its service counter for such persons in a fashion that is separate and different from others, in violation of § 12182(b)(1)(A)(iii). And while it provides separate access to the counter, it denies persons who use wheelchairs access that is not separate or different, in violation of § 12182(b)(1)(C).
A. Taco Bell Discriminates Against Patrons Who Use Wheelchairs by Denying Them the Opportunity to Benefit from its Hospitality Lines and by Providing Counter Access That Is Not Equal to That Provided Others.
The ADA also makes it illegal to deny persons with disabilities the opportunity to participate in or benefit from a service or facility of a public accommodation, § 12182(b)(1)(A)(i), or to provide such persons with services or facilities that are not equal to those provided others. Id., § 12182(b)(1)(A)(ii). Through its queue lines, Taco Bell provides a “stress-free ordering system for the customer.” Azalde Depo. at 40 (Tab 1). It does this by causing all patrons to form a single line so “they don't have to worry about what line they are in, they can concentrate on what they want to order.” Id. It claims that this system provides “faster and fairer service” and is based on “customer preference.” Ans. to Ig. 1 (Tab 2).
Yet Taco Bell denies the benefits of this facility and service to customers in wheelchairs who are unable to access the narrow queue lines. Again, for such customers, the entire purpose is defeated as they are required to go through a side entrance -- which is by design blocked by a
13

chain during the busiest periods, Azalde Depo. at 44-45 (Tab 1), Ans. to Ig. 9 (Tab 2). Once there, rather than enjoying the stress-free experience of non-disabled patrons, wheelchair-using patrons must (1) figure out whether it is appropriate to remove the chain, (2) remove the chain if able or get the attention of the employee behind the cash register at what is, again, the busiest time -- and then (3) do precisely what the queue lines are supposed to prevent: worry about where they are in line. As an alternative, Taco Bell suggests such patrons should proceed to the front of the line. Yet if the queue line is “fairer,” it must be because those who arrive first are served first. So a wheelchair-using patron who attempts to cut in line will, by Taco Bell’s own logic, be acting unfairly and thereby subjecting himself to the opprobrium of his fellow customers. A person who cuts ahead of a line full of hungry people will not have a “stress-free” ordering experience.
The Act’s legislative history stresses that “nothing in the ADA is intended to permit discriminatory treatment on the basis of disability, even when such treatment is rendered under the guise of providing an accommodation, service, aid or benefit to the individual with disability.” H. Rep. 101-485, Pt. 3, 101st Cong., 1st Sess. 57, reprinted in 1990 U.S.C.C.A.N. 445, 480. Thus even if Taco Bell believes it is providing a “service” by permitting people who use wheelchairs to go to the head of the line, the overall treatment is unequal and denies such persons the benefits of its hospitality lines. It is therefore prohibited by the ADA.
I. Taco Bell Should Be Ordered to Provide Queue Lines in its Newly Constructed Restaurants That Complies with the ADAAG. The ADA treats buildings constructed after the effective date of the ADA differently
from buildings that existed before that date. Compare 42 U.S.C. § 12182(b)(2)(A)(iv) with 42 U.S.C. § 12183(a). As demonstrated above, buildings designed and constructed for first occupancy after January 26, 1993, must comply with the ADAAG. And they must do so regardless of the burden of correcting improperly constructed buildings. See Anderson v. Department of Pub. Welfare, 1 F. Supp. 2d 456, 464 (E.D. Pa. 1998) ((“Because ‘architectural
14

barriers can be avoided at little or no cost’ during the construction or alteration of buildings, the provisions applicable to new construction and alterations do not provide an undue burden defense . . .” (citations omitted)); Kinney v. Yerusalim, 9 F.3d 1067, 1071 (3d Cir. 1993), cert. denied, 511 U.S. 1033 (1994) (“This obligation of accessibility for alterations does not allow for non-compliance based upon undue burden.”). As one court has recognized,
The plain language of [§ 12183] states that new construction of commercial facilities must be “readily accessible to and usable by individuals with disabilities.” If newly constructed commercial facilities are not accessible then those who designed and constructed them are in violation of the law United States v. Days Inn of America, 997 F. Supp. 2d. 1080, 1083 (C.D. Ill. 1998); see also United States v. Ellerbe Becket, 976 F. Supp. 1262, 1266 (D. Minn. 1997) (Holding that new construction must comply with the ADAAG in order to satisfy the ADA). Indeed, courts have ordered significant remodeling to remedy violations of the ADA in new construction. See, e.g., Oregon Arena, 982 F. Supp. at 786 (ordering suites in arena to be made accessible). In Small v. Dellis, No. Civ. AMD 96-3190, 1997 WL 853515 (D. Md. Dec. 18, 1997), for example, a restaurant had built a new addition after the effective date of the ADA which did not have accessible restrooms. Despite the availability of accessible restrooms in the original restaurant, the court held that the ADA required the defendant to build its new addition with accessible restrooms and stated that: the defendants’ obdurate refusal to give credence to the plain wording and the manifest intent of the regulations is antithetical to Congress’s intent in adopting the ADA. “The ADA is geared to the future -- the goal being that, over time, access will be the rule rather than the exception. Thus the [ADA] only requires modest expenditures to provide access in existing facilities, while requiring all new construction, [including alterations], to be accessible.” H.R. Rep. No. 101485 Pt. III at 91 (1990).
Id., 1997 WL 853515 at *5 (insertions in original). Because the Pecos and 64th Avenue restaurants were designed and constructed for first
occupancy after January 26, 1993, see Ans. to Ig. 5, they must comply with the ADAAG. The
15

parties do not dispute the dimensions of the queue lines in these stores. As demonstrated in

Section I.A above, these dimensions do not comply with the ADAAG and Defendant is not

entitled to the “equivalent facilitation” defense. As the court did in Oregon Arena and Small,

this Court should find Taco Bell in violation of the Americans with Disabilities Act with respect

to the Pecos and 64th Avenue restaurants and order that it bring these restaurants into

compliance with the ADA.

CONCLUSION

For the reasons set forth above, Plaintiffs respectfully request that this Court grant their

motion for partial summary judgment, declare the Pecos and 64th Avenue Taco Bell restaurants

to be in violation of the Americans with Disabilities Act and order Defendant Taco Bell to bring

such restaurants into compliance with the standards set forth in the Americans with Disabilities

Act Accessibility Guidelines.

Respectfully submitted,

FOX & ROBERTSON, P.C.

Dated: January 26, 1999

Timothy P. Fox Amy F. Robertson 1675 Larimer Street, Suite 610 Denver, CO 80202 (303) 595-9700
Kevin W. Williams, Esq. General Counsel Colorado Cross-Disability Coalition 1210 E. Colfax Avenue, Suite 405 Denver, CO 80218
Attorneys for Plaintiffs

16

 
 Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354 (1999)

184 F.R.D. 354 United States District Court,
D. Colorado.
COLORADO CROSS–DISABILITY COALITION and Julie Reiskin and Debbie Lane, for themselves
and all others similarly situated, Plaintiffs, v.
TACO BELL CORPORATION, Defendant.
No. Civ.A. 97–B–2135. | Feb. 3, 1999.
Attorneys and Law Firms
*355 Timothy P. Fox, Amy F. Robertson, Kevin W. Williams, Mary Lou Mobley, for plaintiffs.
Gregory A. Eurich, Denver, CO, for defendant.
Stephen Taylor, for amicus curiae.
Opinion
MEMORANDUM OPINION AND ORDER
BABCOCK, District Judge.
Plaintiffs Julie Reiskin (Ms. Reiskin) and Debbie Lane (Ms. Lane), who have disabilities requiring them to use wheelchairs for mobility, assert claims for violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101–12213 (1998), and the Colorado Anti–Discrimination Act (“CADA”), C.R.S. §§ 24–34–601–24–34–605 (1998). Plaintiffs submit a motion to certify an ADA and CADA class action under Rule 23. After consideration of the motion, briefs, and counsels’ arguments at the January 29, 1997 class certification hearing, I will grant the motion to certify a class action.
I. FACTS
The following facts are undisputed unless otherwise stated. Ms. Reiskin and Ms. Lane have disabilities requiring them to use wheelchairs and/or scooters for mobility. Both lead extremely active lives. Ms. Reiskin is the executive director of plaintiff Colorado Cross–Disability Coalition (“CCDC”), a nonprofit organization advocating for people with disabilities. Ms. Lane is a full-time volunteer at CCDC. Ms. Reiskin and

Ms. Lane enjoy many activities, including eating out at restaurants. Unlike people without disabilities, however, Ms. Reiskin and Ms. Lane cannot patronize the restaurants of defendant Taco Bell Corporation (“Taco Bell”). People without disabilities wait to place their orders in a designated “queue line,” a path cordoned off with barriers causing patrons to form a single line. According to plaintiffs, 38 of Taco Bell’s Colorado restaurants have lines too narrow to be accessed by wheelchairs or scooters because the lines are narrower than the specifications contained in the Americans with Disabilities Act Accessibility Guidelines (“ADAAG”), 28 C.F.R. Part 36, Appendix A. (Plfs.’ Ex. 1 ¶ 6; Plfs.’ Ex. 2 ¶ 7.) Instead, according to Ms. Reiskin and Ms. Lane, they and many other persons who use wheelchairs or scooters are forced into a separate, segregated and inferior route to the service counter which, consistent with Taco Bell’s company policy, is often blocked by a chain during busy hours. (Plfs.’ Ex. 1 ¶¶ 6–7; Plfs.’ Ex. 2 ¶ 5; Plfs.’ Ex. 3 at 6.) Plaintiffs allege this “alternative wheelchair access” (1) is segregated from all other customers, (2) is frequently blocked by a chain, (3) makes it difficult or impossible for a person using a wheelchair or scooter to determine where they are in line with respect to non-disabled people standing in the queue line, (4) often angers non-disabled customers who believe that disabled patrons in the alternative wheelchair access are “cutting” in *356 line, and (5) frequently requires people who use wheelchairs or scooters to shout to get the attention of Taco Bell employees in order to receive service.
Plaintiffs contend that Taco Bell “has designed and constructed Taco Bell restaurants in Colorado for first occupancy after January 26, 1993 with queue lines that do not comply with the ADAAG.” (Third Am. Class Action Compl. ¶ 59.) Plaintiffs have asserted similar claims under the CADA. Id. at ¶ 65. The ADA provides, in relevant part:
No individual shall be discriminated against 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 by any person who owns, leases (or leases to), or operates a place of public accommodation.
42 U.S.C. § 12182(a). The CADA states:
It is a discriminatory practice and unlawful for a person directly or indirectly, to refuse, withhold from, or deny to an individual or a group,
1

Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354 (1999)

because of disability, ... the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation....
C.R.S. § 24–34–601(2).
In their third amended class action complaint, plaintiffs seek an injunction requiring Taco Bell to comply with the ADA by removing or widening narrow queue lines, keep queue lines unobstructed by placards or other objects, and otherwise bring its restaurants into compliance with the ADAAG. (Third Am. Class Action Compl. ¶ 16.) Plaintiffs also seek damages of $50 for each instance of discrimination found to be in violation of the CADA, C.R.S. § 24–34–602. Id. Plaintiffs seek certification of a class pursuant to Rule 23 for violation of the ADA and the CADA. Plaintiffs also request that they be designated as representatives of the class.
II. ANALYSIS OF CLASS CERTIFICATION PURSUANT TO RULE 23
a. Legal Standards Applicable to Class Certification To maintain a class action under Rule 23, plaintiffs must first satisfy the four prerequisites of Rule 23(a), which states:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a). In addition to the four prerequisites of Rule 23(a), plaintiffs must satisfy one of the three subsections of Rule 23(b).
[1] [2] [3] [4] [5] Plaintiffs bear the burden of demonstrating that all the prerequisites for class designation are met. Rex v. Owens ex rel. State of Oklahoma, 585 F.2d 432, 435 (10th Cir.1978). Class action certification is discretionary with the trial court judge, Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir.1982), and may be altered, expanded, subdivided or abandoned as the case develops. Daigle v. Shell Oil Co., 133 F.R.D. 600, 602

(D.Colo.1990); Dubin v. Miller, 132 F.R.D. 269, 270–275 (D.Colo.1990). Because of the flexible nature of class certification, I am to favor the procedure. Esplin v. Hirschi, 402 F.2d 94, 99 & 101 (10th Cir.1968), cert. denied, 394 U.S. 928, 89 S.Ct. 1194, 22 L.Ed.2d 459 (1969). I will certify, however, only after rigorous analysis of Rule 23 requirements. General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir.1988). In conducting my certification analysis, however, I may not consider the merits of the claim. Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177–178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974).

b. Identifying the Requested Class [6] [7] [8] Although not specifically mentioned in Rule 23, an essential prerequisite of an action under Rule 23 is the existence of an identifiable class. Daigle, 133 F.R.D. at 602; 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, FEDERAL PRACTICE AND PROCEDURE: *357 CIVIL 2D § 1760 (2d ed.1990). A class is sufficiently defined if it is “administratively feasible for the court to determine whether a particular individual is a member.” Davoll v. Webb, 160 F.R.D. 142, 143 (D.Colo.1995). In their opening brief, plaintiffs modified the description of the class sought to be certified:

All people within Colorado with

disabilities who use wheelchairs or

electric scooters for mobility who,

beginning on the date two years

prior to the filing of the Class

Action

Complaint,

were

discriminated against on the basis

of disability by Taco Bell’s failure

to have queue lines that comply

with the Americans with

Disabilities Act Accessibility

Guidelines in Colorado Taco Bell

restaurants that Defendant owns,

operates, leases to or leases from

others.

(Plfs.’ Opening Brf. at 5.) Taco Bell argues that the class definition contained in the Third Amended Class Action Complaint, rather than the modified class definition, is binding on plaintiffs. I disagree. I have discretion to alter, expand, subdivide or modify the class definition. See Vaszlavik v. Storage Technology, Corp., 175 F.R.D. 672, 683 (D.Colo.1997); West v. Capitol Federal Savings and Loan Ass’n, 558 F.2d 977, 982 (10th Cir.1977) (class certification is a preliminary, interlocutory action subject to change before final disposition of the case). Considering counsels’ arguments, and based on plaintiffs’ representation that the scope of the class they seek to certify is limited to Colorado residents, I will consider, in
2

Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354 (1999)

my discretion, the following class definition:
All Colorado residents with disabilities who use wheelchairs or electric scooters for mobility who, beginning on the date two years prior to the filing of the Class Action Complaint (October 1, 1997) were discriminated against on the basis of disability by Taco Bell’s failure to have queue lines that comply with the Americans with Disabilities Act Accessibility Guidelines in Colorado Taco Bell restaurants that Defendant owns, operates, leases to or leases from others.
Taco Bell describes the class definition as “flawed” and overbroad because it seeks certification of “any Taco Bell restaurant” which includes franchised restaurants. (Def.’s Resp. Brf. at 9.) According to Taco Bell, it has no control over several of these franchised restaurants pursuant to 42 U.S.C. § 12181(a). It is an open question in the Tenth Circuit whether Taco Bell is liable for alleged ADA violations by franchised restaurants. Regardless, if a class is certified, further discovery concerning Taco Bell’s relationship with, and control over, franchisees may reveal that it has ADA obligations concerning its franchised restaurants. This issue concerns the merits of plaintiffs’ claims and, thus, it is irrelevant to class certification. Eisen, 417 U.S. at 177, 94 S.Ct. 2140. (“We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.”). In any event, whether Taco Bell has ADA obligations concerning franchised restaurants is a question common to all class members. As an initial matter, I conclude that the proposed class definition, as modified here, is sufficiently defined so as to allow determination of whether a particular individual is a member. See Davoll, 160 F.R.D. at 143.
c. The Four Prerequisites of Rule 23(a)
1. Numerosity [9] [10] Rule 23(a)(1) requires that a class be so numerous that joinder of all members is impracticable. A number of factors are relevant in determining whether joinder is impracticable, including the class size, the geographic diversity of class members, the relative ease or difficulty in identifying members of the class for joinder, the financial resources of class members, and the ability of class members to institute individual lawsuits. Anderson v. Dept. of Public Welfare, 1 F.Supp.2d 456, 461

(E.D.Pa.1998) (ADA class certified for participants in managed health care program with impairments which substantially limited mobility and/or vision); Robert Newberg, NEWBERG ON CLASS ACTIONS § 3.06 at 3–27–3–35 (3d ed.1992) (hereinafter, “Newberg”). Plaintiffs contend that *358 each of these factors demonstrate that joinder is impracticable in this case. I agree.
i. Class Size [11] In determining class size, the exact number of potential members need not be shown. Joseph v. General Motors Corp., 109 F.R.D. 635, 639 (D.Colo.1986). Rather, I may make “common sense assumptions” to support a finding that joinder would be impracticable. Civic Ass’n of Deaf of New York City, Inc. v. Giuliani, 915 F.Supp. 622, 632 (S.D.N.Y.1996); Newberg § 3.03 at 3–17 & n. 58.
Plaintiffs rely on survey results and census figures as evidence of numerosity. Census data are frequently relied on by courts in determining the size of proposed classes. See, e.g., Anderson, 1 F.Supp.2d at 461 (in ADA class action, “[census] statistics tending to show that joinder would be impracticable may be sufficient to satisfy Rule 23(a)(1)”); Vergara v. Hampton, 581 F.2d 1281, 1284 (7th Cir.1978) (numerosity requirement satisfied, in part, by census information), cert. denied, 441 U.S. 905, 99 S.Ct. 1993, 60 L.Ed.2d 373 (1979).
In this case, census data demonstrates that there are approximately 15,369 non-institutionalized people 16 years of age or older in Colorado who use wheelchairs. (Plf. Ex. 5 at 3.) This number does not include institutionalized people who use wheelchairs, people under the age of 16 years who use wheelchairs, or people who use scooters for mobility, all of whom are potential members of the class. Additionally, plaintiffs assert there have been more than 12 million customer transactions in Taco Bell’s Colorado restaurants in each of the last three years, and all of Taco Bell’s 38 restaurants have queue lines that are narrower than required by the ADAAG. (Plfs.’ Reply Brf. at 4; Plfs.’ Ex. 3 at 4.)
Including themselves, plaintiffs have identified 27 people who use wheelchairs or scooters who have been harmed by Taco Bell’s alleged discriminatory queue lines. (Plfs.’ Ex. 4 at 3.) Also, according to census information, 23.7% of people aged 15 to 64 years who use wheelchairs have household incomes below the poverty level, a much higher percentage than the overall population. (Plfs.’ Ex. 6 at 33.) Thus, it can be inferred that many people who use wheelchairs may eat out at inexpensive, “fast food” restaurants like Taco Bell. (Plfs.’ Ex. I ¶ 9.)
In response, Taco Bell points to a survey conducted by
3

Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354 (1999)

plaintiffs in which Taco Bell states that plaintiffs attempted to survey 2,000 CCDC members. Taco Bell emphasizes that plaintiffs have identified only 29 individuals who claim to have been injured at 30 different Taco Bell locations. From plaintiffs’ contention that they represent a putative class of “more than 1,000,” (Plfs.’ Opening Brf. at 10–12). Taco Bell concludes that a group of 29 people is numerically insignificant to justify invoking the expensive class action machinery as an alternative superior to joinder. I disagree.
At the class certification hearing, plaintiffs clarified that approximately 200 CCDC members were contacted and responded to a survey concerning Taco Bell visits. Out of the approximately 200 people surveyed, 29 of them had experienced difficulty with the narrow queue lines. This represents 14.5% of the total number of people who responded, a significant percentage. Using “common sense assumptions,” if I apply this percentage to the approximately 15,369 non-institutionalized people in Colorado who use wheelchairs, the potential class may include more than 2,000 people. It is clear, therefore, that plaintiffs have met their burden of showing numerosity.
ii. Geographic Diversity It is undisputed that the potential class covers at least the entire “front range” area. The fact that a class is dispersed over several counties weighs in favor of a finding of numerosity. Anderson, 1 F.Supp.2d at 461. Thus, I find that joinder of the proposed class would be difficult or impossible.
iii. Identity of Class Members There is no dispute in this case that the individual class members are difficult to identify. See *359 Phillips v. Joint Legislative Committee on Performance and Expenditure Review of State of Miss., 637 F.2d 1014, 1022 (5th Cir.1981), cert. denied, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 483 (1982) (joinder impracticable in part because neither party could identify class members); Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 448 (N.D.Cal.1994) (“by the very nature” of the class of people with disabilities affected by defendant’s architectural barriers, members were “unknown” and could not be “readily identified,” making joinder impracticable.). See, generally, Newberg § 3.05 at 3–18–3–19 & ii.61.
iv. Difficulty for Class Members to Bring Individual Suits In this case, joinder is impracticable where it is difficult or impossible for class members to bring individual suits

because, pursuant to the CADA, no attorney fees are recoverable and the most that an individual member could obtain in damages under this statute is $500. This amount is far too small to justify the costs of an individual suit where an estimated 23.7% of the potential class members have household incomes below the poverty level. (Plfs.’ Ex. 6 at 33.) Thus, many class members have no economic incentive, or cannot afford, to bring individual actions. Moreover, one of the central tenets of Rule 23 is that a class action permits plaintiffs, if their claims for damages are too small to justify the costs of litigation, the ability to seek redress. Deposit Guaranty Nat’l Bank, Jackson, Miss. v. Roper, 445 U.S. 326, 338 n. 9, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980); see also Eisen, 417 U.S. at 167–168, 94 S.Ct. 2140. For these reasons, I conclude that joinder is impracticable.

2. Questions of Law or Fact Common to the Class [12] Rule 23(a)(2) requires that there be questions of law or fact common to the class which predominate over questions peculiar to individual members of the class. Not every issue must be common to the class so long as the claims of the plaintiffs and other class members are based on the same legal or remedial theory. Joseph, 109 F.R.D. at 639–640; Cook v. Rockwell Int’l Corp., 181 F.R.D. 473, 480 (D.Colo.1998) (common questions “arise from the same set of broad circumstances” and do not create conflicts among class members).

Where a class of persons sharing a common disability complains of the identical architectural barrier based on the same alleged violations of law, commonality is unquestionably established. As stated by one court:

Inadequate

wheelchair

accommodations at particular

theaters are very likely to affect all

wheelchair users in the same way....

Thus the state of such

accommodations at defendant’s

various theaters, and the legal

adequacy of those accommodations,

are issues of fact and law common

to all those disabled persons

affected by them.

Arnold, 158 F.R.D. at 449.

Defendant claims that because the floor plans and occupancy dates differ among its Colorado restaurants, “case by case determinations” for each restaurant will be required. Therefore, commonality is not present. I disagree. This precise issue was addressed in Arnold, in which the court certified a class of disabled persons who sought removal of architectural barriers in theaters pursuant to the ADA. Despite the fact that there were
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Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354 (1999)

more than 70 theaters at issue, the Arnold court held that the commonality requirement was met:
It is true that members of the class will each likely have attended only certain of defendant’s theaters. This means that, in a sense, the proposed class is divided into more than seventy subclasses composed of disabled persons challenging the adequacy of the accommodations at each of defendant’s theaters in California.
Addressing, for the time being, only the subclasses, it is quite clear that the commonality requirement is satisfied within each subclass. Within each subclass all of the issues presented are common ones, at least insofar as plaintiffs assert claims for injunctive relief Even with respect to damage claims, the most important issues—the state of accommodations at defendant’s various theaters during the three year statute of limitations period prior to the filing of this suit, and the legal sufficiency thereof—are common to the subclass. The only damages issue not common to the subclass is the simple question of the number *360 of instances that individual class members were aggrieved by inadequate accommodations at defendant’s theaters during the period covered by the lawsuit.
* * * * * *
In light of the above, it is clear that, at the very least, the commonality requirement would be satisfied for certification of a class comprised of the seventy-odd subclasses. However, such is not necessary since, even among the subclasses, there exist sufficient common issues to meet the [Rule 23] subpart (a)(2) condition. As discussed above, the specific theater design features challenged by plaintiffs are ones, some or all of which, they allege exist or have existed in many if not all of defendant’s theaters during the relevant period. From the fact that the same categories of design features are being challenged in each theater, it follows that the legality of those features are legal issues common to the claims of the members of all of the subclasses. In addition, where, as here, plaintiffs challenge conditions at several sites, all owned by a single corporate defendant, the legal standard applied under the ADA to evaluate the adequacy of the accommodations at each of the respective theaters is one that hinges, in part, on various corporation-wide factors such as the availability of resources. These are additional issues of fact and law common among the subclasses. In light of the foregoing, the Court concludes that the issues common to all of the members of the single proposed class are sufficient to satisfy [Rule 23] subpart (a)(2).
Id. at 449.

In this case, there appear to be only seven basic prototypes for Colorado restaurants that have inaccessible queue lines. (Plfs.’ Attachment B at 19–31 (identifying the following prototypes used in Colorado with inaccessible queue lines: M60F, M90H, M70H, ST46, M70HD, ST I, and K50).) Despite the multiple prototypes, Taco Bell’s restaurants could be divided easily into two subclasses based on the dates when they were first occupied or underwent alterations. Most, if not all, of Taco Bell’s restaurants fall within the “new construction” and “alteration” standards of the ADA which require that queue lines in those restaurants must be made accessible without regard to any differences in floor plans or other factors.
If there are some Taco Bell restaurants that do not fall within the new construction or alteration standards (“unaltered restaurants”), Taco Bell is still required to widen or remove queue lines in these restaurants if doing so is “readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). Determining whether widening or removing queue lines is readily achievable involves consideration of a number of factors, including Taco Bell’s resources and the cost of widening queue lines. 42 U.S.C. § 12181(9). If the class is certified, additional discovery will determine the nature of the alterations performed at each restaurant and whether the alterations triggered ADA requirements to widen queue lines. For example, plaintiffs are aware that construction performed on one Taco Bell restaurant pursuant to the retrofit program was extensive and included installation of new queue lines. (Plfs.’ Attachment B at 60; Plfs.’ Attachment D at 1 (list of items used for Taco Bell restaurant renovation which includes new rails for queue lines).)
3. Typicality of Claims Rule 23(a)(3) requires that the claims asserted by the representative plaintiffs be typical of the claims of the class. According to the Tenth Circuit, “the typicality requirement is ordinarily not argued.... It is to be recognized that there may be varying fact situations among individual members of the class and this is all right so long as the claims of the plaintiffs and the other class members are based on the same legal or remedial theory.” Penn v. San Juan Hospital, Inc., 528 F.2d 1181, 1189 (10th Cir.1975).
The plaintiffs here suffer from disabilities which, although not identical, require the use of a wheelchair or scooter for mobility. Thus, the effect of the disability is shared by all class members. Further, the representative plaintiffs contest the legality of architectural barriers under the same statutes as the class. I conclude, therefore, that the claims of the representative plaintiffs are typical of the class. See Arnold, 158 F.R.D. at 450 *361 (“Indeed, in a public accommodations suit such as this one where
5

Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354 (1999)

disabled persons challenge the legal permissibility of architectural design features, the interests, injuries, and claims of the class members are, in truth, identical such that any class member could satisfy the typicality requirement for class representation.”); Civic Ass’n of the Deaf, 915 F.Supp. at 633 (typicality exists where the representative plaintiffs, “like every other member of the proposed Class, are or represent deaf or hearing-impaired individuals.”). Under these circumstances, the proposed class meets the typicality requirement of Rule 23(a)(3).
4. Adequacy of Proposed Representative Plaintiffs The final requirement of Rule 23(a) is adequate representation. The parties do not dispute, and I agree, that the representative Plaintiffs have common interests with the class members and will vigorously prosecute the interests of the class through qualified counsel. See Cook v. Rockwell Int’l Corp., 151 F.R.D. 378, 386 (D.Colo.1993) (“Cook II ”); 2 Newberg § 7.24 at 7–80–7–81. For the reasons set forth above, the proposed class satisfies the four prerequisites of Rule 23(a).
d. The Three Subsections of Rule 23(b) Next, I determine whether this case fits within one of the three subsections of Rule 23(b). See Joseph, 109 F.R.D. at 638. Plaintiffs seek certification under subsection (b)(2) and (b)(3). Where, as here, plaintiffs seek class certification in the alternative under Rule 23(b)(2) and (b)(3), a mandatory (b)(2) class is preferred. Cook II, 151 F.R.D. at 388.
1. Rule 23(b)(2) A class is proper under Rule 23(b)(2) if the party opposing the class “acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole ...” and the representatives are seeking “final injunctive relief or corresponding declaratory relief.” A class action in which all members of the class complain of the identical architectural barrier necessarily involves acts that are generally applicable to the class. Arnold, 158 F.R.D. at 452 (where class members all challenged defendant’s failure to change certain architectural features found at its theaters, and the challenged design features affected all class members in the same way, “this suit is a paradigm of the type of action for which the (b)(2) form was created.”); Civic Ass’n of the Deaf, 915 F.Supp. at 634 (“Because the proposed removal of the street alarm boxes will ... require injunctive relief applicable to the class as a whole, Rule 23(b)(2) also applies to the class.”). Indeed, the Advisory Committee Notes to the 1966 amendment to Rule 23 demonstrate that subsection (b)(2) was intended to reach precisely the type of class proposed in this case:

“Illustrative are various actions in the civil rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.”
Nor does the fact that the class also seeks monetary damages change this result. As long as the plaintiffs’ primary claim is for injunctive relief, certification under Rule 23(b)(2) is proper. See Probe v. State Teachers’ Retirement System, 780 F.2d 776, 780 (9th Cir.), cert. denied, 476 U.S. 1170, 106 S.Ct. 2891, 90 L.Ed.2d 978 (1986) (plaintiffs’ request for damages as well as injunctive relief did not preclude maintenance of action as class action under Rule 23(b)(2) where the monetary claim was incidental to the primary claim for injunctive relief); Jones v. Diamond, 519 F.2d 1090, 1100 n. 17 (5th Cir.1975); Schreiber v. National Collegiate Athletic Ass’n, 167 F.R.D. 169, 176 (D.Kan.1996). See also 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 1776 (2d ed.1990) (hereinafter, “Wright, Miller & Kane”). Plaintiffs allege that Taco Bell’s narrow queue lines discriminate against all persons who use wheelchairs and scooters and, thus, Taco Bell has allegedly acted in a manner applicable to the entire class. Further, each class member seeks only $50, the minimum damages amount under the CADA. Thus, *362 the predominant relief sought by the proposed class in this case is injunctive.
2. Rule 23(b)(3) Plaintiffs state that if certification of the proposed class is found to be inappropriate under Rule 23(b)(2), then the proposed class should be certified under Rule 23(b)(3). Certification is appropriate under Rule 23(b)(3) if: (1) questions of law or fact common to the members of the class predominate over any questions affecting only individual members; and (2) a class action is superior to other available methods for the fair and efficient adjudication of the controversy. 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane §§ 1777–1778. The following factors are relevant in determining whether these two requirements are met:
(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the difficulties likely to be encountered in the management of a class action.
6

Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354 (1999)

Id.
According to Plaintiffs, the class members do not have an interest in individually controlling the prosecution or defense of separate actions. To the contrary, the amounts at stake for individuals are so small “that separate suits would be impracticable.” Fed.R.Civ.P. 23, Advisory Committee Note to 1966 Amendment; see also In re Amerifirst Securities Litigation, 139 F.R.D. 423, 435 (S.D.Fla.1991) (“Individual interests may be minimal where, as here, the amounts at stake for each class member are so small that separate suits would be impractical.”).
The second factor also weighs in favor of class certification as there is no other litigation pending concerning the controversy at issue in this litigation. This may suggest that the members of the class do not have the ability to prosecute individual actions.
Concentrating this litigation is also desirable. Unless these claims are heard in the aggregate, it is unlikely that individual claims will be brought in light of the small amounts at stake. In addition, the ADA class claim is brought pursuant to federal law which is well suited to be heard in this Court.
Finally, managing the class action will not be difficult. The individual damage claims are identical. Thus, the only class issue that must be determined is the number of instances of discrimination encountered by each class member. This situation was addressed by the Thrope court in which the class sought recovery of $5 for each time a member purchased a handicap parking placard. In certifying the class under Rule 23(b)(3), the court stated:
The only individual issue to be determined relates to damages, namely, how many placards a class member purchased. Defendants do not identify what individual issues negate a finding of predominance.
Moreover, the class action is the superior method of managing this dispute which involves a large number of class members who have a relatively small amount of individual damages. Providing a forum for small claimants is a relevant consideration in determining class certification under Rule 23(b)(3). “When the entire class is composed of small claimants, neither joinder nor intervention would be a realistic available alternative” and “denial of a class action would effectively exclude them from judicial redress.” Here, the class action vehicle provides a realistic means of having each class member’s claim addressed. Moreover, judicial economy is clearly advanced by the consolidation in one forum of 300,000 individual suits.
Thrope v. State of Ohio, 173 F.R.D. 483, 490–491

(S.D.Ohio 1997) (citations omitted); see also Cook II, 181 F.R.D. at 481 (“Class certification in this case is ... superior to the alternative of repeating, hundreds of times over, litigation of common issues.”).
Here, there are a number of ways that a damages determination could be made. For example, after notice of the class action is disseminated, class members asserting a *363 claim may be required to complete an affidavit identifying the Taco Bell restaurant(s) at which, and the date(s) on which, they experienced discrimination as a result of Taco Bell’s failure to widen or remove queue lines. I conclude that, in the alternative, the proposed class meets the requirements of Rule 23(b)(3) and should be certified pursuant to that rule even if the class was not certified pursuant to Rule 23(b)(2).
Accordingly, I ORDER that:
(1) plaintiffs’ motion to certify an ADA/CADA class action is GRANTED;
(2) plaintiffs Julie Reiskin and Debbie Lane are hereby certified as representatives of the plaintiff class;
(3) the ADA/CADA plaintiff class shall consist of:
“All Colorado residents with disabilities who use wheelchairs or electric scooters for mobility who, beginning on the date two years prior to the filing of the Class Action Complaint (October 1, 1997), were discriminated against on the basis of disability by Taco Bell’s failure to have queue lines that comply with the Americans with Disabilities Act Accessibility Guidelines in Colorado Taco Bell restaurants that Defendant owns, operates, leases to or leases from others.”;
(4) plaintiffs shall filed a proposed form of notice by Monday, February 8, 1999 and defendant has 10 days to respond;
(5) the costs attendant to plaintiffs’ ADA/CADA class certification shall be borne by plaintiffs; and
(6) defendant’s: (a) reply to Plaintiffs’ response to summary judgment motion; and (b) response to Plaintiffs’ partial summary judgment motion is due by February 26, 1999; plaintiffs shall have 10 days to reply.
Parallel Citations
14 NDLR P 129
	  

7

Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354 (1999) 8

 
 Case: 1:97-cv-02135-LTB As of: 05/18/2010 09:18 PM MDT 1 of 13
CLASAC, TERMED
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:97−cv−02135−LTB

CO Cross−Disability, et al v. PepsiCo, Inc., et al Assigned to: Judge Lewis T. Babcock Demand: $0 Cause: 42:12101 Americans With Disabilities Act (ADA)
Plaintiff

Date Filed: 10/01/1997 Date Terminated: 03/23/2000 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Colorado Cross−Disability Coalition

represented by Amy Farr Robertson Fox &Robertson, P.C. 104 Broadway #400 Denver, CO 80203 303−595−9700 Fax: 303−595−9705 Email: arob@foxrob.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy Patrick Fox Fox &Robertson, P.C. 104 Broadway #400 Denver, CO 80203 303−595−9700 Fax: 303−595−9705 Email: tfox@foxrob.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Julie Reiskin for herself and all others similarly situated

represented by Amy Farr Robertson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy Patrick Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Debbie Lane

represented by Amy Farr Robertson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy Patrick Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
PepsiCo, Inc. TERMINATED: 10/29/1997

Case: 1:97-cv-02135-LTB As of: 05/18/2010 09:18 PM MDT 2 of 13

Defendant Tricon Global Resturants, Inc. TERMINATED: 10/29/1997 Defendant Taco Bell Corporation
Amicus USA

represented by Gregory Alan Eurich Holland &Hart, LLP−Denver P.O. Box 8749 555 17th Street #3200 Denver, CO 80201−8749 303−295−8166 Fax: 303−295−8443 Email: geurich@hollandhart.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas J. Lyons Hall &Evans, LLC−Denver 1125 17th Street #600 Denver, CO 80202 303−628−3300 Fax: 303−628−3238 Email: lyonst@hallevans.com TERMINATED: 05/11/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tracey Patricia Partee Hall &Evans−Denver Colorado United States District Court Box 05 1125 17th Street #600 Denver, CO 80202−5817 303−628−3300 Fax: 628−3368 TERMINATED: 05/11/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John L. Wodatch U.S. Department of Justice−DC−Civil Rights−NY Ave 1425 New York Avenue, N.W. Sixth Floor Washington, DC 20005 202−307−2237 Fax: 202−307−1198 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen D. Taylor U.S. Attorney's Office−Denver 1225 17th Street East Seventeenth Street Plaza #700 Denver, CO 80202 303−454−0100 Fax: 303−454−0404 Email: stephen.taylor@usdoj.gov

Case: 1:97-cv-02135-LTB As of: 05/18/2010 09:18 PM MDT 3 of 13
LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/01/1997 10/01/1997 10/14/1997 10/20/1997 10/20/1997 10/21/1997 10/21/1997 10/24/1997 10/24/1997 10/27/1997 10/29/1997 10/29/1997
11/18/1997 11/25/1997 11/26/1997
01/26/1998 01/26/1998 01/29/1998

# Docket Text
1 Class Action COMPLAINT (Summons(es) issued); jury demand (former empl) (Entered: 10/02/1997)
FILING FEE PAID: on 10/1/97 in the amount of $ 150.00, receipt # 190503. (former empl) (Entered: 10/02/1997)
2 RETURN OF SERVICE of Summons and Complaint upon Pamela Trujillo, clerk authorized to accept servie of porcess for US Corporation Company, reg'd agent for defendant PepsiCo, Inc. on 10/6/97 (former empl) (Entered: 10/15/1997)
3 MOTION by plaintiff CO Cross−Disability, plaintiff Julie Reiskin for leave to amend (former empl) (Entered: 10/21/1997)
Sgd original Tendered First Amended Class Action Complaint submitted by plaintiff CO Cross−Disability, plaintiff Julie Reiskin tendered w/motion for leave to amend [3−1], complaint [1−1] (former empl) (Entered: 10/21/1997)
4 MINUTE ORDER : by Judge Lewis T. Babcock granting motion for leave to amend [3−1] accepting for filing [0−0] document tendered (cc: all counsel) ; entry date : 10/21/97 (former empl) (Entered: 10/21/1997)
5 FIRST AMENDED CLASS ACTION COMPLAINT [1−1] by plaintiff CO Cross−Disability, plaintiff Julie Reiskin; jury demand; adding Tricon Global Restau (former empl) (Entered: 10/21/1997)
6 Second MOTION by plaintiff CO Cross−Disability, plaintiff Julie Reiskin to amend complaint (former empl) (Entered: 10/27/1997)
Tendered second amended complaint submitted by plaintiff CO Cross−Disability, plaintiff Julie Reiskin motion to amend complaint [6−1] (former empl) (Entered: 10/27/1997)
7 RESPONSE by Taco Bell Corp to motion to amend complaint [6−1] and on timing of filing of answer or response (former empl) (Entered: 10/31/1997)
8 MINUTE ORDER : by Judge Lewis T. Babcock granting motion to amend complaint [6−1], accepting for filing [0−0] document tendered (cc: all counsel) ; entry date : 10/31/97 (former empl) (Entered: 10/31/1997)
9 Second AMENDED Class Action COMPLAINT [5−1], [1−1] by plaintiff CO Cross−Disability, plaintiff Julie Reiskin; jury demand terminating defendant Tricon Global Restau, defendant PepsiCo, Inc.; adding Taco Bell Corp (former empl) (Entered: 10/31/1997)
10 ANSWER by defendant Taco Bell Corp to pltf's second amended class action complaint [9−1]; jury (former empl) (Entered: 11/18/1997)
11 MOTION by plaintiff CO Cross−Disability, plaintiff Julie Reiskin, defendant Taco Bell Corp to (stay) suspend further proceedings to attempt settlement (former empl) (Entered: 11/25/1997)
12 MINUTE ORDER : by Judge Lewis T. Babcock granting motion to (stay) suspend further proceedings to attempt settlement [11−1] , CASE STAYED [12−2] to 1/26/98 , , ; status report ddl set for 1/26/98 (cc: all counsel) ; entry date : 11/28/97 (gms) (Entered: 11/28/1997)
13 Status Report and MOTION by plaintiff to set scheduling conference (former empl) (Entered: 01/27/1998)
14 REPORT by defendant of Status of Settlment Attempts (former empl) (Entered: 01/27/1998)
15 ORDER stlmt referred to Magistrate Judge Patricia A. Coan ; by Judge Lewis T. Babcock (cc: to counsel) (former empl) (Entered: 01/29/1998)

Case: 1:97-cv-02135-LTB As of: 05/18/2010 09:18 PM MDT 4 of 13

01/30/1998 03/09/1998 03/24/1998 03/25/1998
03/26/1998 03/26/1998 03/27/1998 04/06/1998 04/17/1998 05/08/1998 05/08/1998 05/08/1998 05/08/1998 05/11/1998 05/11/1998
05/12/1998 05/14/1998 06/08/1998 06/08/1998

16 ORDER by Magistrate Judge Patricia A. Coan ; settlement conf set for 1:00 3/24/98 (cc: all counsel) ; entry date : 2/3/98 (former empl) (Entered: 02/03/1998)
17 MINUTE ORDER : by Magistrate Judge Patricia A. Coan at request of counsel ; settlement conf set 3/24/98 is vacated and reset for 8:30 3/27/98 (cc: all counsel) ; entry date : 3/10/98 (former empl) (Entered: 03/10/1998)
18 MOTION by defendant to reset settlment conference (former empl) (Entered: 03/25/1998)
19 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting motion to reset settlment conference [18−1] ; settlement conf set 3/27/98 is vacated and reset for 3:00 5/7/98 (cc: all counsel) ; entry date : 3/25/98 (former empl) (Entered: 03/25/1998)
20 ORDER R16 stat stlmt pt pto referred to Magistrate Judge Patricia A. Coan ;referring the motion to set scheduling conference [13−1] by Judge Lewis T. Babcock (cc: to counsel) (former empl) (Entered: 03/26/1998)
21 COURTROOM MINUTES by Magistrate Judge Patricia A. Coan; case status discussed ; settlement conf set for 3:00 5/7/98 ; entry date : 3/26/98 Court Reporter: PAC Civ Tape 98−27 (former empl) (Entered: 03/26/1998)
22 ORDER FOR RULE 16 CONFERENCE by Magistrate Judge Patricia A. Coan ; Rule 16 conference set for 9:00 4/21/98 (cc: all counsel) (former empl) (Entered: 03/31/1998)
23 MINUTE ORDER : by Magistrate Judge Patricia A. Coan at request of counsel ; rule 16 conference set 4/21/98 reset to 8:30 5/13/98 (cc: all counsel) ; entry date : 4/7/98 (former empl) (Entered: 04/07/1998)
24 MINUTE ORDER : by Magistrate Judge Patricia A. Coan ; rule 16 conference reset from 8:30 to 2:30pm on 5/13/98 (cc: all counsel) ; entry date : 4/22/98 (former empl) (Entered: 04/22/1998)
25 MEMORANDUM by Magistrate Judge Patricia A. Coan ; settlement conf held 5/7/98 (former empl) (Entered: 05/08/1998)
26 MOTION by defendant Taco Bell Corp to withdraw attorney Thomas J. Lyons and Pamela Skelton , and to substitute attorney Gregory Eurich (former empl) (Entered: 05/08/1998)
26 ATTORNEY APPEARANCE for defendant Taco Bell Corp by Gregory A. Eurich (former empl) (Entered: 05/08/1998)
27 MOTION by defendant Taco Bell Corp to extend time to serve intial disclosures (former empl) (Entered: 05/08/1998)
28 MINUTE ORDER : by Magistrate Judge Patricia A. Coan ; further settlement conf set for 10:00 9/17/98 (cc: all counsel) ; entry date : 5/11/98 (former empl) (Entered: 05/11/1998)
29 MINUTE ORDER : by Judge Lewis T. Babcock granting motion to withdraw attorney Thomas J. Lyons and Pamela Skelton [26−1] Tracey Patricia Robinson for Taco Bell Corp, [26−1], granting entry of appearance of attorney Gregory Eurich [26−2] (cc: all counsel) ; entry date : 5/12/98 (former empl) (Entered: 05/12/1998)
30 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting dft's motion to extend time to serve intial disclosures [27−1]; and intial disclosures due 5/18/98 (cc: all counsel) ; entry date : 5/12/98 (former empl) (Entered: 05/12/1998)
31 MINUTE ORDER : by Magistrate Judge Patricia A. Coan vacating 5/13/98 conference ; rule 16 conference reset for 9:30 5/21/98 (cc: all counsel) ; entry date : 5/14/98 (former empl) (Entered: 05/14/1998)
32 MOTION by plaintiffs for leave to file third amended complaint (tendered separately) (former empl) (Entered: 06/08/1998)
Tendered Third Amended Class Action Complaint submitted by plaintiff motion for leave to file third amended complaint [32−1] (former empl) (Entered:

Case: 1:97-cv-02135-LTB As of: 05/18/2010 09:18 PM MDT 5 of 13

06/09/1998 06/10/1998
06/11/1998 06/11/1998 06/15/1998 06/15/1998 06/25/1998 07/10/1998 07/15/1998 07/22/1998 07/23/1998
08/19/1998 08/26/1998
08/27/1998 10/01/1998

06/08/1998)
33 NOTICE REGARIDNG SCHEDULING ORDER by plaintiffs CO Cross−Disability, plaintiff Julie Reiskin with signature page of Scheduling Order with page having original signature of Timothy P. Fox (former empl) (Entered: 06/10/1998)
34 SCHEDULING ORDER signed 6/5/98 by Magistrate Judge Patricia A. Coan ; deadline to seek class certification 7/31/98; deadline joinder/amending pleadings 6/15/98; Discovery cutoff 10/15/98 ;dispositive motions due 11/16/98 ;pretrial conference set 11:00 12/17/98; counsel to provide confidential letters to magis judge on status of settlment by 9/10/98 (cc: all counsel) (former empl) (Entered: 06/10/1998)
35 MINUTE ORDER : by Judge Lewis T. Babcock granting motion for leave to file third amended complaint (tendered separately) [32−1], (cc: all counsel) ; entry date : 6/12/98 (former empl) (Entered: 06/12/1998)
36 THIRD AMENDED COMPLAINT [9−1] by plaintiff CO Cross−Disability, plaintiff Julie Reiskin; jury demand; adding Debbie Lane (former empl) (Entered: 06/12/1998)
37 Stipulated PROTECTIVE ORDER by Magistrate Judge Patricia A. Coan : re: confidential business information (cc: all counsel) (former empl) (Entered: 06/16/1998)
38 MINUTE ORDER : by Magistrate Judge Patricia A. Coan regarding [37−1] protective order made order of court (cc: all counsel) ; entry date : 6/16/98 (former empl) (Entered: 06/16/1998)
39 ANSWER by defendant Taco Bell Corp third amended class action complaint [36−1] (former empl) (Entered: 06/26/1998)
40 MOTION by defendant Taco Bell Corp to extend time to respond to written discvry (former empl) (Entered: 07/13/1998)
41 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting motion to extend time to respond to written discvry [40−1] as follows: that dft has until 7/15/98 to answer or object to written discvry (cc: all counsel) ; entry date : 7/20/98 (former empl) (Entered: 07/20/1998)
42 Unopposed MOTION by plaintiffs to amend scheduling order deadlines as follows: class certification 7/31/98; motion/set for trial 9/14/98; designate experts 10/1/98; rebuttal experts 10/30/98; discvry 11/16/98; dispositive motions 12/17/98; final pretrial conference after 1/1/99 (former empl) (Entered: 07/23/1998)
43 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting motion to amend scheduling order deadlines as follows: class certification 9/1/98; designate experts 10/1/98; rebuttal experts 10/30/98; [42−1], regarding [34−1] schedule order ; discovery ddl set 11/16/98 ; disp mtn ddl set 12/17/98 ; pretrial conf set for 10:30 1/18/99 (cc: all counsel) ; entry date : 7/24/98 (former empl) (Entered: 07/24/1998)
44 Joint MOTION by plaintiffs and defendant to amend scheduling order (extending deadlines: discovery to 12/16/98, dispositive motions to 1/17/99; set pretrial conference in Feb '99 (former empl) (Entered: 08/20/1998)
45 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting joint motion to amend scheduling order [44−1], amending [34−1] schedule order ; discovery ddl ext to 12/16/98 ; disp mtn ddl ext to 1/17/99 ; mag settlement conference set for 1:00 11/17/98 ; pretrial conf 1/18/99 is vacated and reset for 10:30 2/19/99 (cc: all counsel) ; entry date : 8/27/98 (former empl) (Entered: 08/27/1998)
46 MINUTE ORDER : by Magistrate Judge Patricia A. Coan ; ; settlement conf set for 9/;17/98 is vacated and reset for 1:00 11/17/98 (cc: all counsel) ; entry date : 8/28/98 (former empl) (Entered: 08/28/1998)
47 MOTION by plaintiff Julie Reiskin, plaintiff Debbie Lane to certify class action (former empl) (Entered: 10/01/1998)

Case: 1:97-cv-02135-LTB As of: 05/18/2010 09:18 PM MDT 6 of 13

10/01/1998 10/01/1998 10/18/1998 10/21/1998 10/22/1998
10/28/1998 11/02/1998
11/12/1998 11/16/1998 11/16/1998 11/16/1998
11/17/1998 11/30/1998 12/02/1998
12/07/1998 12/09/1998 12/10/1998 12/15/1998

48 Memorandum (BRIEF) by plaintiffs Julie Reiskin and Debbie Lane in support of motion to certify class action [47−1] (former empl) (Entered: 10/01/1998)
49 MINUTE ORDER : by Judge Lewis T. Babcock regarding [47−1] motion to certify class action, dft has until 10/30/98 to respond and pltfs have 20 days after to file reply (cc: all counsel) ; entry date : 10/1/98 (former empl) (Entered: 10/01/1998)
146 Amended Certificate of Service (STATEMENT) by plaintiff motion to extend deadline for joinder of parties/amendment of pleadings [144−1] (former empl) (Entered: 10/19/1999)
50 MOTION by defendant Taco Bell Corp to extend time to respond to mtn for class cert to l0/30/98 (former empl) (Entered: 10/22/1998)
51 MINUTE ORDER : by Judge Lewis T. Babcock granting motion to extend time to respond to mtn for class cert to 11/16/98 and 20 days to reply [50−1], regarding [47−1] motion to certify class action (cc: all counsel) ; entry date : 10/23/98 (former empl) (Entered: 10/23/1998)
52 MOTION by plaintiff CO Cross−Disability, plaintiff Julie Reiskin, plaintiff Debbie Lane to clarify sched order , or to extend affirmative and rebuttal experts deadline (former empl) (Entered: 10/29/1998)
53 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting in part and denying in part motion to clarify sched order [52−1] on R26(a)(2) info on individual pltfs claims re [45−1] Scheduling order ; [45−2] minute order, and [34−1] schedule order (cc: all counsel) ; entry date : 11/3/98 (former empl) (Entered: 11/03/1998)
54 Unopposed MOTION by plaintiff CO Cross−Disability, plaintiff Julie Reiskin, plaintiff Debbie Lane to postpone settlment conference (former empl) (Entered: 11/13/1998)
56 RESPONSE BRIEF IN OPPOSITION by deft Taco Bell Corp to motion to certify class action [47−1] (former empl) (Entered: 11/17/1998)
57 APPENDIX (SUPPLEMENT) by deft to brief in response [56−1] (former empl) (Entered: 11/17/1998)
58 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting motion to postpone settlment conference [54−1] and vacating 11/7/98 ; settlement conf set for 1:00 1/21/99 (cc: all counsel) ; entry date : 11/17/98 (former empl) (Entered: 11/17/1998)
55 MINUTE ORDER : by Judge Lewis T. Babcock setting hearing on motion to certify class action [47−1] 3:30 1/29/99 (cc: all counsel) ; entry date : 11/17/98 (former empl) (Entered: 11/17/1998)
59 Uncontested MOTION by defendant Taco Bell Corp to extend time to designate experts and conduct expert discovery (former empl) (Entered: 12/01/1998)
60 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting motion to extend time to designate experts and conduct expert discovery [59−1], ;expert witness discovery ddl set 1/30/99 (cc: all counsel) ; entry date : 12/3/98 (former empl) (Entered: 12/03/1998)
61 REPLY BRIEF by pltfs Julie Reiskin, Debbie Lane to response in support of motion to certify class action [47−1] (former empl) (Entered: 12/07/1998)
62 MOTION by defendant to extend time (3 days) to respond to written discovery (former empl) (Entered: 12/11/1998)
63 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting dft's motion to extend time to respond to written discovery [62−1] to 12/14/98 (cc: all counsel) ; entry date : 12/11/98 (former empl) (Entered: 12/11/1998)
64 sgd copy of Expert Witness Designation for defendant Taco Bell Corp (former empl) (Entered: 12/22/1998)

Case: 1:97-cv-02135-LTB As of: 05/18/2010 09:18 PM MDT 7 of 13

12/21/1998 12/21/1998 12/21/1998 12/22/1998 12/29/1998 12/30/1998
01/19/1999 01/19/1999 01/19/1999 01/20/1999
01/21/1999
01/26/1999 01/27/1999 01/27/1999
01/27/1999 01/27/1999 01/28/1999 01/29/1999 01/29/1999

65 MOTION by defendant for summary judgment (former empl) (Entered: 12/22/1998)
66 BRIEF by defendant in support of motion for summary judgment [65−1] (former empl) (Entered: 12/22/1998)
67 APPENDIX (SUPPLEMENT) by defendant to brief [66−1], motion for summary judgment [65−1] (former empl) (Entered: 12/22/1998)
68 Submission of Original Azalde afdt (SUPPLEMENT) by defendant [57−1] (former empl) (Entered: 12/23/1998)
69 MOTION by plaintiffs to extend time (20 days to respond to dft's motion/summary judgment (former empl) (Entered: 12/29/1998)
70 MINUTE ORDER : by Judge Lewis T. Babcock granting motion to extend time to respond to dft's motion/summary judgment [69−1], repsonse due 1/29/99 regarding [65−1] motion for summary judgment (cc: all counsel) ; entry date : 12/30/98 (former empl) (Entered: 12/30/1998)
71 Uncontested MOTION by plaintiffs to postpone settlment conference (former empl) (Entered: 01/20/1999)
72 MOTION by plaintiffs for partial summary judgment (former empl) (Entered: 01/28/1999)
73 Memorandum (BRIEF) by plaintiffs in support of motion for partial summary judgment [72−1] (former empl) (Entered: 01/28/1999)
74 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting motion to postpone settlment conference [71−1] until ruling on motions/summary judgment and class certification ; settlement conf vacated (cc: all counsel) ; entry date : 1/21/99 (former empl) (Entered: 01/21/1999)
160 MINUTE ORDER : by Judge Lewis T. Babcock regarding [159−1] motion for preliminary approval of settlment agreement (order) and [159−2] motion for fairness hearing ; scheduling conf set for 4:30 1/31/00 (cc: all counsel) ; entry date : 1/24/00 (former empl) (Entered: 01/24/2000)
75 MOTION by plaintiffs for leave to substitute memorandum in support of motion/partial summary judgment (tendered) (former empl) (Entered: 01/28/1999)
76 Joint MOTION by pltfs and deft to amend scheduling order: vacate filing date for pto and pretrial conference until after ruling on class certification and extend ddl for exeprt discovery to 2/28/99 (former empl) (Entered: 01/28/1999)
77 MINUTE ORDER : by Judge Lewis T. Babcock granting motion for leave to substitute memorandum in support of motion/partial summary judgment accepting for filing the tendered memorandum [75−1], striking brief [73−1], regarding [72−1] motion for partial summary judgment (cc: all counsel) ; entry date : 1/28/99 (former empl) (Entered: 01/28/1999)
78 Memorandum (BRIEF) by plaintiff in support of motion for partial summary judgment [72−1] (former empl) (Entered: 01/28/1999)
79 MOTION by plaintiff CO Cross−Disability, plaintiff Julie Reiskin, plaintiff Debbie Lane to strike portions of afdt of Carlos Azalde (former empl) (Entered: 01/28/1999)
80 MINUTE ORDER : by Judge Lewis T. Babcock dft response due 2/11/99 regarding [79−1] motion to strike portions of afdt of Carlos Azalde (cc: all counsel) ; entry date : 1/29/99 (former empl) (Entered: 01/29/1999)
81 Unopposed MOTION by blank (space) USA to file amicus brief (former empl) (Entered: 02/01/1999)
Tendered Memorandum of US as Amicus Curiae in Opposition to (dft) summary judgment motion, submitted with motion to file amicus brief [81−1], motion for summary judgment [65−1] (former empl) (Entered: 02/01/1999)

Case: 1:97-cv-02135-LTB As of: 05/18/2010 09:18 PM MDT 8 of 13

01/29/1999 01/29/1999 01/29/1999 01/29/1999
01/29/1999 02/01/1999
02/01/1999 02/01/1999 02/03/1999
02/04/1999 02/08/1999 02/09/1999 02/11/1999 02/12/1999 02/22/1999 02/23/1999
02/25/1999

82 BRIEF by USA in support of motion to file amicus brief [81−1] (former empl) (Entered: 02/01/1999)
83 Memorandum in Opposition (BRIEF) by pltfs in opposition to motion for summary judgment [65−1] (former empl) (Entered: 02/01/1999)
84 Appendix (SUPPLEMENT) to pltfs' opposition brief [83−1] (former empl) (Entered: 02/01/1999)
85 COURTROOM MINUTES by Judge Lewis T. Babcock granting motion to certify class action [47−1]; pltf to file proposed form of notice within 10 days and dft has 10 days to respond; dft's response to plfs' objections to dispositive motions due 2/26/99 and pltfs' ahve 10 days after to file their responses to dft's motions/objections to their motion/psummary judgment ; entry date : 2/1/99 Court Reporter: Debra Zoetewey (former empl) (Entered: 02/01/1999)
87 DECLARATION in support of brief [82−1] not docketed separately when originally filed (former empl) (Entered: 02/02/1999)
86 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting motion to amend scheduling order: [76−1], amending [34−1] schedule order ; discovery ddl on experts extended to 2/28/99 ; mag scheduling conference on class discovery set for 8:00 2/23/99 ; pretrial conf vacated (cc: all counsel) ; entry date : 2/2/99 (former empl) (Entered: 02/02/1999)
88 ORDER by Judge Lewis T. Babcock granting motion to file amicus brief [81−1] an amicus brief by USA, [0−0] (cc: all counsel) ; entry date : 2/2/99 (former empl) (Entered: 02/02/1999)
89 BRIEF by amicus USA in opposition to motion for summary judgment [65−1] (former empl) (Entered: 02/02/1999)
90 MEMORANDUM, OPINION, AND ORDER: by Judge Lewis T. Babcock regarding [72−1] motion for partial summary judgment dft's response due 2/26/99 and pltfs' 10 days to reply; regarding [65−1] motion for summary judgment dft's reply due 2/26/99, granting motion to certify ADA/CADA class action [47−1]; Reiskin and Lane certifed as class representatives adn pltfs shall file propsed form of notice by 2/8/99 with dft given 10 days to respond; costs to class certification to be borne by pltfs (cc: all counsel) ; entry date : 2/4/99 (former empl) (Entered: 02/04/1999)
91 Joint MOTION by plaintiffs and defendant to vacate expert discovery ddl (former empl) (Entered: 02/04/1999)
92 NOTICE of proposed class by plaintiff (former empl) (Entered: 02/09/1999)
93 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting motion to vacate expert discovery ddl [91−1] (cc: all counsel) ; entry date : 2/10/99 (former empl) (Entered: 02/10/1999)
94 RESPONSE by defendant Taco Bell Corp to motion to strike portions of afdt of Carlos Azalde [79−1] (former empl) (Entered: 02/12/1999)
95 ORDER by Judge Lewis T. Babcock denying motion to strike portions of afdt of Carlos Azalde [79−1] (cc: all counsel) ; entry date : 2/12/99 (former empl) (Entered: 02/12/1999)
96 OBJECTIONS by defendant Taco Bell Corp to notice [92−1] (former empl) (Entered: 02/23/1999)
97 COURTROOM MINUTES by Magistrate Judge Patricia A. Coan ; oral mtn to extend time to file reply brief granted to 3/5/99; discovery ddl set 10/15/99 ; disp mtn ddl set 11/15/99 ; status conf set for 10:00 4/2/99 ; mag conference held 2/23/99 ; settlement conf set for 1:00 10/19/99 ; pretrial conf set for 9:30 12/16/99 ; jury trial set for 8/21/00 , ; Trial prep conference set for 8:00 7/26/00 ; entry date : 2/25/99 Court Reporter: tape 99−20 (former empl) (Entered: 02/25/1999)
98 MOTION by plaintiff Julie Reiskin, plaintiff Debbie Lane for leave to file response to deft's objection to submission of proposed class ntc (gms) (Entered: 02/26/1999)

Case: 1:97-cv-02135-LTB As of: 05/18/2010 09:18 PM MDT 9 of 13

02/25/1999
02/25/1999 02/25/1999 02/26/1999 02/26/1999 03/05/1999 03/05/1999 03/08/1999 03/11/1999 03/11/1999
03/11/1999 03/19/1999 03/22/1999 03/22/1999 03/23/1999
03/23/1999 04/02/1999 04/12/1999 04/13/1999

Tendered Response to Taco Bell's Objection to Pltfs' Submission of Proposed Class Notice submitted by plaintiff Julie Reiskin, plaintiff Debbie Lane re: motion for leave to file response to deft's objection to submission of proposed class ntc [98−1] (gms) (Entered: 02/26/1999)
99 MINUTE ORDER : by Judge Lewis T. Babcock ; in court hrg on class notice set for 9:00 4/16/99 (cc: all counsel) ; entry date : 2/26/99 (gms) (Entered: 02/26/1999)
100 MINUTE ORDER : by Judge Lewis T. Babcock. 7 day trial to jury set 8/21/00. Final trial prep conf set 7/26/00 at 8:00 a.m. (cc: all counsel) ; entry date : 2/26/99 (gms) (Entered: 02/26/1999)
101 MINUTE ORDER : by Judge Lewis T. Babcock granting motion for leave to file response to deft's objection to submission of proposed class ntc [98−1] (cc: all counsel) ; entry date : 3/1/99 (gms) (Entered: 03/01/1999)
102 RESPONSE by pltfs' Julie Reiskin, Debbie Lane to Taco Bell's objection [96−1] to pltfs' submission of proposed class notice (gms) (Entered: 03/01/1999)
103 REPLY by defendant in support of motion for summary judgment [65−1] (former empl) (Entered: 03/08/1999)
104 BRIEF by defendant in opposition to motion for partial summary judgment [72−1] (former empl) (Entered: 03/08/1999)
105 Notice of Rrecently Decided Authority (SUPPLEMENT) by amicus USA opposition brief [89−1] (former empl) (Entered: 03/09/1999)
106 Unopposed MOTION by plaintiffs to extend time to file reply brief (former empl) (Entered: 03/11/1999)
107 MINUTE ORDER : by Judge Lewis T. Babcock granting to/inclduing 3/19/99 pltfs' motion to extend time to file reply brief [106−1], regarding [72−1] motion for partial summary judgment (cc: all counsel) ; entry date : 3/12/99 (former empl) (Entered: 03/12/1999)
108 AMENDED CERTIFICATE OF MAILING by defendant to opposition brief [104−1], motion reply [103−1] (former empl) (Entered: 03/12/1999)
109 REPLY MEMORANDUM IN SUPPORT by plaintiff to response to to their motion for partial summary judgment [72−1] (former empl) (Entered: 03/22/1999)
110 MOTION by plaintiffs for leave to file surreply in response to new material/arguments in dft's reply brief AND NOTICE OF recently decided authority (former empl) (Entered: 03/23/1999)
Tendered Pltfs' Surreply Brief submitted by plaintiff motion for leave to file surreply in response to new material/arguments in dft's reply brief [110−1] (former empl) (Entered: 03/23/1999)
111 MINUTE ORDER : by Judge Lewis T. Babcock accepting for filing [0−0] document tendered after granting motion for leave to file surreply in response to new material/arguments in dft's reply brief [110−1] (cc: all counsel) ; entry date : 3/24/99 (former empl) (Entered: 03/24/1999)
112 Surreply in RESPONSE by plaintiffs to dft's reply [103−1], in support of motion for summary judgment [65−1] (former empl) (Entered: 03/24/1999)
113 COURTROOM MINUTES by Magistrate Judge Patricia A. Coan on discovery matters ; status conf held 4/2/99 ; mag conference set for 9:00 5/18/99 ; entry date : 4/5/99 Court Reporter: PAC Civ Tape 99−36 (former empl) (Entered: 04/05/1999)
114 MOTION by plaintiffs for leave to submit recently decided authority (attached) (former empl) (Entered: 04/13/1999)
115 MINUTE ORDER : by Judge Lewis T. Babcock granting pltfs' motion for leave to submit recently decided authority (attached) [114−1], [109−1] motion reply (cc: all counsel) ; entry date : 4/14/99 (former empl) (Entered: 04/14/1999)

Case: 1:97-cv-02135-LTB As of: 05/18/2010 09:18 PM MDT 10 of 13

04/14/1999 04/15/1999 04/16/1999 04/16/1999
04/16/1999 04/19/1999 04/19/1999
05/18/1999 08/04/1999 08/04/1999 08/20/1999 08/20/1999 08/23/1999 08/24/1999 08/24/1999 08/24/1999

116 Unopposed MOTION by defendant to extend time to 5/3/99 to respond to pltfs' written discovery (former empl) (Entered: 04/15/1999)
117 MEMORANDUM by Judge Lewis T. Babcock referring to Magistrate Judge Patricia A. Coan the motion to extend time to 5/3/99 to respond to pltfs' written discovery [116−1] (former empl) (Entered: 04/15/1999)
118 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting motion to extend time to 5/3/99 to respond to pltfs' written discovery [116−1] (cc: all counsel) ; entry date : 4/19/99 (former empl) (Entered: 04/19/1999)
119 ORDER by Judge Lewis T. Babcock on pending proposed class notice and after argument 4/16/99, incorporating findings of record: the proposed class notice with changes by interlineation are approved, within 10 days the order to be posted for 30 days at disability organization and corporate owned and operated Taco Bell restaurants in State of CO and the ddl for potential class members to contact class counsel Fox to obtain the full class notice shallb e 8 weeks after entry of this Order and the exclusuion request form seeking exclusion from the class must be postmarked by 12 weeks after the entry of this Order (cc: all counsel) ; entry date : 4/19/99 (former empl) (Entered: 04/19/1999)
120 COURTROOM MINUTES by Judge Lewis T. Babcock discussion/arguments resulting in [119−1] order, regarding [92−1] notice of proposed class ; entry date : 4/20/99 Court Reporter: Gwen Daniel (former empl) (Entered: 04/20/1999)
121 MOTION by plaintiff to clarify (4/16/99 order) (former empl) (Entered: 04/20/1999)
122 ORDER by Judge Lewis T. Babcock granting motion to clarify (4/16/99 order) [121−1], regarding [119−1] order the full class notice shall be published for 10 days in the Rocky Mountain News and Denver Post and shall be sent to persons on the CCDC mailing list (cc: all counsel) ; entry date : 4/20/99 (former empl) (Entered: 04/20/1999)
123 COURTROOM MINUTES by Magistrate Judge Patricia A. Coan ; mag status conference held 5/18/99 ; further mag status conference set for 10:00 8/4/99 ; entry date : 5/20/99 Court Reporter: PAC Civ Tape 99−55 (former empl) (Entered: 05/20/1999)
124 COURTROOM MINUTES by Magistrate Judge Patricia A. Coan amending [34−1] schedule order ; discovery ddl extended to 11/30/99 ; mag conference held 8/4/99 ; entry date : 8/6/99 Court Reporter: PAC Civ Tape 99−75 (former empl) (Entered: 08/06/1999)
125 MINUTE ORDER : by Magistrate Judge Patricia A. Coan regarding [124−2] minutes ; discovery ddl set 11/30/99 (cc: all counsel) ; entry date : 8/6/99 (former empl) (Entered: 08/06/1999)
126 Joint MOTION by plaintiff CO Cross−Disability, plaintiff Julie Reiskin, defendant Taco Bell Corp, plaintiff Debbie Lane for order to remove limit on requests for admission (former empl) (Entered: 08/20/1999)
127 MEMORANDUM by Judge Lewis T. Babcock referring to Magistrate Judge Patricia A. Coan the motion for order to remove limit on requests for admission [126−1] (former empl) (Entered: 08/20/1999)
128 MOTION by defendant Taco Bell Corp to extend time to respond to written discovery (former empl) (Entered: 08/24/1999)
129 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting motion for order to remove limit on requests for admission [126−1] (cc: all counsel) ; entry date : 8/24/99 (former empl) (Entered: 08/24/1999)
130 MEMORANDUM by Judge Lewis T. Babcock referring to Magistrate Judge Patricia A. Coan the motion to extend time to respond to written discovery [128−1] (former empl) (Entered: 08/24/1999)
131 Unopposed MOTION by plaintiff CO Cross−Disability, plaintiff Julie Reiskin, plaintiff Debbie Lane to extend ddls to join parties and amend pleadings (former

Case: 1:97-cv-02135-LTB As of: 05/18/2010 09:18 PM MDT 11 of 13

08/25/1999 08/25/1999 08/26/1999
08/27/1999 08/30/1999 08/31/1999
09/16/1999 09/16/1999 09/17/1999 09/20/1999 09/21/1999 09/22/1999 10/14/1999 10/15/1999 10/18/1999
10/18/1999 10/19/1999

empl) (Entered: 08/25/1999)
132 MEMORANDUM by Judge Lewis T. Babcock referring to Magistrate Judge Patricia A. Coan the motion to extend time to respond to written discovery [128−1] (former empl) (Entered: 08/26/1999)
133 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting motion to extend time to respond to written discovery [128−1] to 9/20/99 (cc: all counsel) ; entry date : 8/26/99 (former empl) (Entered: 08/26/1999)
134 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting motion to extend ddls to join parties and amend pleadings [131−1], regarding [34−1] schedule order (cc: all counsel) ; entry date : 8/26/99 (former empl) (Entered: 08/26/1999)
135 SUPPLEMENT by plaintiff CO Cross−Disability, plaintiff Julie Reiskin, plaintiff Debbie Lane motion to extend ddls to join parties and amend pleadings [131−1] (former empl) (Entered: 08/30/1999)
136 MEMORANDUM by Judge Lewis T. Babcock referring to Magistrate Judge Patricia A. Coan the [135−1] (former empl) (Entered: 08/31/1999)
137 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting supplemental motion to extend deadlines[135−1], re [34−1] schedule order: ddl for joinder of parties and amendment of pleadings is 9/17/99 (cc: all counsel) ; entry date : 9/1/99 (former empl) (Entered: 09/01/1999)
138 Unopposed MOTION by plaintiff CO Cross−Disability, plaintiff Julie Reiskin, plaintiff Debbie Lane to extend ddl to join parties and amend pleadings (former empl) (Entered: 09/16/1999)
139 MEMORANDUM by Judge Lewis T. Babcock referring to Magistrate Judge Patricia A. Coan the motion to extend ddl to join parties and amend pleadings [138−1] (former empl) (Entered: 09/17/1999)
140 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting to 10/15/99 pltfs' motion to extend ddl to join parties and amend pleadings [138−1] (cc: all counsel) ; entry date : 9/20/99 (former empl) (Entered: 09/20/1999)
141 Second MOTION by defendant Taco Bell Corp to extend time to respond to written discovery to 9/27/99 (former empl) (Entered: 09/21/1999)
142 MEMORANDUM by Judge Lewis T. Babcock referring to Magistrate Judge Patricia A. Coan the motion to extend time to respond to written discovery to 9/27/99 [141−1] (former empl) (Entered: 09/22/1999)
143 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting dft's second motion to extend time to respond to written discovery to 9/27/99 [141−1] (cc: all counsel) ; entry date : 9/23/99 (former empl) (Entered: 09/23/1999)
144 Third unopposed MOTION by plaintiff CO Cross−Disability to extend deadline for joinder of parties/amendment of pleadings (former empl) (Entered: 10/15/1999)
145 MEMORANDUM by Judge Lewis T. Babcock referring to Magistrate Judge Patricia A. Coan the motion to extend deadline for joinder of parties/amendment of pleadings [144−1] (former empl) (Entered: 10/18/1999)
147 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting motion to extend deadline for joinder of parties/amendment of pleadings [144−1] to: 11/19/99, regarding [34−1] schedule order (cc: all counsel) ; entry date : 10/19/99 (former empl) (Entered: 10/19/1999)
148 RESPONSE by defendant Taco Bell Corp to motion to extend deadline for joinder of parties/amendment of pleadings [144−1] (former empl) (Entered: 10/19/1999)
149 MEMORANDUM by Judge Lewis T. Babcock referring to Magistrate Judge Patricia A. Coan the response [148−1] (former empl) (Entered: 10/19/1999)

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10/20/1999 11/23/1999 12/03/1999 12/17/1999 12/20/1999 12/21/1999
12/22/1999 01/05/2000
01/06/2000
01/19/2000 01/31/2000
02/04/2000 02/10/2000 02/28/2000

150 MINUTE ORDER : by Magistrate Judge Patricia A. Coan vacating schedule order [34−1] ; discovery ddl 11/30/99 vacated ; disp mtn ddl 11/15/99 vacated ; pretrial conf set 12/16/99 vacated as parties have reached settlement (cc: all counsel) ; entry date : 10/21/99 (lam) (Entered: 10/21/1999)
151 MINUTE ORDER by Magistrate Judge Patricia A. Coan status report ddl set for 12/3/99 re: progress of proposed consent decree (cc: all counsel) ; entry date : 11/24/99 (former empl) (Entered: 11/24/1999)
152 STATUS REPORT by plaintiff CO Cross−Disability, plaintiff Julie Reiskin, defendant Taco Bell Corp, plaintiff Debbie Lane anticipate final agreement by 12/10/99 (former empl) (Entered: 12/06/1999)
153 Joint MOTION by plaintiffs and defendant Taco Bell Corp (signed by dft's counsel) for leave to file pleading under seal... (former empl) (Entered: 12/20/1999)
154 ORDER by Judge Lewis T. Babcock granting motion for leave to file pleading and attachments under seal... [153−1] (cc: all counsel) ; entry date : 12/20/99 (former empl) (Entered: 12/20/1999)
155 MOTION FILED UNDER SEAL jointly by plaintiff CO Cross−Disability, plaintiff Julie Reiskin, defendant Taco Bell Corp, plaintiff Debbie Lane for preliminary approval of settlment , and for fairness hearing *note: filed in manila envelope placed in Exhibit Room in SEALED AREA (former empl) (Entered: 12/22/1999)
156 MINUTE ORDER : by Judge Lewis T. Babcock ; hearnig on preliminary approval of settlement is set for 2:30 1/5/00 (cc: all counsel) ; entry date : 12/23/99 (former empl) (Entered: 12/23/1999)
157 SEALED COURTROOM MINUTES by Judge Lewis T. Babcock regarding [155−1] motion for preliminary approval of settlment, regarding [155−2] motion for fairness hearing ; status conf held 1/5/00 ; status report ddl set for 1/15/00 ; entry date : 1/6/00 Court Reporter: Gwen Daniel *filed under SEAL placed in brown envelope in Exhibit Room in SEALED AREA (former empl) (Entered: 01/06/2000)
158 SEALED ORDER signed 1/5/00 by Judge Lewis T. Babcock denying without prejudice joint motion for preliminary approval of settlment [155−1] and for fairness hearing [155−2] ; status report ddl set for 1/20/00 (cc: all counsel) ; entry date : 1/6/00 *FILED UNDER SEAL, placed in brown envelope and filed in Exhibit Room in SEALED AREA (former empl) (Entered: 01/06/2000)
159 RENEWED JOINT MOTION by plaintiff CO Cross−Disability, plaintiff Julie Reiskin, plaintiff Debbie Lane, defendant Taco Bell Corp for preliminary approval of settlment agreement (order) , and for fairness hearing (former empl) (Entered: 01/19/2000)
161 COURTROOM MINUTES by Judge Lewis T. Babcock ; status conf held 1/31/00 ; status report ddl satisfied 1/31/00 ; hrg for approval of settlment set for 4:30 3/1/00 ; case mgmt ddl satisfied 1/31/00 as being long past 12/98 O: appropriate documents to Clerk of Court for signature by 2/1/00; if settlement is approved dft shall tender settlment check by 3/10/00 and disbursements made by 3/17/00 ; entry date : 2/2/00 Court Reporter: Gwen Daniel (former empl) (Entered: 02/02/2000)
162 MINUTE ORDER : by Judge Lewis T. Babcock ; in court hrg set for 4:30 3/1/00 on stlmt agreement and fairness (cc: all counsel) ; entry date : 2/7/00 (former empl) (Entered: 02/07/2000)
163 NOTICE of Change of Address of Fox &Robertson, PC by plaintiff (former empl) (Entered: 02/14/2000)
164 Submission of Proposed Order Approving Class Action Settlment ( NOTICE) by plaintiff CO Cross−Disability, plaintiff Julie Reiskin, plaintiff Debbie Lane...proposed Order attached (former empl) Modified on 02/29/2000 (Entered: 02/29/2000)

Case: 1:97-cv-02135-LTB As of: 05/18/2010 09:18 PM MDT 13 of 13

03/01/2000 03/01/2000 03/02/2000
03/22/2000 03/23/2000

166 ORDER signed 3/1/00 by Judge Lewis T. Babcock denying as moot: motion for fairness hearing [159−2], motion for partial summary judgment [72−1], motion for summary judgment [65−1] (cc: all counsel) ; entry date : 3/3/00 (former empl) (Entered: 03/03/2000)
167 COURTROOM MINUTES of Final Fairness Hearing by Judge Lewis T. Babcock; order approving class action settlment will enter; denying as moot: motion for partial summary judgment [72−1], motion for summary judgment [65−1] ; entry date : 3/3/00 Court Reporter: Gwen Daniel (former empl) Modified on 03/30/2000 (Entered: 03/03/2000)
165 ORDER signed 3/1/00 and filed 3/2/00 by Judge Lewis T. Babcock granting renewed motion for preliminary approval of settlment agreement [159−1] and modifying paragraph IV.E of the Settlement Agreement as set forth and the Court finds the settlment reached in this action faire, reasonable and adequate meeting the requirements of R 23 and that the notice of the settlment prjovided to the class meets the requirement sof due process and R 23; ORDERED: settlement is approved; payments to be provided as set forth in the settlement agreement by 3/10/00; pltfs' counsel to mail settlment proceeds to class members as as agreed by 3/17/00; within 7 days after all payments have been provided by dft and proceeds mailed to class members the parties to submit a motion to dismiss with prejudice (cc: all counsel) ; entry date : 3/2/00 (former empl) Modified on 03/02/2000 (Entered: 03/02/2000)
168 Stipulation (MOTION) by plaintiff CO Cross−Disability, plaintiff Julie Reiskin, defendant Taco Bell Corp, plaintiff Debbie Lane to dismiss settled case with prejudice (former empl) (Entered: 03/23/2000)
169 ORDER by Judge Lewis T. Babcock granting motion to dismiss settled case with prejudice [168−1] dismissing case with prejudice; each bear own costs/attorneys' fees as agreed between them (cc: all counsel) ; entry date : 3/23/00 (former empl) (Entered: 03/23/2000)

 
 SETTLEMENT AGREEMENT, GENERAL RELEASE AND COVENANT NOT TO SUE

I.

PARTIES

The parties to this Settlement Agreement, General Release and Covenant Not To Sue ("Agreement") are:

A. Colorado Cross-Disability Coalition ("CCDC"), Julie Reiskin, Debbie Lane and members of the Class as certified by the Court in its February 3, 1999 Order (collectively referred to as lithe Plaintiffs"); and

B

Defendant Taco Bell Corp. ("Taco Bell").

II. RECITALS

A. Plaintiffs have filed a class action complaint entitled Colorado Cross-Disability Coalition et al. v. Taco Bell Corporatioll, in the United District Court for the District of Colorado, Civil Action No. 97-B-213 5 ("the Lawsuit"), alleging discrimination on the basis of disability in violation of Title III of the Americans With Disabilities Act, 42 USc. § 12181 et seq. (lithe ADA") and the Colorado Anti-Discrimination Act, C.R. S. § 34-24-60 I et seq

B

Taco Bell denies each and every material allegation contained in Plaintiffs'

Complaint, as amended, including specifically any liability on its part in favor of Plaintiffs in any

amount or for any reason.

C. Taco Bell, by entering into this Agreement, admits no wrongdoing or liability whatsoever Taco Bell has asserted and continues to assert that certain of the undertakings set forth in this Agreement are not required by and exceed the requirements of the ADA. Furthermore, since prior to the enactment of the ADA, Taco Bell has embarked on an ongoing program directed to increasing the accessibility of its restaurants and compliance with all applicable accessibility guidelines.

D. Nonetheless, the parties desire to mutually and amicably settle all claims and controversies existing between them, as more specifically set forth below on the terms and conditions of this Agreement.

III. DEFINITIONS
A. The phrase "Current Colorado Corporate-owned Taco Bell Restaurant," as used herein, shall refer to any Taco Bell restaurant located in Colorado and owned by Taco Bell as of the date of execution of this Agreement. A list of Current Colorado Taco Bell Restaurants is attached hereto as Attachment A hereto.

B. The phrase "Future Colorado Corporate-owned Taco Bell Restaurant," as used herein, shall refer to any Taco Bell restaurant located in Colorado and acquired or constructed by Taco Bell at any time after the execution of this Agreement.
C. The phrase "queue line," as used herein, shall refer to any barriers or other devices used to cause patrons to form a single line when patronizing the service counter in a Taco Bell restaurant.
IV. COVENANTS
In consideration of the mutual covenants set forth herein and other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:
A. Release and Covenant Not to Sue:
1. Plaintiffs, for themselves, their heirs and assigns, and specifically including all members of the Class, do hereby forever release and discharge Taco Bell, its subsidiaries, affiliates, successors, predecessors, assigns, agents, employees, attorneys and representatives (collectively referred to as the "Released Parties") from, and covenant not to sue the Released Parties with respect to, any and all causes of action, actions, judgments, liens, indebtedness, damages, losses, claims, liabilities and demands of whatsoever kind and character in any manner whatsoever arising from or relating to the accessibility of the queue lines in any Current and/or Future Colorado Corporate-owned Taco Bell Restaurant, and, without limiting the generality of the foregoing, specifically from all claims or allegations asserted or which could have been asserted by Plaintiffs or on their behalf in the Lawsuit relating to the accessibility of the queue lines in any Current and/or Future Colorado Corporate-owned Taco BeIl Restaurant, including claims to attorneys' fees. Subject to the limitations set forth in Paragraph E below, nothing in this Agreement is intended to release or discharge Taco Bell franchisees or licensees from any liability of any kind whatsoever.
2. Taco Bell, for itself and its subsidiaries, affiliates, successors, predecessors, assigns, agents, employees, attorneys and representatives, does hereby forever release and discharge Plaintitfs from any and all causes of action, actions, judgments, liens, indebtedness, damages, losses, claims, counterclaims, liabilities and demands of whatsoever kind and character in any manner whatsoever arising from or relating to the Lawsuit or that could have been asserted by Taco Bell in the Lawsuit.
3. Plaintiffs represent that they have not commenced, and that they will not at any time after execution of this Agreement commence, any other action, lawsuit, or legal proceeding or file any other charge or complaint with any federal, state or local agency against any of the Released Parties relating to the accessibility of the queue lines in any Current and/or Future Colorado Corporate-owned Taco Bell Restaurant.
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4. Plaintiffs understand and expressly agree that this Agreement extends to all claims of every nature and kind, known or unknown, suspected or unsuspected, past, present, or future, arising from or relating to any alleged violation by the Released Parties occurring prior to the execution of this Agreement, relating to the accessibility of the queue lines in any Current and/or Future Colorado Corporate-owned Taco Bell Restaurant, referred to herein or not.
5. The parties understand and expressly agree that this Agreement shall bind and benefit Plaintiffs, including all members of the Class, and their respective heirs, administrators, successors and assigns.
6. Plaintiffs further represent that they have not assigned or transferred in any way any claims against any of the Released Parties.
B. Consideration: In consideration of the releases and covenant not to sue set forth in this Agreement, Taco Bell agrees to the following terms:
1. On or before December 31, 2001, Taco Bell agrees that the queue lines in all Current Colorado Corporate-owned Taco Bell Restaurants will comply with the dimensions specified in § 4.3.3, or § 4.2 and § 5.5 of the Americans With Disabilities Act Accessibility Guidelines ("the ADAAGJI);
2. Taco Bell agrees that any queue lines in any Future Colorado Corporateowned Taco Bell Restaurant will comply with the dimensions specified in §4.3 .3, or § 4.2 and § 5.5 of the ADAAG.
3. Within 30 days after final Court approval of the settlement set forth in this Agreement, Taco Bell will make the following payments:
a) The amount of$21O,000 by check to the order of Fox & Robertson P_e. representing attorneys' fees, costs and expenses incurred by Plaintiffs in connection with the lawsuit; and
b) The amount of $50 per Class member identified by Plaintiffs, but not to exceed a total of $5700. This amount shall be paid by Taco Bell directly to CCDC for distribution to Class members, and shall be paid to each Class member irrespective of the number of visits such member made to any Taco Bell facility or facilities.
4. Taco Bell shall pay CeDe at the rate of $25 per hour for a qualified CeDe member to determine compliance with Taco Bell's obligations under this Agreement for the removal or widening of the queue lines in accordance with Paragraph IV.B.l hereof The total of such payments shall not exceed $3500 and such monitoring shall be limited to one occasion per Current Colorado Corporate-owned Taco Bell Restaurant and must be completed no later than June 30, 2002;
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5. Taco Bell agrees to provide training and written instruction or direction to the employees in its Colorado corporate-owned stores to maintain unobstructed queue lines as more particularly described in Attachment B hereto, which will be sent as an e-mail or memo to each facility.
C. Dismissal of Lawsuit: Plaintiffs and Taco Bell authorize, instruct and direct their attorneys of record in the Lawsuit to enter into a Stipulation for Dismissal with Prejudice and to file all documents necessary to seek entry of an Order of Dismissal with Prejudice in the lawsuit in the form of Attachments C and D to this Agreement.
E. Moratorium on Claims Against Colorado Franchisees and Licensees: Plaintiffs and Plaintiffs' counsel agree that they will not institute, or threaten to institute, any lawsuits, administrative charges or other legal proceedings against Taco Bell's franchisees and licensees concerning franchised or licensed Taco Bell restaurants in the state of Colorado for a period of two years after final Court approval of this Agreement. In exchange for this promise, Taco Bell agrees to encourage its Colorado franchisees and licensees to remove or widen their queue lines within this two year period in accordance with the dimensions specified in § 4.33, or § 4.2 and § 5.5 of the ADAAG.
F. Arbitration: The parties agree that any dispute arising from the terms of this Agreement shall be submitted to an impartial arbitrator for final and binding resolution in accordance with the rules of the American Arbitration Association. The arbitrator shall have the power to order specific performance of this Agreement. Seeking specific performance of this Agreement by order of the arbitrator is the sole and exclusive remedy of the parties with respect to any claim of future violations of this Agreement or any alleged violation of any statute governing or relating to the accessibility of queue lines at Current and/or Future Colorado Corporate-owned Taco Bell Restaurants. The parties agree that the Arbitrator shall enter an award of attorneys' fees and costs to the prevailing party in any action to enforce the terms of this Agreement in accordance with the prevailing party standard under the ADA.
G. No Admission of Liability: The parties agree that this Agreement does not constitute an admission of liability; that it does not constitute any factual or legal precedent or finding whatsoever; and that it may not be used as evidence in any subsequent proceeding of any kind, except in an action alleging a breach of this Agreement.
H. Knowing Waiver:
1. The named-Plaintiffs represent that they have read this Agreement and discussed it with their attorney, and understand each of the terms of this Agreement. The namedPlaintiffs further represent that they have had adequate time to consider this Agreement and enter into this settlement and execute this Agreement voluntarily and willingly.
2. Taco Bell represents that it has read this Agreement and discussed it with
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its attorney, and understands each of the terms of this Agreement. Taco Bell further represents that it has had adequate time to consider this Agreement and enters into this settlement and execute this Agreement voluntarily and willingly.

I.

Agreement of Counsel: The undersigned counsel represent that they have read

this Agreement and have reviewed it with their respective clients. They further represent that this

Agreement accurately sets forth the parties' understanding and is legally valid and enforceable.

J. Governing Law: Except as otherwise provided herein, Colorado law shall govern the validity, effect and interpretation of this Agreement.

K. No Other Agreements: This document constitutes the entire understanding and Settlement Agreement between the parties. Any modification of this Agreement must be in writing and signed by Plaintiffs and Taco Bell.

1/:9 Date: i

/!y,>

COLORADO CROSS-DISABILITY COALITION
BY: \ \\"\\.i~~~~\l;,
Name~JI>-"';;:, '~:"",.,.'"
Title:cx o:'"C, L 1-..:('_ "0ir C.L +-t"--:-

STATE OF COLORADO

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CITY ANTI COUNTY OF DENVER

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~a..-'()
Subscr~bt;d and sworn to before me this l.3!:!. day of s;4';CVt:V)1 , ~, by
..Ju..L e /~& (j.a;~::L.Wa~__

My commission expires: _J...L......I../.C...l=S"""'-'--iloo<0.:3:.=.._ _ _ _ _ _ __

otary Public

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JU1ei5kin •

STATE OF C%eD do

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II +-'1 oJ.., COUNTY OF Thol 'el~

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b Subscribed and sworn to before me this ~ day of, QI 1 ,-, ;i (

~-U.lj -' 0'""lL (1

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My commission expires: _7--'--'-'1""":;;.....,3'....t..1-'=<00...3"""--_ _ _ _ _ __

N ry Public

STATE OF - ,\~ r\...-<:,(.--. )
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to before me this

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11 day of '"Ie> v' '-"C- ('-\' ~, by

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Notary Public

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TACO BELL CORP.ORA:TIGN-

By:LA xi'cS

Name:·

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Title:

C.A.AsBsRIsYtaCnEt

SHIRLEY Secretary '-

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STATE OF CALIFORNIA

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COUNTY OF ()/,.I#{~)

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L#! Subscribed and sworn to before me this

day of ~I(O'¢ . ~ by

/:. &N_(' f£r~1/

:. : .Jr._,- ~ My commission expires: _ _. r:......._/-)2.._1..-'-.'

_'_ _ _ _ _ __

/

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APPROVED AS TO FORM AND CONTENT:
Kevin W Williams, Esq. General Counsel Colorado Cross-Disability Coalition 1210 East Colfax Avenue, Suite 405 Denver, Colorado 80218 303-839-1775 Timothy P. Fox Amy Robertson Fox & Robertson, P.e. 1675 Larimer Street, Suite 610 Denver, CO 80202 303-595-9700
ATTORNEYS FOR PLAINTIFFS
555 Seventeenth Street, Suite 3200 Denver, CO 80201 303-295-8000 ATTORNEYS FOR DEFENDANT TACO BELL CORP.
26002433 3.DOC
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