IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-K-1923 CARRIE ANN LUCAS, DEBBIE LANE, and JULIE REISKIN, for themselves and all others similarly situated,
Plaintiffs, v. KMART CORPORATION,
Defendant.
PLAINTIFFS’ SUBSTITUTED MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
Pursuant to this Court’s Minute Order of July 10, 2001, Plaintiffs Carrie Ann Lucas, Debbie Lane, and Julie Reiskin (“Named Plaintiffs”) hereby submit this Substituted Memorandum in Support of Motion for Class Certification. Named Plaintiffs are also filing substituted versions of Tabs 7, 8 and 14 of the Appendix to their Motion for Class Certification. References in this Substituted Memorandum to other Tabs are to the Appendix filed with the original Memorandum in Support of Motion for Class Certification.
Named Plaintiffs bring this case to correct architectural barriers and policies at Defendant’s Kmart stores across the country that discriminate against a large number of Kmart shoppers who use wheelchairs or scooters. The putative class seeks an injunction ordering Kmart Corporation (“Kmart”) to adopt reasonable policies to ensure access for customers who use wheelchairs or scooters and to use its centralized design and construction program to bring all of its stores into compliance with the Americans with Disabilities Act. 42 U.S.C. § 12101 et

seq. (“ADA”). This case epitomizes the type of action for which Rule 23 was designed, as classwide injunctive relief will be appropriate and manageable to formulate and implement.
BACKGROUND A. Named Plaintiffs
Carrie Ann Lucas, Debbie Lane and Julie Reiskin are all busy professional women who use wheelchairs for mobility and who shop at Kmart. Ms. Lucas is the Access and Testing Coordinator of the Colorado Cross-Disability Coalition (“CCDC”), a statewide disability rights organization. She is unable to walk due to a bone infection and bone tumor and related treatment and uses a power wheelchair for mobility.1 Ms. Lane is the Project Coordinator at CCDC. She is unable to walk due to spastic paraparesis and uses a power wheelchair for mobility.2 Ms. Reiskin is the Executive Director of CCDC. She is unable to walk due to multiple sclerosis and uses a power wheelchair for mobility.3
Named Plaintiffs seek to represent a class defined as follows: All persons with disabilities who use wheelchairs or scooters for mobility who have been denied, or are currently being denied, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any public accommodation that was designed or constructed by or is owned, operated, or leased by or leased to Kmart Corporation anywhere in the United States. Named Plaintiffs have all encountered discriminatory barriers, policies, and practices at Kmart stores, including but not limited to: obstructions that block passage to and through the

1

Lucas Dep. at 10:23 - 11:9, 22:19 - 23:5 (Appendix Tab 1).

2

Lane Decl. ¶¶ 2-3 (Appendix Tab 4).

3

Reiskin Dep. at 93:17 - 93:20 (Appendix Tab 5); Reiskin Decl. ¶ 2 (Appendix Tab 6).

2

store, as well as access to merchandise;4 clothing racks placed too close together to permit wheelchair passage;5 absence of an open accessible check-out aisle;6 inaccessible fitting rooms;7 service counters that were too high;8 and inability to find or use an accessible parking space.9 Each of these barriers, polices, and practices has the same effect: it denies customers who use wheelchairs or scooters the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of Kmart stores.
A few examples from Named Plaintiffs’ many experiences illustrate the effect of these barriers. In her deposition, Ms. Lucas described being on the way to a meeting of her ordination

4

See, e.g., Lucas Dep. at 122:12 - 123:11, 126:15 - 127:21, 130:14 - 132:12, 138:3 -

142:25, 244:4 - 249:13, 292:5 - 298:5, 305:2 - 305:25, 311:13 - 315:4, 359:8 - 361:16, 377:11 -

386:18, 394:10 - 395:4, 420:7 - 439:22, 444:19 - 448:11, 461:2 - 461:5, 475:5 - 476:4, 519:2 -

528:17, 539:1 - 539:15, 550:9 - 554:13, 570:1 - 571:5, 573:1 - 574:6, 586:4 - 586:11, and Ex. 11

at P0064, Ex. 16 at P0001-3, P0014-15; Lane Dep. at 236:2 - 238:22, 260:1 - 272:25, 278:2 -

292:1 and Ex. 19 at P0038-39 (Appendix Tab 3); Reiskin Dep. at 36:1 - 38:4, 40:8 - 43:19, 81:2 -

81:13. The pages cited in this brief discuss discrimination that occurred after October, 1997, that

is, the date two years prior to the filing of the Complaint in this case. The excerpts from Exhibits

11, 16 and 19 are photographs taken by Named Plaintiffs of access barriers at Kmart stores.

5

See, e.g., Lucas Dep. at 107:2 - 107:25, 110:23 - 112:5, 132:1 - 132:8, 137:3 - 137:10,

448:14 - 448:24, 503:5 - 505:14, 549:8 - 549:18, 571:24 - 573:13 and Ex. 16 at P0006; Lane

Dep. at 238:23 - 239:10; Reiskin Dep. at 36:1 - 36:10, 78:4 - 79:17, 96:20 - 98:6.

6

See, e.g., Lucas Dep. at 226:4 - 226:17, 236:13 - 241:10, 254:12 - 256:19, 260:7 - 262:9,

326:1 - 331:19, 363:11 - 374:17, 394:10 - 397:18, 418:14 - 419:20, 450:20 - 458:14, 555:16 -

557:17; Lane Dep. at 117:10 - 122:24 and Ex. 19 at P0039; Reiskin Dep. at 15:13 - 17:25, 34:18

- 34:24, 43:6 - 43:19.

7

See, e.g., Lucas Dep. at 107:20 - 108:1, 116:2 - 116:24, 442:5 - 443:19, 461:6 - 461:9,

464:5 - 471:22, 487:1 - 487:4, 505:15 - 505:18 and Ex. 16 at P0009-10; Lane Dep. at 242:10 -

242:18, 273:3 - 277:18.

8

See, e.g., Lucas Dep. at 440:9 - 441:17; Lane Dep. at 231:2 - 232:16.

9

See, e.g., Lucas Dep. at 153:6 - 153:24, 177:4 - 177:21, 258:8 - 259:25, 272:1 - 272:18,

315:7 - 315:23, 362:12 - 362:19, 402:6 - 418:4, 459:2 - 460:10, 491:1 - 491:25, 497:1 - 502:11,

564:19 - 568:22; Lane Dep. at 112:2 - 116:24.

3

committee -- she is approved for ordination in the United Church of Christ -- and needing to stop

quickly to replace her nylons. She went into the Greeley, Colorado, Kmart and discovered that,

in the aisle in which nylons were displayed, boxes of stock obstructed her access to this urgent

purchase. She tried pushing the boxes out of the way but was unable to do so. Ultimately, she was not able to buy nylons at Kmart and had to stop at another store on her way to the meeting.10

Ms. Lucas also described the experience of attempting to get to a clearance rack that was located

in the interior of the girls’ clothing department. She got past the first two racks but was unable to proceed.11 Ms. Reiskin has tried to access aisles at Kmart, only to be forced to turn around, go

down an adjacent aisle, and try to access the first aisle from the opposite end. At times, the aisle

floors have been so badly blocked by merchandise stacked on the floor that she could not go down specific aisles even though she needed merchandise from those aisles.12

On a number of occasions when Ms. Lucas went to check out after shopping at Kmart,

she found that no accessible check-out aisle was open. Each time she inquired, she was informed that the clerk staffing the accessible aisle was on break.13 She was often made to wait while the

accessible check-out aisle was opened. On at least one of these occasions, she noticed that others

who had gotten in line after she had gone to check out were already leaving the store, though the accessible check-out aisle had still not been opened.14 On two occasions, Ms. Lane returned to

her lift-equipped van in the Kmart parking lot only to discover that an unauthorized vehicle was

parked in the striped access aisle next to her accessible parking space, blocking access to her lift.

10 Lucas Dep. at 139:10 - 142:25; Lucas Decl. ¶ 9 (Appendix Tab 2).

11

Lucas Dep. at 168:4 - 170:16.

12

Reiskin Decl. ¶¶ 9-10.

13 See, e.g., Lucas Dep. at 236:13 - 241:10, 254:20 - 256:19, 260:7 - 262:9, 326:1 - 329:21, 337:5 - 338:16, 350:16 - 351:22, 364:14 - 373:23, 395:17 - 397:18, 450:20 - 458:14.

14

Id. at 262:2 - 262:9.

4

On one occasion, she had to ask a passing customer to back her van out so she could deploy the lift, get in, and drive away.15
The three Named Plaintiffs have patronized -- among them -- nine Kmart stores in the Denver, Colorado area. In addition, Ms. Lucas has also patronized Kmart stores in Hermitage, Tennessee, Sherman and Greenville, Texas, and Wichita and Salina, Kansas; Ms. Reiskin has patronized a Kmart store in Durango, Colorado. At all of these stores, they encountered similar discriminatory barriers, policies, and practices.16
B. Putative Class Members and Other Customer Witnesses

15

Lane Dep. at 112:2 - 115:20.

16 See Lucas Dep. at 84:2 - 85:25 (Greenville, Texas), 106:15 - 117:13 (same), 173:3 173:14 (Hermitage, Tennessee), 540:14 - 540:21 (Sherman and Greenville, Texas and Salina and Wichita, Kansas), 548:2 - 559:23 (Greenville, Texas), 564:4 - 574:6 (Salina, Kansas), 586:4 586:7 (Wichita, Kansas); Reiskin Dep. at 12:23 - 17:25 (Durango, Colorado).

5

Named Plaintiffs have submitted with this motion excerpts of the depositions of 45 individuals who have encountered similar access barriers, policies, and practices. Forty-three of these witnesses are potential class members, that is, people with disabilities who use wheelchairs or scooters who have encountered wheelchair access problems at Kmart. The other two witnesses are friends or relatives of people who use wheelchairs or scooters or others who have witnessed conditions similar to those that impeded Named Plaintiffs in their shopping endeavors at Kmart. (These witnesses and potential class members will be referred to collectively as “Customer Witnesses.”) In total, Named Plaintiffs and Customer Witnesses have experienced discrimination at 77 Kmart stores in 26 states around the country.1 In addition, Plaintiffs have disclosed to Kmart, pursuant to Rule 26(a)(1), the names of other individuals who have information concerning access issues at Kmart stores. The total number of witnesses so disclosed -- including Customer Witnesses -- is at least 83.2
Customer Witnesses have testified that they have encountered the same types of discriminatory barriers, polices, and practices that the Named Plaintiffs have encountered, for example, obstructed aisles and merchandise, clothing racks that were too close together for wheelchair passage, and accessible check-out aisles that were closed or unavailable.3 Customer Witness testimony shows that these individuals share many other common discriminatory experiences at Kmart stores around the country including, but not limited to, inaccessible fitting rooms and restrooms, service counters that are too high, inaccessible parking, and obstructions

1

Miot Decl. ¶¶ 2-3 (Appendix Tab 14).

2

See Miot Decl. ¶ 16 and Exs. 2 - 9.

3

See Chart at Tab 7 of the Appendix showing citations to Customer Witness testimony

relevant to these three areas. Excerpts from the depositions of Customer Witnesses are attached

in alphabetical order behind Tab 8 of the Appendix.

6

on the sidewalks in front of stores.4 Again, a few of the many examples illustrate the practical impact of these common forms of discrimination.

4

See, e.g., Allen Dep. at 24:17 - 24:24 (sidewalk), 66:7 - 66:22 (fitting room); Armfield

Dep. at 75:15 - 76:3, 98:18 - 102:15 (fitting room); Berloff Dep. at 21:21 - 22:14 (parking);

Donn Dep. at 16:2 - 17:1 (parking); Dowling Dep. at 85:16 - 88:9 (parking); Fuller Dep. at 27:15

- 28:8; 70:14 - 70:25 (sidewalk), 46:10 - 47:9, 54:18 - 55:15 (fitting room), 57:25 - 58:25

(restroom), 78:9 - 78:24 (counters); Jessee Dep. at 12:2 - 13:1, 79:2 - 79:4, 85:4 - 87:21 (fitting

room); Kemper Dep. at 19:16 - 20:8; 101:4 - 101:18 (sidewalk); Knowlen Dep. at 30:18 - 31:5;

61:7 - 63:17 (sidewalk); Logsdon Dep. at 36:8 - 42:12 (counters); Madden Dep. at 34:8 - 37:15

(restroom); Mason Dep. at 26:10 - 27:13 (counters); Mauro Dep. at 30:11 - 31:13 (fitting room);

McDowell Dep. at 78:13 - 79:7 (sidewalk); Ouellett Dep. at 12:11 - 12:21 (fitting room); Roland

Dep. at 62:17 - 63:12 (restroom); Weeber Dep. at 29:1 - 31:4 (parking); Williams Dep. at 32:22 -

33:13 (counters), 35:25 - 37:18 (parking).

7

William Fuller testified that when he encountered obstructions at the Kmart in
Winchester, Virginia, he would often go to the customer service counter to try to get help. Once
there, he had to line up behind other customers waiting for service -- for example, making returns
or asking questions -- and was often confronted by a queue line that was too narrow for him to
enter. Instead, he would have to unhook part of the queue line and hope “some benevolent
person” would let him in. At the customer service counter -- which was too high -- he would ask
that an employee be paged to the obstructed aisle to assist him. “It was not a dignified process,”
he testified. When he would return to the obstructed aisle to await assistance, typically no
employee would show up, requiring him to return to the customer service counter a second time.1
Mr. Fuller also explained two separate problems created by Kmart’s practice of putting
merchandise displays in the aisles. He testified, “Those kind of displays often made it difficult
for me to get at any items that would be behind the display that I might need.”2 A second
problem arose when he was trying to check out and encountered a display of snack food. The
back wheel of his wheelchair caught the corner of the display. Mr. Fuller testified as to what
came next: And so, of course, you know what happened. Down went the display,
spewing across the floor went the potato chips, and here I am wondering what do you do. Do I now stop and try to round up these 85 packets of potato chips? Do I say to heck with it, let some poor stock guy who was being paged to meet me back in sports deal with it?
And it creates a sense of not just embarrassment. It’s worse than embarrassment because it’s really -- it’s really a sense of helplessness. . . . [A]nd that strikes at the very issue, I think, that many people with disabilities are trying to grapple with today, which is independence, trying to be as independent as we reasonably can be.3

1

Fuller Dep. at 76:23 - 78:24; see also id. at 78:25 - 80:3.

2

Id. at 38:6 - 38:12.

3

Id. at 40:5 - 40:19; see generally id. at 38:6 - 41:12.

Ellen Davis encountered so many obstructions in the toy department of the Kmart in Brooklyn, New York that she ultimately had to station herself “in the one open spot” she and her husband could find while her husband retrieved toys and brought them to her. She had to go through the same process to select clothes for her son. This made her feel “highly frustrated” because it took away her independence. She testified that, during that shopping trip: “I started to get upset where I started to cry because I didn’t want my husband picking everything out. I wanted to pick out my kids[’] things on my own and I couldn’t do that.”4
The obstructions in one of the aisles in the Santa Rosa, California, Kmart caused Frances Moeller to get stuck. She testified about the resulting situation:
I remember getting down one main aisle that looked like it was a good aisle and getting stuck in the back where I couldn’t turn around to get out. I couldn’t go right or left. I was stuck. I was yelling for help. No one heard me except for a customer who came and tried to help move racks that were holding all these purses on them to try and help me get out of the department. Finally, my husband came over and also assisted to get me out of the department.5 Ms. Moeller also testified about one of the consequences of the inaccessible clothing racks. She was attempting to purchase women’s underwear and was prevented from doing so by the congestion of the racks. She was unable to find an employee in the department and did not make a purchase, as she “chose not to have [her] husband looking for [her] underwear.”6 John Armfield was shopping for shoes in the Newton, Kansas, Kmart. Because of the obstructions in the shoe aisles, he had to rely on his wife to retrieve shoes until he found a pair he

4

Davis Dep. at 8:23 - 9:21, 12:12 - 13:15.

5

Moeller Dep. at 216:24 - 218:22.

6

Id. at 219:19 - 220:20.

9

could buy. Although he purchased the shoes, he testified that he is still not sure that they are the shoes that he would have purchased had he been able to look at all of the available choices himself.7
Margaret Dowling testified that when a rack or merchandise was in her way at the Antioch, California, Kmart, she would have to ask an employee to retrieve items. For example, when shopping for clothes, she would tell the employee her size and preferred color. “If they don’t have it,” she testified, “they shout across the racks and say what colors they do have, and I ask them to bring me that . . . . It’s humiliating.”8
Mitchell Logsdon stated that the accessible check-out aisles at the Terre Haute, Indiana, Kmart were closed about 80% of times she shopped there.9 Although she requested that an accessible aisle be opened, Kmart personnel would not do so. Instead, she had to check out at the customer service counter. Because that counter had no lowered portion, she had to lift her purchases to shoulder height, which was quite painful. On one occasion, she attempted to purchase produce at the customer service counter but was told that she was not allowed to do so, because that location did not have a scale. When she asked to have the produce weighed at another location, that request was also denied. Ultimately, she was unable to purchase the produce she had wanted.10
The manager of a Kmart in Tulsa, Oklahoma told Victoria Haws that, in order to have an accessible check-out aisle open when she was ready to check out, she would have to make a request when she entered the store. Ms. Haws testified that she did not like this practice:

7

Armfield Dep. at 57:14 - 57:25.

8

Dowling Dep. at 73:9 - 73:18; 83:3 - 83:23.

9

Logsdon Dep. at 47:2 - 47:7.

10

Id. at 33:25 - 41:25.

10

I wasn’t really pleased because that again would be me having to ask for special treatment, and which is really something I don’t like to do. I want to be treated like I’m a typical person. I want to go into a store, do my shopping, and go home, and not have to go in and say, Would you please help me with this, or Could you please do this for me.11 In addition, Ms. Haws would have to wait in line at the customer service counter to request Kmart to open an accessible check-out aisle,12 effectively requiring her to wait in two lines while nondisabled shoppers only had to wait in one. Kmart’s lack of access makes people much less independent. Carol Williams, a member of the New Hampshire House of Representatives who uses a wheelchair due to multiple sclerosis, shops at a Kmart in Manchester, New Hampshire. Rep. Williams testified that she began taking a personal care attendant with her to Kmart in light of the obstacles there, although she shops alone at other stores. Rep. Williams has a limited number of hours during which her personal care attendant is available to her, and any time spent at Kmart cannot be devoted to required personal care tasks such as personal hygiene and laundry.13 Similarly, Stacey Berloff, a college student who shops at a Kmart in Brighton, Massachusetts, testified that, although she generally does all of her own shopping, she has to take someone -- often her mother -- with her to Kmart because of all the trouble Ms. Berloff has had with access.14 Because of the difficulties Bernadette Mauro encountered shopping in a wheelchair at the Kmart in Laurel, Maryland, she

11

Haws Dep. at 13:14 - 13:20.

12

Id. at 13:4 - 15:1.

13 Williams Dep. at 19:1 - 20:22, 62:21 - 64:25.

14

Berloff Dep. at 10:16 - 11:14.

11

has had to ask her mother to purchase items at her local Kmart in California and either ship them to Ms. Mauro in Maryland or bring them with her when she next traveled to Maryland.15
In addition to the evidence supplied by Plaintiffs, Kmart has its own evidence of dissatisfaction on the part of its customers with disabilities. Kmart maintains a toll-free phone number that customers can call to voice complaints, which Kmart then categorizes by type of complaint. Kmart has produced lists of complaints received from August 31, 1998 to late April, 2001 that its personnel have classified as being related to “handicapped services.”16 Approximately 259 complaints either relate directly to issues raised in this litigation or, because of the summary nature of the data, relate generally to “handicapped services.” These 259 complaints cover at least 219 Kmart stores in 39 states. When combined with stores in which Customer Witnesses and Named Plaintiffs have experienced wheelchair access problems, the total is 289 stores in 42 states.17 C. The Americans with Disabilities Act
The ADA was enacted in 1990 “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities .” 42 U.S.C. § 12101(b)(1); see also PGA Tour Inc. v. Martin, --- U.S. ---, 69 U.S.L.W. 4367, 4371 (May 29, 2001) (holding that the ADA provides a “broad mandate” to eliminate discrimination against people with disabilities). The statute recognizes that “the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent
15 Mauro Dep. at 24:21 - 26:7, 72:14 - 74:2. 16 Morgan Dep. at 10:11 - 11:21, 98:2 - 98:25 & Ex 124 (Appendix Tab 9); Robertson Decl. Exs. 10 & 11 (Appendix Tab 15). 17 Miot Decl. ¶ 4-5. Excluded from this number are complaints that, on their face, did not relate to issues covered by the ADA, such as store-provided wheelchairs or carts, benches, or merchandise that was out of stock. Id. ¶ 4.
12

living, and economic self-sufficiency for such individuals.” § 12101(a)(8).18 Title III of the ADA prohibits discrimination on the basis of disability in places of public accommodation such as Kmart stores, both with respect to their physical facilities and with respect to their policies and practices.
Facilities built after January 26, 1993, are required to be “readily accessible to and usable by” individuals who use wheelchairs. § 12183(a)(1). With respect to facilities built before that time but altered in certain ways since that date, the altered portion and -- to a certain extent -the path of travel to the altered portion must be readily accessible to and usable by individuals who use wheelchairs. § 12183(a)(2). In facilities built prior to January 26, 1993 and not altered since, Kmart is required to remove architectural barriers where it is “readily achievable” to do so. § 12183(b)(2)(A)(iv). The question of what is readily achievable turns primarily on the nature and cost of the barrier removal and the resources of the public accommodation involved, including “the overall financial resources of any parent corporation or entity.” 28 C.F.R. § 36.104; see also § 12181(9). Pursuant to statutory mandate, the Department of Justice (“DOJ”) published Standards for Accessible Design (“Standards”). See § 12186; 28 C.F.R. pt. 36, app. A.
Title III also requires public accommodations “to make reasonable modifications in policies, practices, or procedures” where necessary to provide its goods, services, or facilities to individuals with disabilities, unless the entity can show that the modification would “fundamentally alter” the nature of its goods, services, or facilities. § 12182(b)(2)(A)(ii). The DOJ regulations implementing the ADA require that Kmart “maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to
18 Unless otherwise noted, all statutory citations are to Title 42 of the United States Code.
13

and usable by persons with disabilities.” 28 C.F.R. § 36.211.19 The DOJ has interpreted this provision to require that public accommodations “ensure that accessible routes are properly maintained and free of obstructions.” Preamble to Regulation on Nondiscrimination on The Basis of Disability by Public Accommodations and in Commercial Facilities, 28 C.F.R. pt. 36, app. B (2000) (“Preamble”) at 638. D. Defendant Kmart Corporation
Kmart Corporation sells general merchandise at discount prices in more than 2,100 Kmart stores (including Kmart, Big Kmart and Super Kmart stores) that it owns and operates throughout the United States.20 Kmart claims that 85 percent of the population of the United States shops at its stores each year.21 Kmart’s mission is to be “the discount store of choice for low- and middle-income households.”22 The combination of Kmart’s ubiquity and its low prices makes it an attractive option for consumers with disabilities, many of whom live on fixed incomes or otherwise have less disposable income than nondisabled individuals.23
Kmart’s headquarters is located in Troy, Michigan. Day-to-day operations of individual Kmart stores are controlled to a great extent by policies and procedures established at Kmart headquarters. For example, Kmart policies and practices are set out in the following documents:

19 The DOJ’s Title III regulations are “entitled to deference.” Bragdon v. Abbott, 524 U.S. 624, 646 (1998).

20 Kmart Corporation 2000 Annual Report (“2000 Annual Report,” Robertson Decl. Ex. 1) at 16.

21

Id. at 4.

22 1999 Kmart Fact Book (Robertson Decl. Ex. 2) at 2.

23 See Table 9, “Low-Income Status of Persons 15 to 64 Years Old, By Type Of Disability: 1991-92,” Americans with Disabilities: 1991-92, Data From the Survey of Income and Program Participation, John McNeil, U.S. Department of Commerce, Bureau of the Census at 33 (Robertson Decl. Ex. 16).

14

Store Operating Policies Manual: This manual contains more than 500 pages of step-by-step instructions on how to operate a Kmart store, from the sale of batteries to the organization of the filing system in the back office. Rather than reproducing the entire Store Operating Policies manual, Named Plaintiffs have attached the table of contents from each section of the manual to provide a sense of the breadth of topics controlled by Kmart’s company policies.24

Golden Rods: Kmart is gradually replacing its Store Operating Policies manual
with a new set of policies called “Golden Rods,” which already number over
1,100 pages. Both the Store Operating Policies manual and the Golden Rods are currently operative.25 A letter to all Kmart store managers accompanying the
Golden Rods states that “it is expected that you Review, Communicate, and Execute each of the ‘Golden Rod’ bulletins immediately upon receipt.”26

Visual Merchandising Standards Manual: This manual, provided to all Kmart stores, governs the display of clothing at those stores.27

Merchandising brochures: These brochures, varying in length from several
pages to several hundred pages, direct the layout of merchandise in Kmart stores.28 Merchandising brochures contain, among other instructions, “plot plans”
that describe the arrangement of fixtures on which basic merchandise is to be
displayed. Although the plot plan for each store may be different, it is created at
Kmart headquarters and sent to the stores with the expectation that each store will follow its plot plan.29 Store managers may not diverge from the centrally-dictated
fixture layouts without permission from headquarters. The Store Operating

24 Robertson Decl. ¶¶ 5-6 and Ex. 4.

25 Robertson Decl. ¶ 7-8 and Ex. 5 (listing titles of Golden Rods received from Kmart prior to June 6, 2001); Frame Dep. at 15:20 - 16:2 (Appendix Tab 10). Robert Frame is Kmart’s Rule 30(b)(6) designee on operations. Id. at 6:21 - 7:4.

26

Frame Dep. Ex. 33.

27 See Robertson Decl. Ex. 7 (excerpts from the Visual Merchandising Standards manual); Ruffing Dep. at 42:1 - 42:24 (Appendix Tab 11). Gary Ruffing is Kmart’s Rule 30(b)(6) designee on merchandising and display. Morgan Dep. at 6:8 - 6:14.

28 Kmart has produced more than 600 merchandising brochures for the year 2000 and 2001 to date. A list of these brochures with their dates and lengths is attached as Exhibit 1 to the Miot Declaration. See also Miot Decl. ¶ 6. An example of a merchandising brochure is the “Girls & Boys Denim Reset” attached as Exhibit 88 to the deposition of Gary Ruffing.

29 See Ruffing Dep. at 49:16 - 49:18, 53:1 - 56:23, 143:24 - 144:6 and Ex. 88 at K03633.

15

Policies manual instructs store managers that, with respect to “Fixture/Equipment Relocations and Purchases,” they are not to “purchase new or used equipment without the approval of [headquarters],” or to “change physical layout of fixtures without approval of [headquarters] and Regional Manager.”30 Weekly Guides: Kmart headquarters issues a Weekly Guide each week that is sent to all stores and that provides instructions for the week in question on such matters as company-wide advertising, promotions and events, what merchandise is to be displayed where, what merchandise is to be on sale, what signs are to be used with which promotions, which merchandise is to be inventoried, and other matters. An example of the Weekly Guide for August 20, 2000, is included at Exhibit 103 to the Ruffing Deposition.31
Training Materials: Kmart headquarters publishes the training materials that are used to train all Kmart employees at all stores in the country. They include overviews, such as “Orientation and Customer Service for Team Members,” that are distributed to all Kmart employees when they start work at Kmart, and position-specific materials, such as “Check-out Service Team Member Training Checklist.”32
In addition, design and construction of new Kmart stores and refurbishment of existing
stores is directed by Kmart headquarters.33 E. Barriers to Wheelchair and Scooter Access at Kmart Stores
Many of the barriers encountered by Named Plaintiffs and Customer Witnesses at Kmart
stores result from centralized policies and training (or the lack thereof) established at Kmart
headquarters. The discussion below provides several illustrations of this centralized control. In

30 Robertson Decl. Ex. 4 at K21399. Mr. Frame testified that when the Store Operating Polices require a store manager to obtain approval from Kmart headquarters or a district or regional manager, “then approval should be asked for.” Frame Dep. at 22:13 - 22:23.

31 See Ruffing Dep. at 101:21 - 138:12 and Exs. 102 & 103.

32 See, e.g., Kaselitz Dep. at 8:9 - 8:22, 14:19 - 14:21, 24:2 - 24:24, 51:3 - 51:20; Exs. 57 & 73 (Appendix Tab 12). Roberta Kaselitz is Kmart’s Rule 30(b)(6) designee on training. Id. at 58:9 - 58:22 and Ex. 24.

33

See infra pp. 23-25.

16

addition, the existence of -- and ability to remedy -- architectural barriers are controlled by

Kmart’s centralized design and construction department.

1. Centralized Policies and Training

Kmart’s corporate policy requires that merchandise be displayed in a fashion that

obstructs wheelchair access. For example, most of the Weekly Guides for the second half of the

year 2000 dictate that Kmart stores display merchandise in “floor stacks” or “aisle stacks.”34

“Floor stacks” and “aisle stacks” are stacks of merchandise displayed in aisles adjacent to fixed

shelving.35 Mr. Ruffing identified the photograph at Exhibit 105 to his deposition as an example

of an “aisle stack” and testified that if a store had the required merchandise, he would expect to

see the required aisle and floor stacks.36 These types of displays have obstructed access to

merchandise for Named Plaintiffs and Customer Witnesses.37 As Named Plaintiff Carrie Lucas

explains, she took the photograph that Mr. Ruffing identified as Exhibit 105 along with nine

other photographs of floor stacks in the same store on the same day. The floor stacks depicted in

the photographs prevented her from accessing the merchandise on the shelves behind the

stacks.38 Thus, Kmart headquarters is dictating to all of its stores that they display merchandise

in a way that obstructs access for customers in wheelchairs and scooters.

34 See Miot Decl. ¶ 7 (listing Weekly Guides produced by Kmart that relate to dates since June 11, 2000 and that require “floor stacks” or “aisle stacks”).

35 Ruffing Dep. at 129:17 - 131:15 and Ex. 103 at K17617.

36 Ruffing Dep. at 131:1 - 131:15, 138:17 - 138:25 and Ex. 105.

37 See, e.g., Lucas Dep. at 126:15 - 126:25, 295:3 - 295:13, 384:8 - 385:1, 444:19 - 448:11; Reiskin Decl. ¶ 11; Armfield Dep. at 53:5 - 53:24, 172:8 - 174:6; Bach Dep. at 11:4 - 11:20; Bateman Dep. at 65:9 - 65:14, 67:13 - 67:23, 71:21 - 72:7; Berloff Dep. at 9:23 - 10:6, 13:3 15:23; Deck Dep. at 18:3 - 18:11; Fuller Dep. at 38:1 - 39:12; 50:25 - 53:6; Haws Dep. at 19:20 20:8, 62:12 - 63:6; Laube Dep. at 26:21 - 28:21, 29:17 - 30:7, 40:8 - 40:11, 59:4 - 61:19, 98:10 99:1; Mason Dep. at 23:23 - 24:17; Ryan Dep. at 15:22 - 16:7, 20:6 - 20:16, 34:6 - 35:10; Vangeri Dep. at 43:5 - 48:21, 89:6 - 90:2.

38

Lucas Decl. ¶ 10 and Ex. 1.

17

Kmart’s corporate stocking policy also results in obstructed aisles. Kmart’s Store Operating Policies manual and training manuals -- all prepared at Kmart’s headquarters -require, as part of the shelf-stocking process (which Kmart calls “replenishment”), that Kmart employees leave pallets and boxes in aisles, often blocking wheelchair and scooter access to aisles and/or merchandise.39 This policy, called “drop slide fill,” requires the replenishment crew to drop pallets of merchandise throughout the salesfloor, take boxes from the pallets and slide them down the various merchandise aisles, and then go from aisle to aisle, filling the shelves from the boxes.40 In theory, until recently, Kmart policy required that all pallets be off the salesfloor by 9:00 a.m. and that there be no unattended merchandise on the salesfloor after 11:00 a.m.41 As Kmart stores generally open at 7:00 or 8:00 in the morning,42 this policy virtually guarantees obstructions in the aisles during several business hours. More importantly, Kmart’s Rule 30(b)(6) designee on operations testified that Kmart in fact stocks merchandise throughout the day,43 and Named Plaintiffs and Customer Witnesses confirm that boxes of merchandise often remain in the aisles throughout the day, blocking passage by, and/or access to merchandise by, customers in wheelchairs and scooters.44

39 See Robertson Decl. Ex. 4 at K21878-82.

40 See Frame Dep. at 60:10 - 60:18; Robertson Decl. Ex. 4 at K21879.

41 Id. at K21878-82; Frame Dep. at 60:19 - 61:5. Early this year, that policy was changed to require pallets to be removed from the floor by 8:00 a.m. and filling of shelves to be completed by 10:00 a.m. Id. at 239:15 - 240:20.

42

See id. at 240:21 - 241:5.

43 Id. at 61:6 - 61:14, 241:11 - 245:10.

44 See, e.g., Lucas Dep. at 140:5 - 142:2; Douglass Dep. at 83:2 - 83:11; Haws Dep. at 20:9 - 21:12; Jessee Dep. at 92:6 - 93:25; Kemper Dep. at 10:20 - 11:12, 12:6 - 13:9; Madden Dep. at 20:23 - 22:8; Rifkin Dep. at 19:15 - 22:14, 48:18 - 50:4.

18

Named Plaintiffs and Customer Witnesses report that they are frequently obstructed by

clothing racks that are too close together to permit passage by persons using wheelchairs or

scooters. As a result, they are often unable to access clothing that is displayed anywhere other than the outer perimeter of that area.45 This barrier, too, results from centralized Kmart policies,

including the company-wide policy establishing a minimum distance between clothing racks of 24 inches.46 Most wheelchairs are wider than 24 inches: Named Plaintiffs’ wheelchairs are all 26 inches wide;47 and the regulations implementing the ADA recognize that a typical adult-sized

wheelchair is approximately 26 inches wide. Standards, Fig. A3. Although Gary Ruffing,

Kmart’s Rule 30(b)(6) designee on merchandising, claimed that very few aisles in very few stores were actually only 24 inches wide,48 it is clear from the experiences of Named Plaintiffs

and Customer Witnesses that impassable clothing aisles are a common and consistent barrier,

and it is clear from the Visual Merchandising Standards manual and Mr. Ruffing’s deposition

testimony that this type of barrier is anticipated and condoned by centralized Kmart policy.

Indeed, when Rep. Carol Williams, a Customer Witness, complained to her local Kmart about

the inaccessibility of aisles, the manager replied that “that has to come from corporate office. Even the floor plan is laid out by the corporate office, we cannot change that on our own.”49

Barriers to merchandise -- including boxes and displays in aisles and congestion in the

placement of clothing racks -- are prohibited by the ADA. The Standards require a 36-inch-wide

accessible route adjacent to “[s]helves or display units allowing self-service by customers in

45 See supra pp. 4, 9-10, note 5 and references cited in Tab 7 of the Appendix.

46 See Ruffing Dep. at 29:14 - 30:9, 32:5 - 32:18, 151:20 - 152:11 and Robertson Decl. Ex. 7 (Visual Merchandising Standards manual) at K34825.

47 See Lucas Dep. at 13:25 - 14:6; Lane Decl ¶ 2; Reiskin Decl. ¶ 2.

48

Ruffing Dep. at 29:14 - 29:23.

49

Williams Dep. at 26:4 - 26:14.

19

mercantile occupancies.” §§ 4.1.3(12)(b) & 4.3. Where accessible routes are required, they must be maintained. 28 C.F.R. § 36.211. Finally, Kmart is required to make reasonable modifications in the policies described above to make its goods, services, facilities, privileges, advantages, and accommodations available to individuals with disabilities, if such modifications will not fundamentally alter Kmart’s goods and services. § 12182(b)(2)(A)(ii).
Kmart’s failure to implement policies and to train its staff to implement existing policies also results in barriers to access. For example, Named Plaintiffs and Customer Witnesses have often found that accessible check-out aisles at Kmart stores are all closed. This is a violation of the regulations implementing Title III of the ADA, which require that stores have accessible check-out aisles in numbers relative to the total number of check-out aisles in the store, and that they ensure that “an adequate number of accessible check-out aisles is kept open during store hours,” or that “an equivalent level of convenient service is provided to individuals with disabilities as is provided to others.” Standards § 7.3; 28 C.F.R. § 36.302(d). As both Named Plaintiff and Customer Witness testimony shows, Kmart’s failure to maintain an open, accessible check-out aisle often introduces a substantial delay and otherwise denies them full and equal enjoyment of Kmart’s services.50 Although Kmart’s policy purportedly requires that at least one accessible check-out aisle always be open,51 there is no mention of this policy in the materials used to train either the employees who staff the check-out aisle or those who supervise them.52

50 See supra pp. 4-5, 10-11, note 6 and references cited in Tab 7 of the Appendix.

51

See Frame Dep. at 91:4 - 91:24.

52 See Kaselitz Dep. Ex. 57 at K00134-35, Exs. 73, 78; Robertson Decl. Exs. 12-14. Although Kmart produced a videotape to be shown in its stores early this year that made reference to this issue, Kmart’s Rule 30(b)(6) designee on training testified that Kmart made no specific mention in its training materials of customers in wheelchairs and did not have specific training to the effect that a customer in a wheelchair should be helped any differently from any other customer. Kaselitz Dep. at 79:14 - 80:3.

20

Obstructions in accessible parking spaces and the access aisles adjacent to such parking spaces at Kmart stores are also due to the lack of policy and/or lack of training and enforcement. Kmart’s Store Operating Policies state generally that its parking lots are to be “free of debris; no potholes, cracks or depressions, stray carts.”53 It was not until early this year, however, that a new Golden Rod was issued that instructed Kmart employees to “[k]eep accessible parking spaces and walkways clear and uncluttered, free of carts, debris, delivery trucks and other unauthorized vehicles.”54 Despite this new policy, Kmart’s Rule 30(b)(6) designee on store operations stated that Kmart would not monitor the use of its accessible parking spaces and access aisles by unauthorized vehicles or install signs to prevent blockage of parking access aisles.55
2. Architectural Barriers. Named Plaintiffs and Customer Witnesses have encountered inaccessible fitting rooms and restrooms, service counters that are too high, and insufficient accessible parking.56 These barriers are also under the control of Kmart headquarters. Kmart has a highly centralized design and construction program. Kmart headquarters publishes “Outline Specifications” and a “Design Requirements Manual” for new Kmart stores. The Outline Specifications for building a Kmart store are 843 pages long; the Design Requirements are 71 pages long.57 Kmart expects the architects and engineers it hires to follow

53 Robertson Decl. Ex. 4 at K21659.

54

Id., Ex. 6 at K37038.

55

Frame Dep. at 110:6 - 116:12.

56

See supra nn. 7, 8, 9 and 20.

57 Robertson Decl. ¶¶ 11 & 12; see also id. Exs. 8 & 9; Glasser Dep. at 131:1 - 132:21 (Appendix Tab 13). Bruce Glasser is Kmart’s Rule 30(b)(6) designee on design, construction, and ADA compliance. Glasser Dep. at 6:5 - 6:12 and Ex. 24.

21

these guidelines and requires approval by the Construction Department for any deviations.58

While the developer or architect is required to modify Kmart’s typical drawings and

specifications to meet local building code requirements and environmental conditions, Kmart’s

Construction Department must then approve the final product.59 In 1995, Kmart began

converting its traditional stores to a new “high-frequency format;” in 1997, this design was

renamed “Big Kmart.” The layout of this “Big Kmart prototype” is set forth in the 1998 Kmart

Fact Book.60 An employee in Kmart’s construction department at its corporate headquarters

oversaw all of the construction that took place during the high-frequency refurbishment

program.61

Kmart Corporation also coordinated its ADA compliance efforts through corporate

headquarters. For example, with respect to new construction, Kmart updated its “standard

criteria documents . . . to include the requirements of Title III.” Compliance was checked by a

“checking team” in the Design and Construction department at Kmart headquarters. Reference

to the ADA was included in all standard contracting documents through which Kmart hired

architects to build Kmart stores.62

With respect to existing facilities (those built prior to the effective date of the ADA),

Kmart headquarters published an “ADA Action Plan,” which its Rule 30(b)(6) designee on ADA

compliance described as “Kmart Corporation’s guidelines for compliance with the Americans

with Disabilities Act of 1990.”63 Kmart headquarters ordered and directed ADA surveys of

58

Glasser Dep. at 132:22 - 133:4.

59 Id. at 134:14 - 134:18, 168:6 - 168:11 and Ex. 160 at K23794.

60 1998 Kmart Fact Book (Robertson Decl. Ex. 3) at 6-7.

61

Glasser Dep. at 93:13 - 93:23.

62

Id. at 70:8 - 73:7.

63

Id. at 14:1 - 14:4 and Ex. 111.

22

existing facilities in 1992, 1997, 1998 and 2000.64 When ADA upgrade work was to be done at any given Kmart store, blueprints for the work were generated at Kmart headquarters.65 Apparently even simple fixes are beyond the authority of the local manager. Customer Witness William Fuller testified that he requested the manager of the Winchester, Virginia, Kmart to reverse the swing of the hinges on the door to the mens’ fitting room to make it wheelchairaccessible. The manager agreed that “he would discuss it with the powers [that] be” but to Mr. Fuller’s knowledge, nothing was ever done. Mr. Fuller testified that he
had this sense that even though they wanted to make changes, that they didn’t have the authority or that they needed to seek authority from somebody else. Their powers to impact particularly physical things, the nature of the physical plant, appeared to [him] to be real limited.66 In addition, despite Kmart’s claimed efforts at compliance, there is evidence that headquarters personnel decided not to implement the ADA Action Plan during the refurbishment of stores.67 F. Relief Sought Named Plaintiffs seek an injunction compelling Kmart to bring its stores into compliance with Title III of the ADA. Because of the centralized nature of Kmart’s operation, such an injunction would focus on the policies, procedures, practices, and training administered by Kmart’s headquarters. For example, Named Plaintiffs request that the injunction require Kmart to modify its company policies to require sufficient space between clothing racks to permit wheelchair access, to prohibit displays of merchandise that obstruct access to aisles or other

64 Id. at 83:11 - 83:22, 105:11 - 105:24 and Exs. 138, 147, 156 & 158.

65

Id. at 97:5 - 97:7.

66

Fuller Dep. at 54:21 - 55:15.

67

See Ex. 146 to Glasser Dep.

23

merchandise and otherwise to ensure that aisles and merchandise are unobstructed, to modify its training procedures to ensure that access is maintained and accessible check-out aisles are open, and to require staff to monitor and report unauthorized use of accessible parking spaces. An injunction could also address architectural issues on a centralized basis, as that is how Kmart handles all construction matters, including those related to compliance with the ADA. The analysis of any store-specific information -- relating either to architectural or policy matters -will be simplified by the fact that Kmart gathers and analyzes a wide variety of such information at the headquarters level to direct the implementation of architectural changes and other policies at the store level. There is, thus, a framework in place for both the determination of liability and the implementation of injunctive relief in this case.
A company-wide injunction to bring policies, training and infrastructure into compliance with the ADA would provide access for a far larger number of shoppers in a far more efficient fashion than forcing individual shoppers to bring store-by-store actions. If Plaintiffs are successful in this litigation, individuals who use wheelchairs from all parts of the country will have reliable, convenient and independent access to a consistent source of affordable merchandise.
ARGUMENT Plaintiffs Are Entitled to Class Certification I. Introduction To maintain a class action, Named Plaintiffs must satisfy the four prerequisites of Rule 23(a) of the Federal Rules of Civil Procedure, as well as one of the three subsections of Rule 23(b). Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354, 356 (D. Colo. 1999); Cook v. Rockwell Int’l Corp., 151 F.R.D. 378, 381 (D. Colo. 1993) (“Cook I”)). Rule 23(a) states:
24

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.
Named Plaintiffs satisfy all of these prerequisites: there are at least 20,000 and perhaps as many as 1.7 million members of the putative class; the barriers experienced by Kmart customers in wheelchairs are very similar and the questions whether these barriers and Kmart polices and practices constitute violations of the ADA are legal questions common to the class; Named Plaintiffs’ experiences and claims are typical of those of the class; and Named Plaintiffs and their counsel have been held by the United States District Court for the District of Colorado to be able adequately to represent a class of persons with mobility impairments bringing suit under Title III of the ADA. See Farrar-Kuhn v. Conoco Inc., Civil Action No. 99-WM-2086 (D. Colo. Aug. 22, 2000) (Appendix Tab 21), slip op. at 6 (approving Carrie Lucas as representative plaintiff and Amy Robertson, Timothy Fox and Kevin Williams as class counsel); Taco Bell, 184 F.R.D. at 361 (approving Julie Reiskin and Debbie Lane as representative plaintiffs and Amy Robertson, Timothy Fox and Kevin Williams as class counsel).
Named Plaintiffs seek certification pursuant to Rule 23(b)(2) because Kmart has “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.”
The Tenth Circuit has held that “if there is error to be made, let it be made in favor and not against the maintenance of the class action.” Esplin v. Hirschi, 402 F.2d 94, 99 (10th Cir. 1968), cert. denied, 394 U.S. 928 (1969); see also Taco Bell, 184 F.R.D. at 356 (citing Esplin). It is inappropriate to pass on the merits of the claims at the class certification stage. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-178 (1974); Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988); Cook I, 151 F.R.D. at 381. Named Plaintiffs will analyze each of the
25

requirements of Rule 23(a) and Rule 23(b)(2) separately below. As an overview, however, numerous courts have certified classes of individuals with disabilities who use wheelchairs challenging architectural and transportation barriers and failures to make reasonable modifications in policies and procedures.68 In still other cases, courts have certified classes of
68 See, e.g. Farrar-Kuhn, slip op. at 7; Access Now, Inc. v. AHM CGH, Inc., Case Number: 98-3004 CIV, 2000 U.S. Dist. LEXIS 14788 at *17 (S.D. Fla. Jul. 12, 2000) (Appendix Tab 16); Access Now, Inc. v. Ambulatory Surgery Ctr. Group, Ltd., 197 F.R.D. 522, 530 (S.D. Fla. 2000); Taco Bell, 184 F.R.D. at 363; Colorado Cross-Disability Coalition v. Fey Concert Co., Civ. Act. No. 97-Z-1586 (D. Colo. Sept. 16, 1998) (transcript of hearing attached hereto at Appendix Tab 20) at 24-25; Berlowitz v. Nob Hill Masonic Management, Inc., No. C-96-01241 MHP, 1996 U.S. Dist. LEXIS 22599 at *12 (N.D. Cal. Dec. 6, 1996) (Appendix Tab 18); Bacal v. Southeastern Pa. Transp. Auth., Civil Action No. 94-6497, 1995 U.S. Dist. LEXIS 6609 at *30 (E.D. Pa. May 15, 1995) (Appendix Tab 17); Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 452 (N.D. Cal.), modified, 158 F.R.D. 439, 460 (1994); Leiken v. Squaw Valley Ski Corp., Nos. CIV. S-93-505 LKK and CIV. S-93-1622 LKK, 1994 U.S. Dist. LEXIS 21281 at *37-38 (E.D. Cal. June 28, 1994) (Appendix Tab 26).
26

individuals with disabilities (either different from or inclusive of mobility impairments) to
permit them to challenge discriminatory conditions and policies. 69
II. The Proposed Class Meets the Requirements of Rule 23(a).
A. The Proposed Class Is So Numerous That Joinder Is Impracticable.
Rule 23(a)(1) requires that a class be so numerous that joinder of all members is
impracticable. There are several factors that are relevant to this question, including the class size
and the geographic diversity of class members. See Farrar-Kuhn, slip op. at 3; Taco Bell, 184
F.R.D. at 357; 1 Robert Newberg, Newberg on Class Actions, § 3.06 at 3-27 -35 (3d ed. 1992)
69 See, e.g., Lightbourn v. County of El Paso, Texas, 118 F.3d 421, 426 (5th Cir. 1997), cert. denied, 522 U.S. 1052 (1998); Siddiqi v. Regents of the Univ. of Calif., No. C 99-0790 SI, 2000 U.S. Dist. LEXIS 19930 at *26-27 (N.D. Cal. Sept. 6, 2000) (Appendix Tab 29); Boulet v. Cellucci, 107 F. Supp. 2d 61, 81 (D. Mass. 2000); Duprey v. Connecticut Dep’t of Motor Vehicles, 191 F.R.D. 329, 339-40 (D. Conn. 2000); Neff v. VIA Metro. Transit Auth., 179 F.R.D. 185, 196 (W.D. Tex. 1998); Anderson v. Dep’t of Pub. Welfare, 1 F. Supp. 2d 456, 462 (E.D. Pa. 1998); Kathleen S. v. Dep’t of Pub. Welfare, Civ. Act. No. 97-6610, 1998 U.S. Dist. LEXIS 2027 at *8-9 (E.D. Pa. Feb. 25, 1998) (Appendix Tab 24); Clark v. California, No. C961486 FMS, 1997 U.S. Dist. LEXIS 16444 at *2 (N.D. Cal. Feb. 26, 1997) (Appendix Tab 19); Guckenberger v. Boston Univ., 957 F. Supp. 306, 326-27 (D. Mass. 1997); Thrope v. Ohio, 173 F.R.D. 483, 491 (S.D. Ohio 1997); Montez v. Romer, No. 92-N-0870 (D. Colo. Jan. 15, 1996) slip op. at 2 (Appendix Tab 28) (adopting Recommendation of United States Magistrate Judge Concerning Class Action Certification, dated May 31, 1995 (attached at Appendix Tab 27)); Civic Ass’n of the Deaf of New York City, Inc. v. Giuliani, 915 F. Supp. 622, 634 (S.D.N.Y. 1996); Henrietta D. v. Giuliani, No. 95-CV-0641, 1996 U.S. Dist. LEXIS 22373 at *47 (E.D.N.Y. Oct. 25, 1996) (Appendix Tab 22); McKay v. County Election Comm’rs For Pulaski County, Arkansas, 158 F.R.D. 620, 626 (E.D. Ark. 1994). The Farrar-Kuhn, Fey Concert, and Nefflain cases were all cases either approving settlement classes or granting a joint motion for class certification. The Supreme Court has held that, even in that context, the court must conduct a thorough analysis to reassure itself that the proposed class satisfies Rule 23. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 619-20 (1997). Each of the courts in the listed cases referenced Amchem and conducted such an analysis. Farrar-Kuhn, slip op. at 2; Fey Concert, transcript at 3-4; Neff, 179 F.R.D. at 192.
27

(and cases cited therein) (hereinafter “Newberg”). Each of these factors shows that joinder is impracticable in the case at hand.
The class is large. In determining class size, the exact number of potential members need not be shown. See, e.g., Joseph v. General Motors Corp., 109 F.R.D. 635, 639 (D. Colo. 1986). Rather, the court may make “common sense assumptions” to support a finding that joinder would be impracticable. Taco Bell, 184 F.R.D. at 358; 1 Newberg § 3.03 at 3-17 & n.58 (and cases cited therein). “Census figures are frequently relied on by courts in determining the size of proposed classes.” Taco Bell, 184 F.R.D. at 358.
In the present case, Kmart owns and operates approximately 2,100 stores around the United States, and approximately 180 million customers patronize these stores each year.70 Census figures demonstrate there are more than two million persons age 15 and older in the United States who use wheelchairs.71 Thus if only one out of 100 persons who use wheelchairs in these states patronized a Kmart store, the class would consist of over 20,000 persons. If, as Kmart claims, “85 percent of the U.S. population shop[s] at Kmart every year,”72 that suggests that the class would consist of approximately 1.7 million members or 85 percent of the two million Americans who use wheelchairs.

70 See 2000 Annual Report at 16; 1999 Kmart Fact Book at 5.

71 See “Americans with Disabilities: 1997 - Table 2,” Robertson Decl. Ex. 15.

72

2000 Annual Report at 4.

28

The class is geographically diverse. “The fact that a class is dispersed over several counties weighs in favor of a finding of numerosity.” Taco Bell, 184 F.R.D. at 358 (citation omitted); see also Ambulatory Surgery, 197 F.R.D. at 525 (fact that class members in nationwide ADA class action were “spread across the United States” supported finding that joinder was impracticable). In the case at hand, there are Kmart stores in 50 states1 and there are class members in 50 states. Indeed, Named Plaintiffs have submitted deposition testimony from putative class members who have had access problems at Kmart stores in 26 states; if complaints to Kmart are included, the total is 42 states.2
For these reasons, the class is so numerous that joinder is impracticable and thus satisfies Rule 23(a)(1).
B. There Are Questions of Law and Fact Common to the Proposed Class. Rule 23(a)(2) requires that there be questions of law or fact that are common to the class. Unlike the test under Rule 23(b)(3) -- not at issue in this case -- common issues need not predominate over individual ones. Adamson, 855 F.2d at 676. “Commonality requires only a single issue common to the class.” J.B. v. Valdez, 186 F.3d 1280, 1288 (10th Cir. 1999) (citations omitted). “The claims of the class members need not be identical for there to be commonality; either common questions of law or fact will suffice.” Schwartz v. Celestial Seasonings, Inc., 178 F.R.D. 545, 551 (D. Colo. 1998) (citing Milonas v. Williams, 691 F.2d 931, 938 (10th Cir. 1982), cert. denied, 460 U.S. 1069 (1983)). “[T]here may be varying fact situations among individual members of the class . . . as 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 63940 (citation omitted). Indeed, if identical claims were required, “it would be rare, if even

1

1998 Kmart Fact Book at 12.

2

Miot Decl. ¶¶ 3, 5.

29

possible, to obtain class certification.” Cook v. Rockwell Int’l Corp., 181 F.R.D. 473, 480 (D. Colo. 1998). As demonstrated by the attached deposition excerpts, members of the putative class in this case share a number of common factual experiences and legal issues that satisfy the commonality requirement of Rule 23(a)(2).
Common discriminatory barriers. Members of the proposed class experience common forms of discrimination at Kmart stores around the country, including (though not limited to): encountering boxes, pallets, and merchandise displays that impede their access; being unable to access clothing because fixtures are placed too close together to permit passage in a wheelchair; finding no open, accessible check-out aisle at which to purchase merchandise; having difficulty using service counters that are too high; being unable to use fitting rooms or restrooms; and being unable to park in an accessible parking space.3
A number of cases have held that where people who use wheelchairs encounter the same types of barriers at a number of commonly-owned or affiliated public accommodations, class certification is appropriate. See, e.g., Farrar-Kuhn, slip op. at 4-5; Ambulatory Surgery, 197 F.R.D. at 526-27; AHM, 2000 U.S. Dist. LEXIS 14788 at *8-12; Taco Bell, 184 F.R.D. at 35960; Arnold, 158 F.R.D. at 449; Leiken, 1994 U.S. Dist. LEXIS 21281 at *14. In Farrar-Kuhn, the plaintiffs sought certification of a class -- defined almost precisely as the putative class here is defined -- of people who use wheelchairs or scooters who had been denied the full and equal enjoyment of goods and services at service stations and convenience stores owned by Conoco Inc. Plaintiffs in that case challenged a variety of barriers to wheelchair access at approximately 200 Conoco stores in eleven states. Slip op. at 1-2. Judge Miller held that the class satisfied Rule 23(a)(2) because common questions of fact and law existed, including:
(1) the class members complain of the same architectural barriers and policies; (2) the plaintiffs urge that by these architectural barriers and policies, the defendant discriminated against all members of the class; and (3) the determination of

3

See supra pp. 2-12 and Tabs 7 & 8 of the Appendix.

30

whether these barriers and policies violate the ADA is the same whether there is one plaintiff or a class of plaintiffs.
Slip op. at 5; see also Arnold, 158 F.R.D. at 449 (holding that “[f]rom the fact that the same categories of design features are being challenged in each [of 70 theaters], it follows that the legality of those features are legal issues common to the claims of the members of all of the subclasses”) (emphasis added); Taco Bell 184 F.R.D. at 359-60 (Plaintiffs challenged the “queue lines” at all Taco Bell restaurants in Colorado).
Like the plaintiffs in Farrar-Kuhn, Arnold and Taco Bell, Named Plaintiffs here challenge the same categories of design features at all Kmart stores. Although each Kmart store may be arranged differently, both Kmart policy -- for example, requiring floor stacks and permitting racks as close as 24 inches apart -- and Named Plaintiff and Customer Witness testimony show that the discriminatory design features and their effects on shoppers who use wheelchairs or scooters are extremely consistent. The fact that a narrow clothing aisle may occur in the northwest corner of one store but the southeast corner of another or occur between “four-way racks” of tee-shirts in one store but between “round racks” of jackets in another does not diminish the commonality of the experience (inability to access merchandise in a wheelchair), the commonality of the policy (Kmart’s company-wide policy of permitting distances as narrow as 24 inches between clothing displays), or the commonality of the legal question (whether the ADA requires Kmart to maintain sufficient distance between its clothing racks to permit people in wheelchairs to pass). The same analysis applies to the other design features challenged in this litigation.
Common application of corporate policy and practices. Where a class challenges discriminatory policies and practices, commonality is established. 1 Newberg § 3.10 at 3-52 - 53. see also J.B., 186 F.3d at 1288 (holding that the fact “that the claims of individual class members may differ factually should not preclude certification under Rule 23(b)(2) of a claim seeking the application of a common policy” (citations omitted)). In the present case, Named Plaintiffs
31

challenge a number of centralized Kmart policies, for example, the requirement of displaying merchandise in the aisles, the restocking policy that results in obstructed aisles, and the standard that permits as little as 24 inches between racks. They also challenge common Kmart practices, for example, failing to open accessible check-out aisles, failing adequately to monitor aisles, fitting rooms, restrooms and accessible parking for obstructions, and failing to incorporate, in Kmart corporate training materials, sufficient steps to ensure that employees maintain wheelchair access.
In Bacal, a class of plaintiffs with disabilities challenged the practices of a paratransit system, including that “requests for service made a day in advance are routinely not met; requested rides are not scheduled at the requested times; . . . [and] vehicles are routinely late, early or never arrive for scheduled picks-ups.” Id., 1995 U.S. Dist. LEXIS 6609 at *4. Despite the multiplicity of individual circumstances this undoubtedly represented, the court held that class members were all challenging “the same alleged illegal conduct of the defendants, namely, a number of allegedly routine practices which violate the ADA and affect all . . . paratransit riders.” Id. at *11.4 Likewise, Named Plaintiffs here challenge routine Kmart practices that violate the

4

See also Hill v. Amoco Oil Co., No. 97 C 7501, 2001 U.S. Dist. LEXIS 3082 at *17-18

(N.D. Ill. Mar. 15, 2001) (Appendix Tab 23) (holding that a class of African-Americans alleging a

practice of requiring them, but not white customers, to prepay for gasoline satisfied

commonality); Siddiqi, 2000 U.S. Dist. LEXIS 19930 at *16-22 (holding that common questions

existed among a class of Deaf and hard of hearing students challenging a university’s policies and

practices in the provision of sign language interpreters and other accommodations); Thomas

County Branch of the Nat’l Ass’n for the Advancement of Colored People v. City of Thomasville

Sch. Dist., 187 F.R.D. 690, 697 (M.D. Ga. 1999) (holding that common questions existed among

African American students in school district’s elementary, middle and high schools as well as its

gifted and special education programs who alleged a variety of policies and practices that

discriminated against them); Hewlett v. Premier Salons Int’l, Inc., 185 F.R.D. 211, 217 (D. Md.

1997) (holding that common questions existed among class of African-American customers of

hair salons who alleged a corporate policy of denying services to such customers); Guckenberger,

957 F. Supp. at 325 (holding that common questions existed where a class of students with

learning disabilities alleged that a university’s policies and procedures for accommodations

violated the ADA and other antidiscrimination statutes); Kernan v. Holiday Universal, Inc., No.

JH90-971, 1990 WL 289505 at *3 (D. Md. Aug. 14, 1990)(Appendix Tab 25) (holding that

32

ADA and that affect all Kmart customers who use wheelchairs or scooters. Furthermore, where, as here, plaintiffs with disabilities allege violations of the ADA at affiliated facilities, it is significant that Kmart controls the design and construction of Kmart stores and formulated and attempted to execute an ADA compliance plan, all at the headquarters level. See Ambulatory Surgery, 197 F.R.D. at 526 (relying, in holding that a class of persons with disabilities satisfied the commonality requirement, on the fact that the defendants “availed themselves of a common program of construction, design, and building code/ADA review.”).
Failure to enact or enforce a policy where one is legally required also provides a common question warranting class certification. The DOJ has interpreted its regulations to require that public accommodations such as Kmart “ensure that accessible routes are properly maintained and free of obstructions.” Preamble at 638. Kmart is specifically required to “ensure that an adequate number of accessible check-out aisles is kept open during store hours, or . . . otherwise modify its policies and practices, in order to ensure that an equivalent level of convenient service is provided to individuals with disabilities as is provided to others.” 28 C.F.R. § 36.302(d). The lack of clearly enunciated policies and training ensuring access -- for example, the absence from check-out training materials of reference to the requirement of keeping an accessible check-out aisle open -- is an issue common to the class.
In Martens v. Smith Barney, Inc., 181 F.R.D. 243 (S.D.N.Y. 1998), a group of female employees sought class certification, challenging “a pattern of discriminatory treatment of women that results in entry barriers, sexual harassment, and glass ceilings, and that traces to a central failure by Smith Barney’s management and human resources department to prevent and remedy widespread discrimination.” Id. at 259. Although entry barriers, sexual harassment and glass ceilings involve a wide variety of individual circumstances, the court held that “[c]lass
common questions existed among a class of African-American plaintiffs alleging a policy of discriminatory denial of spa membership).
33

certification [was] appropriate if the claims entail[ed] common issues and the injuries trace[d] to the central employer’s failings.” Id.5
Common legal issues. Members of the putative class share common legal questions including, among others: whether the discriminatory policies, practices and barriers at Kmart stores violate the ADA; whether Kmart is required to bring those of its stores built after January 26, 1993 into full compliance with the ADA, 42 U.S.C. § 12183(a)(1); whether it is readily achievable for Kmart to remove architectural barriers in those stores built before that time and not altered in the meantime, § 12182(b)(2)(A)(iv); where discrimination results from Kmart policies (such as displaying merchandise in floor stacks, placing unattended boxes in aisles as part of the stocking process, or permitting clothing racks as close as 24 inches apart) or practices (such as failing to keep merchandise aisles unobstructed or failing to keep an accessible check-out aisle open) whether modifying such policies or practices would fundamentally alter Kmart’s goods or services, § 12182(b)(2)(A)(ii); and whether Kmart has failed in its obligation to maintain access. 28 C.F.R. § 36.211.
Finally, defenses asserted by Kmart will require company-wide analysis. As the Arnold court noted:
[W]here, 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

5

See also Lightbourn, 118 F.3d at 426 (holding that common questions existed where a

class of persons with disabilities alleged that county violated the ADA and 29 U.S.C. § 794 by

failing to direct local election officials to enforce those statutes); Buycks-Roberson v. Citibank

Fed. Sav. Bank, 162 F.R.D. 322, 330-32 (N.D. Ill. 1995) (holding that common questions existed

where policy that delegated discretion to loan officers permitted systematic discrimination against

African-American clients); Gomez v. Ill. State Bd. of Educ., 117 F.R.D. 394, 399-400 (N.D. Ill.

1987) (holding that commonality existed where the plaintiffs alleged “that the defendants have

violated federal law because of their failure to promulgate uniform guidelines” with respect to the

putative class of students).

34

resources. These are additional issues of fact and law common among the subclasses.
Arnold, 158 F.R.D. at 449 (citations omitted) (quoted in Taco Bell, 184 F.R.D. at 360). Kmart has asserted the defense that some of the remedial measures demanded by the plaintiffs will not be “readily achievable,” see Amended Answer to Amended Class Action Complaint at 13, a standard that looks to the resources of the parent company. 28 C.F.R. § 36.104.
C. Named Plaintiffs’ Claims Are Typical of the Claims of the Class. Rule 23(a)(3) requires that the claims of the Named Plaintiffs be typical of those of the class. The Supreme Court has held that “[t]he commonality and typicality requirements of Rule 23(a) tend to merge.” General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 n.13 (1982). Furthermore, “differing fact situations of class members do not defeat typicality under Rule 23(a)(3) so long as the claims of the class representative and class members are based on the same legal or remedial theory.” Adamson, 855 F.2d at 676. This is so even if not all wheelchair-using Kmart shoppers have encountered discrimination at Kmart. The mere fact that some class members may not wish to become members of the class or pursue claims against [the defendant] does not indicate that their interests are antagonistic to those of the named plaintiffs or the remainder of the class, so that class action treatment would be inappropriate. Rather, the so-called “satisfied customers” would be indifferent as to the claims and potential recovery of the class.
Joseph, 109 F.R.D. at 640 (citation omitted).6

6

The existence of “satisfied customers” in the class would not defeat other provisions of

Rule 23(a) either. See, e.g., Hill, 2001 U.S. Dist. LEXIS 3082 at *18 (holding that the fact that a

civil rights class may include individuals who did not actually suffer discrimination does not

defeat commonality); Siddiqi, 2000 U.S. Dist. LEXIS 19930 at *25-26 (holding that the fact that

some class members may oppose the class does not defeat class certification as “any equitable

relief will not ‘adversely affect’ the rights [of such] class members . . . where the aim of the relief

is to alleviate the violation, not cause new violations to the rights of deaf and hard of hearing

students.”).

35

The court in Taco Bell concluded that the typicality prong was satisfied for reasons directly applicable to this case:
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.
184 F.R.D. at 360. Similarly, in Ambulatory Surgery, the court held that the proposed representatives of a nationwide class of persons with disabilities challenging barriers at various types of affiliated health care facilities had claims typical of the class because they had
the same interests and suffer[ed] the same injuries as the class members in that they are allegedly denied access to the same facilities as the class members and discriminated against as the result of the continued existence of physical barriers to access. Furthermore, the representative Plaintiffs, like the class members, seek injunctive relief requiring Defendants to modify each of their facilities, as well as build new facilities, in compliance with the ADA and the regulations promulgated thereunder. 197 F.R.D. at 528. Named Plaintiffs all use wheelchairs for mobility and have encountered discriminatory barriers and policies at Kmart stores. The effect of these barriers and policies is the same for these individuals as for the class: it impairs their ability to shop at Kmart, that is, to have “full and equal enjoyment of [Kmart’s] goods, services, facilities, privileges, advantages, or accommodations.” § 12182(a). Named Plaintiffs and the proposed class challenge these barriers under the same statutes and remedial theories as the class: they assert that the ADA requires Kmart to remove its barriers and make reasonable modifications to its policies and practices to permit them full and equal enjoyment of Kmart’s goods and services. See § 12182(a), (b)(2)(A)(ii), (iii) & 12183(a). Named Plaintiffs’ claims satisfy the typicality requirement of Rule 23(a)(3).
36

D. Named Plaintiffs Will Fairly and Adequately Protect the Interests of the Class.
The final requirement of Rule 23(a), adequate representation, requires that the representative plaintiffs have common interests with the class members and that the representative plaintiffs will vigorously prosecute the interests of the class through qualified counsel. Cook I, 151 F.R.D. at 386. Adequate representation is usually presumed in the absence of contrary evidence. Id. (quoting 2 Newberg § 7.24 at 7-80 to -81).
Defendant does not dispute the adequacy of representation provided by class counsel,1 and “[t]his in itself goes a long way to negating [any] argument that the class will be inadequately represented.” Schwartz, 178 F.R.D. at 553.
To satisfy the adequate representation requirement, “a class representative must be part of the class and ‘possess the same interest and suffer the same injury as the class members.’” Amchem, 521 U.S. at 625-26 (citations omitted). Named Plaintiffs in this case, Carrie Lucas, Debbie Lane, and Julie Reiskin, easily meet this standard.
All three Named Plaintiffs are part of the class and have suffered the same injury as class members as all three have disabilities that require them to use wheelchairs for mobility and all have experienced discrimination at Kmart Stores as a result of Defendant’s architectural barriers and discriminatory practices and policies.2 All three Named Plaintiffs have lengthy histories of dedication to the rights of persons with disabilities, demonstrating that they possess the same interest as class members.
Ms. Lucas is a graduate of The Iliff School of Theology. She currently is the Access and Testing Coordinator at CCDC and is a member of Disability Ministries, the national committee

1

See Letter from S. Mintz to A. Robertson (Robertson Decl. Ex. 17).

2

See supra pp. 2-5.

37

for persons with disabilities of the United Church of Christ. She was a delegate to the National Disability Party Convention. Ms. Lucas’s daughter also uses a wheelchair. Ms. Lucas has been admitted for enrollment beginning in the fall of this year at the University of Denver College of Law, where she has received a full scholarship -- the Chancellor’s Scholarship -- based on her commitment to public service.3
Ms. Lane began working for the rights of persons with disabilities more than ten years ago. She has been involved with numerous organizations concerned with the rights of persons with disabilities, including the Epilepsy Foundation of Missouri and the Missouri Parents’ Act, an organization assisting families of persons with disabilities. She works at CCDC in the position of Project Coordinator.4
Ms. Reiskin was a member of Connecticut Coalition of Citizens with Disabilities from 1987 until 1994, and a member of CCDC from 1994 to the present. While in Connecticut, Ms. Reiskin also worked with AIDS Project Hartford and supervised a residential treatment program at a school for children with emotional and learning disorders. From December 1996 to the present, Ms. Reiskin has served as the Executive Director of CCDC.5
All three Named Plaintiffs have previously been held by this Court to be adequate representatives in class actions brought under Title III of the ADA. See Farrar-Kuhn, slip op. at 6 (finding that Ms. Lucas was an adequate class representative); Taco Bell, 184 F.R.D. at 361 (finding that Ms. Reiskin and Ms. Lane were adequate class representatives). For these reasons, the proposed class meets the adequacy of representation requirement of Rule 23(a)(4).
E. The Proposed Class is Sufficiently Defined to be Administratively Feasible.

3

Lucas Decl. ¶¶ 2-8.

4

Lane Decl. ¶¶ 3-4.

5

Reiskin Decl. ¶¶ 3-7.

38

Although not included in Rule 23, most courts require that, to be certified, a class must be sufficiently defined so as to be “‘administratively feasible for the court to determine whether a particular individual is a member.’” Taco Bell, 158 F.R.D. at 357 (quoting Davoll v. Webb, 160 F.R.D. 142, 143 (D. Colo. 1995), aff’d 194 F.3d 1116 (10th Cir. 1999)); see also Cook I, 151 F.R.D. at 382; Joseph, 109 F.R.D. at 638. “[T]he class does not have to be so ascertainable that every potential member can be identified at the commencement of the action. If the general outlines of the membership of the class are determinable at the outset of the litigation, a class will be deemed to exist.” Cook I, 151 F.R.D. at 382 (citations omitted). The class proposed here is defined to include “all individuals with disabilities who use wheelchairs or scooters for mobility” who have suffered discrimination at a Kmart store anywhere in the United States. This definition is administratively feasible, especially in light of the fact that the class demands only classwide injunctive relief. That is, in ordering Kmart to make its stores more accessible to people who use wheelchairs or scooters, this Court will not be required to determine whether any given individual is a class member as it might in a case demanding damages or individualized injunctive relief (for example, back-pay or on-the-job accommodations). Further, because each class member requires a wheelchair or scooter for mobility, each such person is by definition substantially impaired in the major life activity of walking, and thus there will be no need to conduct an individualized inquiry as to whether a class member has a “disability” under the ADA. See Preamble at 620 (“[A] person who is paraplegic is substantially limited in the major life activity of walking” and is thus disabled under the ADA.).
The cases cited above,6 also suggest that classes defined to include individuals who use wheelchairs and/or scooters who have suffered discrimination at public accommodations are sufficiently well defined.

6

See supra notes 77-78.

39

III. The Proposed Class Is Proper Under Rule 23(b)(2). Once a class has satisfied all four of the prerequisites of Rule 23(a), it must satisfy one of
the subsections of Rule 23(b). The class proposed herein satisfies 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.” “Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples” of Rule 23(b)(2) classes. Amchem, 521 U.S. at 614 (quoting Adv. Comm. Notes, 28 U.S.C. App., p. 697). A case that seeks “exclusively injunctive relief, alleging class-based discrimination for noncompliance with federal statutory provisions (the ADA) . . . fits squarely within the ambit of cases for which Rule 23(b)(2) was created.” AHM, 2000 U.S. Dist. LEXIS 14788 at *16; see also Taco Bell, 184 F.R.D. at 361 (holding that “[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”) (citations omitted); Arnold, 158 F.R.D. at 452 (holding that class alleging violation of Title III of the ADA at 70 commonly-owned movie theaters was a “paradigm of the type of action for which the (b)(2) form was created”).
In the case at bar, “generally applicable regulations under the ADA govern [Defendant’s] various operations [and] those generally applicable requirements . . . lead to conditions which are generally applicable to the plaintiffs as a group.” Ambulatory Surgery, 197 F.R.D. at 529. For example, Defendant’s discriminatory policies and practices apply to, and affect, class members in the same way: blocked aisles and narrow passages between clothes racks prevent class members from independently viewing and selecting merchandise; closed accessible check-out lanes prevent class members from independently purchasing merchandise; and inaccessible fitting rooms, restrooms and parking spaces prevent class members from utilizing these areas. Certification
40

under Rule 23(b)(2) is proper because Kmart has acted in a manner applicable to the entire class,
making appropriate final declaratory and injunctive relief. It is also proper because the class
seeks only injunctive and declaratory relief.
CONCLUSION
For the reasons set forth above, Named Plaintiffs respectfully request that this Court
certify a class defined as follows: All persons with disabilities who use wheelchairs or scooters for mobility who have been denied, or are currently being denied, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any public accommodation that was designed or constructed by or is owned, operated, or leased by or leased to Kmart Corporation anywhere in the United States.
Named Plaintiffs further request that they be certified as the representatives of this class and that
the attorneys listed below be certified as class counsel. Respectfully Submitted,
FOX & ROBERTSON, P.C.

Amy F. Robertson Timothy P. Fox Michael W. Breeskin 910 -16th Street Suite 610 Denver, CO 80202 303.595.9700
Kevin W. Williams General Counsel Colorado Cross Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775

Brian East Advocacy, Inc. 7800 Shoal Creek Boulevard, Suite 171-E Austin, Texas 78757-1024 512.454.4816
Denette Vaughn James Teague Advocacy, Inc. 1001 Main St., Ste 200 Lubbock, TX 79401 806.765.7794
Earl Mettler Stephen LeCuyer
41

Steven R. Greenberger Disability Rights Clinic DePaul College of Law 25 E. Jackson Blvd. Chicago, IL 60604 312.362.8138
Attorneys for Plaintiffs

Mettler & LeCuyer, P.C. 4308 Carlisle Blvd. NE, Suite 208 Albuquerque, NM 87107 505.884.0078
July 13, 2001

42

Certificate of Service I hereby certify that on July 13, 2001, copies of Plaintiffs’ Substituted Memorandum in Support of Motion For Class Certification as well as substituted Tabs 7, 8 and 14 of the Appendix thereto were served by first class mail, postage prepaid, on:
Walter B. Connolly, Jr. Esq. Foley & Lardner 150 W. Jefferson, Suite 1000 Detroit, MI 48226 Shana T. Mintz, Esq. Foley & Lardner 35th Floor, One Century Plaza 2029 Century Park East Los Angeles, CA 90067-3021 Theodore A. Olsen, Esq. Lawrence W. Treece, Esq. Sherman & Howard, LLC 633 17th Street, Suite 3000 Denver, CO 80202
43

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-K-1923 CARRIE ANN LUCAS, DEBBIE LANE, and JULIE REISKIN, for themselves and all others similarly situated,
Plaintiffs, v. KMART CORPORATION,
Defendant.
PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
Plaintiffs Carrie Ann Lucas, Debbie Lane, and Julie Reiskin, by and through their counsel, hereby submit this Reply Memorandum in Support of Motion for Class Certification.
INTRODUCTION Named Plaintiffs demonstrated in their Substituted Memorandum in Support of Motion for Class Certification (“Class Memorandum” or “Class Mem.”) that the proposed class in this case meets the requirements of Rule 23 and, further, that class certification provides a more efficient and consistent mechanism for addressing the corporate-wide policies (and lack of required policies) at issue in this case than numerous individual actions in courts around the country. Their motion was based on evidence of Kmart’s centralized policies and policy failures and extensive testimony from disabled Kmart shoppers concerning the barriers they had encountered. Defendant Kmart Corporation (“Kmart”) concedes that its store operating policies

are centralized -- a concession that, in and of itself, makes class certification appropriate. In addition, information produced by Kmart in response to this Court’s Order of September 20, 2001, provides extensive evidence of barriers to Kmart customers who use wheelchairs, including: (1) reports from more than 19,000 visits by “mystery shoppers” to more than 2,000 Kmart stores documenting obstructions that would likely pose barriers to shoppers in wheelchairs; (2) Kmart’s own ADA compliance surveys showing widespread lack of compliance, including, for example, the fact that 39% of the stores for which Kmart provided data do not have sufficient accessible parking; and (3) surveys conducted for Kmart in July, 2001, by experts it retained for the purpose of opposing class certification which show, for example, that 35% of the time, the stores surveyed failed to maintain an accessible route through sidewalk merchandise displays, access to approximately 25% of the fitting rooms was obstructed, and 20% of customer service counters did not comply.
In its Memorandum in Opposition to Plaintiffs’ Motion for Class Certification (“Class Opposition” or “Class Opp.”), Kmart attempts to defeat class certification by making three principal arguments: (1) that a class should not be certified because there are no identical, architectural barriers at issue; (2) that the experiences of putative class members cannot be common because each Kmart store is different and because many putative class members had experienced both discriminatory and non-discriminatory treatment at Kmart stores; and (3) that the experiences of putative class members were isolated and temporary. Kmart also makes
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extensive arguments on the merits to the effect that it is already in compliance with Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq.1
Much of Kmart’s Class Opposition and its supporting papers are dedicated to establishing a factual proposition that Named Plaintiffs never contested and readily concede: Kmart stores are physically different from one another. This argument misses the point: Commonality can arise from physical similarity; it can also arise, as it does here, when a class challenges centralized policies that result in common discriminatory experiences. The physical differences touted by Kmart do not reduce either the similarity of these experiences or the control Kmart exercises through its centralized policies over the physical conditions at those stores. To the extent Kmart argues that class certification requires that all of its stores be identical or that all class members always experience discrimination on every visit to every Kmart, it is arguing for a standard far beyond that of Rule 23, one imposed on no other protected class.
A number of Kmart’s arguments are either made in its Statement of Facts or appear in several different sections of its Rule 23 analysis. Because its primary argument appears to be a lack of commonality, Named Plaintiffs will address these broad themes first before addressing Kmart’s specific objections to numerosity, typicality, representation, Rule 23(b)(2), standing and the practicalities of trying this case as a class action. Finally, while urging the Court to postpone analysis of the merits of the case until after resolution of their motion to certify a class, Named Plaintiffs briefly address several merits questions raised by Kmart in its Class Opposition.

1
Code.

Unless otherwise noted, all statutory citations are to Title 42 of the United States -3-

ARGUMENT
I. Named Plaintiffs’ Challenges to Kmart’s Centralized Policies Present Common Questions of Law and Fact Sufficient to Satisfy the Commonality Requirement.
A. Cases Challenging Centralized Policies are Routinely Certified as Class Actions.
Named Plaintiffs have demonstrated that Kmart’s store operations policies are highly
centralized. (See Class Mem. at 14-25.) In its Class Opposition and in oral argument before this
Court, Kmart agreed. In its opposition brief, Kmart concedes that it has a single set of operating
polices. (See Class Opp. at 15; see also id. at 7 (describing centralized review and modification
of design criteria).) Kmart’s counsel also stated before this Court, in opposing Named Plaintiffs’
motion to compel:
Plaintiffs have spoken to centralized policies as an issue going to certification. That’s true, and obviously any company like a Kmart that has over 2100 stores across the country has centralized policies, centralized training, all sorts of centralized issues. (Motion to Compel Transcript of Proceedings at 12-13 (Rep. App. Tab 14).)2 Kmart naturally
argues that its centralized policies are sufficient to ensure compliance with the ADA. (Id. at 13;
see also Class Opp. at 15-16.) Named Plaintiffs disagree and have demonstrated that Kmart’s
centralized policies and/or policy failures cause discriminatory barriers to customers who use
wheelchairs. (See Class Mem. at 17-25.) Although the resolution of the question whether

2

The appendix submitted with Named Plaintiffs’ Class Memorandum will be

referred to as “App.”; the appendix submitted with this Reply Brief will be referred to as “Rep.

App.”

-4-

Kmart’s policies are sufficient to prevent discrimination goes to the merits of this case, the question itself is common to the class and should be answered on a classwide basis.
Where named plaintiffs challenge centralized policies, class certification is appropriate. See J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1288 (10th Cir. 1999) (holding that the fact “‘that the claims of individual class members may differ factually should not preclude certification under Rule 23(b)(2) of a claim seeking the application of a common policy’”) (quoting Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988)).3 Courts in a variety of situations have held that questions concerning policies or the lack thereof meet the commonality requirement. For example, in Lightbourn v. County of El Paso, Texas, 118 F.3d 421 (5th Cir. 1997), cert. denied 522 U.S. 1052 (1998), and National Org. on Disability v. Tartaglione, No. Civ. A. 01-1923, 2001 WL 1258089 (E.D.Pa. Oct. 22, 2001) (Rep. App. Tab 23), both of which involved challenges by classes of individuals with disabilities to inaccessible polling places, the commonality requirement was met because the defendants did not have policies in place “direct[ing] local election officials to comply with [29 U.S.C. § 794] and the ADA” by making polling places accessible. Lightbourn, 118 F.3d at 426; see also Tartaglione, 2001 WL 1258089 at *3 (allegation that defendant failed to have policies ensuring that voters with mobility impairments had access to neighborhood polling places was an allegation that defendant “engaged in a

3

This would be so even if Kmart had put on competent evidence that its policies

were decentralized. In Faulk v. Home Oil Co., 184 F.R.D. 645 (M.D. Ala. 1999), the court held

that where there is “substantial evidence” of centralization, it is appropriate to find commonality

and typicality, even where the defendant offers evidence of decentralization, because to resolve

that factual dispute would be to address the merits. Id. at 656; see also Orlowski v. Dominick’s

Finer Foods, Inc., 172 F.R.D. 370, 373-74 (N.D. Ill. 1997) (same); Meiresonne v. Marriott Corp.,

124 F.R.D. 619, 622-23 (N.D. Ill. 1989) (same).

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common course of conduct on a classwide . . . basis”). Similarly, in a recently-certified employment class action, the court held that a class of Deaf employees satisfied commonality where they challenged the employer’s policy requiring all employees to pass certain hearing standards. Bates v. United Parcel Svc., No. C99-2216 TEH, --- F. Supp. 2d ---, 2001 WL 1482023 at *4 (N.D. Cal. Nov. 1, 2001) (Rep. App. Tab 18).4
Further, even under Kmart’s formulation that its “operations are centralized in direction only and decentralized in application of that direction,” (see Class Opp. at 15), the commonality requirement is met. Classes of employees are often certified challenging a centralized policy of overdelegation of authority to local managers that fails to prevent discrimination. See, e.g., Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291-92 (2d Cir. 1999) (reversing denial of commonality based on the defendant’s policy of “delegating discretionary authority to supervisors to make certain employment decisions affecting discipline and promotion”), cert. denied 529 U.S. 1107 (2000); Shipes v. Trinity Indus., 987 F.2d 311, 316 (5th Cir. 1993) (holding that “[a]llegations of similar discriminatory employment practices, such as the use of entirely subjective personnel processes that operate to discriminate, satisfy the commonality and typicality requirements of Rule 23(a).”); Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1557 (11th Cir.) (same), cert. denied, 479 U.S. 883 (1986); Beckmann v. CBS, Inc., 192 F.R.D. 608, 613-14 (D. Minn. 2000) (same); Shores v. Publix Super Markets, Inc., No. 95-1162-CIV-T25(E), 1996 WL 407850 at *6 (M.D. Fla. March 12, 1996) (Declaration of Shana T. Mintz in

4

See also cases cited infra n. 8.

-6-

Opposition to Plaintiffs’ Motion for Class Certification (“Mintz Decl.”) Ex. 6) (same).5 Thus, the autonomy Kmart claims to delegate to its stores, (see Class Opp. at 3, 17), far from defeating class certification, presents a question common to the class: Has Kmart permitted its managers to use subjective criteria and thereby tolerated disability discrimination?
The holdings set forth above make sense. Where plaintiffs allege that they have suffered discrimination as a result of inadequate centralized policies, they have by definition raised a common issue. Further, if the policies are found to be inadequate, it is much more efficient to remedy the policies at their source rather than to conduct piece-meal, store-by-store lawsuits that likely will result in inconsistent standards.
B. Putative Class Members Allege Common Discriminatory Experiences and Any Individual Differences are Irrelevant.
Kmart argues that class members’ experiences are not common because the physical layouts of its stores are different from one another and because “Plaintiffs have not identified a single barrier that is the same in all Kmart stores, or even one that they and their witnesses have found to be present all the times they visited even one given Kmart store.” (Class Opp. at 5 n.3 (emphasis in original).) In other words, it is not enough for Kmart that many class members have been blocked by clothing racks that Kmart policy permits to be only 24 inches apart, or by

5

This doctrine had its origin in a footnote to General Telephone Company of the

Southwest v. Falcon, 457 U.S. 147, 159 n.15 (1982). Falcon held that so-called “across the

board” classes that included employees and applicants could not automatically be certified based

only on evidence of discrimination against the former. Id. at 158. The Supreme Court provided

several examples of the type of evidence that would support certification, including

“[s]ignificant proof that an employer operated under a general policy of discrimination . . . such

as through entirely subjective decisionmaking processes.” Id. 159 n.15.

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aisle displays required by Kmart’s merchandising guides, or by other obstructions that Kmart policy is inadequate to prevent. Rather, Kmart appears to require that putative class members have been blocked by the same clothes or the same displays or the same obstructions that remain in the same position all the times they visited any Kmart anywhere in the country.
This is not what Rule 23 requires. Named Plaintiffs’ opening brief cited a number of cases in which classes of individuals with disabilities had been certified with no requirement of identical architectural or physical barriers, and Kmart failed to address or distinguish most of these cases.6 Indeed, Kmart’s argument that individuals with mobility impairments who have encountered systematic discrimination that does not involve an identical, physical barrier cannot be certified as a class sets the standard for certification of classes of such individuals far higher than for classes of individuals belonging to any other protected category.
Kmart’s analysis goes astray by focusing on the impact of its policies, rather than on the policies themselves. Numerous courts have held that the commonality requirement is met where a common policy impacts individual class members in differing ways.7 For example, the Ninth

6

See, e.g., Class Mem. at 28 n.88 & 29 n.89 and cases cited therein.

7

Named Plaintiffs cited a number of cases in their Class Memorandum in which

class members’ circumstances varied more significantly than those of Kmart shoppers who use

wheelchairs or scooters. See id. at 35 & n. 96. Kmart attempts to distinguish these cases by

arguing that they “involv[ed] discriminatory policies in effect at a single location managed by a

single group of individuals.” Class Opp. at 65 n.53. With respect to most of these cases,

Kmart’s description is simply wrong. See Hill v. Amoco Oil Co., No. 97 C 7501, 2001 U.S.

Dist. LEXIS 3082 at *2 (N.D. Ill. Mar. 15, 2001) (App. Tab 23) (addressing “Amoco owned and

operated gas stations in the Chicago area”); Thomas County Branch of the Nat’l Ass’n for the

Advancement of Colored People v. City of Thomasville Sch. Dist., 187 F.R.D. 690, 693 (M.D.

Ga. 1999) (addressing a school district’s elementary, middle and high schools as well as its

(continued...)

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Circuit has recently upheld the certification of a class of individuals with hearing, vision, learning, developmental and mobility impairments challenging accommodations provided by a state parole board. Armstrong v. Davis, No. 00-15132, --- F.3d ---, 2001 WL 1506518 at *2 (9th Cir. Nov. 28, 2001) (Rep. App. Tab 16). In response to the defendants’ argument that separate classes should be certified for each type of impairment, the Ninth Circuit held, “in a civil-rights suit, . . . commonality is satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members. . . . In such circumstance, individual factual differences among the individual litigants or groups of litigants will not preclude a finding of commonality.” Id. at *13 (citations omitted). The court in Daniels v. City of New York, 198 F.R.D. 409 (S.D.N.Y. 2001), certified a class of minorities who had been subjected to unreasonable searches on the basis of racial profiling. Id. at 411, 422. The defendants objected that each class member’s circumstances would be highly individualized. The court responded that Rule 23(b)(2) classes -- the type Named Plaintiffs seek to certify here -“have been certified in a legion of civil rights cases where commonality findings were based primarily on the fact that defendant’s conduct is central to the claims of all class members irrespective of their individual circumstances and the disparate effects of the conduct.” Id. at 416 (quoting Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 57 (3d Cir. 1994)); see also Miller
7(...continued) gifted and special education programs); Hewlett v. Premier Salons Int’l, Inc., 185 F.R.D. 211, 213 (D. Md. 1997) (addressing all Premier hair salons; Premier operated “approximately 550 salons located in all 50 states”); Kernan v. Holiday Universal, Inc., No. JH90-971, 1990 WL 289505 at *1 (D. Md. Aug. 14, 1990) (App. Tab 25) (addressing “spa facilities owned directly or indirectly by Holiday Universal, Inc. and U.S. Health, Inc.” in five metropolitan areas).
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v. Spring Valley Props., 202 F.R.D. 244, 249 (C.D. Ill. 2001) (certifying class of AfricanAmericans seeking housing at one of the defendants’ approximately 200 units and holding “[w]here Plaintiffs allege that the actions were taken as part of an overall discriminatory practice in violation of the Fair Housing Act, factual differences in how Defendants carried out a discriminatory policy are not sufficient to undermine typicality”); Christina A. ex rel. Jennifer A. v. Bloomberg, 197 F.R.D. 664, 667-68 (D.S.D. 2000) (certifying class of juveniles in a state training school challenging a wide range of practices; holding that “the common question here is whether the conditions of confinement at [the school] and the policies and procedures in place there amount to or result in constitutional deprivations of Plaintiffs’ rights. . . . The fact that those conditions, policies and procedures affect the Plaintiffs differently does not defeat the commonality of their claims.”) (citing Milonas v. Williams, 691 F.2d 931, 938 (10th Cir.1982), cert. denied 460 U.S. 1069 (1983)); Grijalva v. Shalala, Civ. No. 93-711, 1995 WL 523609 at *1-2, *7 (D. Ariz. July 18, 1995) (Rep. App. Tab 21) (certifying a nationwide class of enrollees in Medicare HMOs challenging the failure of government agency to institute certain policies; holding that “[c]ontrary to Defendant’s contention that the differences between Plaintiffs dissuade class certification, the diversity provides evidence of the widespread effect of the challenged procedures.”), aff’d on other grounds 152 F.3d 1115 (9th Cir. 1998), vacated and remanded on other grounds 526 U.S. 1096 (1999).8

8

Classes are routinely certified of individuals challenging the policies governing

the provision of government benefits, despite varying individual circumstances of eligibility and

treatment. See, e.g., Dajour B. ex rel. L.S. v. City of New York, No. 00 CIV. 2004, 2001 WL

1173504 at *7 (S.D.N.Y. Oct. 3, 2001) (Rep. App. Tab 20) (challenging insufficient services for

(continued...)

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C. Even Classes Challenging Physical Barriers Do Not Require Identical Physical Barriers.
Even cases in which individuals with disabilities challenge physical barriers have not
required that those barriers be identical as a prerequisite for class certification. In Lightbourn
and Tartaglione, classes of plaintiffs with disabilities were challenging the failure of the
defendant political jurisdictions to ensure that polling places were accessible to voters with
physical disabilities. The classes were certified without any suggestion -- and, indeed, it defies
8(...continued) children with asthma; because only injunctive relief sought, “the precise ways that various members of the class may have been injured is less relevant than the fact that a continuing policy or practice may be causing harm to many of the class members.”); Risinger ex rel. Risinger v. Concannon, 201 F.R.D. 16, 19-20 (D. Me. 2001) (certifying class of individuals not timely receiving in-home mental health services despite the fact that class members’ “different diagnoses require different treatments,” as plaintiffs challenged defendants’ “system of screening, diagnosis, and delivery of prescribed in-home mental health services”); Karen L. ex rel. Jane L. v. Physicians Health Servs., Inc., 202 F.R.D. 94, 97-99 (D. Conn. 2001) (certifying class of individuals challenging failure of notice concerning adverse actions in Medicaid claims and failure to ensure members could get prescription drug benefits despite wide variety of situations even among named plaintiffs); Boulet v. Cellucci, 107 F. Supp. 2d 61, 81 (D. Mass. 2000) (certifying class of individuals on waiting list for Medicaid services despite “unique medical and support requirements” of each).
Decisions certifying employment discrimination classes often describe very different individual circumstances of class members challenging a centralized policy. See, e.g., Reeb v. Ohio Dep’t of Rehabilitation, 203 F.R.D. 315, 318 (S.D. Ohio 2001) (certifying class of female employees despite different types of discrimination suffered); Beckmann v. CBS, Inc., 192 F.R.D. 608, 611-14 (D. Minn. 2000) (certifying class of female employees in which one named plaintiff excluded from overtime assignments, another turned down for promotions that went to males, another did not receive same training as males); Bremiller v. Cleveland Psychiatric Inst., 195 F.R.D. 1, 6-18 (N.D.Ohio 2000) (certifying class of female employees challenging sexual harassment in the workplace despite differences in experiences of named plaintiffs); Haynes v. Shoney’s, Inc., No. 89-30093-RV, 1992 WL 752127 at *1, 2-6, 20 (N.D. Fla. Jun 22, 1992) (Rep. App. Tab 22) (certifying class of female employees alleging, variously, that “the defendants have discriminatorily failed to hire, failed to promote, harassed, discharged, constructively discharged, and retaliated against” them).
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reason to suggest -- that every polling place in El Paso or Philadelphia was physically identical to every other. Instead, the classes were certified because of the failure of the defendant to ensure that the physical facilities were accessible. See Lightbourn, 118 F.3d at 425; Tartaglione, 2001 WL 1258089 at *3. Likewise, Kmart has failed to ensure that its stores are accessible to customers in wheelchairs, making class certification appropriate.
Identical barriers were also not required in Access Now, Inc. v. Ambulatory Surgery Center Group, Ltd., 197 F.R.D. 522 (S.D. Fla. 2000) or Access Now, Inc. v. AHM CGH, Inc., Case No. 98-3004, 2000 U.S. Dist. LEXIS 14788 (S.D. Fla. Jul. 12, 2000) (App. Tab 16). In these two cases, the named plaintiffs were seeking certification of nationwide classes of persons with disabilities challenging alleged violations of the ADA at a series of affiliated -- though not commonly owned -- health care facilities. In contrast to the present case -- which addresses only Kmart stores owned and operated by the Kmart Corporation -- the facilities at issue in AHM included “ambulatory surgical centers, specialty clinics, and medical office buildings,” id. at *4, and in Ambulatory Surgery, “specialty hospitals, outpatient care, rehabilitation hospitals, professional medical offices, surgical units, psychiatric hospitals, medical office buildings, and general services hospitals.” Id. at 526. In both cases, despite the wide variety in types of facilities, the court held that the class satisfied the commonality requirement of Rule 23(a)(3).9

9

Kmart attempts to distinguish Ambulatory Surgery and AHM by stating that the

court in each provided “little of its reasoning or the factual basis for its decisions” and that the

cases appear to have been challenging “specific ‘architectural features,’ which were common to

all of the defendants’ facilities.” Class Opp. at 63 (emphasis in original). This is incorrect: As

set forth in text above, the courts provided the precise factual bases for their decisions, and

included explicit mention that they covered a wide range of types of facilities.

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Kmart’s attempt to distinguish two other physical-barrier-discrimination cases cited by Named Plaintiffs also fail. Kmart asserts that in Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439 (N.D. Cal. 1994), “accessible seating was the only ADA violation alleged.” (Class Opp. at 62 (emphasis in original).) This is incorrect. The Arnold plaintiffs challenged the number and placement of disabled seating, barriers to accessible paths of travel, and inaccessible restrooms. Id. at 445, 447. Significantly, the second of these categories is a broad description of may of the barriers challenged by Named Plaintiffs here: Obstacles in merchandise aisles and sidewalk displays as well as inaccessible clothing racks are simply barriers to accessible paths of travel. There was, in any event, no suggestion that each theater at issue in Arnold had the same layout or design.
Finally, Kmart challenges Named Plaintiffs’ reliance on Farrar-Kuhn v. Conoco Inc., Civil Action No. 99-WM-2086 (D. Colo. Aug. 22, 2000) (App. Tab 21), on the grounds that the motion for class certification was uncontested. Kmart asserts that “[a]lthough the Farrar-Kuhn court purported to undertake a full analysis of the requirements of Rule 23, pursuant to Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997), it is evident from its order that its analysis was substantially truncated by the defendant’s concessions. Thus, the decision is of little precedential value.” (Class Opp. at 64.) That the motion was uncontested was stated clearly in Named Plaintiffs’ Class Memorandum. (Id. at 29 n.89. ) There is no indication in Judge Miller’s opinion, however, that he did anything other than follow the mandate of the Supreme Court in Amchem to assess the appropriateness for certification of an uncontested class as rigorously as a contested one. This assessment resulted in the certification of a class very much
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like the one now before this Court: A class of individuals who use wheelchairs challenging the policies and barriers of a chain of retailers. Kmart also asserts, without evidence, that “there is surely little, if any, real variation in the physical attributes, inventory, management, etc., of Conoco’s service stations.” (Class Opp. at 64.) To the contrary, Judge Miller’s Order noted that “[t]he plaintiffs alleged that Conoco Corporate Stations have various architectural barriers and policies that discriminate against persons who use wheelchairs . . .” Farrar-Kuhn, slip op. at 1.
D. The Macy’s East, Burdines, and May Cases Are Distinguishable. Kmart relies heavily on Access Now, Inc. v. Burdines, Inc., No. 99-3214-CIV (S.D. Fla. Feb. 15, 2001), Access Now, Inc. v. Macy’s East, Inc., No. 99-9088-CIV (S.D. Fla. Feb 15, 2001) (Mintz Decl. Exs. 1 & 2), and Access Now, Inc. v. May Dep’t Stores Co., No. 00-148-CIV (S.D. Fla. Oct. 6, 2000) (First Legal Supplement to Defendant Kmart Corporation’s Memorandum in Opposition to Plaintiffs’ Motion for Class Certification (“First Leg. Supp.”) Ex. 2). Although the court in each of these cases denied certification to a class of individuals with disabilities challenging barriers in a chain of department stores, they are distinguishable from the present case. In each of the three cases, the court relied on the fact that the “plaintiffs [had] . . . failed to show that [the defendant] maintains corporate policies that cause certain barriers to be maintained . . ..” Macy’s East, slip op. at 2; see also Burdines, slip op. at 3 (same); May, slip op. at 3 (stating that the complaint “only alleges specific violations -- as opposed to a uniform policy . . .”).10 Indeed, the May plaintiffs -- seeking to certify a nationwide class -- “did not provide any
10 This is because, in each case, no discovery had been conducted prior to the filing of motions for class certification. See Paradis Decl. ¶ 5 (Rep. App. Tab 2); Dietz Decl. ¶ 4 (Rep.
(continued...) -14-

detail concerning ADA violations outside the state of Florida . . .” Id., slip op. at 3. Lacking evidence of a common policy, the courts in these three cases based their decision on their failure to find “a uniform design flaw or structural defect in Defendant’s stores nationwide.” Id., slip op. at 4; see also Burdines, slip op. at 3 (same); Macy’s East, slip op. at 2. These cases are thus not relevant to the analysis of the present case, in which the Named Plaintiffs have placed before the Court extensive evidence of centralized Kmart policies and policy failures that cause barriers to be maintained, as well as testimony about such barriers from 50 individuals at Kmart stores in 26 states and evidence from Kmart’s mystery shoppers, in-house ADA surveys and other recently-commissioned surveys that show a consistent pattern of barriers and violations at Kmart stores around the country. See infra at 20-21, 53-55. To the extent these three cases hold that a “uniform design flaw” is a prerequisite for certification of a class of individuals with disabilities, as explained above, they are wrong and, in any event, they are irrelevant here.
Kmart also relies on objections filed by the DOJ to a proposed settlement of the May case. Kmart asserts that the DOJ “contend[ed] that the proposed class covering 382 department stores nationwide should not be approved, even for settlement purposes, because the proposed class did not satisfy Rule 23(a).” (First Leg. Supp. at 4.) This misconstrues the DOJ’s objections. Gretchen Jacobs, the DOJ attorney who prepared the objections on which Kmart relies, explains that “[t]he portrait that Kmart attempts to paint of the United States’ May objections is flawed in several respects.” (Jacobs Decl. ¶ 4 (Rep. App. Tab 1).)
10(...continued) App. Tab 3). Laurence Paradis was counsel for the plaintiffs in Macy’s East and Burdines. Paradis Decl. ¶ 4. Matthew Dietz was counsel for the plaintiffs in May. Dietz Decl. ¶ 3.
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Kmart creates the misleading impression that the United States opposed the May settlement agreement on the sole ground that the class proposed therein (e.g., persons with disabilities and their shopping companions who shopped at May department stores nationwide) failed to satisfy Rule 23(a) of the Federal Rules of Civil Procedure.
(Id. ¶ 3.) In fact, because the DOJ entered the case as an amicus curiae at the settlement stage, it
did not take a position on the propriety of class certification. (Id. ¶ 7.) Instead, the DOJ’s
objections concerned procedure -- that a class that had earlier been denied certification could not,
under Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), be certified for settlement
purposes -- and the substance of the settlement itself. (Jacobs Decl. ¶¶ 4-6.) Ms. Jacobs
concludes by stating that
the United States’ objections to the May agreement should not be read as either a general indictment against class actions in ADA actions, or, more specifically, an argument against disability-based class actions against department store chains. . . . It is inaccurate to allege that the Department believes that classwide claims under title III of the ADA against department stores, or any other place of public accommodation subject to the ADA, should not be permitted to proceed as class actions. Rather, the appropriateness of class certification must be evaluated on a case-by-case basis.
(Id. ¶ 8.)
E. It Is Not Necessary That Every Class Member Experience Discrimination During Every Visit to Kmart in Order to Certify a Class.
Kmart also argues that Named Plaintiffs’ and putative class members’ discriminatory
experiences at Kmart cannot be common because these same individuals have also had non-
discriminatory experiences at Kmart. Kmart also references several positive comments that
Named Plaintiffs’ counsel received from class members concerning Kmart stores. The fact that
some potential class members have had both discriminatory and non-discriminatory experiences
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and that some have positive things to say about Kmart does not detract in any way from the commonality of class members’ discriminatory experiences or the appropriateness of class certification.
The Tenth Circuit has approved class certification even where it was possible that the class included some members who approved of the challenged policy. See Lanner v. Wimmer, 662 F.2d 1349, 1357 (10th Cir. 1981). The best Kmart has been able to do is show instances in which the challenged conduct has not occurred; it has not produced testimony or evidence suggesting that there are Kmart shoppers with disabilities who approve of closed accessible checkout aisles, obstructed merchandise aisles, narrow clothing aisles, insufficient or blocked parking, and inaccessible or blocked restrooms or fitting rooms. Yet, as the Lanner case demonstrates, even such implausible evidence would not be sufficient to defeat class certification.11
Many courts have certified classes in the face of explicit evidence that fewer than all of the class members have experienced the challenged conduct. For example, in Cox v. American Cast Iron Pipe Co., 784 F.2d 1546 (11th Cir. 1986), a case alleging sex discrimination in employment, the defendant presented interrogatory responses from class members containing “assertions both of no discrimination and of no opinion about discrimination.” Id. at 1557. The district court relied on these responses in part in denying class certification. The Eleventh
11 One potential class member, while not endorsing the challenged conduct, does appear to disapprove of the use of a class action in this circumstance. See Mintz Decl. Ex. 15. This, too, is not a barrier to class certification. See Siddiqi, 2000 U.S. Dist. LEXIS 19930 at *25.
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Circuit reversed, holding that, “[a]t best, the trial judge could only conclude from these answers that some specific claims might not be held by all class members. But Rule 23 does not require that all the questions of law and fact raised by the dispute be common.” Id. Similarly, in Shores v. Publix Super Markets, Inc., 1996 WL 407850 (M.D. Fla. March 12, 1996), also a sex discrimination case, the defendant submitted “hundreds of affidavits from women who believe[d] that they [had] not been discriminated against.” Id. at *3. The court concluded that
[t]he fact that a large number of potential class members are satisfied with the status quo, or are unwilling to come forward, cannot defeat class certification. . . . [P]laintiffs cannot be precluded from asserting their right to be free from discrimination merely because other employees chose not to assert those rights. Id. (citations omitted); see also Robidoux v. Celani, 987 F.2d 931, 934 (2d Cir. 1993) (upholding certification of a class of individuals challenging delays in state assistance; court cites statistics showing only two to fifteen percent of the cases were delayed); Hill v. Amoco Oil Co., 2001 U.S. Dist. LEXIS 3082 at *18 (holding that the fact that a civil rights class may include individuals who did not actually suffer discrimination does not defeat commonality); Joseph v. General Motors Corp., 109 F.R.D. 635, 640 (D. Colo. 1986) (holding that the existence of “satisfied customers” in products liability case did not defeat class certification). F. Disability Discrimination at Kmart Stores Is Pervasive and Repeated, Not
Isolated or Temporary.
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Kmart attempts to minimize the commonality of Named Plaintiffs’ and putative class members’ experiences by characterizing them as isolated,12 temporary,13 fleeting,14 sporadic,15 and episodic.16 While this may appear simply to be argument-by-thesaurus, at least the first two adjectives are rooted in law. Where the ADA requires access, that access must be maintained. 28 C.F.R. § 36.211(a). That provision “does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs.” Id. § 36.211(b). The DOJ commentary to this regulation explains further, however, that “[f]ailure of the public accommodation to ensure that accessible routes are properly maintained and free of obstructions . . . would . . . violate this part.” Preamble to Regulation on Nondiscrimination on The Basis of Disability by Public Accommodations and in Commercial Facilities, 28 C.F.R. pt. 36, app. B (2000) (“Preamble”) at 638. As an initial matter, then, the question whether barriers are isolated or temporary goes to the merits of the case and is inappropriate for resolution at this time. The question is, in fact, a common one shared by the class: Has Kmart properly ensured that accessible routes -- for example, shelves, clothing racks, restrooms, and fitting rooms -- are properly maintained and free of obstructions?

12
73-74.
13 14 15 16

Class Opp. at 2, 4, 5, 19, 21, 22, 24, 30, 31, 32, 34, 41-42, 48 n.45, 55, 56, 57, and
Id. at 2, 4, 5, 19, 21, 22, 24, 25, 28, 30, 31, 32, 33, 44, 55, 56, 57, and 76. Id. at 2, 24, and 23 n.24. Id. at 33, 55, and 73-74. Id. at 22, 29 n. 30, 44, 56, 57, and 63.
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Whether the question goes to the merits or to the class certification motion currently
before this Court, it is clear that barriers to Kmart customers who use wheelchairs are neither
isolated nor temporary. In their opening brief, Named Plaintiffs identified 81 individuals who
had experienced discrimination at Kmart stores, provided testimony from 50 of them and
provided evidence that Kmart had received relevant complaints from another 259 individuals.
(Class Mem. at 12.) Named Plaintiffs also provided extensive evidence of centralized Kmart
policies and policy failures that cause systematic discrimination against disabled customers. (Id.
at 18-23.) In response to Kmart’s assertion (among others) that Named Plaintiffs’ and putative
class members’ experiences were isolated and temporary, Named Plaintiffs moved to compel
forms filled out by “mystery shoppers” who were hired to shop at Kmart stores and both to
respond to a series of “yes/no” questions and to provide written comments for each shopping
trip. Named Plaintiffs’ counsel analyzed comments from 68,301 shopping trips during the
period February 1999 to August 2000. Of these comments, at least 19,406 or 28.4% include
descriptions of clutter and other obstructions that pose barriers to customers in wheelchairs.
(Fox Decl. ¶¶ 3-13 & Ex. 2 (Rep. App. Tab 13).)17 For example, shoppers made comments such
17 The period within which these data were gathered is well within the statute of limitations, as this case was filed in October, 1999. Kmart asserts that recent training concerning customers with disabilities “does not introduce any new concepts,” essentially asserting that its policies and training have not changed materially since 1992. See Class Opp. at 11, 16. As such, these data are relevant to the present suit. The customer service survey system that Kmart put in place after August, 2000, did not ask questions directed to clutter or obstructions; rather its open-ended questions -- posed to shoppers who called a toll-free number -- asked generally what those shoppers did and did not like about Kmart. See Second Robertson Decl. Ex. 21. Even so, for example, in September, 2001, 6.1% of the 1000 calls analyzed by the vendor complained about “crowded aisles.” See id. Ex. 22. The vendor uses this percentage and applies it to the
(continued...)
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as “some aisles not able to enter, for stacks of boxes, merchandise, etc. in them,” (id. at 1 (6/2/00 entry)), “area is too cluttered -- it is hard to get cart through,” (id. at 3 (11/8/99 entry)), and “aisles had lots of boxes, very crowded and difficult to get through,” (id. at 8 (4/1/99 entry)).
These incidents were well-distributed across the Kmart chain: of the 2,090 stores shopped, mystery shoppers reported relevant problems at 2,035 of them. Id. Summary memoranda submitted by the vendor providing mystery shopper services regularly confirmed that the reports showed cluttered aisles. (See, e.g., Second Robertson Decl. Ex. 12 at K35524 (March 2000: 13% of all floors were either dirty or cluttered); Ex. 14 (May 2000: 20% of aisles and 13% of store floors were dirty or cluttered); Ex. 15 (June 2000: 15% to 20% of shoppers reported that aisles were cluttered); Ex. 16 (July 2000: 16% to 20% of shoppers reported that aisles were cluttered).) Although we do not know precisely how many individuals in wheelchairs were obstructed by each of these reported obstacles, they rebut Kmart’s claims that the experiences of putative class members were isolated and temporary.
Putting aside the company-wide policies that permit or even mandate barriers to individuals with disabilities -- which barriers are, by definition, neither isolated nor temporary -these numbers and the results of a survey commissioned by Kmart this past summer make clear that disability discrimination is neither isolated nor temporary at Kmart. While no case has
17(...continued) total commenting respondents; applying this method to the 6.1% figure would project that 1,804 individuals had similar complaints that month. See id. at 3; see also Second Robertson Decl. Ex 23 (excerpts from the deposition of Tammy Pretre) at 12-13. In any event, surveys performed for Kmart this summer confirm the continued presence of these barriers. See infra Section VIII.A.
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analyzed 28 C.F.R. § 36.211(b) in depth,18 one court’s analysis of an identical provision in the ADA transportation regulations suggests that a discrimination rate as low as 3% cannot be considered isolated or temporary. The plaintiffs in Cupolo v. Bay Area Rapid Transit, 5 F. Supp. 2d 1078 (N.D. Cal. 1997), individuals who used wheelchairs, were suing BART, San Francisco’s rapid transit authority, alleging that BART’s elevators were often out of order. BART asserted that problems with its elevators were isolated and temporary and therefore excusable under 49 C.F.R. § 37.161(c), which contains “isolated or temporary” language identical to that of 28 C.F.R. § 36.211(b). BART provided evidence that elevators were available over 97% of the time. Cupolo, at 1080-81. The court held that “the problems encountered by class members are not simply isolated or temporary interruptions due to maintenance or repairs.” Id. at 1083.19 That is, a barrier that arose 3% of the time was not isolated or temporary. The mystery shopper comments analyzed above suggest that barriers occur at Kmart stores at least 28% of the time. Results of Kmart’s “expert” survey -- discussed in greater detail in Section VIII.A below -- and its own in-house ADA surveys show various ADA violations occurring at rates ranging from 6% to 46%. (See Second Robertson Decl. Exs. 1-5).
18 The only case that mentions 28 C.F.R. 36.211 states simply that “defendant must periodically monitor and maintain all such equipment to ensure that it continues to comply with the Title III Standards,” and that “Title III regulations expressly require that accessible features and equipment be maintained in operable working condition.” Independent Living Resources v. Oregon Arena Corp., 1 F. Supp. 2d 1124, 1136, 1142 n.11 (D. Or. 1998).
19 BART also argued that any elevator problems were promptly repaired and that it provided alternative transportation when elevators were out of order. The court rejected this, holding that the regulations “do not provide that prompt repair and reasonable accommodations serve as defenses to claims of ADA violations.” Id. at 1083-84.
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Cases relied on by Kmart are not to the contrary, as each addresses only a single instance of discrimination. None arose in the context of a putative class action with evidence of repeated violations and centralized policies that caused the barriers or violations in question. See Anderson v. Ross Stores, Inc., No. C99-4056, 2000 WL 1585269 at * 1 (N.D. Cal. Oct. 10, 2000) (Mintz Decl. Ex. 3) (challenging a single instance in which plaintiff requested a reasonable accommodation); Tanner v. Wal-Mart Stores, Inc., Civ. No. 99-44-JD, 2000 U.S. Dist. LEXIS 1444, *16-17 (D.N.H. Feb. 8, 2000) (Mintz Decl. Ex. 8) (challenging a single incident on which the defendant failed to remove ice and snow from its parking lot); Pack v. Arkansas Valley Corr. Facility, 894 P. 2d 34, 39 (Colo. App. 1993) (same). Kmart is essentially arguing that each time an individual disabled Kmart shopper encounters a discriminatory barrier, that experience stands alone and cannot be analyzed together with all of the other experiences and policies demonstrated in Named Plaintiffs’ Class Memorandum. This runs counter not only to common sense, but to the words of Kmart’s lead counsel, written in describing the role of statistics in civil rights cases: “Discrimination is more likely to be a systemic condition related to widespread practices than a series of isolated events . . ..” Walter B. Connolly, Jr., David W. Peterson & Michael J. Connolly, Use of Statistics in Equal Employment Opportunity Litigation § 1.01 (1980 & Supp. 2000).
G. Cases on Which Kmart Relies Are Distinguishable. Kmart relies on a number of cases to attempt to defeat Named Plaintiffs’ arguments for commonality. All are distinguishable. For example, Kmart cites to several cases in which the plaintiffs were attempting to certify a class under Rule 23(b)(3) and/or to maintain claims for
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damages for individual class members. Clopton v. Budget Rent A Car, 197 F.R.D. 502, 506-07 (N.D. Ala. 2000); Demkowitz v. Endry, 411 F. Supp. 1184, 1194-95 (S.D. Ohio 1975); Faulk, 184 F.R.D. at 662-63. Named Plaintiffs here move to certify a class under Rule 23(b)(2) and do not seek damages on behalf of the class. Because the entitlement of any one class member to damages requires a more individualized evaluation than the entitlement of a class to injunctive relief, and because Rule 23(b)(3) requires common questions to “predominate” over individual ones -- a requirement not found in Rule 23(b)(2), see Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988) -- these cases are inapposite.
Kmart also relies on several cases for the proposition that class certification is inappropriate where multiple facilities are involved. For example, Kmart cites the Faulk case with the following parenthetical: “‘the problem of multiple facilities creates a formidable barrier to class certification of the Plaintiffs’ . . . claims . . . [which] are sufficiently different that they will require different proof to establish liability.’” (Class Opp. at 50 (ellipses in original).) In fact, the Faulk court held that Rule 23(a) commonality existed for a multiple-facility employment class with respect to hiring and promotion claims but that it did not with respect to hostile environment claims. The language Kmart purported to cite from Faulk in fact reads (with omitted text underlined): “The problem of multiple facilities creates a formidable barrier to class certification of the Plaintiffs’ hostile environment claims;” and, three paragraphs later, “In sum, the Plaintiffs have established commonality and typicality with regard to Home Oil’s hiring and promotion practices. They have not met the prerequisites with regard to their hostile environment claims. The individual claims of hostile environment are sufficiently different that
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they will require different proof to establish liability.” As noted above, the court ultimately refused to certify any class on the grounds that it did not satisfy Rule 23(b)(3), not at issue in the present case. Id., 184 F.R.D. at 659. Faulk thus supports Rule 23(a)(2) commonality here, as Named Plaintiffs’ challenge to Kmart’s polices is analogous to the Faulk plaintiffs’ challenge to hiring and promotion policies, and does not require the individualized assessment of the class members’ state of mind that would have been required by a hostile environment class.
The remainder of Kmart’s multiple-facility cases all present circumstances very different from the present case. In Lott v. Westinghouse Savannah River Co., Inc., 200 F.R.D. 539 (D.S.C. 2000), for example, the plaintiffs attempted to certify a class of employees that included all job classifications from general counsel to day laborers in a series of different types of operations ranging from “nuclear operations to firefighting to medical services to construction to janitorial services,” each of which had its own set of personnel procedures. Id. at 554-55. In contrast, Kmart concedes that it has a single Store Operating Policies manual, now being supplanted by a single set of “Golden Rods” policy memoranda, for all of its stores. (Class Opp. at 15.) In several other multiple-facility cases cited by Kmart, the plaintiffs simply did not provide evidence of centralized policies or support for the existence of claims other than those of named plaintiffs. In Seidel v. General Motors Acceptance Corp., 93 F.R.D. 122 (W.D. Wash. 1981), instead of rebutting defendant’s evidence of decentralization by pointing to centralized policies, the plaintiffs offered only statistics showing “similar patterns and trends around the country, from which plaintiffs would have the Court infer that ‘[s]urely there must be a master plan.’” Id. at 124. In Stambaugh v. Kansas Dep’t of Corr., 151 F.R.D. 664 (D. Kan. 1993), the
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complaint described two instances of alleged failure to promote on the basis of sex. The court
held that the plaintiffs had not given it “any basis to infer that beyond themselves are still more
female employees who were denied upper-level promotions” on a discriminatory basis. Id. at
673 n.4; see also Bradford v. Sears, Roebuck and Co., 673 F.2d 792, 793, 795-96 (5th Cir. 1982)
(reversing class certification because the defendant had submitted an unrebutted affidavit that its
policies differed from facility to facility); Bostron v. Apfel, 182 F.R.D. 188, 195-96 (D. Md.
1998) (declining to certify a class of white, male Social Security employees, in part because “the
record . . . [was] essentially silent concerning the locus of autonomy in making the challenged
employment decisions . . ..”). While relying on these inapposite cases, Kmart ignores many
cases in which multiple-facility or nationwide classes have been certified.20
Finally, Kmart argues that the proposed class lacks commonality because it “rais[es]
issues under state laws that vary across the states where class members may be found.” (Class
Opp. at 60 & n.50.) No such state statutes are at issue in this litigation; rather, the proposed class
20 See, e.g., Anderson v. Conejo, 199 F.R.D. 228, 267 (N.D. Ill. 2000) (certifying a nationwide case of women who had been subject to certain types of searches by Customs at any United States international airport); Butler v. Home Depot, Inc., No. C-94-4335 SI, 1996 WL 421436 at *1 (N.D. Cal. Jan 25, 1996) (Rep. App. Tab 19) (certifying a class of all female applicants and employees within the West Coast division of Home Depot); Shores, 1996 WL 407850 at *1, *10 (certifying class of female employees at 500 retail grocery stores in Florida, Georgia and South Carolina); Grijalva, 1995 WL 523609 at *1, *7 (certifying nationwide class involving one hundred HMOs around the country providing care to over one million Medicare beneficiaries); Roman v. Korson, 152 F.R.D. 101, 112 (W. D. Mich. 1993) (certifying class of migrant farmworkers challenging wrongfully-charged rent in certain federally-subsidized farmer-owned housing nationwide); Haynes, 1992 WL 752127 at *20 (certifying a class of storelevel employees at two different commonly-owned restaurant chains); see also cases cited supra n.7.
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will have a single claim under the federal Americans with Disabilities Act.21 This distinguishes the present case from all of the cases on which Kmart relies, each of which involves an attempt to certify a multi-state class to bring state common law and/or statutory claims under circumstances in which the laws at issue differ state-to-state. See Castano v. American Tobacco Co, 84 F.3d 734, 737, 741-44 (5th Cir. 1996) (declining to certify multi-state class of tobacco users bringing state common law and statutory claims); Clay v. American Tobacco Co., 188 F.R.D. 483, 487, 495 (S.D. Ill. 1999) (same); In re Jackson Nat’l Life Ins. Co. Premium Litig., 183 F.R.D. 217, 222-23 (W.D. Mich. 1998) (declining to certify multi-state class of purchasers of life insurance bringing state law fraud claims); In re Ford Motor Co. Ignition Switch Prod. Liab. Litig., 174 F.R.D. 332, 338, 340 (D.N.J. 1997) (declining to certify a multi-state class of automobile purchasers bringing state and federal claims); Walsh v. Ford Motor Co., 130 F.R.D. 260, 271 (D.D. C. 1990) (same), app. dism., 945 F.2d 1188 (D.C. Cir. 1991).
Kmart also argues that compliance with the ADA “implicates” rights under various state and local access provisions, offering two examples of such provisions that require wider accessible parking spaces than the federal standards. (See Class Opp. at 61.) Named Plaintiffs must, apparently, clarify that they will not seek to reduce wheelchair access at any Kmart store in any state. Any Kmart store in compliance with more aggressive state or local standards would not, by definition, be in violation of the ADA. In Kmart’s parking space example, the width
21 Although the Named Plaintiffs bring claims individually under Colorado law, they do not assert these claims or other state claims on behalf of the class. See Amended Class Action Complaint at 17. This will not impact other class members’ state law claims. See infra Sections IV and V.A.
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provided in the Department of Justice Standards for Accessible Design (“Standards”) is a minimum, id., 28 C.F.R. pt. 36, app. A, § 4.6.3, and spaces complying with the more generous California or Florida standards would not be in violation. The fact that state statutes may address the same subject matter as a federal statute at issue in a class action should not bar certification, as classes are regularly certified under, for example, federal securities and employment statutes regardless of the fact that rights under state statutes governing those same areas might be “implicated.” II. Named Plaintiffs Have Demonstrated That Joinder is Impracticable.
As set forth in Named Plaintiffs’ Class Memorandum, there are more than two million persons age 15 and older in the United States who use wheelchairs and, as a matter of simple logic, many of these potential class members are among the approximately 180 million customers each year who patronize the 2,100 Kmart stores located in all 50 states. (See Class Mem. at 30.) Therefore joinder is impracticable.
Kmart does not dispute these statistics, nor does it argue that joinder in this case would be practicable. Instead it attacks the method used by Named Plaintiffs to estimate of the number of persons in the class as “pure conjecture.” But the exact size of the class is irrelevant. Because “the exact size of the class is unknown,” and the undisputed statistics demonstrate that it is “common sense that it is large, the Court will take judicial notice of this fact and will assume that joinder is impracticable.” 2 Robert Newberg, Newberg on Class Actions § 7.22 at 7-77 (1992 & 2001 Supp.) (“Newberg”); see also Butt v. Allegheny Pepsi-Cola Bottling Co., 116
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F.R.D. 486, 488 (E.D. Va. 1987) (taking judicial notice that class was large and joinder impracticable).
In any event, Named Plaintiffs used census statistics and Kmart’s own figures to estimate that the class of Kmart shoppers who use wheelchairs likely numbers around 1,700,000. This is in accord with the method approved in Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354 (D. Colo. 1999), which held that the court may make “common sense assumptions” to support numerosity, including reliance on census figures. Id. at 358. Kmart attacks this analysis, relying in part on the case of Barlow v. Marion County Hosp., 88 F.R.D. 619 (M.D. Fla. 1980) (cited in Class Opp. at 47). The Barlow case, however, approved of a method much like that used by Named Plaintiffs here, holding that plaintiffs seeking to certify a class of recipients of free or low-cost medical services satisfied the numerosity requirement when they used survey data to estimate the number of individuals eligible for services and applied the defendant’s figures for the rate of utilization in the general population to estimate the class size. Id. at 624, 625. Here, Named Plaintiffs used census data of Americans who use wheelchairs and Kmart’s estimate that 85% of the population shops in its stores to estimate the class size. See also Miller v. Spring Valley Props., 202 F.R.D. 244, 248 (C.D. Ill. 2001) (certifying class of African-American applicants and renters in a fair housing case and approving method using total number of people who made appointments to see the defendants’ apartments and census data concerning number of African Americans in population).
Kmart also argues that Named Plaintiffs have not established a link between their estimate and the claims for which they seek certification, that is, that they have not demonstrated
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how many wheelchair-using Kmart shoppers have encountered discrimination at Kmart. However, it is very common, especially in a Rule 23(b)(2) class, for a class of individuals subject to the discriminatory behavior to be certified, without precise proof of the number who have actually experienced it. For example, in Faulk, the court certified a class of AfricanAmerican employees where the plaintiffs identified 164 employees and 31 applicants “who potentially were affected by the alleged discriminatory policies.” Id., 184 F.R.D. at 654. The defendants objected that the plaintiffs’ expert had identified only nine additional management positions that should have gone to African-Americans, suggesting that only nine individuals suffered discrimination. The court disagreed, holding that, because the plaintiffs challenged the defendants’ practices, all of the individuals identified were appropriate class members, and thus numerosity was satisfied. Id., at 655. 22
Finally, Kmart challenges Named Plaintiffs’ class definition on the grounds that it contains no time limit. Kmart relies only on cases in which the class sought damages and

22

See also Karen L., 202 F.R.D. at 99 (holding numerosity satisfied where 77,000

individuals were eligible for the services in question, despite the fact that the plaintiffs did not

allege that all eligible individuals had been injured, as “it [was] reasonable to assume that many

of the enrollees have and many may experience such harm in the future” and that “the suit

concerns government policies that have been in place for some time.”). A number of cases have

held, without analysis, that a class satisfies numerosity based only on statistics going to the

number of individuals potentially affected by the challenged policy, without requiring an

analysis of how many were actually affected. See, e.g. Tartaglione, 2001 WL 1258089 at *5

(certifying class based on number of voters with disabilities, not number of same who had been

denied access to polling places); Civic Ass’n of the Deaf of New York City, Inc. v. Giuliani, 915

F. Supp. 622, 634 (S.D.N.Y. 1996) (certifying class based on number of Deaf New Yorkers, not

number of same who had been unable to use call boxes); Arnold, 158 F.R.D. at 448 (certifying

class based on number of wheelchair users and semi-ambulatory persons in California and the

conclusion that the “number of disabled persons affected by the alleged access violations” would

be large, rather than an estimate of those actually injured by the alleged discrimination).

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individualized injunctive relief. See Davoll v. Webb, 160 F.R.D. 142, 143 (D. Colo. 1995), aff’d 194 F.3d 1116 (10th Cir. 1999); Daigle v. Shell Oil Co., 133 F.R.D. 600, 602 (D. Colo. 1990). In contrast, the present case seeks only prospective, class-wide, injunctive relief, so there is little need to determine precisely the contours of the class. See Daniels, 198 F.R.D. at 416 (holding that “general class descriptions based on the harm allegedly suffered by plaintiffs [are] acceptable in class actions seeking only declaratory and injunctive relief under Rule 23(b)(2)”) (citations omitted)). That said, this Court has the discretion to adopt a class definition different from that in the complaint or motion, Colorado Cross-Disability Coalition, 184 F.R.D. at 357, and Named Plaintiffs do not object to a class definition that incorporates a two-year limitation.
III. Because Named Plaintiffs’ Claims Do Not Have Unique Defenses, Kmart’s Only Argument as to Typicality Fails. Kmart argues that typicality is not satisfied because Named Plaintiffs’ claims are subject
to unique defenses. In making this argument, Kmart points to a single defense that it alleges differs among its stores, not among Named Plaintiffs and putative class members. The cases on which Kmart relies, however, involve defenses unique to a named plaintiff as an individual. See Hanon v. Dataproducts Corp., 976 F.2d 497, 508-09 (9th Cir. 1992) (holding that named plaintiff in securities class action had unique defense based on the questionability of his reliance on the integrity of the market); Queen Uno Ltd. P’ship v. Coeur D’Alene Mines Corp., 183 F.R.D. 687, 692 (D. Colo. 1998) (holding that named plaintiff in securities class action had unique defenses because it was a market maker in the stock in question). Kmart does not cite to a case that holds that typicality is defeated in a multiple-facility case by defenses that might apply to one facility
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rather than another. In any event, the single defense on which Kmart relies -- the “readily achievable” defense of § 12182(b)(2)(A)(iv) -- looks to the resources of the entire company rather than just that of the individual facility, see 28 C.F.R. § 36.104, and will be applicable to only a handful of stores. See infra at 40.
The remainder of the cases cited by Kmart in opposition to typicality include three in which typicality was found to exist, see Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984), cert. denied, 470 U.S. 1004 (1985), Neff v. VIA Metropolitan Transit Authority, 179 F.R.D. 185, 194 (W.D. Tex. 1998), and Lightbourn, 118 F.3d at 426, and three that are distinguishable from the present circumstances. See Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 340-42 (4th Cir. 1998) (holding typicality did not exist in franchisee class action for breach of contract and fraud because named plaintiffs and class members were parties to different franchise agreements and because questions of reliance on misrepresentations, tolling of statute of limitations and damages were individualized); Butterworth v. Quick & Reilly, Inc., 171 F.R.D. 319, 321-22 (M.D. Fla. 1997) (holding typicality did not exist in securities class action where cause of action depended on reliance by each class member on different representations); Hall v. Burger King Corp., No. 89-0260, 1992 WL 372354 at *7 (S.D. Fla. Oct. 26, 1992) (Mintz Decl. Ex. 5) (holding typicality did not exist in race discrimination class action by franchisees as there was no common problem asserted by all named plaintiffs). IV. Because Class Certification in the Present Case Will Not Have a Preclusive Effect
on Class Members’ State Law Claims, Kmart’s Only Argument as to Representation Fails.
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Kmart’s only objection to Named Plaintiffs’ ability adequately to represent the class is that class claims for injunctive relief under Title III of the ADA would have a preclusive effect on class members’ claims for damages under state disability discrimination laws. Kmart relies on a single Texas district court decision materially different from the case at bar. (See Class Opp. at 67-71 (citing Zachery v. Texaco Exploration and Prod., Inc., 185 F.R.D. 230 (W.D. Tex. 1999)).) It is well established, however, that certification of a class seeking only injunctive or declaratory relief does not preclude individual damage actions by class members. Indeed, any contrary rule would vitiate Rule 23(b)(2). Because the preclusive effect on which Kmart relies does not exist, Kmart’s argument fails.
Numerous courts have held that a class action seeking only injunctive or declaratory relief does not bar class members from bringing individual actions for damages. This issue often arises in actions challenging prison conditions. For example, in Fortner v. Thomas, 983 F.2d 1024, 1026 (11th Cir. 1993), several inmates brought suit under 42 U.S.C. § 1983 seeking monetary and injunctive relief for alleged constitutional violations. The district court dismissed the claims on the ground that they were barred because the claims had been litigated in a prior class action in which only injunctive relief had been sought. The Eleventh Circuit reversed, holding:
It is clear that a prisoner’s claim for monetary damages or other particularized relief is not barred if the class representative sought only declaratory and injunctive relief, even if the prisoner is a member of a pending class action . . . Because the class representatives in [the prior class action] sought only injunctive relief for the alleged unconstitutional conditions and practices of the Georgia
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prison system, the district court erred in dismissing the appellants’ complaint which included a claim for monetary damages.
Id. at 1031. Many other courts, including the Tenth Circuit, follow the rule that a class action
seeking only injunctive or declaratory relief does not bar class members from bringing individual
damage claims. See, e.g., McNeil v. Guthrie, 945 F.2d 1163, 1166 n.4 (10th Cir. 1991) (holding
that “class members may bring individual actions when they seek money damages.”).23
The single case cited by Kmart is not to the contrary. First, unlike Title III of the ADA,
which does not provide for damages, see § 12188, the class claim in Zachery was brought under
Title VI/I of the Civil Rights Act of 1964, which does provide for damages. See id., 185 F.R.D.
at 237 (citing 42 U.S.C. § 1981a(a)(1)). Second, the plaintiffs in Zachery had initially sought
damages on behalf of the class but later amended their complaint and their motion for class
certification to drop the damage claims. Id. at 234. Courts have recognized that once class
representatives assert a claim on behalf of a class, there is a possibility that dropping the claim
may prejudice class members. See, e.g., In re Nazi Era Cases Against German Defendants
Litig., 198 F.R.D. 429, 439 (D.N.J. 2000) (“Court approval of a dismissal pursuant to Rule 23(e)
23 See also, e.g., Hiser v. Franklin, 94 F.3d 1287, 1291 (9th Cir. 1996) holding that (“‘every federal court of appeals that has considered the question has held that a class action seeking only declaratory or injunctive relief does not bar subsequent individual suits for damages.’” (citation omitted)); Norris v. Slothouber, 718 F.2d 1116, 1117 (D.C. Cir. 1983) (holding that “[a] suit for damages is not precluded by reason of the plaintiff's membership in a class for which no monetary relief is sought.”); Crowder v. Lash, 687 F.2d 996, 1009 (7th Cir. 1982) (Applying rule and noting that “several circuits have held that where a prisoner seeks damages for allegedly unconstitutional conditions of confinement he is not precluded by an earlier class action in which only declaratory and injunctive relief were sought.”); Bogard v. Cook, 586 F.2d 399, 406-9 (5th Cir. 1978) (holding that individual claim for damages not barred by prior class action seeking equitable relief), cert. denied, 444 U.S. 883 (1979).
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prevents the class action device from being used in an abusive manner . . . as it allows a court to ensure that the representative plaintiffs have not settled or dismissed their claims to the prejudice of a prospective class prior to certification . . ..”). As such, Zachery is distinguishable from the present case and the overwhelming weight of precedent demonstrates that certifying this class will not bar individual damage claims. Kmart’s objection to certification on this ground should be rejected.
V. Certification Pursuant to Rule 23(b)(2) is Appropriate. A. Named Plaintiffs’ Individual Damages Claims Are Irrelevant to Certification under Rule 23(b)(2). Class certification under Rule 23(b)(2) is generally appropriate only where the class is
not asserting claims for damages or where such claims are incidental to the injunctive relief requested. See, e.g., Colorado Cross-Disability Coalition, 184 F.R.D. at 361-62. Here, because there is no damages claim asserted on behalf of the class, this issue should not arise. Kmart argues that the fact that Named Plaintiffs are seeking damages for themselves may cause class members’ claims to be barred by res judicata. Kmart is mistaken.
Kmart bases its argument on Ticor Title Ins. Co. v. Brown, 511 U.S. 117 (1994). The class in Ticor originally sought both monetary and equitable relief but settled the case on terms that dropped the monetary claims. See Brown v. Ticor Title Ins. Co., 982 F.2d 386, 389 (9th Cir.
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1992). The court approved the settlement and certified the class under Rules 23(b)(1) and 23(b)(2), but did not give absent class members the right to opt out. Id. Absent class members later brought an action seeking monetary damages, and the district court dismissed the claims on the ground that they were barred by res judicata as a result of the class action settlement. Id. at 390. The Ninth Circuit reversed, holding that, “because [the absent class members] had no opportunity to opt out . . . there would be a violation of minimal due process if [their] damage claims were held barred by res judicata.” Id. at 392. The Supreme Court initially granted the writ of certiorari but subsequently dismissed the writ as improvidently granted. Ticor, 511 U.S. at 122. In dictum, the Court made clear that the issue presented by Ticor concerned only whether “absent class members have a constitutional due process right to opt out of any class action which asserts monetary claims on their behalf.” Id. at 120-21 (emphasis added).
Nothing in Ticor implicates damage claims brought by Named Plaintiffs on their own behalf but not that of the class. The concern in Ticor -- that absent class members should have the choice not to participate in a class action if they are going to be bound by a judgment in that action -- does not apply to monetary claims brought only by Named Plaintiffs, who by definition chose to bring the lawsuit. Indeed courts routinely certify classes under Rule 23(b)(2) in actions in which the named plaintiffs seek damages only for themselves. See, e.g., Daniels, 198 F.R.D. at 416; Siddiqi, 2000 U.S. Dist. LEXIS 19930 at *28 n.4.
B. The Proposed Class Satisfies 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
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relief or corresponding declaratory relief with respect to the class as a whole . . ..” Kmart’s attempt to show this provision inapplicable succeeds only in underscoring its applicability. Kmart cites to five “Kmart policies of general applicability that affect Plaintiffs and the putative class members . . ..” (Class Opp. at 73.) While Named Plaintiffs argue that there are far more policies and policy failures that represent examples of Kmart acting and refusing to act on grounds generally applicable to the class, Kmart’s acknowledgment of these five policies -- the adequacy of which Named Plaintiffs contest -- is certainly sufficient to support certification under Rule 23(b)(2). The other policies and policy failures alleged by Named Plaintiffs also support such certification.
Indeed, as one court has recently held, the plaintiffs do not need to point to a specific policy to support certification pursuant to Rule 23(b)(2). In certifying a class of Deaf employees challenging their employer’s policies and policy failures, the court in Bates v. United Parcel Service, held that such a requirement:
would lead to the unacceptable conclusion that an employer could protect itself from any class action suit simply by failing to adopt specific policies. That result seems particularly egregious in cases like this one, where plaintiffs claim that an employer’s failure to adopt specific policies is the very reason that the employer is in violation of anti-discrimination laws. Id., 2001 WL 1482023 at *7. Named Plaintiffs challenge Kmart’s failure to promulgate specific policies sufficient to prevent discriminatory barriers; as was the case in Bates, this is sufficient for Rule 23(b)(2). See also, e.g., Lightbourn, 118 F.3d at 426 (holding that “Rule 23(b)(2) clearly applies” to case alleging failure to ensure accessible polling places because the defendant has “‘acted or refused to act’ on grounds generally applicable to the class.”); Daniels, 198 F.R.D.
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at 414 (holding that certification pursuant to Rule 23(b)(2) was “especially appropriate where a plaintiff seeks injunctive relief against discriminatory practices by a defendant”); Grijalva, 1995 WL 523609 at *2 (holding that defendant’s failure to monitor Medicare HMOs and to implement effective appeals system “has affected the entire class,” making Rule 23(b)(2) appropriate). VI. Named Plaintiffs’ Claims Are Best Tried as a Class Action.
Kmart argues throughout its brief that this case will require store-by-store analysis under varying standards. While these manageabilty issues are not technically part of the analysis of a Rule 23(b)(2) class, compare Rule 23(b)(2) with Rule 23(b)(3)(D), it may be helpful to review the factors that make this case not only manageable but ideal for class certification.
Much of the discrimination alleged by Named Plaintiffs can be remedied at Kmart’s headquarters. Where Named Plaintiffs challenge policies or policy failures, those allegations can be addressed by an analysis of Kmart’s company-wide policies and training. Even where Kmart asserts that store-level information is necessary, the required information is generated and/or collected by Kmart’s headquarters. For example, although Kmart complains that an analysis of the spacing of clothing racks will require a store-by-store analysis, it concedes that Kmart’s Store Planning department “creates a fixture floor plan for each store” and that this plan “is, in essence, a blue print of the entire interior of a Kmart store. . . . [including] the location of . . . various permanent and temporary fixtures . . ..” (Declaration of Michael Francis in Opposition to Plaintiffs’ Motion for Class Certification (“Francis Decl.”) ¶¶ 8-9 (emphasis in original).) Should this Court determine that the ADA requires more than 24 inches to provide access to clothing racks, it can order Kmart to adjust its company-wide minimum and to design new
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layouts at headquarters for distribution to its stores, fully in tune with Kmart’s existing procedure.
Kmart’s procedure for architectural compliance is also centralized at headquarters. For example, Kmart asserts that, should this Court certify the requested class, it “would have to count the parking spaces to determine the accessible ratio at each store . . ..” (Class Opp. at 2 (emphasis in original).) Documents turned over to Named Plaintiffs pursuant to their motion to compel reveal that Kmart has already undertaken this task in at least 1,441 stores -- and that approximately 39% of them are out of compliance. (See Second Robertson Decl. ¶ 17.) Because ADA compliance efforts have long been directed and coordinated by Kmart’s headquarters, (see, e.g., Declaration of Bruce Glasser in Opposition to Plaintiffs’ Motion for Class Certification (“Glasser Decl.”) ¶¶ 4, 7, 11, 20, 27-33, 37, 47, 57-58, 62-64), that office should be wellprepared to manage any assessment or remedy required by this litigation.
Finally, with respect to architectural violations, Kmart asserts that the Court would have to evaluate the age and extent of renovations at each store to determine which standard to apply. (Class Opp. at 35-36.) Kmart’s own submissions demonstrate, however, that a single standard would govern all but a few stores. The ADA requires facilities built after January 26, 1993 to comply with the Standards. § 12183(a)(1); 28 C.F.R. § 36.406(a). This standard thus applies to the 442 stores that Kmart states were built after January 26, 1993. (See Class Opp. at 35 n.37.) In addition, where part of a facility is altered, it, too, must comply with the Standards. § 12183(a)(2); 28 C.F.R. § 36.406(a). Kmart has admitted that its “High Frequency Refurb” program “involved changing the entire layout of most existing stores.” (Francis Decl. ¶ 14; see
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also Glasser Decl. ¶ 53.) As a result, at stores having undergone the High Frequency Refurb, the entire store must comply with the Standards. Kmart states further that 1,858 Kmart stores -- that is, all but about 24 stores -- have undergone this refurbishment program. (Glasser Decl. ¶ 54; see also Francis Decl. ¶ 17; Francis Dep. at 47:19 - 48:16 (Rep. App. Tab 24).) That is, all but about 24 of Kmart’s 2,113 stores will be analyzed under a single set of standards: The DOJ’s Standards for Accessible Design.
Even the application of a single standard to 2,100 stores may still leave the Court with the task of assessing compliance of certain architectural features in each store with that standard. As discussed above, some of this information may already be available from Kmart. However, under similar circumstances, this Court has seen fit to appoint a special master. In Bridge Publications, Inc. v. F.A.C.T. Net, Inc., 183 F.R.D. 254 (D. Colo. 1998), this Court faced the task of determining the validity of the copyright of 1,914 works. Id. at 256. It appointed a special master to prepare findings on the validity of each, which findings could then be challenged by either party. Id. at 264.
The alternative to class treatment here is 2,113 separate trials in various districts around the country. This procedure contains the potential to set very different standards for Kmart’s centralized policies; that is, Kmart may ultimately have to issue separate policies for each store following entry of judgment against that store. VII. Named Plaintiffs Have Standing to Bring this Action and to Represent the Class.
Kmart argues that Named Plaintiffs lack standing to bring this action both because they have not visited all of its 2,113 stores and because they do not provide evidence of an imminent
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plan to visit all 2,113 stores in the near future. Neither is required. Rather, because Named Plaintiffs have standing to challenge all of the practices at issue here, they have standing both to bring this action and to act as a class representative.
A. Named Plaintiffs Are Not Required to Visit or Plan to Visit All 2,113 Kmart Stores.
Named Plaintiffs must have standing in order to represent the class. This simply means that they “must have personally sustained or be in immediate danger of sustaining ‘some direct injury as a result of the challenged . . . conduct.’” Armstrong v. Davis, No. 00-15132, --- F.3d --, 2001 WL 1506518 at *6 (9th Cir. Nov. 28, 2001) (quoting O’Shea v. Littleton, 414 U.S. 488, 494 (1974) (ellipses supplied)). It does not mean that they must have standing to bring each class member’s claim as to each store in the country. Indeed, Kmart’s argument represents a fundamental misunderstanding of the class action mechanism. “Class actions are representative suits on behalf of groups of persons similarly situated. [The class action] is a nontraditional litigation procedure that permits a representative with typical claims to sue or defend on behalf of, and stand in judgment for, a class ‘when the question is of common or general interest to . . . persons . . . so numerous as to make it impracticable to bring them all before the court. . .’” 1 Newberg § 1.01 at 1-2 - 1-3 (quoting Equity Rule 38, 33 Sup. Ct. xxix (1912)). In other words, although it is hornbook standing law that one person cannot bring a claim on behalf of another, see, e.g., Warth v. Seldin, 422 U.S. 490, 499 (1975), class actions permit one person -- the named or representative plaintiff -- to bring claims on behalf of numerous others not party to the case. The prerequisites of Rule 23 serve to ensure that -- once a representative plaintiff has
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established his own standing -- he can represent the interests of others. 1 Newberg § 2.06 at 229 - 31; see also 7B Charles Alan Wright et al., Federal Practice and Procedure § 1785.1 (2d ed. 1986 & Supp. 2001) (“As long as the representative parties have a direct and substantial interest, they have standing; the question whether they may be allowed to present claims on behalf of others who have similar, but not identical, interests depends not on standing, but on an assessment of typicality and adequacy of representation”). As explained below, Named Plaintiffs have standing to challenge Kmart’s discriminatory barriers and policies based on the injuries they have suffered and their intent to continue to shop at Kmart; as explained above and in Named Plaintiffs’ Class Memorandum, they satisfy Rule 23(a) and (b)(2) with respect to those claims. Named Plaintiffs thus have standing to challenge Kmart’s policies and practices on behalf of a class of individuals who have been injured by them in all of Kmart’s stores around the country.
Perhaps because of its fundamental misunderstanding of the mechanics of a class action, almost none of the cases on which Kmart relies in its standing argument arose in the context of a class action. Indeed, in one of the cases on which it relies -- which held that an individual did not have standing to challenge ADA violations at lottery retailers he had not visited -- the court specifically noted, “Plaintiff is not bringing this case as a class action. Although he unquestionably hopes that this action will aid other disabled persons, he is asking for relief as an individual.” Tyler v. Kan. Lottery, 14 F. Supp. 2d 1220, 1224-25 (D. Kan. 1998); see also Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-67 (1972) (holding individual AfricanAmerican lacked standing to challenge membership policies of all-white club because he had not
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applied for membership); Citizens Concerned About Our Children v. Sch. Bd., 193 F.3d 1285,
1290 (11th Cir. 1999) (holding two individual students lacked standing to challenge
discrimination at schools they did not attend).24 Kmart relies on the rejection of the individual
claims in Citizens Concerned and Tyler for the proposition that “[a] civil rights claim relating
only to one facility, or even a handful of facilities operated by the same defendant, does not
confer standing to seek sweeping injunctive relief with respect to all of the defendant’s
facilities,” (Class Opp. at 41), but ignores the many civil rights class actions challenging
conditions at multiple facilities. (See cases cited supra n.20.)
24 See also Shotz v Cates, 256 F.3d 1077, 1082 (11th Cir. 2001) (holding that individual disabled plaintiffs did not have standing to challenge barriers in courthouse because past visits to courthouse did not indicate an immediate and real threat of future discrimination); Steger v Franco, 228 F.3d 889, 892-93 (8th Cir. 2000) (holding individual disabled plaintiffs who offered no evidence of their intent to visit defendant’s office building in the future lacked standing to seek injunctive relief requiring defendant to bring building into compliance with the ADA); Jairath v. Dyer, 154 F.3d 1280, 1283 (11th Cir. 1998) (holding individual HIV positive plaintiff lacked standing to seek injunctive relief against a doctor from whom he was not likely to seek treatment again); Access Now, Inc. v. S. Fla. Stadium Corp., 161 F. Supp. 2d 1357, 1365 (S.D. Fla. 2001) (holding individual plaintiff did not have standing to bring claims “about which he lacked actual knowledge, pursuant either to his personal encounter with those violations or by expert testimony, when the Complaint was filed.”); Deck v. Am. Haw. Cruises, Inc., 121 F. Supp. 2d 1292, 1299 (D. Haw. 2000) (holding individual plaintiff who stated only that she intended in the future to “look into taking” additional cruises lacked standing to seek injunctive relief pursuant to the ADA against defendant cruise line); Delil v. El Torito Restaurants, Inc., No. 94-3900, 1997 WL 714866 at *3-4 (N.D. Cal. June 24, 1997) (Mintz Decl. Ex. 4) (holding individual plaintiff who resided over 100 miles away from a restaurant to which she was allegedly denied access in violation of the ADA, was unlikely to visit the restaurant again, and therefore, did not have standing to seek injunctive relief compelling its alteration); Aikens v. St. Helena Hosp. 843 F. Supp. 1329, 1333-34 (N.D. Cal. 1994) (holding that individual hearingimpaired plaintiff who was denied a sign language interpreter during an emergency hospital visit had no standing to seek injunctive relief because she failed to show either that she was likely to use the hospital in the near future or that, if she did so, the hospital would again fail to provide an interpreter).
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One of the only class cases cited by Kmart underscores Named Plaintiffs’ standing to challenge Kmart’s conduct at all of its stores. The plaintiffs in Blum v. Yaretsky, 457 U.S. 991 (1982) (cited in Class Opp. at 40), represented a class of nursing home residents challenging decisions to transfer them without notice or hearing. Id. at 993. The named plaintiffs had been transferred to facilities offering lower levels of care, but had not been threatened with any other type of transfer, so they did not have standing to represent individuals who were threatened with such other transfers. Id. at 995, 999. This did not stop the named plaintiffs -- residents of a single nursing home -- from representing a class that encompassed “Medicaid-eligible residents of New York nursing homes,” id. at 995-96, that is, facilities other than the one in which they resided.
B. Named Plaintiffs Have Standing to Challenge Kmart’s Discriminatory Practices.
The Steger case -- on which Kmart relies -- demonstrates that Named Plaintiffs have standing under Title III of the ADA. One of the plaintiffs, a vision-impaired individual, had been injured by the lack of Braille signage in the first floor men’s room of the defendant’s building. On that basis, he sought to challenge all ADA violations anywhere in the building. The Eighth Circuit made two separate holdings: (1) that this plaintiff did not have standing to challenge violations that did not affect him as a vision-impaired person; but (2) that he did have standing to challenge all vision-related violations throughout the building, regardless of whether he had encountered them or not. Id., 228 F.3d at 893-94. Kmart, in its Class Opposition, relies on the separate opinion of Judge Loken -- concurring in part and dissenting in part -- for a
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proposition that was rejected by the majority. (See Class Opp. at 42 (“proper standing must be limited even more specifically to those areas of a public accommodation that Plaintiffs have visited.”).) The majority’s holding on this point provides support for Named Plaintiffs’ standing to challenge all mobility-related barriers at Kmart stores, even if they have not personally encountered each one.
Lewis v. Casey, 518 U.S. 343 (1996), also relied on by Kmart, is in accord with the first of Steger’s holdings: That a plaintiff cannot challenge policies that do not affect him. In that case, a class of prisoners alleged that they were being denied access to the courts. The district court found actual injury on the part of only one named plaintiff: Failure to provide the services he required in light of the fact that he was illiterate. Id. at 358. On that basis, the Court held that the district court could not order relief as to prisoners whose injuries stemmed from different sources: the fact that they did not speak English or were in lockdown. Id. The sentence for which Kmart cites Lewis in fact supports Named Plaintiffs’ standing here: “The remedy must . . . be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Id. at 357 (quoted in Class Opp. at 42.) Named Plaintiffs challenge the inadequacies in Kmart policies and practices that “produced the injur[ies] in fact” that they have suffered, that is, those policies and practices that cause barriers to individuals with mobility impairments.25
25 Access Now, Inc. v. S. Fla. Stadium Corp., 161 F. Supp. 2d 1357 (S. D. Fla. 2001), submitted by Kmart in its Second Legal Supplement to Defendant Kmart Corporation’s Memorandum in Opposition to Plaintiffs’ Motion for Class Certification, is not to the contrary, as the plaintiff in that case was challenging specific physical barriers rather than policies and
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Kmart also asserts that Named Plaintiffs have not shown imminent future injury through plans either “to visit the well over 2100 Kmart stores they have never visited across the United States,” or even to visit the stores they have visited in the past. (Class Opp. at 43.) As discussed above, it is not their burden to show that they have standing with respect to each store; accordingly, they are under no obligation to manifest plans to take a 2100-store tour in the near future. All three Named Plaintiffs shop at Kmart stores regularly, and all intend to continue to do so in the future. (Second Lucas Decl. ¶ 3; Second Lane Decl. ¶ 2; Second Reiskin Decl. ¶ 2 (Rep. App. Tabs 10-12).) This is sufficient to confer standing. See, e.g., Access 123, Inc. v. Markey’s Lobster Pool, Inc., No. 00-382-JD, 2001 WL 920051 at *3 (D.N.H. 2001) (Rep. App. Tab 15) (holding one visit to restaurant coupled with intent to visit area restaurants in future and defendant’s lack of intent to remedy barriers sufficient to confer standing); Association For Disabled Americans v. Claypool Holdings, LLC, 2001 WL 1112109 at *20-21 (S.D. Ind. Aug. 6, 2001) (Rep. App. Tab 17) (holding that desire to stay in hotel in city in which plaintiff had family and to which he had traveled regularly in the past was sufficient to confer standing); Parr v. L & L Drive-Inn Restaurant, 96 F. Supp. 2d 1065, 1079 (D. Haw. 2000) (holding that one visit to a fast food restaurant coupled with the fact that the plaintiff had “developed a taste for [the defendant’s] food and [had] visited various [of the defendant’s other] restaurants” was sufficient to confer standing, especially in light of the fact that “[v]isiting a fast food restaurant, as opposed
25(...continued) practices. The court’s holding -- that the plaintiff was limited to challenging barriers he had experienced or of which he had notice, id. at 1365 -- supports the claims of Named Plaintiffs, who seek to change policies and practices they have encountered and of which they have notice.
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to a hotel or professional office, is not the sort of event that requires advance planning or the need for a reservation”).26
Because Named Plaintiffs have standing to challenge Kmart policies and practices that affect their disability -- mobility impairment -- and because they satisfy Rule 23 with respect to their challenge to those policies and practices, they have standing to represent the class.
VIII. Kmart’s Arguments to the Merits are Unavailing. In its Class Opposition, Kmart made a number of assertions concerning the compliance
of Kmart stores with the ADA and other merit-related questions. Although resolution of these issues is inappropriate at this stage, see Cook v. Rockwell Int’l Corp., 151 F.R.D. 378, 381 (D. Colo. 1993), Named Plaintiffs address them briefly below.
A. Kmart’s “ADA Experts,” to the Extent They Provide Relevant Information, Support Named Plaintiffs’ Motion for Class Certification.
Kmart retained the firms of Ican, Inc. (“Ican”) and Tucker, Spearman & Associates (“Tucker”) to perform surveys of 50 Kmart stores that Kmart asserts were randomly selected. (Class Opp. at 21 & n.20.) Ican’s founder, Heidi L. Van Arnem, and Tucker’s president, Joyce E. Tucker, submitted the signed Joint Report of Heidi L. Van Arnem & Joyce E. Tucker (“Joint
26 These contrast with the cases cited by Kmart, in which the plaintiffs had not provided evidence that they had plans to patronize the defendants’ facilities in the future. See cases cited supra n. 24.
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Report”),27 on which Kmart relies for its assertion that the stores surveyed “were generally
accessible to wheelchair and scooter users” and that any barriers they found “were temporary and isolated.” (Class Opp. at 21.)28 As explained below, this report (1) was drafted by Kmart’s
attorneys, (2) relies on data gathered by entities that were paid $200,000 for a little over one
month’s work, at least one of which has been sponsored by Kmart in the past, and neither of
which had prior experience assessing facilities for compliance with the ADA, (3) is
methodologically flawed and largely does not address the barriers at issue in this case, and
(4) contains conclusions that are contradicted by the data on which they purport to rely.
Kmart’s attorneys played a major role in the Ican/Tucker survey. Surveyors received no
formal training; the only “training” consisted of a pre-survey tour of one store by Kmart’s lead
counsel, Walter Connolly, Ican’s Vice President of Inspiration, Kenny Rudolph, surveyors
Heather Ashare and Patti Waxweiller, and Laurie Muhn, the star of the videotape discussed
below. (Rudolph Dep. at 46:4 - 46:24; see also Ashare Dep. at 9:1 - 9:7; Waxweiller Dep. at 9:9
- 9:13 (Rep. App. Tabs 4-6).) Kmart’s attorneys drafted the survey form. (Rudolph Dep. at
55:10 - 55:20 & Ex. 24.) After each survey, one member of the team would type up a summary
27 Sadly, not long after the submission of her declaration and Joint Report, Ms. Van Arnem fell critically ill. She passed away on November 11, 2001. As such, Named Plaintiffs did not have the opportunity to depose her. Named Plaintiffs do not challenge Kmart’s reliance on her declaration or the Joint Report in this context and accepted a deposition of Kenny Rudolph in her place. Based both on Ms. Van Arnem’s unavailability and on the deficiencies in the Joint Report, Named Plaintiffs reserve the right to move to strike should Kmart attempt to use the report in an adjudication of the merits.
28 Kmart also relies on the Joint Report and the Ican/Tucker surveys for the proposition that Kmart stores vary physically. Class Opp. at 21. As explained above, Named Plaintiffs do not contest this.
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which would be forwarded not to Ms. Van Arnem, but to Mr. Connolly. (Ashare Dep. at 27:1 27:12, 36:21 - 37:16. ) Ultimately, Foley & Lardner drafted the Joint Report itself. (Rudolph Dep. at 60:10 - 60:21 & Ex. 26.)
Although Kmart labels Ican and Tucker “ADA Experts,” (see Class Opp. at 21), Ican had not previously assessed a physical facility for compliance with the ADA, (Rudolph Dep. at 24:15 - 24:23), and the Tucker firm’s background is entirely in employment rather than public accommodations compliance. (See Declaration of Joyce E. Tucker in Opposition to Plaintiffs’ Motion for Class Certification ¶¶ 4-31; Joint Report ¶¶ 10-16.) Furthermore, Ican regards Kmart as its “business partner.” (Rudolph Dep. at 15:17 - 15:18.) Kmart began sponsoring Ican in the summer of 2000, when it paid $10,000 to be an official sponsor of an Ican event, and Kmart’s logo remains on Ican’s brochure. (Id. at 61:12 - 63:18 and Ex. 27.) Mr. Rudolph saw the survey project -- one of the biggest Ican has had -- as “part of an ongoing and growing relationship between Ican and Kmart.” (Id. at 26:14 - 27:5, 33:3 - 33:4.) This bias is best summed up in the email that Mr. Rudolph used to forward the draft Joint Report from Foley & Lardner to Ms. Van Arnem, in which he enthused, “Let’s keep the Kmart partnership (and revenue stream!) growing!” (Id. Ex. 26.) Kmart paid Ican $100,000 for the survey, which appears to have occurred between early July of this year and the submission of Kmart’s opposition on August 9, 2001. (See Rudolph Dep. at 26:1 - 26:24, 30:16 - 31:15, 47:17 - 48:9 & Ex. 23.) This is in addition to another $100,000 that was paid to Tucker for its role in the project. (See Second Robertson Decl. Ex. 18.)
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Methodologically, the survey was flawed. First, individual store managers knew in
advance that their stores would be surveyed, and knew the survey was being conducted while
surveyors were in their stores (see Ashare Dep. at 14:9 - 14:14, 16:3 - 16:10; Rudolph Dep. Ex.
25), leaving them free to clean up or rearrange the stores to attempt to ensure good results.
Second, although Ican originally prepared a proposal that called for teams of two
surveyors, one of whom would be “a person with a disability that requires the use of a
wheelchair,” (Rudolph Dep. 30:16 - 30:25; Ex. 21 at 2), in the end, none of the surveyors were
individuals who used wheelchairs. (Id. at 25:21 - 25:25.) This led to bizarre survey methods, for
example, non-disabled surveyors used shopping carts to test wheelchair access around aisle
displays, to merchandise behind such displays, and to clothing racks. (See Waxweiller Dep. at
12:21 - 13:9; Ashare Dep. at 19:8 - 20:7 & Ex. 32 at 4 (“Can a shopping cart be pushed between
all clothing and accessory racks?”) (emphasis in original)).29 Thus, because Kmart shopping
carts have a standardized width of 24 inches30 -- much narrower than most wheelchairs (see
29 On re-direct examination by Kmart’s attorney, both surveyors asserted that they had also measured the distances between clothing racks with a tape measure. See Ashare Dep. at 37:22 - 38:5; Waxweiller Dep. at 23:9 - 24:3. Ms. Ashare stated that if these measurements were recorded, they would have been recorded in her notes. Ashare Dep. at 37:22 - 38:5. The surveyors’ notes provide such measurements in only eight stores, only one of which indicates a measure of 36 inches and several of which are less than 24". See Second Miot Decl. ¶ 4 (Rep. App. Tab 8). Ms. Waxweiller said she measured between racks, but did not always record these measurements and ultimately used the standard on the form: what percentage she could get a shopping cart through. Waxweiller Dep. at 14:11 - 15:3.
30 Ms. Ashare testified that Kmart shopping carts a standardized width, although she could not recall what that width was. Ashare Dep. at 25:22 - 26:13. Named Plaintiffs had this standardized width measured: At six Denver-area Kmarts, shopping carts measured, at their widest point, 24 inches. Bell Decl. ¶¶ 2-3 (Rep. App. Tab 9).
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Class Mem. at 20) -- the Ican/Tucker survey neither asked nor proved anything relevant about
the accessibility of clothing racks or merchandise behind displays.
Nor did the Ican/Tucker survey measure many of the discriminatory barriers at issue in
this case. For example:
! Guidelines for the survey describe certain barriers as “temporary-operational,” including, for example, “an accessible cash register that is closed, or a stocking cart in the middle of an aisle with no worker nearby,” (Ashare Dep. Ex. 30),31 and the survey form, accordingly, has no place to record these types of obstructions. (Id. Ex. 32.) But Named Plaintiffs and putative class members frequently are denied access by these types of obstructions. (See App. Revised Tabs 7 & 8.)
! The survey form does not attempt to record the accessibility of the main aisles, although Named Plaintiffs and putative class members often encounter barriers in these aisles. (See id.)
! The only survey question concerning non-main aisles relates only to “promotional displays,” ignoring other types of obstructions. (Ashare Dep. Ex. 32 at 4.) Again, Named Plaintiffs and putative class members often encounter other types of barriers in these aisles. (See App. Revised Tabs 7 & 8.)
Although there is no provision for such barriers in the survey form, surveyors’
handwritten notes provide a glimpse of the “temporary” barriers they were apparently instructed
to ignore. For example, one surveyor noted, “Temporary obstructions throughout store
(abandoned shopping carts, merchandise, ladders).” (Second Miot Decl. Ex. 2 at I/T0226.)
Another noted, “Temporary issues within health & beauty dept. & home electronics prevented
access to all aisles. - boxes, ladders. Numerous (temporary) obstructions (ladders, boxes, carts
full of merchandise) etc. prevented access to aisles in pantry, sporting goods, do it yourself,
31 Ms. Ashare testified that these guidelines were communicated to other surveyors and “guided the survey process.” Ashare Dep. at 13:6 - 13:15.
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departments. Lawn chairs in furniture department were in the middle of aisles preventing . . . .” (Id. Ex. 3 at I/T0345 (the remainder of this note was cut off in the copy provided to Named Plaintiffs).) Another responded “yes” to the survey questions whether a person using a wheelchair could get around and have access to merchandise behind promotional displays, but added, “A number of temp. obstructions (e.g., inventory, carts, etc.) existed.” (Id., Ex. 7 at IT296; see also id. ¶ 5 and Exs. 2-4, 6-8, 10-12, 14-15.) These “temporary” barriers are precisely those that Named Plaintiffs argue violate the ADA.
Finally, the Joint Report makes several assertions that are simply false. It asserts that “[a]ll main aisles were accessible.” (Joint Report ¶ 24.) There was, however, no provision in the survey form for the Ican/Tucker surveyors to state whether the main aisles were or were not accessible. The part of the survey form to be filled out by the store manager contains the question whether “seasonal, sale or other promotional displays ever encroach main walkways.” (See Ashare Dep. Ex. 32 at 2.) It is thus possible that the assertion concerning the accessibility of main aisles is based on the self-reporting of Kmart management. Yet this is contradicted by the Ican/Tucker surveyors: Even in the absence of a relevant question, several surveyors noted obstructions in the main aisles. (See Second Miot Decl. ¶ 7 and Exs. 6, 14-16.) The Joint Report also states,“There were no obstructions observed that would prevent a person in a wheelchair from accessing merchandise on shelves or racks located behind the displays.” Id. ¶¶ 32. Yet in 21% of the stores that had such displays, the Ican/Tucker surveyors answered “no” to the question “Can a person in a wheelchair get to merchandise in back of the displays?” (See Second Robertson Decl. Ex. 4.)
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Many of the other survey questions and accompanying notes -- far from supporting the assertion that Kmart stores “were generally accessible to wheelchair and scooter users” -- reveal the presence of significant barriers. Kmart’s experts never entered the information in the survey forms into a spreadsheet or otherwise analyzed it quantitatively. (See Rudolph Dep. at 57:25 58:3.) Named Plaintiffs did so and noted the following: 35% of the stores at which merchandise was displayed outside did not maintain a 36-inch path through that merchandise, approximately 30% of both the men’s and women’s accessible fitting rooms did not have a bench, and approximately one-quarter of each had obstructions in the area surrounding the entrance to the fitting rooms. (See Second Robertson ¶¶ 19-20 and Ex. 4.) Two-thirds of the stores surveyed had promotional displays in the non-main aisles, a condition that often results in a barrier to customers using wheelchairs or scooters, and even the non-disabled Ican/Tucker surveyors -using shopping carts that are narrower than wheelchairs -- stated that, in 24% of the stores with such displays, customers in wheelchairs could not get around the displays and in 21%, such customers could not get to merchandise in back of the displays. (Id.) Thirty percent of the parking lots were out of compliance. (Id. ¶¶ 21-23 and Ex. 5.) These figures reflect only the information entered in the survey form. A review of the surveyors’ notes and summaries reveals more detail concerning barriers and obstructions at the Kmart stores they surveyed. (See Second Miot Decl. ¶¶ 5-7 and references cited therein.)
Kmart also relies on a videotape showing a single, non-disabled Ican employee, Laurie Muhn, in a single store on a single day for the assertion that Tucker and Ican “noted that a number of the statements in declarations submitted by Plaintiffs did not accurately reflect the
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state of the stores in question.” (Class Opp. at 21-22 (citing Muhn Decl. ¶¶ 14-70 & Ex. 2).) Putting aside the predictable differences between Ms. Muhn’s experience and that of real Kmart shoppers with real disabilities, (see Second Lucas Decl. at ¶¶ 4-41 and Exs. 1-11), and despite the use of the plurals “declarations” and “stores,” this assertion is based on a direct comparison of apples to oranges: Kmart documents demonstrate that the single store in the single declaration in question -- store number 7589 in Utica, Michigan addressed in the Declaration of Duane Cook -- was undergoing a significant remodeling at the time Ms. Muhn’s videotape was being recorded, providing different conditions from those encountered by Mr. Cook. (See Second Robertson Decl. ¶¶ 26-27 and Exs. 19-20.) Indeed, Ms. Muhn concedes as much during the videotape. (See Second Miot Decl., Ex. 1 at 3-4, 10 (transcript of Muhn videotape).) That Ms. Muhn and her videographer did not encounter the same barriers Mr. Cook repeatedly encountered when he shopped at the Utica store, (see Declaration of Duane Cook at ¶¶ 5-1532), does not rebut Mr. Cook’s experiences or the appropriateness of class certification. See supra Section I.E.
B. Kmart’s Stores Are Not “Virtually Entirely Accessible and ADA Compliant.”
32 The Declaration of Duane Cook can be found in Tab 8 of the original version of the Appendix to Plaintiffs’ Memorandum in Support of Motion for Class Certification. It is interesting to note that, after making an enormous effort to ensure that Named Plaintiffs relied only on testimony from witnesses who had been deposed rather than on the declarations Named Plaintiffs had originally submitted, see Defendant’s Motion to Defer Deadline for Opposition to Plaintiffs’ Motion for Class Certification at 12 (filed June 26, 2001), Kmart elected to attack the declaration of a witness who had not been deposed and whose testimony, at Kmart’s request, Named Plaintiffs did not rely on in their Class Memorandum.
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Kmart repeatedly argues that its stores are already in compliance with the ADA. This is the heart of the merits of this lawsuit, and particularly inappropriate for resolution at this stage. See Bates, 2001 WL 1482023 at *2-3 (holding that the defendant’s arguments that it was in compliance with the ADA were inappropriate to consider on motion for class certification). Kmart’ s own evidence, however, demonstrates that these assertions are wrong. As pointed out above, the Ican/Tucker surveys and Kmart’s mystery shopper reports showed significant levels of non-compliance. See supra at 20-21, 53-54. Kmart’s own 2000 ADA Surveys also show -- in two easily quantifiable examples -- that approximately 39% of the parking lots surveyed and approximately 46% of the fitting rooms surveyed were out of compliance. (See Second Robertson Decl. ¶¶ 5-18 and Ex. 2-3.)
C. Kmart’s Attempts to Explain Away the Barriers at Its Stores Are Unavailing.
In its Class Opposition, Kmart addresses each of the categories of barrier complained of by Named Plaintiffs and attempts to either justify it or explain it away. These attempts all fail.
Aisle stacks. Named Plaintiffs have demonstrated that Kmart’s policies mandate placing merchandise displays in aisles, a condition that commonly obstructs customers in wheelchairs from accessing the merchandise behind the displays. (See Class Mem. at 18-19.) Kmart’s response is that it “expressly advises that these stacks are to be placed and angled so as not to impede access to any merchandise and used only where there is sufficient space.” (Class Opp. at 26.) Kmart’s only support for this express advice, however, is the declaration of a Regional Vice President stating that “[a]isle and floor stacks are to be placed to still allow access and clearance
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for customers and shopping carts in and out of the aisle and to all merchandise.” (Declaration of Robert D. Frame in Opposition to Plaintiff’s Motion for Class Certification (“Frame Decl.”) ¶ 63.) Kmart provides no evidence that it instructs its stores to ensure that merchandise behind these displays is accessible, much less that such instruction is effective. As pointed out above, even Kmart’s experts found a significant level of blockage by merchandise displays. (See supra at 53-54; Second Robertson Decl. Ex. 4.)
Rack Spacing. Named Plaintiffs have provided evidence that Kmart permits as little as 24 inches between clothing racks. (See Class Mem. at 20.) Kmart argues that “the ADA has very limited, if any, applicability to the spacing of movable clothing racks . . ..” (Class Opp. at 26.) The authorities on which Kmart relies addressed the interpretation of a single section of the Standards -- § 4.1.3(12)(b) -- and concluded it does not apply to moveable fixtures, so that such fixtures need only be accessible if it is “readily achievable” to do so under § 12182(b)(2)(A)(iv). Named Plaintiffs disagree with this interpretation. Among other things, § 4.1.3(12)(b) does not contain the limitation to “fixed or built-in” units that § 4.1.3(12)(a) does, indicating that it is not so limited. In any event, neither of Kmart’s authorities addressed the separate question whether Kmart is required, pursuant to § 12182(b)(2)(A)(ii), to modify its policy, practice or procedure of setting the racks too close in order to make its goods available to customers with disabilities.
Kmart also asserts that Named Plaintiffs have not shown that this 24-inch minimum “has a uniform effect upon the accessibility of Kmart stores.” (Class Opp. at 27.) The fact that a discriminatory policy is, at times, disregarded does not legitimize it. If a company permitted, but did not require, its managers to fire employees based on the fact that they were African-
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American, the fact that some African-Americans remained employed by the company would not make the policy legal. Named Plaintiffs properly challenge a Kmart policy that explicitly permits discrimination to occur.
Obstructed Aisles. Kmart asserts that obstructed aisles encountered by Customer Witnesses are “temporary and fleeting.” (Class Opp at 24.) As explained above, this is not a defense unless the interruption in access is “due to maintenance or repairs,” see 28 C.F.R. 36.211(b), and is, in any event, unavailing in the face of Kmart’s utter failure to “ensure that accessible routes are properly maintained and free of obstructions.” (See Preamble at 638.) This assertion is also belied by over 19,000 mystery shopper records reporting obstructions, many of them in merchandise aisles. (See Fox Decl. Ex. 2.)
Accessible Checkouts. With respect to Named Plaintiffs’ evidence that Kmart often fails to keep an accessible checkout aisle open, Kmart appears to argue it is not obligated to ensure that such aisles are open, but rather that disabled shoppers should be content to wait for an employee to open an accessible aisle, or to checkout from the opposite end of the checkout lane, with all of the inconvenience this entails. (See Class Opp. at 29-30; see also Donn Dep. at 9:24 11:10 (testifying that he was forced to go around to opposite end of checkout aisle and lost his place in line); 14:23 - 16:1 (testifying that he was instructed to use regular checkout aisle when accessible checkout aisle was closed); Madden Dep. at 26:12 - 27:19 (testifying that customers became obstinate at having to back up to let him go around checkout); Bach Dep. at 20:6 - 21:4 (testifying that she was forced to go around or have 15-year old daughter check out for her); Willenburg Dep. at 26:14 - 27:22 (testifying that cashier told her “she couldn’t justify opening
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up a handicap register for just one handicap person . . ..”) (All deposition excerpts are included in Revised Tab 8 to Class. Mem.)
This is stark contrast to the intense focus Kmart places on ensuring that its non-disabled customers check out quickly. (See, e.g., Declaration of Roberta Kaselitz in Opposition to Plaintiff’s Motion for Class Certification Ex. 4 (Kmart’s Customer Service Map, requiring “Quick & Accurate Checkouts . . . Keep checkouts moving”); Second Robertson Decl. Ex. 24 at 1 (Kmart’s Bulletin FTE #8: “3 In a Line Checkout Commitment,” stating that, “[t]he service provided to our customers at our checkouts and service desk must be fast and friendly. Our goal is to never have more than three customers in a line at our checkouts or service desk.”) (emphasis in original).) This contrast constitutes discrimination in the “full and equal enjoyment” of Kmart’s goods and services in violation of § 12182(a). While some measure of delay may be acceptable on a single occasion, see Anderson v. Ross Stores, 2000 WL 1585269 at * 10 -- and is likely experienced even by non-disabled patrons from time to time -- it is not acceptable as standard operating procedure in response to multiple violations where speed is a stated corporate goal. See also Cupolo, 5 F. Supp. 2d at 1083-84 (holding that prompt repair and reasonable accommodations are not defenses to violations of the ADA).
Fitting Rooms, Restrooms and Counter Heights. Kmart’s response to Named Plaintiffs’ evidence of inaccessible fitting rooms and restrooms and unusably high service counters is simply to assert that this evidence is insufficient. Kmart goes so far as to assert that Named Plaintiffs have provided no evidence that Kmart’s restrooms are inaccessible. (See Class Opp. at 23 n. 24.) This is incorrect. (See Class Mem. at 7 n. 20.) Indeed, with respect to each of these
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features, Named Plaintiffs provided evidence of repeated violations, which evidence is substantiated by Kmart’s own experts. (See supra at 53-54; Second Robertson Decl. Ex. 4 (Ican/Tucker surveys also show: 20% of the customer service counters were higher than required with no flip-up shelf; 27% of men’s fitting rooms and 24% of women’s had obstructions in the area surrounding the entrance; 30% of both lacked required benches; 33% of men’s restrooms and 38% of women’s had doors that were or “seem[ed]” too heavy).)
Parking. In response to the repeated barriers Named Plaintiffs and putative class members have encountered parking at Kmart stores, Kmart relies on Thompson v. Colorado, 29 F. Supp. 2d 1226, (D. Colo. 1997), vacated on other grounds, 258 F.3d 1241 (10th Cir. 2001), a case addressing the legality, under Title II of the ADA, of a state’s imposition of a fee for a disabled parking placard. The section cited by Kmart, in fact, supports Named Plaintiffs: “[A]ccessible parking for disabled persons is a compliance measure required by the ADA.” Id. at 1231 (cited in Class Opp. at 32). Named Plaintiffs simply ask that -- in light of Kmart’s obligation to maintain accessible parking for disabled persons -- Kmart put in place policies designed to prevent and cure abuse of its accessible parking spaces by non-disabled individuals. Kmart has stated that it will not do this, though it now disavows the testimony through which it did so as the personal feelings of Robert Frame, without pointing to any policy affirmatively undertaking such monitoring. (See Class Opp. at 33.) Having presented Mr. Frame as their 30(b)(6) designee on store operations including “enforcement of parking signage,” (Frame Decl. ¶ 5), Kmart cannot disavow his testimony on the subject as a personal statement.
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Kmart also states that “supervision of the parking lot is often the responsibility of Kmart’s landlord.” (Class Opp. at 34.) While this may be of import in assigning responsibility between Kmart and the landlord, both are liable to Named Plaintiffs to make the parking lots accessible. Title III applies to both owners and lessees of places of public accommodation, § 12182(a), and the DOJ regulations make clear that neither side can shirk this responsibility through lease language. See U.S. Dept. of Justice, Title III of the Americans with Disabilities Act: Technical Assistance Manual, III-1.2000 (1992) (Mintz Decl. Ex. 10 at 7-8). In any event, Kmart concedes that under two of its three types of leases, it has at least some measure of responsibility for the store’s exterior, (Frame Decl. ¶ 54,) and even where Kmart claims it has shared or no responsibility -- semi-gross and gross leases -- it has asserted the authority to alter the striping of the parking lot and deduct the cost from its rent. (Glasser Decl. Ex. 2 at K01697 K01700.)
Staff Assistance. Kmart suggests throughout its Class Opposition that when barriers do arise, Kmart staff are available to overcome them. Staff assistance is rarely, however, a substitute for independent access. In keeping with the goal of “assur[ing] equality of opportunity, full participation, independent living and economic self-sufficiency” for people with disabilities, § 12101(a)(8), Title III of the ADA and its implementing regulations are designed to permit people who use wheelchairs independent physical access to goods and services wherever possible. Goods and services may be made available through “alternative methods” -- for example, retrieval of merchandise -- only in facilities built prior to January 26, 1993 where providing physical access for people with disabilities is not “readily achievable.” See
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§ 12182(b)(2)(A)(v). Thus, in all post-1993 facilities, § 12183(a)(1), any part of a pre-1993 facility that has been remodeled, § 12183(a)(2), and any unaltered pre-1993 facilities where doing so is “readily achievable,” § 12182(b)(2)(A)(iv), independent access for people who use wheelchairs must be provided. Since, as demonstrated above, few if any Kmart stores will be analyzed under the “readily achievable” standard, the availability of assistance will not be a useful defense for Kmart.
Conclusion For the reasons set forth above and in the Class Memorandum, Named Plaintiffs respectfully request that this Court certify a class defined as follows: All persons with disabilities who use wheelchairs or scooters for mobility who have been denied, or are currently being denied, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any public accommodation that was designed or constructed by or is owned, operated, or leased by or leased to Kmart Corporation anywhere in the United States. Named Plaintiffs further request that they be certified as the representatives of this class and that the attorneys listed below be certified as class counsel.
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Respectfully Submitted, FOX & ROBERTSON, P.C.

Amy F. Robertson Timothy P. Fox Michael W. Breeskin 910 -16th Street Suite 610 Denver, CO 80202 303.595.9700
Kevin W. Williams General Counsel Colorado Cross Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775
Steven R. Greenberger Disability Rights Clinic DePaul College of Law 25 E. Jackson Blvd. Chicago, IL 60604 312.362.8138
Attorneys for Plaintiffs

Brian East Advocacy, Inc. 7800 Shoal Creek Boulevard, Suite 171-E Austin, Texas 78757-1024 512.454.4816
Denette Vaughn James Teague Advocacy, Inc. 1001 Main St., Ste 200 Lubbock, TX 79401 806.765.7794
Earl Mettler Stephen LeCuyer Mettler & LeCuyer, P.C. 4308 Carlisle Blvd. NE, Suite 208 Albuquerque, NM 87107 505.884.0078
December 3, 2001

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Certificate of Service I hereby certify that on December 3, 2001, copies of Plaintiffs’ Reply Memorandum in Support of Motion For Class Certification as well as the appendix thereto were served by hand on:
Theodore A. Olsen, Esq. Lawrence W. Treece, Esq. Sherman & Howard, LLC 633 17th Street, Suite 3000 Denver, CO 80202 and by first class mail, postage prepaid, on: Walter B. Connolly, Jr. Esq. Foley & Lardner 150 W. Jefferson, Suite 1000 Detroit, MI 48226 Shana T. Mintz, Esq. Foley & Lardner 35th Floor, One Century Plaza 2029 Century Park East Los Angeles, CA 90067-3021
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-K-1923 CARRIE ANN LUCAS, DEBBIE LANE, and JULIE REISKIN, for themselves and all others similarly situated,
Plaintiffs, v. KMART CORPORATION,
Defendant.
PLAINTIFFS’ SUPPLEMENTAL PLEADING REGARDING BANKRUPTCY, CLASS CERTIFICATION AND ATTORNEYS’ FEES
Pursuant to this Court’s Order of June 23, 2003, Plaintiffs, by and through their counsel, hereby submit this Supplemental Pleading.
This brief will demonstrate that: ! The bankruptcy of Defendant Kmart Corporation (“Kmart”) does not affect
Plaintiffs’ ability to pursue injunctive relief under Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 - 12189 (“ADA” or “Title III”), on a classwide basis; and ! Should Plaintiffs succeed in obtaining injunctive relief under Title III, Plaintiffs will be entitled to recover their reasonable attorneys’ fees and costs for time spent both before and after Kmart’s bankruptcy.

Background Plaintiffs brought this case to challenge violations of the ADA at Kmart’s stores nationwide. Plaintiffs allege that Kmart has company-wide policies, practices and physical conditions that present barriers to -- and therefore discriminate against -- its customers who use wheelchairs. On June 7, 2001, Plaintiffs moved to certify this case as a nationwide class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. Briefing of that motion was completed on January 4, 2002. On January 22, 2002, Defendant Kmart filed a voluntary Petition for Relief under Chapter 11 of the Bankruptcy Code, 11 U.S.C. §§ 101 et seq., in the Bankruptcy Court for the Northern District of Illinois. Pursuant to 11 U.S.C. § 362, that filing automatically stayed the present litigation. On August 29, 2002, this Court administratively closed this case. On April 23, 2003, the Bankruptcy Court confirmed Kmart’s Plan of Reorganization, which terminated the automatic stay. On May 9, 2003, Plaintiffs moved to reopen this case and requested a status conference. On May 13, 2003, this Court granted Plaintiffs’ motion, scheduled a status conference for June 23, and invited the parties to submit -- on or before June 20 -- status reports and statements indicating their position on how this case should proceed. On June 9, 2003, Defendant Kmart filed with this Court a letter from Divisional Vice President Janet H. Delecke (the “Delecke Letter”), which asserted that this case involved claims that were discharged upon confirmation of Kmart’s plan of reorganization and should therefore be closed. Pursuant to this Court’s Minute Order of June 9, 2003, Plaintiffs filed their response to the Delecke Letter on June 16, 2003. Both parties filed status reports on June 20, 2003;
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Defendant’s status report also contained its reply to Plaintiffs’ June 16 response to the Delecke Letter.
During the Status Conference on June 23, 2003, this Court denied Kmart’s request to close this case and stated that it “would allow plaintiffs to proceed under the ADA claim for injunctive relief.” (Reporter’s Transcript: Status Conference (“Tr.”) at 8.) The Court further requested Plaintiffs to submit a brief “address[ing] the implications, if any, of Kmart’s postbankruptcy status on the class certification issue.” (Id. at 9.) In addition, the Court noted that Plaintiffs had not had the chance to respond to the arguments raised in Defendant’s Status Conference Report, filed June 20, 2003, and specifically invited Plaintiffs to address Defendant’s argument relating to attorneys’ fees. (Id. at 5, 10.)
This brief addresses the matters raised by the Court at the June 23 hearing. I. Kmart’s Bankruptcy Does Not Impair the Appropriateness or Effectiveness of
Class Certification in this Case. As this Court held in the hearing on June 23, Plaintiffs’ Title III action was not discharged by confirmation of Defendant’s plan of reorganization, and Plaintiffs are “allow[ed] . . . to proceed under the ADA claim for injunctive relief.” (Tr. at 8.)1 The fact that Defendant

1

Kmart argued in its Status Conference Report that “[a]ny dispute concerning

whether plaintiffs’ pending action is a pre-petition claim and was discharged through bankruptcy

should be decided by the Bankruptcy Court.” (Status Conference Report at 6). This is not

accurate. Except for actions concerning dischargeability under certain subsections of § 523 of

the Bankruptcy Code -- none of which are at issue here -- this Court has concurrent jurisdiction

with the bankruptcy court to determine dischargeability. Whitehouse v. LaRoche, 277 F.3d 568,

578 (1st Cir. 2002) (holding that,“[w]here an asserted exception to discharge relies upon none of

the four waivable exceptions to discharge [§ 523(a)(2), (4), (6), and (15)], . . . the jurisdiction of

the bankruptcy court is concurrent, hence nonexclusive”), see also Rein v. Providian Fin. Corp.,

(continued...)

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has been through and emerged from bankruptcy should have no effect on Plaintiffs’ request to pursue those ADA claims for injunctive relief using the procedural device of a class action.
A class action is an efficient and economical procedural2 tool to litigate the claims of individuals harmed by common policies and practices, such as those at issue in the present case. “[T]he class-action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion.” Califano v. Yamasaki, 442 U.S. 682, 701 (1979). The Supreme Court has compared those who seek to vindicate the rights of a class to “private attorney[s] general,” United States Parole Comm’n v. Geraghty, 445 U.S. 388, 403 (1980), and a leading commentator has noted that class actions “enhance the effectiveness of private attorney general litigation that otherwise might be brought only on an individual basis.” 1 Herbert Newberg & Alba Conte, Newberg on Class Actions § 1.06 at 1-19 (3d ed. 1992).
The purpose of the Bankruptcy Code “is to provide a ‘fresh start’ to a discharged debtor. A suit for illegal conduct occurring after discharge threatens neither the letter nor the spirit of the bankruptcy laws.” O’Loghlin v. County of Orange, 229 F.3d 871, 875 (9th Cir. 2000) (quotations and citations omitted). Plaintiffs’ use of the class action procedural device to

1(...continued) 270 F.3d 895, 904 & n.15 (9th Cir. 2001) (same).

2

A ruling on class certification is a procedural ruling, collateral to the merits of the

litigation. Cf. Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 336 (1980) (holding that denial

of class certification is a procedural ruling, collateral to the merits of the litigation). It is not, and

is not permitted to be, a ruling on the merits. See Cook v. Rockwell Int’l Corp., 151 F.R.D. 378,

381 (D. Colo. 1993) (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1970)).

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challenge ongoing, post-discharge, illegal conduct in an efficient and economical way, likewise, would threaten neither the letter nor the spirit of the bankruptcy laws.
Similarly, nothing that occurred during Kmart’s reorganization would undermine the appropriateness of class certification in this case. Rule 23 looks essentially to whether it makes sense to resolve Plaintiffs’ claims on a class-wide basis: whether class members are numerous; whether they have common legal and factual claims; whether the class representatives’ claims are typical; and whether those individuals can adequately represent the class. Fed. R. Civ. P. 23(a). Kmart continues to be operated on a centralized basis -- as it was pre-bankruptcy -making a class action the best way to address the impact of its company-wide policies on its customers who use wheelchairs and scooters. To the extent specific policies may have changed - of which there is currently no evidence3 -- the question whether such changes bring Kmart into compliance with the ADA is a question on the merits, one which is common to the class and best resolved on a class-wide basis.
The only specific post-bankruptcy change to which Defendant points is the fact that it now has 1,500 stores, instead of the 2,100 it had before it declared bankruptcy. (Status Conference Report at 8.) This would give it approximately 70% of the number of stores that existed pre-bankruptcy. Even if the class is only 70% the size it once was, it would still have 1.2

3

See, e.g., Tr. at 7 (in which this Court noted that “Kmart does not allege it has

changed any of its allegedly discriminatory policies.”)

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million -- instead of 1.7 million4 -- members, sufficiently large that joinder is clearly impracticable. See Fed. R. Civ. P. 23(a)(1).
Defendant also asserts generally that its financial situation has changed due to the bankruptcy, making any analysis of what is “readily achievable” pursuant to 42 U.S.C. § 12182(b)(2)(A)(iv) “extremely complicated.” (Def.’s Status Conference Report at 9.) Although Plaintiffs believe that no “readily achievable” analysis will be necessary in this case,5 the question of what is readily achievable goes to the merits of the case. And because that question requires an analysis of company-wide resources, 28 C.F.R. § 36.104, it is a question that is common to the class. See Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 449 (N.D. Cal. 1994) (holding that where plaintiffs challenged -- under Title III -- conditions at multiple sites owned by a single corporate defendant, the legal standard depended on “various corporation-wide factors such as the availability of resources. These are additional issues of fact and law common among the subclasses.”), quoted in Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354, 360 (D. Colo. 1999).

4

See Pls.’ Substituted Mem. in Supp. of Mot. for Class Certification (filed July 13,

2001) at 31.

5

“Readily achievable” is the standard that applies to existing facilities, that is,

those were built before January 26, 1993 and have not been altered since. In such facilities,

barriers to access must be removed only where it is “readily achievable” to do so. 42 U.S.C.

§ 12182(b)(2)(A)(iv). All but 24 Kmart stores were built after January 26, 1993 or fully altered

since that time. As such, these facilities are all required to comply with the Department of

Justice Standards for Accessible Design. 28 C.F.R. § 36.406(a). See also Pls.’ Reply Mem. in

Supp. of Mot. for Class Certification (filed Dec. 3, 2001) at 40.

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In sum, Plaintiffs’ use of the class action procedural device to pursue injunctive relief to remedy ongoing violations of the ADA is in no way inconsistent with the goals of the Bankruptcy Code. Likewise, nothing that occurred during Kmart’s bankruptcy affects Plaintiffs’ ability to pursue such injunctive relief on a class-wide basis. Any substantive changes in Kmart’s operations following bankruptcy present common questions of law and fact -- on the merits -- that are appropriate for resolution through a class action. A class action continues to be the best way to address systemically Kmart’s company-wide policies and practices that discriminate against its customers who use wheelchairs. II. Should Plaintiffs Be Entitled to Recover Attorneys’ Fees as Prevailing Parties in this
Litigation, Such Recovery Would Not Be Not Limited to Fees Relating to PostDischarge Legal Work. Defendant argued in its Status Conference Report that “Plaintiffs’ pre-petition attorneys’ fees qualify as a ‘claim’” because they “were incurred pre-petition and relate to pre-petition conduct.” (Id. at 5.) As a result, Kmart argued, Plaintiffs’ right to such fees has been discharged. (Id. at 6.) This represents a misunderstanding of the fee-shifting provision of the Americans with Disabilities Act. A. Any Attorneys’ Fees Awarded to Plaintiffs Would Be Based on Kmart’s
Post-Petition Conduct and Would Be Ancillary to Nondischargeable Injunctive Relief. Section 505 of the Americans with Disabilities Act states that, “[i]n any action or administrative proceeding commenced pursuant to this chapter, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee, including litigation expenses, and costs.” 42 U.S.C. § 12205. The United States Supreme
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Court has made clear that a party is not a prevailing party, entitled to fees, unless and until it achieves a “material alteration of the legal relationship of the parties,” that is, through an enforceable judgment on the merits or a court-ordered consent decree. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Resources, 532 U.S. 598, 604 (2001) (quotation and citation omitted). No such judgment or decree entered prior to Kmart’s bankruptcy. More importantly, any judgment or decree in this case will be based on Kmart’s on-going, postdischarge violations of the Americans with Disabilities Act. 42 U.S.C. § 12188(a)(1) (remedies are available to “any person who is being subjected to discrimination on the basis of disability”) (emphasis added). That is, although evidence of Kmart’s pre-petition violations will be admissible to show its discriminatory practice, see O’Loghlin, 229 F.3d at 876, any injunction must ultimately be based on the conclusion that these practices are ongoing post-discharge. As such, any entitlement to fees will be based on Kmart’s post-discharge -- rather than pre-petition - conduct.
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Because the situation before the Court is rather rare,6 Plaintiffs have been able to identify only one case precisely on point; in that case, although not discussed explicitly, the fee award ultimately included both pre- and post-bankruptcy work. The defendant in AM International, Inc. v. Datacard Corporation brought counterclaims requesting, among other things, injunctive relief under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq. 106 F.3d 1342, 1346 (7th. Cir. 1997). After defendant Datacard filed its counterclaims, the plaintiff filed for bankruptcy. Id. at 1346. The district court ultimately held that Datacard’s counterclaims for injunctive relief had not been discharged, and that it was entitled to attorneys’ fees on its RCRA and other claims. Id. On appeal, the Seventh Circuit upheld the district court’s determination that Datacard’s request for injunctive relief under RCRA was nondischargeable. Id. at 1348. Furthermore, the Seventh Circuit acknowledged that an award of fees was appropriate and remanded to the district court for a more complete explanation for the basis for its fee award. Id. at 1352. It did not address -- and thus did not preclude -- an award of fees for pre-petition work.

6

Most of the cases involving nondischargeability of actions for injunctive relief are

environmental cases brought by government regulatory agencies, see, e.g., In re Torwico Elecs.,

Inc., 8 F.3d 146, 150-51 (3d Cir. 1993), cert. denied 511 U.S. 1046 (1994), In re CMC Heartland

Partners, 966 F.2d 1143, 1146 (7th Cir. 1992), In re Chateaugay Corp., 944 F.2d 997, 1008 (2d

Cir. 1991), or common law claims, In re Ben Franklin Hotel Assocs., 186 F.3d 301, 305 (3d Cir.

1999), In re Davis, 3 F.3d 113, 116-17 (5th Cir. 1993), In re King’s Gate Apartments, Ltd., 206

B.R. 233, 234-35 (Bankr. W.D. Okla. 1996). These types of claims do not typically include fee-

shifting provisions, so the question of dischargeability of attorneys’ fees did not arise. The non-

compete provision at issue in In re Udell did require payment of attorneys fees. 18 F.3d 403, 405

(7th Cir. 1994). The Seventh Circuit held that the action to enforce the non-compete was not

discharged but did not address attorneys’ fees. Id. at 409-10. According to counsel for one of

the parties, the question of attorneys’ fees was settled between the parties following the Seventh

Circuit’s decision. (Robertson Decl. ¶ 4.)

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On remand, counsel for Datacard petitioned for fees incurred between 1986 and 1994, that is, for a substantial amount of time prior to the 1993 bankruptcy filing. See AM Int’l, Inc. v. Datacard Corp., Civil Action No. 87 C 3408 (N.D. Ill.), Mem. in Supp. of Mot. for Am. J. and Request for Litigation Costs at 2, 13 (Robertson Decl. Ex. 2.) Although the district court did not analyze the question of dischargeability of the pre-bankruptcy fees, it did award an amount that included all requested fees for time spent prior to the 1993 bankruptcy filing. See id. Order dated Nov. 25, 1997 (Robertson Decl. Ex. 3).7
The decision to award attorneys’ fees for pre-bankruptcy time in connection with a nondischargeable claim for injunctive relief is consistent with Supreme Court precedent holding that attorneys’ fees are ancillary to injunctive relief, and may be awarded even where an award of monetary damages is prohibited. Confirmation of a plan of bankruptcy discharges any “right to payment” and “right to . . . an equitable remedy [that] gives rise to a right to payment.” 11 U.S.C. §§ 101(5) & (12), 1141(d)(1)(A). Confirmation does not, however, discharge actions for prospective injunctive relief. See, e.g., In re CMC Heartland Partners, 966 F.2d at 1146.8 The Eleventh Amendment -- for different reasons but with similar effect -- bars actions “‘for the

7

The district court deducted fees incurred for work relating to the 1993 bankruptcy

proceeding itself on the grounds that they were unrelated to Datacard’s environmental claims, an

argument Datacard did not contest. (Robertson Decl. Ex. 3, at 3.) For the reasons discussed

below at pages 12-16, Plaintiffs’ fees incurred in connection with Kmart’s bankruptcy will be

recoverable to the extent they were “‘useful and of a type ordinarily necessary to advance the ...

litigation’ to the point where the party succeeded.” Pennsylvania v. Delaware Valley Citizens’

Council for Clean Air, 478 U.S. 546, 561 (1986)(quotation omitted).

8

See also Pls.’ Resp. to Def.’s June 6, 2003 Letter (filed June 16, 2003) at 3-7

(citing cases).

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recovery of money from the state,’” Edelman v. Jordan, 415 U.S. 651, 663 (1974) (quoting Ford
Motor Co. v. Dep’t of Treasury, 323 U.S. 459, 464 (1945)), but does not bar actions for
prospective injunctive relief against state officials. Bd. of Trustees of the Univ. of Ala. v.
Garrett, 531 U.S. 356, 374 n.9 (2001) (citing Ex parte Young, 209 U.S. 123 (1908)).
In the latter type of case, when plaintiffs sue state actors in their official capacity and
obtain prospective injunctive relief, they are also entitled to recover attorneys’ fees ancillary to
such relief, despite the prohibition on collecting money damages. Missouri v. Jenkins ex rel.
Agyei, 491 U.S. 274 (1989). As the Jenkins Court explained, with reference to its earlier ruling
in Hutto v. Finney, 437 U.S. 678 (1979):
The State contended that any such award was subject to the Eleventh Amendment’s constraints on actions for damages payable from a State’s treasury. We relied, in rejecting that contention, on the distinction drawn in our earlier cases between “retroactive monetary relief” and “prospective injunctive relief.” Attorney’s fees, we held, belonged to the latter category, because they constituted reimbursement of “expenses incurred in litigation seeking only prospective relief,” rather than “retroactive liability for prelitigation conduct.” We explained: “Unlike ordinary ‘retroactive’ relief such as damages or restitution, an award of costs does not compensate the plaintiff for the injury that first brought him into court. Instead, the award reimburses him for a portion of the expenses he incurred in seeking prospective relief.”
Id. at 278 (internal citations and quotations omitted). The Court concluded that “an award of
attorney’s fees ancillary to prospective relief is not subject to the strictures of the Eleventh
Amendment.” Id. at 279. Analogously to the holdings of Hutto and Jenkins, then, awards of
attorneys’ fees ancillary to nondischargeable claims for injunctive relief are not retroactive
monetary claims and, as such, should be unaffected by the Bankruptcy Code.
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In sum, any entitlement to attorneys’ fees under the Americans with Disabilities Act would be based on entry of judgment ordering injunctive relief in favor of Plaintiffs which would, in turn, be based on post-petition conduct, and any such award would be ancillary to the injunctive relief. As such, no part of Plaintiffs’ attorneys’ fees were discharged by confirmation of Defendant’s plan of reorganization.
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B. Even If Plaintiffs’ Fees for Work Done in Connection with Defendant’s Prepetition Conduct Have Been Discharged, These Fees Are Still Recoverable Because the Work was Necessary to Address Defendant’s Post-Petition Violations of the ADA.
Even if, contrary to the authority above, this Court should consider fees attributable to pre-petition time to have been discharged in bankruptcy, they may nonetheless be recoverable because they were necessary to address Defendant’s post-petition violations of the ADA.
Prevailing parties in fee-shifting litigation are not only entitled to recover attorneys’ fees for work done on the case in which they prevailed, but may also be entitled to recover for work done in a related but separate case, even where there is no legal entitlement to fees in the separate case. The prevailing party is entitled to recover fees from the separate proceeding if those fees were incurred for work that was “‘useful and of a type ordinarily necessary to advance the . . . litigation’ to the point where the party succeeded.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 561 (1986) (quoting Webb v. Bd. of Educ., 471 U.S. 234, 243 (1985)).
Recently, the Ninth Circuit awarded fees -- under the ADA fee-shifting provision that will govern Plaintiffs’ fee petition in the present case -- for work performed in a completely separate federal court case involving a different defendant but identical issues, despite the fact that the plaintiffs’ attorneys ultimately lost the separate case, barring recovery of fees under section 505. 42 U.S.C. § 12205. The plaintiffs in Armstrong v. Davis brought suit under the ADA challenging disability discrimination in the California state prison system. 318 F.3d 965, 968 (9th Cir. 2003). The plaintiffs prevailed in Armstrong, making them eligible for fees under
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section 505 of the ADA, as well as under the analogous provision of the Rehabilitation Act of 1973. 29 U.S.C. § 794a(b). During the course of the Armstrong litigation, the Supreme Court granted certiorari in Yeskey v. Penn. Dep’t of Corr., 118 F.3d 168 (3d Cir. 1997), on the question whether the ADA applied to prisons, a question central to the Armstrong litigation. Counsel for the plaintiffs in Armstrong took over the representation of the Yeskey plaintiffs before the Supreme Court, and were successful in establishing that the ADA does indeed apply to state prisons. Penn. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 213 (1998), see Armstrong, 318 F.3d at 968-69. The Armstrong plaintiffs’ counsel continued to represent the Yeskey plaintiffs on remand, ultimately losing the case on summary judgment. Yeskey v. Pennsylvania, 76 F. Supp. 2d 575 (M.D. Pa. 1999). As such, those attorneys were not entitled to recover fees in the Yeskey litigation. Armstrong, 318 F.3d at 972. Nevertheless, the Armstrong court held that “[b]ecause the work in Yeskey was important to the preservation of the Armstrong Plaintiffs’ rights, and because their counsel performed the work in order to protect their interests, they would be entitled as the prevailing party in the Armstrong litigation to an award of attorney’s fees for that work from the Armstrong Defendants.” Armstrong, 318 F.3d at 972.
Similarly, in Gulfstream III Associates v. Gulfstream Aerospace Corp., 995 F.2d 414 (3d Cir. 1993), the court held that the prevailing plaintiffs could be compensated for work devoted to a separate but consolidated case -- Rosefielde v. Falcon Jet Corp., 701 F. Supp. 1053 (D.N.J. 1988) -- against a different defendant that raised the same legal issue. The plaintiff had settled with the Falcon Jet defendant but had not recovered fees. After the plaintiff prevailed against Gulfstream Aerospace, it sought its fees for both the Falcon Jet and the Gulfstream Aerospace
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litigation. The district court disallowed Falcon Jet fees, on the grounds that there was no “judicial precedent allowing attorneys fees to be recovered for services rendered in a previous action to which the defendant was not a party.” Gulfstream III Assocs., Inc. v. Gulfstream Aerospace Corp., 789 F. Supp. 1288, 1294 (D.N.J. 1992), quoted in Gulfstream III, 995 F.3d at 419.
The Third Circuit reversed, holding that fees and expenses from separate litigation are compensable
if the plaintiff can prove that the fees and expenses incurred in the other litigation resulted in work product that was actually utilized in the instant litigation, that the time spent on other litigation was “inextricably linked” to the issues raised in the present litigation, and that plaintiff has not previously been compensated for those fees and expenses. Gulfstream III, 995 F.3d at 420. Plaintiffs’ counsel’s pre-bankruptcy time in the present case will easily meet this test. Taking the last two factors first, the pre- and post-bankruptcy issues are most certainly “inextricably linked” as they concern the same legal issues at the same company in a subset of the same stores, and Plaintiffs’ counsel will not previously have been compensated for that time. As for the first factor, the Third Circuit specifically noted that the Gulfstream III trial court had relied on the Falcon Jet record, and that if it had not done so, the plaintiff “would have had to duplicate at least some of that work, and the time spent and expenses incurred would have been appropriate for inclusion in this case. We see no reasonable basis for encouraging duplicative work.” Id. The analysis set forth in Armstrong and Gulf Stream III demonstrates that Plaintiffs will be entitled to recover attorneys’ fees for pre-petition work if they prevail in this case because
-15-

such work will be “useful and of a type ordinarily necessary” to this litigation. This is true even if this Court determines that Plaintiffs’ pre-bankruptcy attorneys’ fees were discharged. The adverse summary judgment decision in Yeskey meant that the plaintiffs in that case were not prevailing parties and had, therefore, no legal entitlement to recover attorneys’ fees. See 42 U.S.C. § 12205, Buckhannon, 532 U.S. at 604. Nevertheless, because time devoted to Yeskey was necessary to the success of Armstrong, the time was compensable in Armstrong. Should this Court determine in this case that, due to discharge, there is no legal entitlement to fees for pre-petition time, that time should nonetheless be recoverable if it was spent on matters necessary to the success of the surviving, post-petition, action for injunctive relief. The voluminous factual record9 that Plaintiffs’ counsel developed pre-bankruptcy will be almost certainly of use to this Court in evaluating Kmart’s ongoing, post-bankruptcy conduct,10 and Plaintiffs’ counsel’s extensive legal research on ADA and class certification issues (partially reflected in their more than 100 pages of briefing on the motion for class certification) will be fully applicable to the litigation of Kmart’s post-bankruptcy conduct. To deny fees for that

9

The parties have taken approximately 70 depositions and exchanged -- on paper

and electronically -- over 140,000 pages of documents. In support of their motion for class

certification, Plaintiffs submitted their own extensive deposition testimony and that of 45 other

Kmart shoppers with disabilities describing discrimination they had encountered at Kmart stores

around the country. They also provided testimony from Defendants’ own employees detailing

company-wide policies that had discriminatory effects, and from Defendants’ own experts,

documenting those discriminatory effects. Finally, Plaintiffs submitted a 2,773-page print-out

documenting 19,406 records in which Kmart’s mystery shoppers noted discriminatory conditions

at Kmart stores.

10 See, e.g., O’Loghlin, 229 F.3d at 876 (holding that pre-bankruptcy evidence is admissible to show a course of conduct).

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important factual and legal research, should Plaintiffs ultimately prevail on their ADA cause of action, would encourage the type of duplication the Third Circuit in Gulf Stream III sought to avoid. For these reasons, Plaintiffs are entitled to their fees for pre-petition work regardless of the impact of Defendant’s bankruptcy on such fees.
Conclusion For the reasons discussed above, Plaintiffs respectfully request that this Court: 1. Determine that Kmart’s bankruptcy had no impact on Plaintiffs’ motion for class certification and proceed to address that motion, either through oral argument or on the briefs; and 2. Determine that, should Plaintiffs prevail on their request for injunctive relief under Title III of the Americans with Disabilities Act, they will be entitled to “a reasonable attorney’s fee, including litigation expenses, and costs” pursuant to section 505 of that statute, 42 U.S.C. § 12205, regardless of when those fees were incurred. Respectfully submitted, FOX & ROBERTSON, P.C.

Amy F. Robertson Timothy P. Fox 910 -16th Street Suite 610 Denver, CO 80202 303.595.9700
Steven R. Greenberger Disability Rights Clinic

Kevin W. Williams Legal Program Director Colorado Cross Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775
Earl Mettler Stephen LeCuyer
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DePaul College of Law 25 E. Jackson Blvd. Chicago, IL 60604 312.362.8138
Brian East Advocacy, Inc. 7800 Shoal Creek Boulevard, Suite 171-E Austin, Texas 78757-1024 512.454.4816
Attorneys for Plaintiffs

Mettler & LeCuyer, P.C. 4308 Carlisle Blvd. NE, Suite 208 Albuquerque, NM 87107 505.884.0078
Denette Vaughn James Teague Advocacy, Inc. 1001 Main St., Ste 200 Lubbock, TX 79401 806.765.7794
July 14, 2003

-18-

Certificate of Service I hereby certify that on July 14, 2003, copies of Plaintiffs’ Supplemental Pleading Regarding Bankruptcy, Class Certification and Attorneys’ Fees were served by first class mail, postage prepaid, on:
Theodore A. Olsen, Esq. Sherman & Howard, LLC 633 17th Street, Suite 3000 Denver, CO 80202
-19-

 
 Case 1:99-cv-01923-JLK-CBS Document 192 Filed 07/13/2005 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-cv-01923-JLK CARRIE ANN LUCAS , DEBBIE LANE, and JULIE REIS KIN, on behalf of themselves and all others similarly situated,
Plaintiffs, v. KMART CORPORATION,
Defendant. __________________________________________________________________ ORDER GRANTING PLAINTIFFS’M OTION FOR CLASS CERTIFICATION __________________________________________________________________ KANE, J. This wheelchair access disability discrimination case is before me on Plaintiffs’ M otion for Class Certification. Plaintiffs’seek to certify a nationwide class of wheelchair users based on allegations of a pattern of discrimination against them in Kmart stores across the country. Defendant Kmart Corporation (“Kmart”) objects to certification, principally on grounds that each one Kmart’s 1500 stores is physically unique, differing in terms of size, layout, configuration, building structure and merchandise selection as would preclude a finding of commonality necessary for certification. I am unpersuaded, and grant Plaintiffs’M otion.

Case 1:99-cv-01923-JLK-CBS Document 192 Filed 07/13/2005 Page 2 of 7
Facts and Procedural History. Plaintiffs Carrie Ann Lucas, Debbie Lane and Julie Reiskin are individuals who depend on wheelchairs for their mobility. They filed this action against Kmart in 1999, asserting claims for violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. and the Colorado Anti-Discrimination Act (“CADA”), Colo. Rev. Stat. §§ 24-34-601 et seq., based on policies and practices they claimed Kmart maintained at their stores that discriminated against them and the entire class of shoppers who depend on wheelchairs or scooters for their mobility. Plaintiffs sought injunctive relief to correct these centralized policies and practices that created architectural and related barriers and impeded the ability of wheelchair-bound shoppers from using or enjoying access to Kmart, and moved for class certification. During the pendency of the class certification motion, Kmart filed for protection under Chapter 11 of the Bankruptcy Code and proceedings ground to a halt as a result of the automatic stay triggered by such a filing. Kmart emerged from bankruptcy in M ay 2003 with a reorganization plan that called for significant changes in Kmart’s business practices. The automatic stay dissolved, and the question quickly arose as to whether this action could, and should, proceed. Over Kmart’s objection that doing so would violate the fresh start and related provisions of the Bankruptcy Code, I granted Plaintiffs’M otion to Reopen. The parties
2

Case 1:99-cv-01923-JLK-CBS Document 192 Filed 07/13/2005 Page 3 of 7
filed a series of supplemental briefs and related materials updating the case and the discovery plan, and renewed the M otion for Class Certification. As part of their negotiations, Plaintiffs conceded their CADA claims were discharged upon confirmation of Kmart’s reorganization plan. The sole remaining claim, then, is Plaintiffs’request for injunctive relief under the ADA.
Discussion. After the reorganization, Kmart continues to operate approximately 1,500 stores nationwide. Plaintiffs contend they and others with disabilities have experienced numerous instances of discriminatory practices, policies, and barriers to access at Kmart both before and after reorganization, including narrow and obstructed aisles as well as inaccessible checkout aisles, counters, fitting rooms, and parking facilities. In addition to their own testimony, they offer the testimony of others in the putative class describing instances of similar problems at Kmart stores in other states. (Fuller Dep. at 51:5-55:25 (June 5, 2001); M ason Dep. at 26:10-27:13 (June 4, 2001); M auro Dep. at 30:1131:13; Pls.’Resp. to Def.’s June 6, 2003 Letter at App. 5, 6 (June 16, 2003).)
Legal Standards for Class Certification. In order to obtain certification as a class action under Fed. R. Civ. P. Rule 23, class plaintiffs must first demonstrate the prerequisites for class action status – numerosity, commonality, typicality, and adequacy of representation –exist under
3

Case 1:99-cv-01923-JLK-CBS Document 192 Filed 07/13/2005 Page 4 of 7
subparagraph (a), and then demonstrate the action is properly maintainable as a class action for any of the reasons identified in paragraph (b). See generally C. Wright, A. M iller & M . Kane, Federal Practice and Procedure: Civil 3d § 1785 (West 2005). Here, Plaintiffs contend the prerequisites for class designation are met, and seek to certify a nationwide class of wheelchair users under 23(b)(2).
Because of the flexible nature of class certification, courts are to favor the procedure. Esplin v. Hirschi, 402 F.2d 94, 99 (10th Cir. 1968). As long as the proper standards for class certification under Rule 23 are applied, the decision of whether to certify the class rests soundly in my discretion. Shook v. El Paso County, 386 F.3d 963, 967-68 (10th Cir. 2004).
In ruling on the M otion for Class Certification, I do not evaluate the underlying merits of the claim. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974)(rejecting cases requiring evaluation of likelihood of success on merits and instead accept the substantive allegations of the complaint as true.) While I need not blindly rely on conclusory allegations parroting Rule 23, I accept the substantive allegations of the complaint as true. Shook at 968 (citing J.B v. Valdez, 186 F.3d 1280, 1290 & n. 7 (10th Cir. 1999)). “In determining the propriety of a class action, the question is not whether the . . . plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.” Id. (quoting Anderson v. City of
4

Case 1:99-cv-01923-JLK-CBS Document 192 Filed 07/13/2005 Page 5 of 7
Albuquerque, 690 F.2d 796, 799 (10th Cir. 1982)); see generally Wright, M iller & Kane, supra, § 1785.
Certification of Nationwide Class is Appropriate Under these Standards.
This case provides a paradigm for class certification under Rule 23(b)(2), where the party opposing the class is alleged to have acted or refused to act on grounds generally applicable to the class, and the relief sought seeks to compel compliance with civil rights laws in a manner that will inure to the benefit of all members of the putative class. See Wright, M iller & Kane, supra, §§ 1775, 1776. Indeed, the Advisory Committee Notes to the 1966 amendment adding subparagraph (b)(2) to Rule 23 explain that (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.” Applied in Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354, 361 (D. Colo. 1999)(Babcock, C.J.).
Kmart’s objection that the 23(a) prerequisites of commonality and typicality cannot be met entwines the standards for class certification with the merits of the case and is rejected. Specifically, Kmart argues that because there is no centralized control over design, access or configuration of Kmart’s 1500 nationwide stores, common legal
5

Case 1:99-cv-01923-JLK-CBS Document 192 Filed 07/13/2005 Page 6 of 7
and factual questions exist only as to those class members who patronize the same individual store. The claims of the proposed class representative, under this theory, are typical only of those class members who patronized the same stores as they did. I reject both contentions. The question of whether Kmart Corporation is liable for alleged ADA violations by its member stores is an open question that must be litigated on its merits. The fact Kmart denies it has ADA obligations for individual member stores will not preclude class certification in a case where that denial is in dispute.
The focus of concern in 23(b)(2) certification is whether final injunctive relief against defendant can and will benefit the class as a whole. Assuming discovery and litigation of Plaintiffs’claims can lead to a determination that Kmart Corporation is liable for discriminatory practices of its member stores, the prerequisites of commonality and typicality are met. Numerosity of the putative class is not reasonably in dispute, and the question whether the proposed representative plaintiffs can fairly and adequately represent a nationwide class of wheelchair users must be answered in the affirmative. See Colorado Cross-Disability Coalition at 361 (where Plaintiffs Julie Reiskin and Debbie Lane were deemed adequate to represent a similar class of wheelchair bound patrons of Taco Bell restaurants nationwide). With respect to 23(b)(2), the fact there is a dispute over the requirement that Kmart acted on grounds generally applicable to the class, or that Kmart is legally able to bind its stores with respect to injunctive relief,
6

Case 1:99-cv-01923-JLK-CBS Document 192 Filed 07/13/2005 Page 7 of 7
does not bar certification. See Wright, M iller & Kane at § 1775, n. 12 (citing Dickerson v. U.S. Steel Corp., 64 F.R.D. 351, 358 (E.D. ¶. 1974).
Defendants’objection regarding representative Plaintiffs’standing to assert claims on behalf of individuals who patronized other Kmart stores is subsumed by my determination that the Rule 23(a) prerquisites have been met. Defendants’objection regarding the “mootness”of claims by class members who patronized stores now closed is irrelevant given the nature of the claims and the relief sought. Stores no longer in existence will obviously not be bound by an order for injunctive relief, and the fact of their closure in no way affects the justiciability of claims seeking injunctive relief to remedy discrimination in stores that are open.

Based on the foregoing, Defendants’various objections to certification are DENIED and Plaintiffs’M otion for Class Certification is GRANTED. Plaintiffs Carrie Ann Lucas, Debbie Lane and Julie Reiskin are appointed representatives of the nationwide class of individuals who shop at Kmart and rely on wheelchairs or motorized scooters for their mobility in doing so.

Dated July 13, 2005

s/John L. Kane SENIOR U.S. DISTRICT COURT JUDGE

7

 
 Case 1:99-cv-01923-JLK-CBS Document 218 Filed 03/22/2006 Page 1 of 11
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-cv-01923-JLK CARRIE ANN LUCAS, DEBBIE LANE, JULIE REISKIN, EDWARD MUEGGE, ROBERT G. GEYER, STACY BERLOFF, JEAN RYAN, JAN CAMPBELL,
on behalf of themselves and all others similarly situated, Plaintiffs,
v. KMART CORPORATION,
Defendant.
ORDER GRANTING PLAINTIFFS’UNOPPOSED MOTION FOR PRELIMINARY CERTIFICATION OF A DAMAGES SUB-CLASS
FOR SETTLEMENT PURPOSES ONLY
Plaintiffs Carrie Ann Lucas, Edward Muegge, Robert Geyer, Stacy Berloff, Jean Ryan and Jan Campbell moved to preliminarily certify a Damages Settlement Sub-Class for settlement purposes only. Defendant Kmart Corporation (“Kmart”) does not oppose this Motion. After considering the plaintiffs’brief and applicable law, the Court will grant the motion to preliminarily certify a Damages Settlement Sub-Class for settlement purposes only under F.R.C.P. 23(a) and both F.R.C.P. 23(b)(2) and 23(b)(3).

Case 1:99-cv-01923-JLK-CBS Document 218 Filed 03/22/2006 Page 2 of 11

Procedural History In an order issued on July 13, 2005 (the “2005 Certification Order”), the Court certified a class in this action under F.R.C.P. 23(a) and F.R.C.P. 23(b)(2) consisting of “individuals who shop at Kmart and rely on wheelchairs or motorized scooters for their mobility in doing so.” 2005 Certification Order, 2005 WL 1648182 at *3. The parties have now reached a settlement in this matter. Simultaneous with the filing of the motion at issue here, the parties filed a joint motion for preliminary approval of the settlement agreement. Pursuant to that agreement, in addition to substantial injunctive relief, Kmart will pay $13 million ($8 million in cash and $5 million in gift cards) in order to resolve claims for statutory minimum damages1 by members of the class. Class members who shopped at Kmart Stores in any of the seven states permitting statutory minimum damages -- California, Colorado, Hawaii, Massachusetts, New York, Oregon, and Texas (the “Statutory Minimum Damages States”) -- will be eligible to make a claim for part of the $13 million to be provided pursuant to the settlement.2 The injunctive relief set forth in the settlement will benefit a “Settlement Class”based on the nationwide class certified by this Court on July 13, 2005. Not all members of the Settlement Class, however, will be eligible for monetary compensation. Plaintiffs therefore now seek preliminary certification for settlement purposes of a Damages Settlement Sub-Class defined as all Settlement Class Members who, at any time from May 6, 2003 through the term of the settlement

1

Statutory minimum damages claims are claims under certain state statutes for

damages in a certain specified amount that are recoverable without proof of actual damages.

2

The Agreement does not address or release any claims for actual damages.

2

Case 1:99-cv-01923-JLK-CBS Document 218 Filed 03/22/2006 Page 3 of 11

agreement, shopped or shop at any Kmart Store or Closed Kmart Store in the Statutory Minimum Damages States or who allege that they would have shopped or would shop at one or more Kmart Stores or Closed Kmart Stores in the Statutory Minimum Damages States but for allegedly being denied on the basis of disability the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of such Kmart Store(s) or Closed Kmart Store(s).
Plaintiffs also propose six individuals to serve as representatives of the Damages Settlement Sub-Class. In addition to Carrie Ann Lucas, one of the original named plaintiffs who is also a member of the putative Damages Settlement Sub-Class, there is at least one proposed sub-class representative with claims in each of the seven states relevant to the Damages Settlement Sub-Class.
Legal Standards for Class Certification For a class to be certified under F.R.C.P. 23, plaintiffs must demonstrate that the prerequisites for class action status -- numerosity, commonality, typicality, and adequacy of representation -- exist under F.R.C.P. 23(a), and then demonstrate the action is properly maintainable under at least one of the three subsections of F.R.C.P. 23(b).3 See generally C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 3d § 1785 (West 2005). Here, plaintiffs seek to certify the Damages Settlement Sub-Class under F.R.C.P. 23(a) and both F.R.C.P. 23(b)(2) and F.R.C.P. 23(b)(3).

3

The class must satisfy the requirements of F.R.C.P. 23 even in the settlement

context. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 619-20 (1997).

3

Case 1:99-cv-01923-JLK-CBS Document 218 Filed 03/22/2006 Page 4 of 11
A. The Damages Settlement Sub-Class Satisfies F.R.C.P. 23(a). 1. Numerosity Under F.R.C.P. 23(a), in order to be certified, a proposed class must be “so numerous that
joinder of all members is impracticable.” The proposed sub-class contains several thousand members and therefore satisfies the numerosity requirement. See, e.g., Owner-Operator Ind. Drivers Ass’n v. C.R. England, Inc., 2005 WL 2098919, at *2 (D. Utah Aug. 29, 2005); Vaszlavik v. Storage Tech. Corp., 183 F.R.D. 264, 270 (D. Colo. 1998).
2. Commonality Commonality exists where there are “questions of law or fact common to the class.” F.R.C.P. 23(a)(2). “Commonality requires only a single issue common to the class.” J.B. v. Valdez, 186 F.3d 1280, 1288 (10th Cir. 1999). “[T]here may be varying fact situations among individual members of the class . . . as long as the claims of the plaintiffs and other class members are based on the same legal or remedial theory.” Joseph v. Gen. Motors Corp., 109 F.R.D. 634, 639-40 (D. Colo. 1986). The Damages Settlement Sub-Class meets this requirement. The liability theory for the Damages Settlement Sub-Class is almost identical to that of the class certified by the Court last July -- class members encountered barriers at Kmart Stores that hindered their access to the stores. My determination in the 2005 Certification Order that the commonality requirement was met with respect to the original class supports a parallel holding here with respect to the Damages Settlement Sub-Class.
4

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In addition, numerous courts have held that where people who use wheelchairs or scooters encounter the same types of barriers at a number of commonly owned public accommodations, the commonality requirement for class certification is met. See, e.g., Moeller v. Taco Bell Corp., 220 F.R.D. 604, 609 (N.D. Cal. 2004); Access Now, Inc. v. Ambulatory Surgery Center Grp., 197 F.R.D. 522, 525 (S.D. Fla. 2000); Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354, 358 (D. Colo. 1999); Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 449 (N.D. Cal. 1994). Commonality is also established by the fact that Sub-Class members challenge a number of system-wide Kmart policies -- including policies concerning store operation and design, as well employee training policies -- that they allege are discriminatory. See, e.g., 1 Robert Newberg, Newberg on Class Actions, § 3:10 at 3-52 -53 (4th ed. 2002); Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001).
3. Typicality Under the typicality requirement of F.R.C.P. 23(a)(3), the “claims or defenses of the representative parties [must be] typical of the claims or defenses of the class.” “[D]iffering fact situations of class members do not defeat typicality under Rule 23(a)(3) so long as the claims of the class representative and class members are based on the same legal or remedial theory.” Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988). The proposed Damages Settlement Sub-Class satisfies this requirement. The “legal and remedial theory”behind the Damages Settlement Sub-Class is that the subclass members are individuals who use wheelchairs or scooters for mobility, who encountered barriers at Kmart Stores, and who are therefore entitled to statutory minimum damages. Each of
5

Case 1:99-cv-01923-JLK-CBS Document 218 Filed 03/22/2006 Page 6 of 11
the proposed representatives of the Damages Settlement Sub-Class have these very claims and as such the typicality requirement is met.
4. Adequacy of Representation Under the final requirement of F.R.C.P. 23(a), in order for a class to be certified, the class representatives must have common interests with the class members and be represented through qualified counsel. Cook v. Rockwell Int’l Corp., 151 F.R.D. 378, 386 (D. Colo. 1993). To satisfy the adequate representation requirement, “a class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625-26 (1997) (internal citations omitted). The proposed Damages Settlement Sub-Class Representatives clearly meet this standard here. All six of them have disabilities that require them to use wheelchairs and/or scooters for mobility and all allege that they have encountered barriers at Kmart Stores in states providing for statutory minimum damages. In addition, counsel for the sub-class, Fox & Robertson, P.C., specializes in representing individuals with disabilities and has extensive experience doing so both before this Court and elsewhere. (See Robertson Decl. at ¶¶ 2-3.) Notwithstanding the extensive disputes between the parties over the certification of the original class in this lawsuit, the quality of representation provided by Fox & Robertson, P.C. has never been disputed. B. The Damages Settlement Sub-Class Satisfies F.R.C.P. 23(b)(2). In the Certification Order, the Court certified the nationwide class in this action under F.R.C.P. 23(b)(2), which permits class certification where a defendant has “acted or refused to act
6

Case 1:99-cv-01923-JLK-CBS Document 218 Filed 03/22/2006 Page 7 of 11
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 . . . .” The proposed Damages Settlement Sub-Class is simply a sub-group of the members of the class that the Court has already certified. The sub-class members seek, and as part of the settlement will get, the same injunctive relief sought by the members of the main class. The only difference is that they will also be eligible for compensation for statutory minimum damages claims.
The fact that members of the class will also be eligible for statutory minimum damages, however, does not mean that certification under F.R.C.P. 23(b)(2) is not permitted. Case law in the ADA context, including from Judge Babcock of this Court, provides that a class seeking both injunctive relief and statutory minimum damages can be certified under F.R.C.P. 23(b)(2). See Arnold, 158 F.R.D. at 452-53; Taco Bell, 184 F.R.D. at 361; Moeller, 220 F.R.D. at 613 (certification under F.R.C.P. 23(b)(2) appropriate when class is seeking substantial injunctive relief and “only the statutory minimum of damages under [California’s] Unruh Act”). In reaching that conclusion in Taco Bell, Judge Babcock explained that when, as here, the plaintiff’s “primary claim is for injunctive relief,”“the fact that the class also seeks monetary relief damages [does not] change th[e] result”that certification under F.R.C.P. 23(b)(2) is appropriate. 184 F.R.D. at 361.
When the claims of the Damages Settlement Sub-Class Members are analyzed in terms of the overall relief they are seeking (and receiving under the settlement), their claims for injunctive relief predominate over the claims for statutory minimum damages. The claims for injunctive relief seek modifications of all the stores in the Kmart chain nationwide, along with substantial
7

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alterations to Kmart’s policies and procedures. See Moeller, 220 F.R.D. at 613 (injunctive issues predominate when class seeks both injunction requiring retrofitting of chain of restaurants and statutory minimum damages under California law). Indeed, the injunctive claims in this action were actively pursued on behalf of the members of the main class -- which includes every member of the proposed sub-class -- for a several-year period when damages claims were not even part of this litigation. Even now, the settlement only addresses statutory minimum damages, not actual damages. Under such circumstances, it cannot be disputed that this litigation has been predominantly about injunctive relief and not the pursuit of damages. Moreover, because the parties have agreed to an extensive notice program and class members will be provided the opportunity to opt-out, concerns that might otherwise be present when certifying a class under F.R.C.P. 23(b)(2) are not present here. Certification of the Damages Settlement Sub-Class under F.R.C.P. 23(b)(2) is therefore appropriate. C. The Damages Settlement Sub-Class Satisfies F.R.C.P. 23(b)(3).
The Damages Settlement Sub-Class also satisfies the requirements of F.R.C.P. 23(b)(3). Under F.R.C.P. 23(b)(3), a class can be certified if the Court finds “that [(1)] the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and [(2)] that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.”
In determining whether these two requirements are met, F.R.C.P. 23(b)(3) sets forth four factors that may be pertinent:
8

Case 1:99-cv-01923-JLK-CBS Document 218 Filed 03/22/2006 Page 9 of 11
(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; (D) the difficulties likely to be encountered in the management of a class action. The requirements set forth in F.R.C.P. 23(b)(3) are satisfied here. First, under the case law, when a class (here, a sub-class) of individuals with disabilities seeks statutory minimum damages for alleged discrimination based on architectural or other barriers, the factual and legal issues common to the class predominate over any individual issues. In Taco Bell, 184 F.R.D. at 361-63, Judge Babcock held that a class of individuals who use wheelchairs and were seeking both injunctive relief and statutory minimum damages could be certified pursuant to either F.R.C.P. 23(b)(2) or F.R.C.P. 23(b)(3). Judge Babcock held that certification under F.R.C.P. 23(b)(3) was appropriate because, while there were various questions concerning the defendant’s possible liability that were common to the class, the only issue individual to each class member was “the number of instances of discrimination encountered by each class member.” Id. at 362. Other courts have reached the similar conclusions in related circumstances. See, e.g., Moeller, 220 F.R.D. at 612-13; Arnold, 158 F.R.D. at 453. Second, class certification for settlement purposes only is appropriate here because a “class action is superior to other available methods for the fair and efficient adjudication of the controversy.” F.R.C.P. 23(b)(3). As a preliminary matter, the threshold set by this requirement is lower in the settlement context, because concerns that might exist about the management of the case in the form of a class action have no relevance in the context of a class certification for settlement purposes only. See, e.g., Amchem, 521 U.S. at 619; F.R.C.P. 23(b)(3)(D).
9

Case 1:99-cv-01923-JLK-CBS Document 218 Filed 03/22/2006 Page 10 of 11

In any regard, this requirement is met here because the amounts at stake for an individual -

- as little as fifty dollars and only rarely over eight thousand dollars -- are small enough to render

most individual suits impractical. See Taco Bell, 184 F.R.D. at 362; F.R.C.P. 23(b)(3)(A). The

impracticality of individual suits is confirmed at least in part by the general lack of similar

litigation commenced against Kmart on an individual basis. See F.R.C.P. 23(b)(3)(B). Finally,

the “desirability or undesirability of concentrating the litigation of the claims in the particular

forum,”F.R.C.P. 23(b)(3)(C), also argues in favor of certifying the sub-class for settlement

purposes here. Because of the pre-existence of the main class and the limited size of the potential

financial recovery from bringing individual suits, it is desirable to concentrate the settlement of

claims for statutory minimum damages in a particular forum, indeed, this particular forum. See

Taco Bell, 184 F.R.D. at 362.

*

*

*

*

*

Based on the foregoing, Plaintiffs’Unopposed Motion for Preliminary Certification of a

Damages Sub-Class for Settlement Purposes Only is GRANTED. Plaintiffs Carrie Ann Lucas,

Edward Muegge, Robert Geyer, Stacy Berloff, Jean Ryan and Jan Campbell are appointed

representatives of a sub-class consisting of all Settlement Class Members who, at any time from

May 6, 2003 through the Term of the Settlement Agreement, shopped or shop at any Kmart Store

or Closed Kmart Store in the Statutory Minimum Damages States or who allege that they would

have shopped or would shop at one or more Kmart Stores or Closed Kmart Stores in the

Statutory Minimum Damages States but for allegedly being denied on the basis of disability the

full and equal enjoyment of the goods, services, facilities, privileges, advantages, or

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accommodations of such Kmart Store(s) or Closed Kmart Store(s). The sub-class is certified under F.R.C.P. 23(a) and both F.R.C.P. 23(b)(2) and F.R.C.P. 23(b)(3).

Dated: March 22, 2006

BY THE COURT:
S/John L. Kane SENIOR U.S. DISTRICT COURT JUDGE

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-cv-01923-JLK-CBS CARRIE ANN LUCAS, DEBBIE LANE, JULIE REISKIN, EDWARD MUEGGE, ROBERT G. GEYER, STACY BERLOFF, JEAN RYAN, JAN CAMPBELL,
on behalf of themselves and all others similarly situated, Plaintiffs,
v. KMART CORPORATION,
a Michigan corporation, Defendant.
SECOND AMENDED CLASS ACTION COMPLAINT
Plaintiffs Carrie Ann Lucas, Debbie L. Lane, Julie Reiskin, Edward Muegge, Robert G. Geyer, Stacy Berloff, Jean Ryan, and Jan Campbell, by and through their attorneys, hereby bring this Amended Class Action Complaint against Defendant Kmart Corporation (“Kmart”) for violation of the Americans with Disabilities Act, 42 U.S.C. § 12182 et seq. (“ADA”), the Colorado Anti-Discrimination Act, C.R.S. § 24-34-601 et seq. (“CADA”), the California Unruh Civil Rights Act and the California Disabled Persons Act, Cal. Civ. Code §§ 51(b) & 54.1, Hawai’i’s Chapter 489, Haw. Rev. Stat. § 489 et seq., the Texas Human Resource Code, Tex.

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Hum. Res. Code Ann. § 121.001 et seq., the Massachusetts Anti-discrimination law, Mass. Gen. Laws ch. 272, §§ 98 and 92A, the New York Civil Rights Law, N.Y. Civ. Rights § 40 et seq., and N.Y. Exec § 296(2)(a), and the Oregon Unlawful Discrimination against Disabled People, Or. Rev. Stat. § 659A.142(3).
INTRODUCTION 1. This case was originally filed in October, 1999. An Amended Class Action Complaint was filed in May 2000. 2. On July 13, 2005, this Court certified a nationwide class of Kmart shoppers who use wheelchairs or scooters who had claims for injunctive relief under Title III of the ADA. 42 U.S.C. § 12181 et. seq. 3. On February 9, 2006, the parties to this case reached a settlement that resolved not only the ADA claims of the class as certified, but claims for statutory minimum damages of class members who had shopped at Kmart stores in seven states with statutes providing for such damages. 4. Through this Second Amended Class Action Complaint, Plaintiffs allege claims on behalf of class members in the seven Statutory Minimum Damages States (defined below), and request the Court to certify a Damages Settlement Sub-Class and appoint representative plaintiffs and class counsel therefor.
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JURISDICTION 5. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343 and supplemental jurisdiction over the state law claims alleged herein. Id. § 1367(a). 6. Venue is proper within this District pursuant to 28 U.S.C. § 1391.
PARTIES 7. Plaintiff Carrie Ann Lucas is and was at all times material hereto a resident of Colorado. As a result of a bone infection and bone tumor and related treatment, Ms. Lucas is substantially impaired in several major life activities and requires a wheelchair for mobility. Ms. Lucas has shopped at Kmart stores in various locations in Colorado and other states and plans to continue to do so in the future. 8. Plaintiff Debbie L. Lane is and was at all times material hereto a resident of Colorado. As a result of epilepsy and spastic paraparesis, Ms. Lane is substantially impaired in several major life activities and requires a power wheelchair for mobility. Ms. Lane has shopped at Kmart stores in various locations in Colorado and plans to continue to do so in the future. 9. Plaintiff Julie Reiskin is and was at all times material hereto a resident of Colorado. As a result of multiple sclerosis, Ms. Reiskin is substantially impaired in several major life activities and requires a power wheelchair for mobility. Ms. Reiskin has shopped at Kmart stores in various locations in Colorado and plans to continue to do so in the future. 10. Plaintiff Edward Muegge is and was at all times material hereto a resident of Hawai’i. Mr. Muegge is substantially impaired in several major life activities as a result of a
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spinal cord injury and requires a power wheelchair or scooter for mobility. Mr. Muegge has shopped at Kmart stores in Hawai’i and California and plans to continue to do so in the future.
11. Plaintiff Robert G. Geyer is and was at all times material hereto a resident of Texas. Mr. Geyer is substantially impaired in several major life activities as a result of a spinal cord injury and requires a power wheelchair for mobility. Mr. Geyer has shopped at Kmart stores in Texas and plans to continue to do so in the future.
12. Plaintiff Stacy Berloff is and was at all times material hereto a resident of Massachusetts. Ms. Berloff is substantially impaired in several major life activities as a result of multiple neurological conditions and requires a power wheelchair for mobility. Ms. Berloff has shopped at Kmart stores in Massachusetts and plans to continue to do so in the future.
13. Plaintiff Jean Ryan is and was at all times material hereto a resident of New York. Ms. Ryan is substantially impaired in several major life activities as a result of Charcot-MarieTooth Disease, a neurological disorder and requires a power scooter or a power wheelchair for all mobility outside her home. Ms. Ryan has shopped at Kmart stores in New York and plans to continue to do so in the future.
14. Plaintiff Jan Campbell is and was at all times material hereto a resident of Oregon. Ms. Campbell is substantially impaired in several major life activities as a result of transversemytalitis and requires a power wheelchair for mobility. Ms. Campbell has shopped at Kmart stores in Oregon and plans to continue to do so in the future.
15. Defendant Kmart Corporation is a corporation incorporated in Michigan with its principal place of business in Troy, Michigan. Kmart is registered to do business in the state of
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Colorado. Kmart owns and operates over 1,400 large retail stores selling general merchandise throughout the United States.
CLASS ACTION ALLEGATIONS 16. This Court has certified a nationwide class consisting of individuals who shop at Kmart and rely on wheelchairs or motorized scooters for their mobility in doing so, and appointed Plaintiffs Carrie Ann Lucas, Debbie L. Lane and Julie Reiskin as representative plaintiffs. 17. Plaintiffs also seek to maintain a sub-class to address the damages claims of class members in seven states. This “Damages Settlement Sub-Class”will consist of all class members who -- at any time from May 6, 2003 through the term of the settlement agreement reached among the parties -- shopped or shop at any Kmart store in California, Colorado, Hawai’i, Massachusetts, New York, Oregon or Texas (the “Statutory Minimum Damages States”) or who allege that they would have shopped or would shop at one or more Kmart stores in the Statutory Minimum Damages States but for allegedly being denied on the basis of disability the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of such store. Members of the Damages Settlement Sub-Class seek damages only in the statutory minimum amounts available under the relevant statutes of the Statutory Minimum Damages States. 18. Plaintiffs seek to have this Court appoint Carrie Ann Lucas, Edward Muegge, Robert G. Geyer, Stacy Berloff, Jean Ryan, and Jan Campbell as representatives of the Damages Settlement Sub-Class.
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19. The class and sub-class identified in Paragraphs 16 and 17 are both believed to consist of well over 100,000 members, and joinder of all of such members in this lawsuit is impracticable.
20. There are numerous questions of law and fact common to the class and sub-class including, though not limited to, the following:
a. Whether Kmart stores are “public accommodations” under the ADA; b. Whether Kmart stores deny the full and equal enjoyment of their goods,
services, facilities, privileges, advantages, or accommodations to people who use wheelchairs, in violation of the ADA; c. Whether Kmart is required by the ADA to maintain access for persons who use wheelchairs to its displayed merchandise; d. Whether Kmart is required to maintain access for persons who use wheelchairs to accessible restrooms and dressing rooms; e. Whether Kmart is required by the ADA to maintain open, accessible, check-out aisles during store hours; f. What measures are legally required to bring Kmart stores into compliance with the ADA; and g. Whether Kmart’s conduct violated statutes the Statutory Minimum Damages States prohibiting disability discrimination in stores such as Kmart’s.
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21. Plaintiffs’ claims are typical of the claims of the members of the class and subclass. They – like other members of the class and sub-class – use wheelchairs for mobility and claim Kmart has violated the ADA and state law in the Statutory Minimum Damages States by failing to make its stores accessible to people who use wheelchairs. At least one representative plaintiff has shopped in a Kmart store in each of the Statutory Minimum Damages States within the class period.
22. Plaintiffs will fairly and adequately protect the interests of the class and sub-class. They are all familiar with the requirements of the ADA -- and putative representative plaintiffs in the Damages Settlement Sub-Class are all familiar with the requirements of the state laws in the Statutory Minimum Damages States in which they have patronized Kmart stores -- and all are committed to ensuring access for people who use wheelchairs though enforcement of its provisions. None of the Plaintiffs has any interest that conflicts in any way with the interests of the class and sub-class.
23. In addition, Plaintiffs have retained counsel with extensive experience in litigation, including class action litigation. Two of the entities representing Plaintiffs -- Fox & Robertson and the Colorado Cross Disability Coalition -- have been found by this Court on two other occasions to be qualified to represent a class in bringing claims under the ADA. Additional class counsel include attorneys with extensive experience in civil rights class actions. Two of Plaintiffs’ counsel, Timothy Fox and Kevin Williams, are thoroughly familiar with issues concerning people who use wheelchairs because both are tetraplegics and both have used wheelchairs for approximately 20 years.
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24. Certification of both the class and the Damages Settlement Sub-Class is appropriate under Federal Rule of Civil Procedure 23(b)(2) because Kmart’s violations of the ADA – including but not limited to inaccessible aisles, insufficient parking, insufficient accessible check-out aisles and inaccessible changing rooms – are applicable to all members of the class. Therefore, an injunction requiring compliance with the ADA is appropriate. Furthermore, because members of the Damages Settlement Sub-Class seek damages only in the statutory minimum amounts available under the relevant statutes of the Statutory Minimum Damages States, the injunctive relief sought in this case predominates over damages, making Rule 23(b)(2) certification appropriate for the Damages Settlement Sub-Class as well.
25. Certification of the Damages Settlement Sub-Class is also appropriate under Rule 23(b)(3). Questions of law or fact common to the sub-class -- including but not limited to those recited above -- predominate over any questions affecting only individual class members and the class action is superior to other available methods for the fair and efficient adjudication of the controversy.
FACTS 26. Plaintiff Carrie Lucas often shops at Kmart stores in Colorado and elsewhere. When she has shopped at Kmart stores -- including but not limited to visits since May 6, 2003 -she has encountered a number of barriers that have prevented her from full and equal enjoyment of Kmart goods and services based on her disability. Such barriers include but are not limited to those discussed below.
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27. In November or December of 1996, Plaintiff Lucas went to Kmart store number 4131 located at 200 W. Belleview Avenue in Englewood, Colorado (“the 200 W. Belleview Kmart”) to shop. At that time, Plaintiff’s disability had not progressed to the point where she required a wheelchair; rather, at that time, she used crutches to ambulate.
28. When she arrived at the 200 W. Belleview Kmart, she was unable to find any accessible parking. It was snowing at that time. Because she had no choice, Ms. Lucas parked in the fire lane in order to be able to leave her car and access the store.
29. During that visit, Ms. Lucas complained to the manager on duty about the parking situation. The manager on duty told Ms. Lucas that she would relay her concerns to the manager.
30. Ms. Lucas returned to the 200 W. Belleview Kmart several months later and discovered that the problem had not been remedied and that, in fact, only four spaces were designated for parking for persons with disabilities in a parking lot of over 400 spaces. The spaces that were so designated were not the correct size. A parking lot of this size should have at least nine accessible spaces with at least one van-accessible space of the dimensions required by the Americans with Disabilities Act Accessibility Guidelines (“ADAAG”).
31. During this second visit, Ms. Lucas wrote a note to the manager, Rick Mercurio and asked the Kmart employees at the customer service counter to relay the message to him. The employees stated they would do so.
32. Ms. Lucas spoke with Mr. Mercurio soon thereafter. She explained the problem with the parking spaces and Mr. Mercurio said he would look into it. A few weeks later Ms. Lucas received a letter from Mr. Mercurio stating that Kmart was looking into the problem and
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would come into compliance. She heard nothing further from Mr. Mercurio or Kmart until she contacted the former over a year later in the spring of 1998.
33. Sometime in the spring of 1998, Ms. Lucas again went to the 200 W. Belleview Kmart. By this time, Ms. Lucas’s disability had progressed to the point where she was using a manual wheelchair for mobility. Ms. Lucas attempted to park but was unable to find an accessible parking space. As a result, because she had no choice, she parked in the fire lane in order to be able to exit her vehicle. When she went into the store, she asked to speak with Mr. Mercurio but was told that he was not in the store at the time. Although she had gone to the store to assess the parking situation and contact Mr. Mercurio, she was interested in doing some shopping while she was there. However, there was a great deal of merchandise in the aisles, making shopping difficult. As such, she left without buying anything.
34. Ms. Lucas called Mr. Mercurio after this visit to inquire concerning the parking situation. Mr. Mercurio stated that he believed Kmart had a sufficient number of spaces for the lot.
35. Following this conversation, Ms. Lucas filed a complaint with the Department of Justice (“DOJ”). In or about July of 1998, Ms. Lucas received word from the DOJ that her complaint was being referred to mediation. In October of 1998, she was contacted by Jinu Evan of the Key Bridge foundation. Ms. Evan stated that she had spoken with Kmart and that she did not think the issue would need to go to mediation because Kmart appeared to be willing to remedy the problem.
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36. Several weeks later, Ms. Evan contacted Ms. Lucas to report that Kmart claimed to have remedied the problem.
37. On or about November 18, 1998, Ms. Lucas went to the 200 W. Belleview Kmart to ascertain whether the problem had been remedied. It had not: while the proper number of spaces were designated for use by persons with disabilities, very few of them were of the required dimensions. For example, most did not have any access aisles – necessary for people who use wheelchairs or have other mobility impairments to get out of their cars – and none had a van-accessible aisle. In addition, some of the spaces did not have correct signage.
38. Ms. Lucas called Ms. Evan and stated that the parking situation at the 200 W. Belleview Kmart was still out of compliance with the ADA and ADAAG.
39. In approximately late November, 1998, Ms. Evan contacted Ms. Lucas and told her that Kmart did not want to mediate, so the Key Bridge Foundation would be sending the complaint back to the DOJ.
40. On or about November 18, 1998, Ms. Lucas shopped at Kmart store number 7303 at 363 S. Broadway in Denver, Colorado (“the 363 S. Broadway Kmart”). When she arrived, the handbaskets were stacked so high that she could not reach them, some of the aisles were blocked by merchandise, and no accessible check-out aisles were open. When Ms. Lucas inquired why no such aisle was open, she was told by a Kmart employee that the cashier was on break. There were other – non-accessible – check-out aisles open at that time. Finally, the automatic door was broken and the other doors were too heavy for Ms. Lucas to open on her own.
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41. On or about November 27, 1998, Ms. Lucas shopped at Kmart store number 4224 at 2150 S. Monaco Parkway, Denver, Colorado (“the 2150 S. Monaco Kmart”). On prior occasions when Ms. Lucas had shopped at this location, no accessible check-out aisles had been open. When she entered the store on this occasion, one such line was open. However, by the time she had completed her shopping and was ready to check out, there were no accessible check-out aisles open. When she complained to the manager about this situation, she was told that the cashier was on break. There were other, non-accessible, check-out aisles open at that time. In addition, throughout the store merchandise was left in aisles, and in other places displayed in the aisles. In the clothing sections the racks were too close together. This impeded Ms. Lucas’s access to merchandise and caused her to knock some clothing off of racks and onto the floor.
42. In or about May, 1999, Ms. Lucas shopped at the 2150 S. Monaco Kmart. Again, when she entered the store an accessible check-out line was open. And again, by the time she had completed her shopping and was ready to check out, there were no accessible check-out aisles open though there were other, non-accessible, check-out aisles open at that time. Ms. Lucas went to the customer service counter to request that an accessible check-out aisle be opened and Kmart did so.
43. On or about August 20, 1999, Ms. Lucas shopped at Kmart store number 3627 at 8500 W. Crestline Avenue in Littleton (“the 8500 W. Crestline Kmart”). As she entered the store, Ms. Lucas noted that there were two accessible check-out aisles, but that neither of them was open. She paused after she came through the door at which point a Kmart employee at the
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customer service counter by the name of Jennifer asked Ms. Lucas if she needed help. As such, Kmart was aware that Ms. Lucas – now using a power wheelchair – was shopping in the store.
44. Ms. Lucas was unable to access parts of the gardening, school supplies, furniture and household departments because numerous aisles were blocked by merchandise and other items. The electronics check-out counter was 41 inches high throughout. The women’s fitting room had no bench and had clothes hooks that were mounted at a height of approximately 60 inches.
45. When Ms. Lucas went to check out, neither of the accessible check-out aisles was open. She got in the shortest inaccessible line but when she reached the front of the line, was unable to get through the aisle. She informed the clerk that she was unable to get through the aisle and that there were no accessible aisles open. The clerk responded by leaving the aisle – and Ms. Lucas and the line of customers behind her. Several minutes later the store opened another aisle – though still not one of the accessible aisles. Ms. Lucas continued to wait at the now-abandoned aisle but when the clerk did not return and no accessible aisle opened, she proceeded to the customer service counter to complain. The woman by the name of Jennifer – who had initially asked Ms. Lucas whether she needed help – made clear that she knew Kmart was required to keep an accessible check-out aisle open but informed Ms. Lucas that the clerk on that aisle was on break.
46. Ms. Lucas asked to speak with a manager. She explained the problem to floor manager Craig Bass. Mr. Bass shrugged and offered to help Ms. Lucas at the customer service counter. While this counter had a lowered portion, it was covered with boxes, notebooks and
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merchandise and, as such, was not usable by Ms. Lucas. Mr. Bass refused to open an accessible check-out aisle.
47. The 8500 W. Crestline Kmart has approximately 363 total parking spaces, only four of which are accessible and none of which is wide enough to be van-accessible. Two of the four allegedly accessible spaces do not comply with the requirements of ADAAG. Two additional spaces on the north end of the building are marked as if to be accessible but were blocked by a roll-off trash container on the day Ms. Lucas shopped there. There is, in any event, no curb cut to the sidewalk near those two spaces.
48. On or about August 20, 1999, Ms. Lucas shopped at the 200 W. Belleview Kmart. She was unable to access merchandise in various areas throughout the store because of items blocking the aisles. In addition, the single accessible fitting room was unusable because it was filled with a shopping cart full of merchandise. The electronics checkout counter was 41 inches high throughout.
49. On or about August 20, 1999, Ms. Lucas shopped at Kmart store number 4187 located at 2770 W. Evans Avenue in Denver, Colorado (“the 2770 W. Evans Kmart”). She was unable to access merchandise in various areas throughout the store because of items blocking the aisles. In addition, the route to the accessible fitting room was blocked so that Ms. Lucas was unable to get to it. The electronics checkout counter was 41 inches high throughout. The women’s restroom did not have an accessible stall.
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50. The 2770 W. Evans Kmart has approximately 423 total parking spaces only seven of which are accessible. Many of the spaces are improperly marked, causing confusion and often leading to the situation in which cars are parked too close to one another for proper access.
51. On or about October 19, 1999, Ms. Lucas was in the Nashville, Tennessee area to attend to matters related to the adoption of her daughter. At that time, she went to Kmart store number 3716 at 4646 Lebanon Pike in Hermitage, Tennessee. She needed to get some pictures developed and to purchase a few other items. She had trouble finding an accessible space in which to park her rented van. When she attempted to make her purchases, most of the aisles she attempted to enter were blocked by merchandise. Because she was ultimately unable to access the merchandise she had come to purchase, she left without buying anything.
52. On a number of occasions since October, 1999, Ms. Lucas has shopped at the 363 S. Broadway Kmart. On several of these occasions, she was accompanied by her daughter who also uses a wheelchair. Each time, Ms. Lucas and, at times, her daughter, have encountered barriers, policies and treatment that deny them the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of the store, including but not limited to: problems related to parking; aisles obstructed by merchandise; failure to open an accessible check-out aisle and/or failure to open a sufficient number of accessible check-out aisles; failure of store employees to assist in removal of barriers; and rude treatment in response to requests for reasonable accommodation.
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53. Plaintiff Debbie L. Lane often shops at Kmart stores. She has shopped at Kmart stores in Colorado and elsewhere. Her experiences shopping at Kmart stores include but are not limited to those described below.
54. On a number of occasions since October, 1999, Ms. Lane has shopped at Kmart store number 4181, located at 3325 28th Street in Boulder, Colorado (the “28th Street Kmart”). On many of the occasions she has shopped at the 28th Street Kmart, Ms. Lane has encountered aisles that are blocked by merchandise. Because of these barriers to access, she has been unable to get to the merchandise on her own and has had to enlist the assistance of a non-disabled friend to move items out of her way or to reach merchandise she was blocked from reaching. In addition, on none of the occasions that she has shopped at the 28th Street Kmart has there been an accessible check-out aisle open. On more than one occasion, Ms. Lane has asked store personnel to open an accessible check-out aisle. She has been instructed to use the customer service counter instead. Although she was able to pay for her merchandise at the customer service counter, this transaction was rendered more difficult because the customer service counter is too high.
55. Plaintiff Julie Reiskin often shops at Kmart stores in Colorado. Her experiences shopping at Kmart stores include but are not limited to those described below.
56. On at least ten occasions over the past seven years, Ms. Reiskin has shopped at the 363 S. Broadway Kmart. On many of those occasions, Ms. Reiskin has encountered barriers, policies and treatment that deny her the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of the store, including but not limited to: aisles
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obstructed by merchandise; display racks situated too close together; failure to open an accessible check-out aisle and/or failure to open a sufficient number of accessible check-out aisles; and designation of the only accessible check-out aisle as limited to patrons buying a limited number of items.
57. Plaintiff Edward Muegge shops at Kmart stores in Hawai’i. He has shopped at Kmart stores in Hawai’i within the past year. While shopping at Kmart, Mr. Muegge has encountered barriers, policies and treatment that denied him the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of the store.
58. Although he lives in Hawai’i, Plaintiff Edward Muegge visits California and shops at Kmart stores in California. He has shopped at Kmart stores in California within the past year. While shopping at Kmart, Mr. Muegge has encountered barriers, policies and treatment that denied him the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of the store.
59. Plaintiff Robert G. Geyer shops at Kmart stores in Texas. He has shopped at a Kmart store in Texas within the past year. While shopping at Kmart, Mr. Geyer has encountered barriers, policies and treatment that denied him the full use and enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of the store.
60. Plaintiff Stacy Berloff shops at Kmart stores in Massachusetts. She has shopped at a Kmart store in Massachusetts within the past year. While shopping at Kmart, Ms. Berloff has encountered barriers, policies and treatment that denied her the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of the store.
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61. Plaintiff Jean Ryan shops at Kmart stores in New York. She has shopped at a Kmart store in New York within the past year. While shopping at Kmart, Ms. Ryan has encountered barriers, policies and treatment that denied her the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of the store.
62. Plaintiff Jan Campbell often shops at Kmart stores in Oregon. She has shopped at a Kmart store in Oregon within the past year. While shopping at Kmart, Ms. Campbell has encountered barriers, policies and treatment that denied her the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of the store.
63. On information and belief, Kmart has over 1,400 stores nationwide, many of which have the same and other features that deny the full and equal enjoyment of their goods, services, facilities, privileges, advantages, or accommodations to people who use wheelchairs or scooters in violation of the ADA and state law
FIRST CLAIM FOR RELIEF (On behalf of all Plaintiffs and all others similarly situated
for violation of the Americans with Disabilities Act) 64. Plaintiffs reallege and incorporate by reference the allegations set forth in this Second Amended Class Action Complaint as if fully set forth herein. 65. 42 U.S.C. § 12182(a) of the ADA provides that:
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. 66. Kmart owns, operates, leases and/or leases to places of public accommodation.
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67. Through the actions and architectural barriers described above and other barriers and policies at its stores and its failure to provide facilities that are readily accessible to and usable by persons in wheelchairs, Defendant Kmart has denied to Plaintiffs the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations in violation of the Americans with Disabilities Act, including but not limited to 42 U.S.C. §§ 12182 and 12183 and their implementing regulations.
68. Plaintiffs and similarly-situated individuals have been damaged and will continue to be damaged by this discrimination as more fully set forth above.
69. Plaintiffs intend to continue to shop at Kmart stores in the near future. SECOND CLAIM FOR RELIEF
(On behalf of Plaintiff Carrie Ann Lucas and other Damages Settlement Sub-Class members for violation of the Colorado Anti-Discrimination Act)
70. Plaintiffs reallege and incorporate by reference the allegations set forth in this Second Amended Class Action Complaint as if fully set forth herein.
71. The Colorado Anti-Discrimination Act (“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, because of disability, race, creed, color, sex, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation . . .” Colo. Rev. Stat. § 24-34-601(2).
72. The CADA defines a “place of public accommodation” to include “any place of business engaged in any sales to the public and any place offering services, facilities, privileges,
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advantages, or accommodations to the public, including but not limited to any business offering wholesale or retail sales to the public . . .” Id. § 24-34-601(1).
73. Kmart stores are places of public accommodation as defined in the CADA. 74. Plaintiff Carrie Ann Lucas and Damages Settlement Sub-Class Members who shopped at Kmart stores in Colorado or would have shopped at such stores but for allegedly discriminatory barriers seek minimum statutory damages under § 24-34-602. 75. By maintaining architectural barriers and policies that discriminate against people with disabilities and through the other actions described above, Kmart has, directly and/or indirectly, refused, withheld from, and denied to Plaintiff Carrie Ann Lucas and other Damages Settlement Sub-Class members, because of their disabilities, the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations. 76. Plaintiff Carrie Ann Lucas and other Damages Settlement Sub-Class members have been damaged and will continue to be damaged by this discrimination as more fully set forth above.
THIRD CLAIM FOR RELIEF (On behalf of Plaintiff Edward Muegge and other Damages Settlement Sub-Class members for
violation of California’s Unruh Civil Rights Act and Disabled Persons Act) 77. Plaintiffs reallege and incorporate by reference the allegations set forth in this Second Amended Class Action Complaint as if fully set forth herein. 78. The California Unruh Civil Rights Act states, “[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their . . . disability, medical condition . . . are
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entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ. Code § 51(b).
79. Kmart stores are business establishments under the Unruh Act, § 51(b). 80. The California Disabled Persons Act states, “[i]ndividuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities . . . and privileges of all . . . places of public accommodation, amusement, or resort, and other places to which the general public is invited . . .” Id. § 54.1. 81. Plaintiff Edward Muegge and Damages Settlement Sub-Class Members who shopped at Kmart stores in California or would have shopped at such stores but for allegedly discriminatory barriers seek minimum statutory damages under § 52(a). 82. By maintaining architectural barriers and policies that discriminate against people with disabilities and through the other actions described above, Kmart has, directly and/or indirectly, refused, withheld from, and denied to Plaintiff Edward Muegge and other Damages Settlement Sub-Class members, because of their disabilities, the full and equal accommodations, advantages, facilities, privileges, or services at Kmart stores in California. 83. Plaintiff Edward Muegge and other Damages Settlement Sub-Class members have been damaged and will continue to be damaged by this discrimination as more fully set forth above.
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FOURTH CLAIM FOR RELIEF (On behalf of Plaintiff Edward Muegge and other Damages Settlement Sub-Class members for
violation of Hawai’i Revised Statues, Chapter 489) 84. Plaintiffs reallege and incorporate by reference the allegations set forth in this Second Amended Class Action Complaint as if fully set forth herein. 85. Hawai’i law prohibits “[u]nfair discriminatory practices which deny, or attempt to deny, a person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of race, sex, color, religion, ancestry, or disability. . .” Haw. Rev. Stat. § 489-3. 86. “‘Place of public accommodation’ means a business . . . of any kind whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the general public as customers, clients, or visitors.” Id. § 489-2. The list of examples includes “any establishment that sells goods or services at retail.” Id. § 4892(4). 87. Kmart stores are places of public accommodation as defined in the § 489-2. 88. Plaintiff Edward Muegge and Damages Settlement Sub-Class Members who shopped at Kmart stores in Hawai’i or would have shopped at such stores but for allegedly discriminatory barriers seek minimum statutory damages under § 489-7.5(a)(1). 89. By maintaining architectural barriers and policies that discriminate against people with disabilities and through the other actions described above, Kmart has, directly and/or indirectly, refused, withheld from, and denied to Plaintiff Edward Muegge and Damages
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Settlement Sub-Class Members, because of their disabilities, the full and equal enjoyment of its goods, services, facilities, privileges, advantages, and accommodations.
90. Plaintiff Edward Muegge and Damages Settlement Sub-Class Members have been damaged and will continue to be damaged by this discrimination as more fully set forth above.
FIFTH CLAIM FOR RELIEF (On behalf of Plaintiff Robert G. Geyer and other Damages Settlement Sub-Class members for
violation of the Texas Human Resource Code) 91. Plaintiffs reallege and incorporate by reference the allegations set forth in this Second Amended Class Action Complaint as if fully set forth herein. 92. The Texas code states “[p]ersons with disabilities have the same right as the ablebodied to the full use and enjoyment of any public facility in the state.” Tex. Hum. Res. Code Ann. § 121.003(a). 93. “‘Public facilities’ includes . . . any other place of public accommodation, . . . [or] convenience, . . . to which the general public or any classification of persons from the general public is regularly, normally, or customarily invited.” Id. § 121.002(5). 94. Kmart stores are public facilities as defined in § 121.002(5). 95. Plaintiff Robert G. Geyer and Damages Settlement Sub-Class Members who shopped at Kmart stores in Texas or would have shopped at such stores but for allegedly discriminatory barriers seek minimum statutory damages under § 121.004(b). 96. By maintaining architectural barriers and policies that discriminate against people with disabilities and through the other actions described above, Kmart has, directly and/or indirectly, refused, withheld from, and denied to Plaintiff Robert G. Geyer and Damages
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Settlement Sub-Class Members, because of their disabilities, the full use and enjoyment of its stores.
97. Plaintiff Robert G. Geyer and Damages Settlement Sub-Class Members have been damaged and will continue to be damaged by this discrimination as more fully set forth above.
SIXTH CLAIM FOR RELIEF (On behalf of Plaintiff Stacy Berloff and other Damages Settlement Sub-Class members for
violation of the Massachusetts Anti-Discrimination Law) 98. Plaintiffs reallege and incorporate by reference the allegations set forth in this Second Amended Class Action Complaint as if fully set forth herein. 99. Massachusetts prohibits “. . . any distinction, discrimination or restriction on account of . . . any physical or mental disability, . . . [in] his treatment in any place of public accommodation. . .” Mass. Gen. Laws ch. 272, § 98. 100. A place of public accommodation is any place “which is open to and accepts or solicits the patronage of the general public” and includes a “retail store or establishment.” Id. 272, §§ 92A & 92A(3). 101. Kmart stores are a public accommodation as defined in 272, § 92A. 102. Plaintiff Stacy Berloff and Damages Settlement Sub-Class Members who shopped at Kmart stores in Massachusetts or would have shopped at such stores but for allegedly discriminatory barriers seek minimum statutory damages under 272, § 98. 103. By maintaining architectural barriers and policies that discriminate against people with disabilities and through the other actions described above, Kmart has, directly and/or
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indirectly, refused, withheld from, and denied to Plaintiff Stacy Berloff and Damages Settlement Sub-Class Members, because of their disabilities, the full and equal enjoyment of its stores.
104. Plaintiff Stacy Berloff and Damages Settlement Sub-Class Members have been damaged and will continue to be damaged by this discrimination as more fully set forth above.
SEVENTH CLAIM FOR RELIEF (On behalf of Plaintiff Jean Ryan and other Damages Settlement Sub-Class Members for
violation of New York Civil Rights Law) 105. Plaintiffs reallege and incorporate by reference the allegations set forth in this Second Amended Class Action Complaint as if fully set forth herein. 106. New York law states that “[a]ll persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations. . .” N.Y. Civ. Rights § 40. 107. New York prohibits “any person . . . because of the race, creed, color, national origin, sexual orientation, military status, sex, or disability or marital status of any person, directly or indirectly . . . [to deny] such person any of the accommodations, advantages, facilities or privileges thereof . . .” N.Y. Exec. § 296(2)(a). 108. A place of public accommodation “shall be deemed to include . . . retail stores and establishments. . .” N.Y. Civ. Rights § 40. 109. Kmart stores are a public accommodation as defined in § 40. 110. Plaintiff Jean Ryan and Damages Settlement Sub-Class Members who shopped at Kmart stores in New York or would have shopped at such stores but for allegedly discriminatory barriers seek minimum statutory damages under § 40-d.
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111. By maintaining architectural barriers and policies that discriminate against people with disabilities and through the other actions described above, Kmart has, directly and/or indirectly, refused, withheld from, and denied to Plaintiff Jean Ryan and Damages Settlement Sub-Class Members, because of their disabilities, the full and equal enjoyment of its stores.
112. Plaintiff Jean Ryan and Damages Settlement Sub-Class Members have been damaged and will continue to be damaged by this discrimination as more fully set forth above.
EIGHTH CLAIM FOR RELIEF (On behalf of Plaintiff Jan Campbell and other Damages Settlement Sub-Class Members for
violation of the Oregon Unlawful Discrimination against Disabled People) 113. Plaintiffs reallege and incorporate by reference the allegations set forth in this Second Amended Class Action Complaint as if fully set forth herein. 114. Oregon prohibits any place of public accommodation, resort or amusement from making “any distinction, discrimination or restriction because a customer or patron is a disabled person.” Or. Rev. Stat. § 659A.142(3). 115. A place of public accommodation “means any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements or otherwise.” Id. § 659A.400(1). 116. Kmart stores are places of public accommodation as defined in § 659A.400(1). 117. Plaintiff Jan Campbell and Damages Settlement Sub-Class Members who shopped at Kmart stores in Oregon seek minimum statutory damages under § 659A.885(3)(a). 118. By maintaining architectural barriers and policies that discriminate against people with disabilities and through the other actions described above, Kmart has, directly and/or
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indirectly, refused, withheld from, and denied to Plaintiff Jan Campbell and Damages Settlement Sub-Class Members, because of their disabilities, the full and equal enjoyment of its stores.
119. Plaintiff Jan Campbell and Damages Settlement Sub-Class Members have been damaged and will continue to be damaged by this discrimination as more fully set forth above.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray: 1. That this Court assume jurisdiction; 2. That this Court certify the class and sub-class described in Paragraphs 16 and 17 pursuant to Rule 23(b)(2) and/or 23(b)(3) of the Federal Rules of Civil Procedure; 3. This Court appoint Plaintiffs Carrie Ann Lucas, Debbie L. Lane and Julie Reiskin as representative plaintiffs for the class and Plaintiffs Carrie Ann Lucas, Edward Muegge, Robert G. Geyer, Stacy Berloff, Jean Ryan, and Jan Campbell representative plaintiffs of the Damages Settlement Sub-Class; 4. That the Court appoint the undersigned as Class Counsel for both the class and the sub-class; 5. That this Court issue an Order declaring Defendant to be in violation of the ADA and of the laws of the Statutory Minimum Damages States recited in the Second through Eighth Claims for Relief;
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6. That this Court issue an injunction ordering Kmart to bring all Kmart stores into compliance with the ADA and all Kmart stores in California into compliance with California’s Title 24;
7. That this court award statutory minimum damages to Damages Settlement SubClass members pursuant to each state’s statute (Colo. Rev. Stat. § 24-34-602, Cal. Civ. Code § 52(a), Haw. Rev. Stat. § 489-7.5, Tex. Hum. Res. Code Ann. § 121.004(b), Mass. Gen. Laws ch. 272, § 98, N.Y. Civ. Rights § 40-d, and Or. Rev. Stat. § 659A.885(3)(a));
8. That this Court award Plaintiffs their reasonable attorneys’ fees and costs; and 9. That this Court award such additional or alternative relief as may be just, proper and equitable.
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FOX & ROBERTSON, P.C.

Respectfully submitted,

s/Amy Farr Robertson Amy Farr Robertson Timothy P. Fox 910 - 16th Street, Suite 610 Denver, CO 80202 Voice: 303.595.9700 Fax: 303.595.9705 TTY: 303.595.9703 E-mail: arob@foxrob.com
Bill Lann Lee Lieff Cabraser Heimann & Bernstein, LLP Embarcadero Center West 275 Battery St., Ste 3000 San Francisco, CA 94111-3339 Voice: 415.956.1000 Fax: 415.956.1008 E-mail: blee@lchb.com
Kevin W. Williams Legal Program Director Colorado Cross Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 Voice: 303.839.1775 Fax: 303.839.1782 TTY: 303.839.0015 E-mail: kwilliams@ccdconline.org

Steven Greenberger 25 E. Jackson Blvd. Room 808 Chicago, IL 60604 Voice: 312.362.8138 Fax: 312.362.5448 E-mail: sgreenbe@depaul.edu
Brian East Advocacy, Inc. 7800 Shoal Creek Boulevard, Suite 171-E Austin, Texas 78757-1024 Voice: 512.454.4816 Fax: 512.323.0902 E-mail: beast@advocacyinc.org
Mari Mayeda PO Box 5138 Berkeley, CA 94705 Voice: 510.841.4970 Fax: 510.841.8115 E-mail: marimayeda@earthlink.net
Antonio Lawson Lawson Law Offices 835 Mandana Blvd. Oakland, CA 94610 Voice: 510.419.0940 Fax: 510.419.0948 E-mail: tony@lawsonlawoffices.com

Dated: March 13, 2006

Attorneys for Plaintiffs -29-

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Address of Plaintiff Carrie Ann Lucas: 5601 E. Yale Ave. Denver, Colorado 80222 Address of Plaintiff Debbie Lane: 5505 Valmont Road No. 340 Boulder, Colorado 80301 Address of Plaintiff Julie Reiskin 3645 Milwaukee St. Denver, Colorado, 80205 Address of Plaintiff Edward Muegge 1993 South Kihei Road, No. 600 Kihei, Hawai’i 96753 Address of Plaintiff Robert G. Geyer 4505 Bliss El Paso, Texas 79903 Address of Plaintiff Jean Ryan 646 77th Street Brooklyn, New York 11209 Address of Plaintiff Stacy Berloff 30 Longwood Ave. Unit/Apt. 104 Brookline, Massachusetts 02446 Address of Plaintiff Jan Campbell 0320 S.W. Montgomery Unit #416 Portland, Oregon 97201
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 Case 1:99-cv-01923-JLK-CBS Document 234 Filed 07/27/06 USDC Colorado Page 1 of 20
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-cv-01923-JLK-CBS CARRIE ANN LUCAS, DEBBIE LANE, JULIE REISKIN, EDWARD MUEGGE, ROBERT G. GEYER, STACY BERLOFF, JEAN RYAN, JAN CAMPBELL,
on behalf of themselves and all others similarly situated, Plaintiffs,
v. KMART CORPORATION,
Defendant.
ORDER GRANTING CLASS COUNSEL’S UNOPPOSED PETITION FOR AN AWARD OF ATTORNEYS’FEES AND COSTS
This matter is before the Court in connection with Class Counsel’s Unopposed Petition for an Award of Attorneys’Fees and Costs (“Petition”). Class Counsel seek compensation for their work in securing a settlement on behalf of a Nationwide Class seeking relief under Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq., and a Damages Sub-Class seeking relief under the laws of seven states. Defendant Kmart Corporation (“Kmart”) has agreed to pay the amount sought by Class Counsel, subject to Court approval. In addition, after an extensive, Court-approved program to notify the class of the terms of the settlement, including the amount of fees and costs sought by Class Counsel, there have been no objections to the requested

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award. For the reasons set forth below, this Court grants the Petition, and approves the fees and costs sought by Class Counsel.
BACKGROUND I. The Litigation.
In 1999, Fox & Robertson entered into a contingency fee agreement to bring suit against Kmart based on alleged violations of Title III of the ADA. Although initially brought only on behalf of one plaintiff, the complaint was amended in 2000 to assert a nationwide class action.
The evidence submitted by Class Counsel demonstrates that they performed a significant amount of work in connection with Plaintiffs’motion for class certification. This included, for example: reviewing over 100,000 pages of documents, as well as a database with data from over 65,000 “mystery shopper”reports; taking or defending over 50 depositions of fact and expert witnesses; interviewing, and obtaining declarations from, approximately 80 putative class members; and writing, or responding to, more than 15 briefs on the class certification issue.
Plaintiffs filed their final class certification brief on January 4, 2002; two weeks later, Kmart filed a voluntary Petition for Relief under Chapter 11 of the Bankruptcy Code, 11 U.S.C. §§ 101 et seq., in the Bankruptcy Court for the Northern District of Illinois. Plaintiffs moved to lift the bankruptcy stay, which was denied by the bankruptcy court. Plaintiffs unsuccessfully appealed the denial.
After Kmart emerged from bankruptcy on May 6, 2003, it argued that the class claims for injunctive relief had been discharged by its bankruptcy. This Court held that the injunctive claims had not been discharged, and that the case could proceed.
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Between the summer of 2003 and the summer of 2005, the parties continued to litigate the case, submitting opposing briefs on discovery matters and recent relevant decisions in other cases. On July 13, 2005, this Court granted Plaintiffs’motion for class certification and certified a nationwide class of individuals who use wheelchairs or scooters and who shop at Kmart stores. Kmart immediately sought and obtained permission from the Tenth Circuit to appeal that decision under Fed. R. Civ. P. (“Rule”) 23(f). Briefing of the appeal has been continued pending settlement negotiations.
During the course of this litigation, Kmart has been represented by two large, Denver-area law firms and three other large law firms based in other cities around the country; a sixth large, national firm represented Kmart during its bankruptcy. II. The Settlement.
In August 2005, the parties initiated settlement negotiations that resulted in the settlement agreement before this Court. The parties carefully structured the settlement negotiations. The parties reached agreement concerning a large part of the injunctive relief before turning to damages, and the negotiations concerning damages and injunctive relief were kept completely separate from one another. Further, the parties did not discuss attorneys’fees until there was substantial agreement on all parts of the injunctive and damages settlement.
The settlement agreement provides injunctive relief that is comprehensive and farreaching, resulting in immediate improvements in Kmart’s policies relating to accessibility, as well as surveys of each of Kmart’s stores to identify, and remedy, architectural barriers. See Lucas v. Kmart Corp., 234 F.R.D. 688, 691-92 (D. Colo. 2006). In addition, the settlement creates a $13
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million fund on behalf of a Damages Sub-Class, which Class Counsel believes is the largest monetary settlement ever of a public accommodations disability discrimination case.
The Damages Sub-Class fund provides compensation for the release of claims for statutory minimum damages under the laws of the seven Statutory Minimum Damages States. Lucas, 234 F.R.D. at 692. The formula approved by this Court to allocate the damages fund among these states took into account two factors: the number of Kmart stores in the state, and the minimum amount of statutory damages recoverable in the state. Id. at 695. Based on this formula, California receives over $12 million of the fund, in large part because California state law provides by far the largest amount of minimum statutory damages of any state.
In the settlement agreement, Kmart also agreed to pay, subject to Court approval, $3.25 million in attorneys’fees for work done prior to the final approval date, and costs incurred through that date in an amount not to exceed $125,000. In addition, Kmart agreed to pay Class Counsel’s reasonable fees and costs relating to implementing and monitoring the Agreement after final approval. III. Class Counsel.
The majority of work on behalf of the class in this case was performed by the firm of Fox & Robertson. Class Counsel has submitted the following evidence concerning the firm.
Fox & Robertson is a small firm, consisting (for most of the litigation) of two attorneys, Tim Fox and Amy Robertson, and (for the period 2000 to 2002) of attorney Michael Breeskin as well.
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Fox & Robertson has a strong emphasis in representing plaintiffs in disability rights cases, and has represented plaintiffs, or appeared in cases, in California, Colorado, Florida, Massachusetts and Virginia.
Mr. Fox graduated from Stanford Law School in 1991, and Ms. Robertson graduated from Yale Law School in 1988. Together they formed Fox & Robertson in 1996, and since then have litigated dozens of disability rights cases, including several large class actions -- according to Ms. Robertson, courts have appointed Fox & Robertson as class counsel in six disability rights class actions. Mr. Fox and Ms. Robertson have written and spoken extensively on issues relating to the rights of persons with disabilities.
Mr. Breeskin graduated from Georgetown University Law Center in 1975. He has had extensive experience in the field of disability rights, including working for disability rights organizations for nine years before joining Fox & Robertson. He, too, has written and spoken extensively on disability rights issues.
The evidence demonstrates that this litigation placed a heavy burden on Fox & Robertson. The vast majority of costs were fronted by Fox & Robertson. At several points during the litigation, Fox & Robertson was unable to take on new cases because of its commitment to the Kmart case. For example, in 2001, almost 50% of the total hours billed at Fox & Robertson were for work on this case.
Fox & Robertson’s co-counsel practice in communities across the country. Many of these attorneys are known nationally for their skill in disability, civil rights and/or class action cases.
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ARGUMENT Kmart has agreed to pay $13 million in damages, $3.25 million in fees, and $125,000 in costs, resulting in an overall monetary recovery of $16,375,000. Class Counsel seek an award of fees in the amount of $3.25 million, which represents less than 20% of the total monetary recovery,1 and a multiplier of 1.87 on Class Counsel’s combined lodestar. For the reasons set forth below, this Court grants Class Counsel’s Petition under the Tenth Circuit’s common fund approach. In the alternative, the Court grants the Petition under California’s enhanced lodestar approach. I. Recovery Of Fees Under Tenth Circuit Law. A. Legal Background. Class Counsel seek recovery of their fees and costs under the common fund doctrine as applied in this Circuit. Under this doctrine, courts apply one of two methods of determining reasonable attorneys’fee awards: by a percentage of the fund approach; or by the lodestar plus multiplier (“enhanced multiplier”) approach, whereby the reasonable hours expended are multiplied by a reasonable hourly rate, adding a multiplier to account for risk. Vaszlavik v.

1

In determining the total amount of the common fund, it is proper to include

agreed-upon fees and costs in addition to class damages. See, e.g., Staton v. Boeing Co., 327

F.3d 938, 972 (9th Cir. 2003) (holding that “the parties may negotiate and agree to the value of a

common fund (which will ordinarily include an amount representing an estimated hypothetical

award of statutory fees) and provide that, subsequently, class counsel will apply to the court for

an award from the fund, using common fund fee principles.” (Emphasis added.)); Johnston v.

Comerica Mortgage Corp., 83 F.3d 241, 246 (8th Cir. 1996) (“The award to the class and the

agreement on attorney fees represent a package deal. Even if the fees are paid directly to the

attorneys, those fees are still best viewed as an aspect of the class' recovery.”).

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Storage Tech. Corp., Civ. Action No. 95-B-2525, slip. op. at 2 (D. Colo. March 9, 2000) (citing Uselton v. Commercial Loveless Motor Freight, Inc., 9 F.3d 849, 853 (10th Cir. 1993) & Rosenbaum v. MacAllister, 64 F.3d 1439, 1445 (10th Cir. 1995)). In the Tenth Circuit, there is “‘a preference for the percentage of the fund method’in common fund cases.” Id. (citations omitted). “The Tenth Circuit has concluded that whichever method for fee calculation is employed, the District Court must consider the 12 factors articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974).” Id. at 3 (citations omitted).
B. Lodestar Computation. The lodestar is the product of the number of hours reasonably expended on a case and a reasonable hourly rate. See, e.g., Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998). Class Counsel have submitted detailed billing records, along with the Declaration of Darold W. Killmer, an expert on attorneys’fees.
1. Reasonable Number of Hours. Mr. Killmer reviewed fee records, along with Fox & Robertson’s entire case file, including pleadings and documents. He found the fee records to be “very detailed, and [to] provide a clear basis for understanding the tasks performed and the time expended for those tasks . . . easily meet[ing] the standards typically required in this judicial district for compensability of time spent.” This litigation has spanned the course of seven years. During that time, Class Counsel have: interviewed scores of class members; taken or defended more than 50 depositions; reviewed, analyzed and organized over 100,000 pages of documents, in addition to a database with almost 70,000 mystery shopper reports; written or responded to over 15 briefs on the class
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certification issue alone; briefed the issue of whether, under Rule 23(f), the Tenth Circuit should accept an interlocutory appeal of the class certification decision; attempted to have the bankruptcy stay lifted; and negotiated the settlement.2
To accomplish these tasks, Class Counsel and their staff billed approximately 6,500 hours, of which less than 5,000 hours were billed by attorneys. Fox & Robertson, in the exercise of billing judgment, has reviewed its fee statement and eliminated certain entries. Finally, Mr. Killmer has reviewed Class Counsel’s records and, in his expert opinion, the number of hours billed by Class Counsel in this case is reasonable.
This Court finds that the number of hours billed by Class Counsel in this case is reasonable.
2. Reasonable Hourly Rates. Hourly rates must reflect the prevailing market rates in the relevant community. Because of the significant resources and skill required, as well the risks entailed, to litigate large-scale actions on behalf of a class, very few attorneys handle such cases. Thus the relevant community for purposes of determining a reasonable billing rate for Class Counsel likely consists of attorneys

2

The fact that Plaintiffs were unsuccessful in opposing Kmart’s Rule 23(f) appeal,

or in lifting the stay, does not preclude Plaintiffs from recovering fees for work done on these

tasks. See Hensley v. Eckerhart, 461 U.S. 424, 435 (1983) (Holding that when a plaintiff

achieves excellent results, “fee award should not be reduced simply because the plaintiff failed to

prevail on every contention raised in the lawsuit. Litigants in good faith may raise alternative legal

grounds for a desired outcome, and the court’s rejection of or failure to reach certain grounds is

not a sufficient reason for reducing a fee. The result is what matters.”). In any event, Class

Counsel used the research conducted in connection with that unsuccessful motion and appeal in

making their successful argument that this case was not discharged in bankruptcy.

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who litigate nationwide, complex class actions. See, e.g., Casey v. City of Cabool, 12 F.3d 799, 805 (8th Cir. 1994) (“‘A national market or a market for a particular legal specialization may provide the appropriate market.’” (Quotation omitted.)). This rate would be significantly higher than the rate prevailing in Denver. Class Counsel have chosen to take a conservative approach and have applied rates applicable in the Denver legal community.
In analyzing reasonable hourly rates, Class Counsel have specifically addressed the rates of Fox & Robertson attorneys, who billed the majority of hours in this case, and have applied “blended”rates for all other attorneys, and for paralegals and other staff.
a. Hourly rates for Fox & Robertson attorneys. Class Counsel seek a rate of $330 per hour for work performed by Fox & Robertson attorneys on the Kmart case. Class Counsel have submitted the following evidence to establish that this is the prevailing rate in the Denver community: ! The expert opinion of Mr. Killmer; ! The hourly rates approved by Colorado federal and state courts in successful
employment and civil rights actions over the last several years. ! A survey conducted by the Colorado Bar Association in 2000 (the “CBA
Survey”), reflecting that the top 5% of plaintiff’s employment lawyers (a reasonable comparison to the type of work performed in this case) charged $325 per hour. In light of the fact that six years have passed since the CBA survey, the rate requested here -- $330 per hour -- is conservative.
b. Hourly rates of other timekeepers. -9-

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The other attorneys who worked on the Kmart case on behalf of the class include attorneys known nationally for their skill in civil rights and class action cases who would command the highest rates in any jurisdiction in which they practiced, as well as less experienced attorneys. Class Counsel have applied a blended average rate of $275 per hour for all hours billed by non-Fox & Robertson attorneys, including partners and associates, which Mr. Killmer opines is a conservative approach.
Class Counsel have also applied a blended average rate of $110 per hour for work done by paralegals in this case, a rate that Mr. Killmer opines is reasonable for the Denver community. This rate is also supported by the CBA Survey, which found that six years ago, experienced paralegals charge between $75 and $120 per hour.
This Court finds that the rates applied by Class Counsel are reasonable. Based on these rates and the total hours billed, the total lodestar in this case is $1,734,947.50.
C. Application of the Johnson Factors. The Johnson factors are: (1) the time and labor required; (2) the novelty and difficulty of the question presented by the case; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorneys due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) any time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the ‘undesirability’of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717-19, cited in Vaszlavik, slip op. at 3.
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Case 1:99-cv-01923-JLK-CBS Document 234 Filed 07/27/06 USDC Colorado Page 11 of 20

1. Time and labor required.

This case involved a significant amount of time and labor. The case took seven years to

litigate. During that time, Class Counsel and their staff billed more than 6,500 hours for work

done on this case. This work included: interviewing, and obtaining declarations from, over 80

class members; taking or defending more than 50 depositions across the country; reviewing and

organizing over 100,000 pages of documents; reviewing and analyzing a database of over 65,000

mystery shopper reports; writing and responding to numerous briefs on the class certification

issues, among others; and engaging in extensive settlement negotiations.

2. Novelty and Difficulty of the Questions Presented by the Case.

.

This case involved several novel and/or difficult issues, including:

! The appropriate standard in the Tenth Circuit for the grant of an interlocutory

appeal under Fed. R. Civ. P. 23(f) of an order granting class certification;

! Whether the class claims for injunctive relief, attorneys’fees and costs were

discharged by Kmart’s bankruptcy; and

! Whether merchandise on moveable displays must be on an accessible route at least

36 inches wide.

3. Skill Requisite to Perform the Legal Service Properly.

This case involved numerous novel and/or difficult legal and factual issues, many of which

have not been fully resolved by the courts. Litigating such issues required a high degree of

specialized skill in disability rights law and complex litigation. See Vaszlavik, slip op. at 3. It also

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Case 1:99-cv-01923-JLK-CBS Document 234 Filed 07/27/06 USDC Colorado Page 12 of 20

required a small firm and co-counsel to manage and present a large quantity of documents and

information.

The result in this case is outstanding. The injunctive relief obtained by the class includes

policy changes as well as surveys of every Kmart store that will result in the removal of

architectural barriers. To the best of Class Counsel’s knowledge, the damages recovery for the

Damages Sub-Class is larger than in any previous case of this kind.

4. Preclusion of Other Employment by the Attorneys Due to Acceptance of the Case.

.

Large-scale class actions such as this case -- involving dozens of depositions, over

100,000 pages of documents, a large database, numerous briefs, and a bankruptcy proceeding --

necessarily require a great deal of work, and a concomitant inability to take on other cases. That

is particularly true here because most of the work was done by Fox & Robertson, a small firm

with only two attorneys at present.

5. The Customary Fee.

The requested fee is reasonable under either the percentage of the fund or enhanced

lodestar approach. Class Counsel seek less than 20% of the fund, which is over $1.6 million less

than the customary fee award of 30% of the fund under the percentage of the fund approach. See

Vaszlavik, slip op. at 7; see also 4 Robert Newberg, Newberg on Class Actions § 14:6 at 551 (4th

ed. 2002) (“Empirical studies show that, regardless whether the percentage method or the

lodestar method is used, fee awards in class actions average around one-third of the recovery.”).

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Case 1:99-cv-01923-JLK-CBS Document 234 Filed 07/27/06 USDC Colorado Page 13 of 20
Under the enhanced lodestar approach, courts typically award multipliers of 2 to 3 times the lodestar, whereas Class Counsel here seek only a multiplier of 1.87. See Vaszlavik, slip op. at 5.
6. Whether the Fee Is Fixed or Contingent. Class Counsel pursued this case based on a contingent fee agreement, and thus they would have recovered nothing if they had not prevailed. “Given the risk of non-recovery, this factor weighs heavily in favor of the requested fee.” Vaszlavik, slip op. at 6.
7. Any Time Limitations Imposed by the Client or the Circumstances. The size, magnitude and procedural posture of this case imposed significant time limitations on Class Counsel in this case, particularly Fox & Robertson. The time limitations were particularly significant given the prospect of a substantial delay resulting from the Rule 23(f) interlocutory appeal, lengthy trial and subsequent appeals.
8. The Amount Involved and the Results Obtained. Class Counsel recovered $13 million on behalf of the subclass. Class Counsel believe that this is the largest recovery in a class action against a public accommodation for disability discrimination. Given the significant risk that the plaintiffs would recover nothing for their efforts, this result more than justifies the requested fee. See Vaszlavik, slip op. at 6.
9. The Experience, Reputation and Ability of the Attorneys. The Class Counsel in this case include attorneys with national reputations for their work on disability rights cases, and skill in litigating civil rights and class action cases. Together the result achieved by Class Counsel is exceptional.
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Case 1:99-cv-01923-JLK-CBS Document 234 Filed 07/27/06 USDC Colorado Page 14 of 20

10. The Undesirability of the Case. Given the risk of no recovery and the unsettled legal issues described above, this was not a desirable case to take. See Vaszlavik, slip op. at 7.
11. The Nature and Length of the Professional Relationship with the Client.
This factor is irrelevant in this case.3 12. Awards in Similar Cases.
As set forth above, the amount of fees requested by Class Counsel is substantially less than is typically awarded under either the enhanced lodestar or percentage of the fund approach.
This Court finds that the fees requested by Class Counsel are reasonable under Tenth Circuit precedent both because the Johnson factors support the request, and because the requested fees are significantly less than the amount of fees typically awarded in common fund cases. II. Recovery Of Fees Under California Law.
In the alternative, the Court grants the Petition under California law.

3

The Tenth Circuit has recognized that “rarely are all of the Johnson factors

applicable.” Brown v. Phillips Petroleum Co., 838 F.2d 451, 456 (10th Cir. 1988). Fox &

Robertson, which is one of the few firms in the country that represents plaintiffs in disability rights

actions, has represented the named plaintiffs in other cases. This fact does not impact the fees

analysis. See, e.g., Ruiz v. Estelle, 553 F. Supp. 567, 594 (S.D. Tex. 1982) (Finding, in

discussing this factor, that “[t]he meaning of this criterion and its effect on the calculation of a

‘reasonable’fee has always been unclear. Courts applying to Johnson factors typically state simply

that this particular standard is irrelevant or immaterial.”)

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Case 1:99-cv-01923-JLK-CBS Document 234 Filed 07/27/06 USDC Colorado Page 15 of 20
A. Applicability of California Law. State law controls both the award of and the reasonableness of fees awarded where state law supplies the rule of decision. See, e.g., Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002) (holding that “[b]ecause Washington law governed the claim, it also governs the award of fees.”); Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002); Pub. Serv. Co. of Colo. v. Continental Cas. Co., 26 F.3d 1508, 1520 (10th Cir. 1994). Where, as here, a plaintiff successfully obtains benefits for the class under both state and federal claims, fees may be awarded under state law. See, e.g., Mangold v. Cal. Pub. Utils. Comm’n, 67 F.3d 1470, 1478-79 (9th Cir. 1995). Thus if a plaintiff successfully obtains benefits for a class on a state law claim, and state law permits recovery under the common fund or enhanced lodestar doctrines, then the plaintiff may seek a fee recovery based on these doctrines. See, e.g., Mangold, 67 F.3d at 1478-79 (affirming an award of a fee multiplier based on state law); Vizcaino, 290 F.3d at 104748 (holding that where a state law claim resulted in a settlement fund, the lower court correctly applied the common fund doctrine based on state law.). In this case, Plaintiffs were successful, obtaining benefits for the class on both their federal claim, and their claims under California state law, resulting in a California settlement fund of over $12 million. Thus the requested fee may be approved based on California law. B. California Attorneys’Fee Law. Where, as here, a class action settlement results in a monetary fund for the class, courts applying California law blend two doctrines, the enhanced lodestar doctrine and the percentageof-the-benefit doctrine.
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Under California law, [T]he primary method for establishing the amount of “reasonable”attorney fees is the lodestar method. The lodestar (or touchstone) is produced by multiplying the number of hours reasonably expended by counsel by a reasonable hourly rate. Once the court has fixed the lodestar, it may increase or decrease that amount by applying a positive or negative “multiplier”to take into account a variety of other factors, including the quality of the representation, the novelty and complexity of the issues, the results obtained, and the contingent risk presented. Lealao v. Beneficial California, Inc., 97 Cal. Rptr. 2d 797, 803 (Cal. Ct. App. 2000). When a class action settlement includes a common fund, a court should adjust the lodestar multiplier to ensure that the fee award, as a percentage of the overall common fund, is within the range of fees freely negotiated in the legal marketplace in comparable litigation. Id. at 821. C. Multiplier. Class Counsel’s request of a multiplier of 1.87 is well supported by California law. California has a “relatively permissive attitude on the use of multipliers.” Lealao, 97 Cal. Rptr. 2d at 815. Various factors may justify an award of a multiplier, including: (1) the novelty and difficulty of the questions involved; (2) the skill displayed in presenting them; (3) the extent to which the nature of the litigation precluded other employment by the attorneys; and (4) the contingent nature of the fee award. Ketchum v. Moses, 104 Cal. Rptr. 2d 377, 384 (Cal. 2001) (citation omitted). A court may then use the percentage-of-the-benefit analysis to “cross-check” the propriety of a lodestar fee award. Lealao, 97 Cal. Rptr. 2d at 817 & n.12. The four factors identified in Ketchum mirror several of the Johnson factors discussed above, and will not be repeated here, with the exception of the contingency risk factor. California courts place particular emphasis on contingency risk, which is “[o]ne of the most common fee
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Case 1:99-cv-01923-JLK-CBS Document 234 Filed 07/27/06 USDC Colorado Page 17 of 20

enhancers.” Graham v. DaimlerChrysler Corp., 21 Cal. Rptr. 3d 331, 352 (Cal. 2004). “‘A lawyer who both bears the risk of not being paid and provides legal services is not receiving the fair market value of his work if he is paid only for the second of these functions. If he is paid no more, competent counsel will be reluctant to accept fee award cases.’” Ketchum, 104 Cal. Rptr. 2d at 384 (quotation omitted).
The case at bar involved significant risk to Class Counsel. First, as set forth above, this case involved novel issues that, if decided against the class, could have significantly reduced the likelihood that Class Counsel would be paid for their work on this case.
The risk to Class Counsel was particularly acute in this case because the Defendant filed for bankruptcy in the middle of the case. This factor alone justifies a larger multiplier than Class Counsel have requested. See In re Safety Components, Inc. Sec. Litig., 166 F. Supp. 2d 72, 104 (D.N.J. 2001) (Awarding multiplier of 2.81, in part because class counsel faced a heightened risk of nonpayment of fees due to the defendant’s bankruptcy.).
The Ketchum factors demonstrate that the 1.87 multiplier requested by Class Counsel is reasonable. Indeed, it is less than multipliers typically awarded in California and elsewhere. See In re Calif. Indirect Purchaser X-Ray Film Antitrust Litig., 1998 WL 1031494 *10 (Cal. Sup. Ct. 1998) (“Cases from California and other jurisdictions reflect that multipliers of two or more are commonplace in class actions.”);4 see also Vaszlavik, slip op. at 5 (noting that under common

4

Citing ABS Pipe Cases II, J.C.C.P. No. 3126 (Contra Costa Sup. Ct.) (Orders

Signed June 24, 1998) (awarding lodestar and multiplier of 2.2 in eight class action settlements

together worth approximately $70,000,000); Wilson v. Bank of America Nat’l Trust & Sav.

Ass’n., No. 643872 (Cal. Sup. Ct. Aug. 16, 1982) (multiplier of 10 times the hourly rate

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Case 1:99-cv-01923-JLK-CBS Document 234 Filed 07/27/06 USDC Colorado Page 18 of 20
fund theory, courts “regularly award multipliers of two to three times the lodestar or more to compensate for risk and to reflect the quality of the work performed.”).
The reasonableness of the requested fee is further demonstrated by a cross-check with the percentage-of-the-benefit approach. The purpose of this cross-check is “to ensure that the fee awarded is within the range of fees freely negotiated in the legal marketplace in comparable litigation.” Lealao, 97 Cal. Rptr. 2d at 821. “‘The simplest way for the law to duplicate the bargain that informed parties would reach . . . is to look to fee award levels in actions brought by sophisticated private parties under the same or comparable statutes.’” Id. at 819-20 (quotation omitted).
As set forth above, “class action fee awards are typically 30% of the fund created by the settlement.” Vaszlavik, slip op. at 3; see also 4 Robert Newberg, Newberg on Class Actions § 14:6 at 551 (4th ed. 2002) (“Empirical studies show that, regardless whether the percentage method or the lodestar method is used, fee awards in class actions average around one-third of the recovery.”). This cross check demonstrates that Class Counsel’s fee request -- which represents less than 20% of the common fund -- is reasonable.
awarded); Glendora Comm. Redev. Agency v. Demeter, 155 Cal. App. 3d 456, 465 (Cal. Ct. App. 1984) (affirming a 12-times multiplier of counsel’s hourly rate and expressly rejecting the argument that the requested fee was exorbitant or unconscionable); In re Trilogy Sec. Litig., C-84-20617(A) (N.D. Cal.1986) (multiplier of 4.37); Underwood v. Pierce, 79-1318-HP (3.5 multiplier; $60 million settlement) (C.D. Cal.1983).
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III. Reasonable Costs. Under both California law and the law of this Circuit, reasonable costs may be awarded to
successful plaintiffs in a class action. See Cal. Code Civ. P. § 1032(b); Vaszlavik, slip op. at 7 (“As with attorneys’fees, an attorney who creates or preserves a common fund for the benefit of a class is entitled to receive reimbursement of all reasonable costs incurred.”). Plaintiffs are also entitled to an award of costs because they successfully obtained benefits for the class on their claims under the ADA. 42 U.S.C. § 12205.
Class Counsel have submitted detailed records of their costs to date, which total $123,312.56. In addition, they anticipate that additional costs relating to the Final Approval Hearing will result in total costs in excess of $125,000.
This Court finds that the costs incurred by Class Counsel to date are reasonable, and approves an award of $123,312.56 for costs incurred through July 21, 2006. The Court also approves an award of reasonable costs incurred after that date and prior to the date of final approval, not to exceed $125,000. IV. Fees And Costs For Implementing And Monitoring The Settlement Agreement.
Kmart has agreed to pay Class Counsel’s reasonable fees and costs relating to implementing and monitoring the Agreement after final approval. Payment of such fees and costs is appropriate. See Diaz v. Romer, 961 F.2d 1508, 1511 (10th Cir. 1992) (Holding that “attorney’s fees can be awarded for post-judgment monitoring and other efforts to ensure compliance with court orders in a civil rights case.”). The Court hereby approves the payment of
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Class Counsel’s reasonable fees and costs relating to implementing and monitoring the Agreement after final approval.
CONCLUSION For the reasons set forth above, this Court grants the Petition, and approves: (1) an award of attorneys’fees through the date on which final approval is granted of $3.25 million; (2) an award of costs incurred through July 21, 2006 of $123,312.56, plus additional reasonable costs incurred after that date and prior to the date of final approval, with total costs not to exceed $125,000; and (3) an award of reasonable fees and costs relating to implementing and monitoring the Agreement after final approval.

Dated: July 27, 2006

John L. Kane SENIOR U.S. DISTRICT COURT JUDGE

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 Case 1:99-cv-01923-JLK-CBS Document 235 Filed 07/27/06 USDC Colorado Page 1 of 29
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-cv-OI923-JLK CARRIE ANN LUCAS, DEBBIE LANE, JULIE REISKlN, EDWARD MUEGGE, ROBERT G. GEYER, STACY BERLOFF, JEAN RYAN, JAN CAMPBELL,
on behalf of themselves and all others similarly situated, Plaintiffs,
v.
KMART CORPORATION, Defendant.
ORDER CERTIFYING CLASS, APPROVING SETTLEMENT AGREEMENT AND ENJOINING THE FILING OR PURSUIT OF RELEASED CLAIMS
Plaintiffs Carrie Ann Lucas, Debbie Lane, Julie Reiskin, Edward Muegge, Robert Geyer, Stacy Berloff, Jean Ryan and Jan Campbell, and Defendant Kmart Corporation ("Kmart"), jointly moved the Court for an Order: (I) holding that the notice issued in this case satisfied Rule 23 of the Federal Rules of Civil Procedure and due process; (2) approving the proposed settlement in this case as fair, reasonable and adequate; and (3) permanently enjoining class members and sub-class members from asserting any of the claims released pursuant to the settlement agreement. In addition, plaintiffs have moved for certification for settlement purposes only of the damages sub-class that the Court earlier certified preliminarily. The Court

Case 1:99-cv-01923-JLK-CBS Document 235 Filed 07/27/06 USDC Colorado Page 2 of 29
previously reviewed the settlement agreement executed by the parties ("Settlement Agreement" or "Agreement"), which is attached to this Order as an Appendix, concluded that it was fair, reasonable and adequate, and, on that basis, preliminarily approved it. Lucas v. Kmart Com., 234 F.R.D. 688 (D. Colo. 2006) ("Preliminary Approval Order"). The Court also approved the notice plan proposed by the parties and the forms of notice. Id. at 696-97. Following the Court's rulings, the parties executed the proposed notice plan. In response to the approved notice, the Court received only one objection.
After considering the various briefs filed by the parties during the approval process, plaintiffs' motion for certification ofthe sub-class for settlement purposes, the testimony and evidence submitted with those pleadings and during the Fairness Hearing, and applicable law, the Court will overrule the objection, grant the motions, certify the damages sub-class, approve the Settlement Agreement, and enter the requested permanent injunction.
Applicable Law, Facts and Procedural History I. Applicable Statutes
Title III of the ADA prohibits disability discrimination in places of public accommodation. 42 U.S.c. § 12181 et seq. The specific design criteria required by Title III are set forth in the Department of Justice Standards for Accessible Design ("Standards"). 28 C.F.R. pt. 36, app. A. Title III is enforceable through a private right of action for injunctive relief, but Title III does not provide a damages remedy for private plaintiffs. 42 U.S.C. § 12188(a)(I) & (2). Successful plaintiffs are, however, entitled to attorneys' fees. Id., § 12205. Under California law, plaintiffs may also seek injunctive relief to require compliance with California's
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access standards, set forth in Title 24 of the California Code of Regulations. See. e.g., Cal. Civ. Code §§ 5l(b), 52(c)(3), 54(a), 54.3(b); People ex reI. Deukmejian v. CHE. Inc., 197 Cal. Rptr. 484,491 (Cal. Ct. App. 1983).
California, Colorado, Hawai'i, Massachusetts, New York, Oregon and Texas (together, the "Sub-Class States") each has a statute pursuant to which a prevailing plaintiff in a disability discrimination action against a public accommodation can be awarded damages in an amount specified by statute without proving actual damages ("Statutory Minimum Damages"). The Statutory Minimum Damages recoverable in each state are as follows: California ($4,000);1 Colorado ($50);2 Hawaii ($1,000);3 Massachusetts ($300);4 New York ($100);5 Oregon ($200);6 and Texas ($100V II. History ofthe Litigation, Negotiation, Preliminary Approval and Notice
This action was filed in 1999. Between the spring of 2000 and January 2002, the parties conducted extensive discovery, including the production of over 100,000 pages of documents

Cal. Civ. Code § 52(a). Minimum damages of$I,OOO are recoverable pursuant to Cal. Civ. Code § 54.3.

2

Colo. Rev. Stat. § 24-34-602.

3

Hawaii Statutes § 489-7.5.

4

M.G.L.A. ch. 272 § 98.

5

N.Y. Civ. R. §§ 40-c, 40-d; N.Y. Exec. § 296(2)(a).

6

OKS. § 659A.885.

7

Tex. Hum. Res. Code §§ 121.003; 121.004. Due to a typographical error, the amount of

Statutory Minimum Damages recoverable pursuant to these statutes was misstated in the

Preliminary Approval Order at $200. See Lucas, 234 F.R.D. at 691 n.7.

3

Case 1:99-cv-01923-JLK-CBS Document 235 Filed 07/27/06 USDC Colorado Page 4 of 29
and more than 50 depositions. Plaintiffs filed their motion for class certification in July 2001 and there was extensive briefing on that issue. In January 2002, Kmart declared bankruptcy. During the pendency of Kmart' s bankruptcy, plaintiffs attempted unsuccessfully to lift the bankruptcy stay as it applied to this case. After Kmart emerged from bankruptcy in May 2003, the parties appeared before this Court to address whether this matter had been discharged in bankruptcy. This Court ruled that the matter could proceed.
On July 13, 2005, after additional briefing, the Court granted plaintiffs' motion for class certification and certified a nationwide class ofindividuals who use wheelchairs or scooters and who shop at Kmart stores (the "Nationwide Class"). Kmart immediately sought and obtained permission from the Tenth Circuit to appeal that decision under Rule 23(f) of the Federal Rilles of Civil Procedure ("F.R.C.P."). As a result of the parties reaching the settlement presently before the Court, briefing before the Tenth Circuit was not completed.
In August 2005, the parties initiated the settlement negotiations that yielded the Settlement Agreement submitted to the Court. These settlement negotiations were ongoing from August 2005 to February 2006. As part ofthose negotiations, Kmart provided plaintiffs with additional documents relating to topics addressed during the negotiations and made arrangements for plaintiffs' expert to survey two Kmart stores. In addition to extensive telephone and email conversations, the parties engaged in two multi-day, in-person negotiating sessions along with other shorter meetings.
The parties' initial negotiations concerned injunctive relief. The parties reached agreement concerning a large part of the injunctive relief before turning to damages, and the
4

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negotiations concerning damages and injnnctive relief were kept completely separate from one another. The parties did not discuss attorneys' fees nntil there was substantial agreement on all parts of the injnnctive and damages settlement. Both parties have been represented throughout these negotiations by connsel with extensive experience in disability rights and class action litigation.
Once the settlement was ahnost finalized, Class Connsel provided the draft Settlement Agreement to prominent members of the disability rights commnnity across the conntry. The parties incorporated into the Settlement Agreement several suggestions that they received through this process.
At the Fairness Hearing, named plaintiff Carrie Ann Lucas testified to the origins of this case and to her involvement in each step of both the litigation and settlement negotiations. Class Counsel Amy F. Robertson testified to the extensive discovery in which the parties engaged and the hard-fought briefing on the question of class certification. Although active litigation largely ceased after the Nationwide Class was certified, both the discovery and the class certification briefing addressed a number of the key merits questions in this case. Ms. Robertson also testified to the arm's length settlement negotiations that, while amicable, were vigorous and at times contentious.
As noted above, on March 22, 2006, this Court granted preliminary approval ofthe Settlement Agreement and held that the parties' proposed notice plan satisfied the requirements of due process and F.R.C.P. 23. Lucas v. Kmart Com., 234 F.R.D. 688, 695-97 (D. Colo. 2006).
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Following that order, the parties provided notice in accordance with the approved notice plan. This included mailing a copy ofthe notice and claim form to a list of over 250,000 individuals who use wheelchairs, 1,003 individuals who had contacted Class Counsel concerning barriers in places of public accommodation, and to 799 organizations focused on people with disabilities. Summary notices were published in Parade, USA Weekend, People, People en Espafiol, Reader's Digest, Vista, New Mobilitv, Paraplegia News, and Sports N' Spokes. A toll-free telephone line with an interactive voice response system to address questions from class members was set up, as was a website dedicated to the settlement. The latter permitted users to download a copy of the notice and claim form.
Kmart posted a one-page notice at multiple locations in each store and placed a link to the settlement website on its website (www.kmart.com). In response to a request by Class Counsel, a number of disability rights organizations placed a link to the notice on their websites, and the notice was circulated to a number of disability-oriented email mailing lists. Following the Court's preliminary approval, the settlement received extensive press coverage. The extensive notice program undertaken by the parties cost more than $1 million.
The parties submitted a declaration from Jeanne C. Finegan, an expert in the design of notice programs such as the one approved by this Court. Ms. Finegan opined that the notice program implemented in this case was the best notice practicable under the circumstances. Based on her analysis, the publication portion of the notice program is estimated to have reached more than 73% ofthe targeted individuals. This estimate did not even take into account the
6

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publications targeted at individuals with disabilities, the direct mailings, the in-store notices, and the various other aspects of the notice program.
In response to this extensive notice program, the Court received only one objection: a one-page letter from Marc Miller of Bloomington, Illinois, objecting to the fact that the definition of the Nationwide Class includes individuals who may become disabled in the future. (Docket No. 224.) III. Summary of the Settlement
The Nationwide Class is defined in the Settlement Agreement as: all persons who, at any time from May 6,2003 through the Term of this Agreement, used, use or will use wheelchairs or scooters for mobility and who shopped or shop at any Kmart Store or any Closed Kmart Store or who allege they would shop or would have shopped at one or more Kmart Stores or Closed Kmart Stores but for allegedly being denied on the basis of disability the full and equal enjoyment ofthe goods, services, facilities, privileges, advantages, or accommodations of such Kmart Store(s) or Closed Kmart Store(s). (Agreement ~ 3.30.) The Damages Sub-Class consists of: all Settlement Class Members who, at any time from May 6, 2003 through the Term of this Agreement, shopped or shop at any Kmart Store or Closed Kmart Store in the Statutory Minimum Damages States or who allege that they would have shopped or would shop at one or more Kmart Stores or Closed Kmart Stores in the Statutory Minimum Damages States but for allegedly being denied on the basis of disability the full and equal enjoyment ofthe goods, services, facilities, privileges, advantages, or accommodations of such Kmart Store(s) or Closed Kmart Store(s). (rd. ~ 3.1 0.)
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In summary,8 under the proposed settlement agreement:

•

Within approximately seven and a half years, Kmart will survey all of its stores

and bring them into compliance with the Department of Justice Standards for

Accessible Design, subject to limited exceptions, to the extent that they relate to

accessibility for people who use wheelchairs or scooters for mobility; with respect

to its stores in California, Kmart will also bring those stores into compliance with

Title 24 of the California Code of Regulations, subject to limited exceptions, to

the extent that the provisions of Title 24 relate to accessibility for people who use

wheelchairs or scooters for mobility (id. ~ 6);

•

Kmart will ensure that all merchandise on "fixed displays" - including gondolas,

perimeter walls, and "I" walls - as well as large appliances, drive aisle displays

and sidewalk displays will be on an accessible route of at least 36 inches (id.

~~ 12.6.1-.3, 12.6.8);

•

Kmart will ensure that all accessible restrooms and fitting rooms will be on an

accessible route and maintained free and clear of obstructions (id. ~~ 12.6.5-.6);

•

Kmart will ensure that at least one accessible check-out lane is open at all times

the store is open fuh ~ 12.5);

•

Kmart will, in all but 10% of its stores, provide a path of at least 32 inches to at

least one side of moveable apparel displays in 80% of floor space occupied by

8

The description of the settlement set forth in this Order is simply a general summary of

some of its terms. The operative terms of the settlement are those that are set forth in the

Settlement Agreement itself, which is attached as an Appendix hereto.

8

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moveable displays as well as a distance of 32 inches between certain types of

moveable apparel displays when they are placed next to one another (id.

~~ 12.1-.2);

•

Kmart will implement a customer service system for access to moveable apparel

displays and furniture displays under which customers with disabilities who use

wheelchairs or scooters for mobility will have the option of requesting assistance

or requesting that Kmart provide them with a two-way communication device so
that they may summon assistance when they need it fuh ~ 12.3);

•

Kmart will amend its policy and training materials to implement these new

policies fuh ~ 13);

•

Compliance will be monitored using "mystery shoppers," as well as customer

feedback through the Internet, a toll-free phone line, and in-store forms (id.

~~ 14.3-.4);

•

The Nationwide Class will release claims for injunctive relief under Title ill of

the ADA, under state statutes that incorporate or are equivalent to Title ill, and

under California law tluough the end of the Term of the Agreement, which is

expected to be approximately 2014 (id. ~ 26.1);

•

Kmart will establish a fund (the "Damages Sub-Class Fund") in the amount of

$13,000,000 (consisting of$8,000,000 in cash and $5,000,000 in gift cards

redeemable at face value) from which members of the Damages Sub-Class are

eligible to recover (id. ~ 15.1.1);

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•

The Damages Sub-Class Fund will be allocated among the Sub-Class States based

on a formula that reflects the number ofKmart stores in each Sub-Class State, and

the Statutory Minimum Damages recoverable in each Sub-Class State (id.

~ 15.5.2);

•

For each qualifying visit to a Kmart store, a member ofthe Sub-Class may

recover up to the Statutory Minimum Damages recoverable in the Sub-Class State

in which he or she shopped, and the maximum number of qualifying visits for

which a Sub-Class member may recover is two (id. ~ 15.5.3.3);

•

Kmart will pay damages in the amount of$10,000 each to the three original

named plaintiffs, and $1,000 each to the six named plaintiffs of the Damages

Sub-Class (id. ~ 15.2);

•

The majority of any funds remaining in the Damages Sub-Class Fund after the

claims period will be given to specified non-profit entities that advocate for the

rights of persons with disabilities (id. ~ 15.6);

•

Members of the Damages Sub-Class have the right to opt out of the damages

provisions of the Settlement Agreement, but members ofthe Class and Sub-Class

cannot opt out of the injunctive provisions <ill ~ 16);

•

In addition to releasing claims for injunctive relief under Title Ill, equivalent state

statutes, and California law, Damages Sub-Class members will release claims for

Statutory Minimum Damages under the laws of the seven Sub-Class States

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through the end of the Tenn of the Agreement, but will not release claims for any

other damages ful ~ 26.2);

•

No member of the Nationwide Class will release damages claims with respect to

the laws of any state other than those of the Sub-Class States (id. ~ 26.2);

•

Kmart has agreed to pay attorneys' fees up to the date of final approval in the

amount of $3,250,000 and will pay Class Counsel additional reasonable fees in

the futnre for work that they do during the Tenn of the Agreement implementing

and assnring compliance with the Agreement (id. ~ 20.2);9

•

The Tenn of the Agreement will expire thirty days after the physical remediation

of the last store is verified or the last dispute resolution process is concluded (id.

~ 5); and

•

The Settlement Agreement calls for this Court to retain continuing jurisdiction

throughout the Tenn ofthe Agreement to interpret and enforce the Agreement (id.

~ 35).

Two representatives of Kmart testified at the Fairness Hearing concerning the extensive

efforts that Kmart has undertaken and is preparing to undertake to implement both the

architectnral and policy aspects of this Settlement. It is clear to the Court that Kmart takes its

obligations seriously and is taking appropriate steps to ensnre compliance with the Agreement.

Experienced attorneys representing both the Class and Kmart offered their opinion that

this Settlement was fair, reasonable and adequate, as did all named plaintiffs of both the

9

Class Counsel has separately submitted a fee petition supporting its claim for this award.

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Nationwide Class and the Damages Sub-Class. A representative of the National Disability Rights Network and an architect who is an expert in accessibility compliance both testified at the Fairness Hearing that, based on their experience in this area, the Settlement Agreement was fair, reasonable and adequate.
DISCUSSION I. The Damages Sub-Class Is Certified.
This Conrt has preliminarily certified the Damages Sub-Class. Lucas v. Kmart, 2006 WL
722163, at * 6 (D. Colo. Mar. 22, 2006). Plaintiffs have moved for an order certifying this Sub-
Class for settlement purposes only. For the reasons set forth in my March 22 Order, I will grant that motion and certify the Damages Sub-Class under F.R.C.P. 23(a) and both F.R.C.P. 23(b)(2) and F.R.C.P. 23(b)(3). II. Notice Provided by the Parties Satisfies Rule 23 and Due Process.
This Court previously approved the parties' proposed notice plan and the proposed forms of notice. Lucas, 234 F.R.D. at 695-97. The Court held that the requirements of due process and F.R.C.P. 23 would be satisfied if, on or before May 8, 2006, the parties executed a multi-faceted notice plan that is described in detail in the Court's Preliminary Approval Order. Id.
Since then, the parties satisfied all the elements of the notice plan approved by the Conrt in the Preliminary Approval Order. The parties sent out individual notice to more than 250,000 potential class members, including individuals who had contacted Class Counsel about the issues raised in this litigation. The parties undertook an expansive nationwide publication program that included both mainstream media and publications targeted at individuals who use wheelchairs or
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scooters. The parties notified almost 800 organizations focused on people with disabilities ofthe pending settlement. Kmart posted an in-store version of the notice in all of its stores and posted a link to the notice on its website. All of these steps were undertaken within the timeframe set forth in the Preliminary Approval Order.
In fact, the parties undertook additional steps relating to notice above and beyond those in the extensive plan approved by the Court. For example, the notice was sent to email lists focused on individuals with disabilities and posted on the websites of various groups focused on individuals with disabilities.
The notice program implemented by the parties to this settlement goes above and beyond that required by law. For the reasons set forth in the Preliminary Approval Order, id. at 695-97, the Court holds that the notice program implemented by the parties was the best notice practicable under the circumstances and satisfied the requirements of due process and F.R.c.P. 23. III. The Settlement is Fair, Reasonable and Adequate.
In enacting the ADA, Congress provided specifically that "[w]here appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including settlement negotiations ... is encouraged to resolve disputes arising under this chapter." 42 U.S.C. § 12212. As the Seventh Circuit has noted, settlement is especially appropriate where ''voluntary compliance by the parties over an extended period will contribute significantly toward ultimate achievement of statutory goals." Metro. Hous. Dev. Corp. v. Village of Arlington Heights, 616 F.2d 1006,1014 (7th Cir. 1980). Here, the parties are undertaking to
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implement a comprehensive settlement over a period of years that will significantly promote the achievement of the goals of the ADA.
"The authority to approve a settlement of a class ... action is committed to the sound discretion ofthe trial court." Jones v. Nuclear Pharmacy, Inc., 741 F.2d 322, 324 (lOth Cir. 1984). Under F.R.C.P. 23(e)(l)(C), in considering whether to approve a class action settlement, a court should consider whether the settlement is "fair, reasonable, and adequate." In the Tenth Circuit, the following factors are to be analyzed in determining whether this standard is met:
(1) whether the proposed settlement was fairly and honestly negotiated; (2) whether serious questions oflaw and fact exist, placing the ultimate outcome of the litigation in doubt; (3) whether the value of an immediate recovery outweighs the mere possibility of future relief after protracted and expensive litigation; and (4) the judgment of the parties that the settlement is fair and reasonable. Rutter & Wilbanks Com. v. Shell Oil Co., 314 F.3d 1180, 1188 (10th Cir. 2002). This Court has already preliminarily concluded that the Settlement Agreement satisfies these four prongs and that it and the allocation of the Damages Sub-Class Fund are fair, reasonable and adequate. Lucas, 234 F.R.D. at 693-95. The evidence submitted with the parties' Motion for Final Approval of Settlement Agreement and the testimony at the Fairness Hearing further support this conclusion. The Court therefore finds that the Settlement Agreement satisfies the four Rutter & Wilbanks prongs and is fair, reasonable and adequate. A. The Agreement was Fairly and Honestly Negotiated. There are numerous indicia that the settlement negotiations in this case have been fair, honest and at arm's length.
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First, the parties to this litigation have ''vigorously advocated their respective positions throughout the pendency of the case." See Wilkerson v. Martin Marietta Com., 171 F.R.D. 273, 284 (D. Colo. 1997). This case has been litigated over the course of six years, during which time both parties engaged in extensive written and deposition discovery, filed a number of contested discovery motions, and filed more than a dozen briefs related to class certification. The Settlement Agreement itself took six months to negotiate, and came only after several previous attempts at negotiating a settlement had failed. These negotiations involved multiple in-person meetings, during which both sides were represented by experienced counsel.
Because the settlement resulted from arm's length negotiations between experienced counsel after significant discovery had occurred, the Court may presume the settlement to be fair, adequate and reasonable. See,~, Wal-Mart Stores. Inc. v. Visa U.S.A.. Inc., 396 F.3d 96, 116 (2d Cir.), cert. denied sub nom., Leonardo's Pizza by the Slice. Inc. v. Wal-Mart Stores, Inc., 125 S. Ct. 2277 (2005) (a '''presumption offairness, adequacy, and reasonableness may attach to a class settlement reached in arm's-length negotiations between experienced, capable counsel after meaningful discovery.'" (quoting Manual for Complex Litigation. Third § 30.42 (1995))).
The fact that the parties did not discuss damages until they had made substantial progress on the injunctive issues, and did not discuss attorneys' fees until all other issues were virtually • finalized, is also indicative of a fair and arm's-length process. See. e.g., Manual for Complex Litig., Fourth § 21.7 at 335 (2004) ("Separate negotiation ofthe class settlement before an agreement on fees is generally preferable.").
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B. Serious Questions of Law and Fact Exist. Although it is not the role of the Court at this stage of the litigation to evaluate the merits, Wilkerson, 171 F.R.D. at 284, it is clear that the parties could reasonably conclude that there are serious questions of law and fact that exist such that they could significantly impact this case if it were litigated. For example, Kmart argued that plaintiffs' claims were discharged through its bankruptcy. Although the Court rejected that argument, Kmart could appeal this issue, argue that plaintiffs' claims should have been dismissed, and potentially wipe out any successful result that the plaintiffs might achieve. Similarly, the Tenth Circuit granted interlocutory appeal of the decision certifying the Nationwide Class in this case. If this case were litigated, the Tenth Circuit could reverse or modify this Court's class certification decision. There is also a serious disagreement between the parties concerning the legal standards applicable to stores built before January 26, 1993. With respect to those stores, Kmart contends that it was required to make only those changes that were "readily achievable" under 42 U.S.C. § 12182(b)(2)(A)(iv). Plaintiffs disagree, arguing that, pursuant to 42 U.S.C. § 12183(a)(2), Kmart was required to bring those stores into compliance with the Department of Justice Standards for Accessible Design. There are numerous contested factual issues that relate to this point. The question of access to merchandise on moveable displays was also hotly contested. Plaintiffs took the position that all such merchandise was required to be on an accessible route of at least 36 inches. See Standards § 4.1.3(12)(b). Defendants argued that the case law provided
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that t~ere was no such requirement. See,~, Colorado Cross-Disability Coalition v. Too

(Delaware), Inc., 344 F. Supp. 2d 707, 715 (D. Colo. 2004); Lieber v. Macy's West. Inc., 80 F.

Supp. 2d 1065, 1077 (N.D. Cal. 1999).

There were thus numerous factual and legal questions yet to be addressed in this

litigation that could have had a serious impact on the results for either side.

C. The Value of an Immediate Recovery Outweighs the Mere Possibility of Future Relief after Protracted and Expensive Litigation.

Ifthis case were to be litigated, in all probability it would be many years before it would

be resolved. The appeal ofthis Court's class certification decision alone could take a year. And

if this Court's decision were upheld, then the parties could potentially be faced with surveying

each ofKmart's stores so that disputed factual issues could be resolved.

By contrast, the proposed Settlement Agreement provides the class with substantial,

guaranteed relief. And the class will start to gain the benefits from this settlement in the near

future, instead of having to wait several more years for this litigation to be fought out to a

judgment.

Pursuant to the Settlement Agreement:

•

Kmart will survey each of its stores in the United States, Puerto Rico, Guam, and

the Virgin Islands using surveyors trained by Jim Terry, a nationally-known

expert in ADA compliance.

•

Architectural elements that are fonnd through the surveys to be out of compliance

with the Standards will be brought into compliance with the Standards, subject to

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limited exceptions, to the extent that they relate to accessibility for people who

use wheelchairs or scooters for mobility;

•

As part of the settlement, Kmart has agreed not to assert the readily-achievable

defense under the ADA during this process. See 42 U.S.C. § 12182(b)(2)(A)(iv).

•

Kmart will put in place policies to ensure that its stores are accessible to class

members, including, for example, making sure that an accessible check-out lane

is open, that all merchandise on fixed displays is on an accessible path of travel,

that Kmart employees are available to assist class members in accessing

moveable apparel displays and furniture displays, and that restrooms and fitting

rooms are accessible.

The Settlement Agreement also provides for substantial damages for members of the

proposed Damages Sub-Class. The settlement establishes a $13,000,000 fund from which

members of the sub-class may recover. In return, members of the sub-class are releasing only

their claims for Statutory Minimum Damages and not their claims for actual damages. See. e.g.,

Bowling v. Pfizer. Inc., 143 F.R.D. 141,170 (S.D. Ohio 1992) (approving class action settlement

in part because oflimited nature of damages release, such that class members retained most of

their rights).

D. The Judgment of the Parties That the Settlement Is Fair and Reasonable.

"Counsels' judgment as to the fairness ofthe agreement is entitled to considerable

weight." Marcus v. Kansas Dept. of Revenue, 209 F. Supp. 2d 1179, 1183 (D. Kan. 2002).

Here, the parties' counsel- among whom are attorneys with substantial experience in complex

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class action litigation and disability class actions - unanimously support this settlement, as do all of the Named Plaintiffs.
E. Incentive Payments to Named Plaintiffs. The Settlement provides for payment of $10,000 each to tbe original named plaintiffs of tbe Nationwide Class and of$I,OOO each to the named plaintiffs for tbe Damages Sub-Class. Based on the testimony of Class Counsel concerning tbe effort these individuals undertook and their contributions to the litigation, these payments are entirely appropriate. See Cimarron Pipeline Constro> Inc. v. Nat'l Council on Compo Ins., Nos. CN 89-822-T & CN 89-1 186-T,
1993 WL 355466, at * 2 (W.D. Okla. June 8, 1993) (holding tbat payments of $1 0,000 to class
representatives was appropriate in light of "their time and effort in asserting tbe interests ofthe Class, meeting discovery and otber litigation responsibilities, and working witb counsel to advance the interests of the Class").
F. Allocation of the Damages Sub-Class Fund. The Court has also considered whether the distribution plan contained in the settlement is fair, reasonable, and adequate. See. e.g., In re Lorazepam & Clorazepate Antitrust Litig., 205 F.R.D. 369,381 (D.D.C. 2002). The Court finds that it is. "Allocation formulas ... are recognized as an appropriate means to reflect the comparative strengths and values of different categories of the claim. . .. An allocation formula need only have a reasonable, rational basis, particularly if recommended by 'experienced and competent' class counsel." In re Am. Bank Note Holographics. Inc., 127 F. Supp. 2d 418,
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429-30 (S.D.N.Y. 2001) (citations omitted); see also Maleyv. Del Global Techs. Corp., 186 F. Supp. 2d 358,367 (S.D.N.Y. 2002) (same).
In this case, the settlement provides compensation for the release of claims for Statutory Minimum Damages under the laws ofthe seven Sub-Class States. Two factors affect the relative strength and value ofthe claims among these states.
First, the Statutory Minimum Damages that may be recovered differ among the states, from $50 in Colorado to $4,000 in California.
Second, the number of class members differs among the states. States with a greater number of class members who encountered barriers at Kmart stores should receive a larger portion of the damages. There is no way to determine the precise number of class members who encountered barriers in each state. As a reasonable approximation,IO the parties have used the number ofKmart stores in each state, based on the common-sense assumption that the greater the number of Kmart stores in a state, the greater the number of class members who have encountered barriers in that state.
The allocation formula agreed upon by the parties is as follows: Each Sub-Class State is assigned a "Factorial," which is the product ofthe number ofKmart stores (including any stores that were open at any time during which damages are recoverable) in that state times the Statutory Minimum Damages recoverable in the state. For example, the California Factorial is
10 In a class action settlement, "damages need not be calculated with precision in determining a plan of allocation for settlement proceeds; the only requirement is that the allocation be fair and reasonable." In re Veritas Software Corp. Sec. Litig., No. C-03-0283 MMC, 2005 WL 3096079, at *7 (N.D. Cal. Nov. 15,2005).
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520,000, which is the product of 130 (the number of California Kmart stores) and 4,000 (the Statutory Minimum Damages recoverable in California).
The percentage ofthe Damages Sub-Class Fund allocated to a Sub-Class State is determined by dividing that state's Factorial by the combined sum of the Factorials of all Sub-Class States.
By allocating the Damages Sub-Class Fund based on the Statutory Minimum Damages recoverable in each state, and by the number ofKmart stores in each state, the formula has a "reasonable, rational basis," and is recommended by experienced, competent counsel. Thus the allocation formula satisfies F.R.C.P. 23. See In re Am. Bank Note, 127 F. Supp. 2d at 429-30.
For the reasons set forth above, the Court holds that the settlement is fair, reasonable and adequate. IV. The Objection Is Overruled.
This Court received only one objection to the Settlement Agreement. Marc Miller of Bloomington, Illinois - an individual who does not, himself, use a wheelchair or scooter challenges the inclusion of individuals who may become disabled in the future in the settlement classes. He asserts: "[b]ecause individuals may become disabled in the future but are not currently disabled, they may not understand that they will be included in the class" and that "it is improper to settle claims for individuals in the future." (Docket No. 224.) He therefore asks that the class defmition for the Nationwide Class be rewritten to exclude individuals who become disabled in the future.
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Contrary to Mr. Miller's objection, it is both common and proper to include future class members in a class definition where, as here, the predominant relief is injunctive. For example, in Kilgo v. Bowman Transportation. Inc., 789 F.2d 859,878 (11th Cir. 1986), the Eleventh Circuit affirmed the certification of a class of current and prospective female applicants for employment at a company. Similarly, in Comer v. Cisneros, 37 F.3d 775,779 (2d Cir. 1994), the Second Circuit held that the plaintiffs could pursue a class action "on behalf of all former, current, and future minority residents of Buffalo, New York housing projects." See also United States Parole Comm'n v. Geraghty, 445 U.S. 388, 393 (1980); Crawford v. Gould, 56 F.3d 1162, 1163 (9th Cir. 1995); Neiberger v. Hawkins, 208 F.R.D. 301, 320 (D. Colo. 2002). Potential future class members are regularly included in classes in actions under the ADA. See. e.g., Neff v. Via Metro Transit Auth., 179 F.R.D. 185, 193 (W.D. Tex. 1998); Messier v. Southbury Training Sch., 183 F.R.D. 350, 356 (D. Conn. 1998); Siddiqi v. Regents of the Univ. of California, 2000 WL 33190435, at *4 (N.D. Cal. Sept. 6,2000).
In many cases when relief is primarily injunctive, the relief is not individual but rather is obtained on behalf of an entire class. Relief relating to, for example, treatment of prisoners, hiring policies, school entrance tests, or architectural changes cannot be framed one way with respect to one potential class member and some other way with respect to another potential class member. Hence, classes seeking or obtaining primarily injunctive relief are certified as mandatory classes nnder F.R.C.P. 23(b)(2) - because the relief is "with respect to the class as a whole." In these circumstances, "unknown future class members should be properly considered and included as a part ofthe class." Neff, 179 F.R.D. at 193. Because, "while the identities of
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the individuals involved may change, the nature of the harm and the basic parameters of the group affected remain constant." Bruce v. Christian, 113 F.R.D. 554, 557 (S.D.N.Y. 1987). Excluding future class members from classes would create "unnecessary harm and repetitive litigation." Dixon v. Bowen, 673 F. Supp. 123, 127 (S.D.N.Y. 1987).
The parties submit, and the Court agrees, that the rationale for including future class members in class definitions is particularly strong in the context of ADA public accommodation cases such as this one. Because the architectural and design changes sought in most public accommodation cases cannot be made instantaneously, a public accommodation settlement usually must provide a period of time over which alterations to the relevant public accommodations are to be made. See, lUb Colorado Cross-Disability Coalition v. Taco Bell Com., Civil Action No. 97-B-2135 (D. Colo.); Farrar-Kuhn v. Conoco. Inc., Civil Action No. 99-MK-2086 (D. Colo.).
Consistent with these other settlements, the Settlement Agreement here contains carefully negotiated terms setting forth, among other terms, an eight-year plan to survey and remediate more than 1,400 stores. The Settlement Agreement, in turn, resolves claims under various accessibility laws. Under Mr. Miller's approach, however, a newly disabled individual would be able to bring a claim alleging that Kmart was violating accessibility laws, even while Kmart was acting in accordance with a court-approved class action settlement resolving claims under those very laws. In other words, at the same time as receiving all the benefits obtained in the settlement, he or she could seek injunctive relief that would functionally be challenging the very terms ofthe settlement.
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To pennit such claims during the Tenn ofthe Settlement Agreement would threaten its very foundation. See Newberg on Class Actions § 3:7 (rev. 4th ed. supp. 2006) ("Inclusion of future class members within a class, when otherwise appropriate under Rule 23(a) tests, will greatly enhance the effectiveness of the finaljudgment."). Moreover, to bar classes in ADA public accommodation lawsuits from including future members would negatively impact the ability of parties to negotiate effective public accommodation settlements. Defendants would surely be hesitant to enter into settlements if they were faced with the possibility that the releases - and thus the stability - they obtain in return for the commitments they undertake in settlements could be disrupted or challenged by any newly disabled individual who decides to pursue a lawsuit.
Miller also obj ects that he "cannot detennine with certainty if [he isla member of the subclass entitled to a monetary award." (Ill) This is easily resolved: because he does not currently use a wheelchair or scooter, he is not entitled to a monetary award under the Settlement Agreement.
If Mr. Miller becomes disabled in the future, then like any other present or future class member, he will be entitled to pursue any claims for actual damages that he might have. The only claim that he might not be able to pursue would be a claim for Statutory Minimum Damages, ifhe is shopping in a Kmart in a state providing for such damages. The Settlement Agreement bars claims for Statutory Minimum Damages during the Tenn of the Agreement to the extent that such claims arise out of or relate to actions, conduct or conditions at Kmart stores that are in compliance with the Settlement Agreement. That release is derived directly from, and
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is incidental to, the substantial injunctive relief provided by the settlement. It simply (and properly) provides that Kmart will not be exposed to a form of damages that do not require actual harm and that are intended to be "penal" in nature, see, e.g., Koire v. Metro Car Wash, 707 P.2d 195, 200 (Cal. 1985), while acting in compliance with the terms of a court-approved injunctive settlement. I I Moreover, the release does not differentiate between those who are presently disabled and those who might become disabled during the Term ofthe Agreement.12
Mr. Miller's obj ection is overruled. Indeed, the fact that there was only a single objection, even after the massive notice program that was undertaken, provides further support for the fairness ofthe settlement. See, e.g., Lipuma v. Am. Express Co., 406 F. Supp. 2d 1298, 1324 (S.D. Fla. 2005) ("a low percentage of objections points to the reasonableness of a proposed settlement and supports its approval"); Newberg on Class Actions § II :41 (rev. 4th ed. supp. 2006) (Among the considerations favoring approval is "[t]hat the number of objectors or interests they represent is not large when compared to the class as a whole."). V. Class and Sub-Class Members will be Permanently Enjoined from Asserting
Released Claims. In its Preliminary Approval Order, the Court preliminarily enjoined members of the class and the sub-class from pursuing any of the claims to be released pursuant to the Settlement
II This is a completely different situation than that presented in Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003), where a settlement purported to release statutory minimum damages claims that accrued prior to the settlement for minimal consideration. 12 For this reason, among many others, the Settlement Agreement does not raise the issues presented by Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997).
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Agreement. Lucas, 234 F.R.D. at 697-98. The parties now ask the Court to make that injunction permanent. The Court will do so.
maddition to the Conrt's inherent power, this Court "may issue all writs necessary or
appropriate in aid of [its] respective jurisdictions and agreeable to the usages and principles of law" pursuant to the All Writs Act. 28 U.S.C. § 1651(a). Numerous conrts have held that under the All Writs Act, a court presiding over a class action settlement may enjoin class members from bringing related litigation in other conrts. See. e.g., Hillman v. Webley. 115 F.3d 1461, 1469 (10th Cir. 1997) (in connection with class action settlement, "[t]he district conrt undoubtedly had the authority under the All Writs Act to enjoin parties before it from pursuing conflicting litigation ..."); In re VMS Sec. Litig., 103 F.3d 1317, 1324 (7th Cir. 1996) ("in the context of complex class action litigation, a federal district court may appropriately use the All Writs Act to ... enjoin the prosecution of subsequent state conrt claims ..."); see also 7B Charles Alan Wright, et aI., Federal Practice and Procedure § 1798.1 ("an injunction ... to protect the court's power ... may be particularly appropriate once a settlement has been reached and judgment entered as part of that settlement").
The Conrt believes that it is particularly appropriate to issue an injunction in this case because the settlement has a term of approximately seven and a half years during which the Conrt will continue to retain jurisdiction over this matter. Therefore, because the Court finds that it would aid in the protection of its jurisdiction and is necessary in order to effectuate this settlement, the Court hereby permanently enjoins members of the Nationwide Class and the Damages Sub-Class from asserting or pursuing:
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1. With respect to conduct or conditions preceding the final approval of the settlement: (a) Claims seeking injunctive relief relating in any way to the accessibility ofKmart stores to persons who use wheelchairs or scooters under Title III of the Americans with Disabilities Act, Cal. Code Regs., Title 24, and any other provision of California law to the extent it grants a right of action for alleged violations of the foregoing, and any state or local statutory, administrative, regulatory or code provisions that either (i) directly incorporate Title III ofthe Americans with Disabilities Act or any of the rules or regulations promulgated thereunder or (ii) set forth standards or obligations coterminous with or equivalent to Title III of the Americans with Disabilities Act or any ofthe rules or regulations promulgated thereunder; (b) Claims for Statutory Minimum Damages relating in any way to the accessibility ofKmart stores or closed Kmart stores to persons who use wheelchairs or scooters by operation of or pursuant to the following state statutes or codes: California - Cal. Civil Code §§ 52, 54.3; Colorado - C.R.S. § 24-34-602; Hawaii - Hawaii Statutes § 489-7.5; Massachusetts - M.G.L.A. ch. 272 § 98; New York - N.Y. Civ. R. §§ 40-c, 40-d, N.Y. Exec. § 296(2)(a); Oregon - O.R.S. § 659A.885; and Texas - Tex. Hum. Res. Code §§ 121.003, 121.004, and any other statute, codes or laws (as previously or presently codified, or as they may be codified in the future) providing for minimum damages in a specified amount.
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2. With respect to conduct or conditions during the Tenn ofthe Agreement: (a) Claims seeking injunctive relief relating in auy way to the accessibility of Kmart stores to persons who use wheelchairs or scooters under Title III of the Americaus with Disabilities Act, Cal. Code Regs., Title 24, and auy other provision of California law to the extent it grants a right of action for alleged violations of the foregoing, and auy state or local statutory, administrative, regulatory or code provisions that either (i) directly incorporate Title III of the Americaus with Disabilities Act or auy of the rules or regulations promulgated thereunder or (ii) set forth staudards or obligations cotenninous with or equivalent to Title III of the Americaus with Disabilities Act or auy of the rules or regulations promulgated thereunder, to the extent that such claims arise out of or relate to actions, omissions, or conduct (including physical conditions at Kmart stores) that are in compliance with the tenns of the Settlement Agreement; (b) Claims for Statutory Minimum Damages relating in auy way to the accessibility of Kmart stores or closed Kmart stores to persons who use wheelchairs or scooters by operation of or pursuaut to the following state statutes or codes: California - Cal. Civil Code §§ 52, 54.3; Colorado - C.R.S. § 24-34-602; Hawaii - Hawaii Statutes § 489-7.5; Massachusetts - M.G.L.A. ch. 272 § 98; New York- N.Y. Civ. R. §§ 40-c, 40-d, N.Y. Exec. § 296(2)(a); Oregon - O.R.S. § 659A.885; and Texas - Tex. Hum. Res. Code §§ 121.003, 121.004, aud auy other statute, codes or laws (as previously or presently codified, or as they may be
28

Case 1:99-cv-01923-JLK-CBS Document 235 Filed 07/27/06 USDC Colorado Page 29 of 29
codified in the future) providing for minimum damages in a specified amount, to the extent that such claims arise out of or relate to actions, omissions, or conduct (including physical conditions at Kmart stores) that are in compliance with the terms of the Settlement Agreement. VI. Order For the reasons set forth above, this Court GRANTS the parties' Joint Motion for Final Approval of Settlement Agreement and ORDERS as follows: A. The damages sub-class is CERTIFIED under F.R.C.P. 23(a) and both F.R.C.P. 23(b)(2) and F.R.C.P. 23(b)(3); B. Mr. Miller's objection is OVERRULED; C. The Settlement Agreement, including all of its terms, conditions and releases, is APPROVED; and D. The members of the class and the sub-class are PERMANENTLY ENJOINED from bringing any of the claims set forth in Section V above. As requested by the parties, this Court retains exclusive jurisdiction over this matter for the purpose of interpreting and enforcing the Settlement Agreement.
S NlOR u.s. DISTRICT COURT JUDGE
29

 
 Case 1:99-cv-01923-JLK-CBS Document 240 Filed 08/09/06 USDC Colorado Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-cv-01923-JLK
CARRIE ANN LUCAS, DEBBIE LANE, JULIE REISKIN, EDWARD MUEGGE, ROBERT G. GEYER, STACY BERLOFF, JEAN RYAN, JAN CAMPBELL,
on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
KMART CORPORATION,
Defendant.
FINAL JUDGMENT
This action came on for hearing before the Court, Honorable John L. Kane, Senior District
Judge, presiding, and the issues having been duly heard and a decision having been duly rendered,
It is Ordered and Adjudged that:
(A) The following classes are certified:
Pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2), a Settlement Class consisting of all persons who, at any time from May 6, 2003 through the Term of the Settlement Agreement, used, use or will use wheelchairs or scooters for mobility and who shopped or shop at any Kmart Store or any Closed Kmart Store or who allege they would shop or would have shopped at one or more Kmart Stores or Closed Kmart Stores but for allegedly being denied on the basis of disability the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of such Kmart Store(s) or Closed Kmart Store(s).

Case 1:99-cv-01923-JLK-CBS Document 240 Filed 08/09/06 USDC Colorado Page 2 of 2

Pursuant to Fed. R. Civ. P. 23(a), 23(b)(2) and 23(b)(3), a sub-class consisting of all Settlement Class Members who, at any time from May 6, 2003 through the Term of the Settlement Agreement, shopped or shop at any Kmart Store or Closed Kmart Store in the Statutory Minimum Damages States (California, Colorado, Hawaii, Massachusetts, New York, Oregon, and Texas) or who allege that they would have shopped or would shop at one or more Kmart Stores or Closed Kmart Stores in the Statutory Minimum Damages States but for allegedly being denied on the basis of disability the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of such Kmart Store(s) or Closed Kmart Store(s).
(B) Judgment is entered in accordance with the Orders entered by the Court on July 27, 2006,
and the Settlement Agreement attached hereto is given final approval.
The Court retains exclusive jurisdiction over this matter for the purpose of interpreting
and enforcing the Settlement Agreement.

Dated: August 9, 2006

S/John L. Kane SENIOR U.S. DISTRICT COURT JUDGE

2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-cv-01923-JLK-CBS CARRIE ANN LUCAS, DEBBIE LANE, and JULIE REISKIN, on behalf of themselves and all others similarly situated,
Plaintiffs, v. KMART CORPORATION,
Defendant.
SETTLEMENT AGREEMENT

Table of Contents 1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2. No Admission of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 4. Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 5. Term of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 6. Kmart Stores to Comply with the Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 7. Verification of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 8. Permits and Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 9. New Construction and Subsequently Acquired Stores . . . . . . . . . . . . . . . . . . . . . . . . . . 17 10. Subsequently Relinquished Stores . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 11. Maintenance of Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 12. Policies, Practices and Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 13. Operations, Policy and Training Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 14. Monitoring of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 15. Monetary Relief and Claims Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 16. Opt-Out Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 17. Additional Information to Class Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 18. Periodic Meetings Between the Parties and Annual Report to the Court . . . . . . . . . . . . 36 19. Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 20. Attorneys’ Fees and Costs up to the Date of Final Approval . . . . . . . . . . . . . . . . . . . . . 37 21. Attorneys Fees and Costs after Final Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

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22. Preliminary Approval, Objections and Fairness Hearing . . . . . . . . . . . . . . . . . . . . . . . . . 39 23. Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 24. Judgment, Final Approval and Dismissal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 25. Terms not Confidential; Communication with the Press . . . . . . . . . . . . . . . . . . . . . . . . . 40 26. Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 27. No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 28. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 29. Communications to Kmart and Class Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 30. Modification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 31. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 32. Drafting of this Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 33. Execution by Facsimile and in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 34. Duty to Support and Defend Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 35. Continuing Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 36. Stay of Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 37. Deadlines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

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1 Introduction.
1.1 This Settlement Agreement (“Agreement”) is entered into by and between Kmart Corporation (“Kmart”) and Carrie Ann Lucas, Debbie Lane, and Julie Reiskin (collectively “Named Plaintiffs”), individually and on behalf of themselves and a class of persons similarly situated (hereinafter referred to as the “Settlement Class” and defined below). Kmart and the Named Plaintiffs (individually and on behalf of the Settlement Class) shall individually be referred to as a “Party” and jointly as the “Parties.”
1.2 Kmart owns and operates approximately one thousand four hundred twenty-two (1422) Kmart Stores (as defined below). A list of these stores as of February 7, 2006 is attached as Exhibit 1.
1.3 This Agreement applies to all Kmart Stores and to all Subsequently Acquired Stores (as defined below). The provisions of Paragraphs 15, 16, 26.2 and 26.3 of this Agreement also apply to Closed Kmart Stores (as defined below).
1.4 Named Plaintiffs each uses a wheelchair or scooter for mobility and each is a person with a disability as that term is used in the Americans with Disabilities Act. Named Plaintiffs all patronize Kmart Stores and intend to continue doing so in the future.
1.5 The Named Plaintiffs have brought suit in the United States District Court for the District of Colorado (the “Court”), Civil Action No. 99-cv-01923-JLK-CBS (the “Lawsuit”), in which they allege that Kmart violated Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. at its stores nationwide.
1.6 On July 13, 2005, the Court certified a nationwide class of individuals who use wheelchairs or scooters and who shop at Kmart Stores nationwide.
1.7 The Parties now wish to effect a complete resolution and settlement of all claims, disputes and controversies relating to the allegations of Named Plaintiffs, the Settlement Class and the Damages Settlement Sub-Class, and to resolve their differences and disputes by settling the Lawsuit.
1.8 The terms of all Exhibits attached hereto are fully incorporated into this Agreement and are an integral part thereof. The terms of this Agreement, where applicable, are fully incorporated into all Exhibits and are, where applicable, an integral part thereof. To the extent that there are any conflicts or inconsistencies between the terms of this Agreement and any of the Exhibits, the terms of the Agreement shall control.

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1.9 This Agreement and all Exhibits are binding on Kmart’s subsidiaries, successors and assigns.
2 No Admission of Liability. By agreeing to and voluntarily entering into this Agreement, there is no admission or concession by Kmart, direct or indirect, express or implied, that Kmart Stores are in any way inaccessible or that Kmart has violated the Americans with Disabilities Act, or any other federal, state, or local law, building code, regulation, order, or rule. Nothing in this Agreement shall operate as an admission by Kmart in any context other than within the settlement of this Lawsuit that any particular standard or standards are applicable under the ADA or any other federal or state law to any Kmart Store.
3 Definitions. In addition to the terms defined elsewhere in the Agreement, the following terms shall have the meanings set forth below. Any terms not defined herein shall have the meaning ascribed to them in the ADA and/or the Standards.
3.1 “Accessible Route” means an unobstructed path that complies with Section 4.3 of the Standards.
3.2 “ADA” means Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181 et seq., and its implementing regulations.
3.3 “Agreement” means this agreement and the exhibits hereto.
3.4 “Architectural Barrier” is a defined term only for the purpose of allocating monetary relief provided herein and means an impediment to accessibility to persons who use wheelchairs or scooters for mobility of a structural feature at a Kmart Store, including but not limited to, restrooms, fitting rooms, store entrances, telephones, drinking fountains, parking facilities, and any other fixed features within the stores that are regulated by the ADA.
3.5 “Class Counsel” means Amy F. Robertson and Timothy P. Fox of Fox & Robertson, P.C., Bill Lann Lee of Lieff Cabraser Heimann & Bernstein, LLP, Kevin W. Williams of the Colorado Cross Disability Coalition, Brian East of Advocacy, Inc., Steven Greenberger of the DePaul University Law School, Mari Mayeda, and Antonio Lawson. The Parties and Class Counsel agree that the primary attorneys who will perform work on behalf of the Settlement Class and/or Damages Settlement Sub-Class after Final Approval are Fox & Robertson, P.C.
3.6 “Closed Kmart Store” means a store operated under the Kmart name at any time between May 6, 2003 and February 7, 2006 that ceased to be operated under the Kmart name prior to February 7, 2006. The Closed Kmart Stores are listed in Exhibit 10.

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3.7 “Costs” means all out-of-pocket expenses reasonably incurred and shall include (but not be limited to) amounts payable to experts.
3.8 “Covered Area” means at least eighty (80) percent of the sales floor occupied by all of the Moveable Display Areas of each Covered Store.
3.9 “Covered Store” means the Kmart Stores subject to the requirements of Paragraph 12.1 below. Within forty-five (45) days of execution of this Agreement, Kmart will provide Class Counsel with a list of Kmart Stores that are not Covered Stores. This list of non-Covered Stores will contain no more than one hundred and forty-three (143) Kmart Stores. The non-Covered Stores on this list shall be subject to the requirements of Paragraph 12.2 below.
3.10 “Damages Settlement Sub-Class” means all Settlement Class Members who, at any time from May 6, 2003 through the Term of this Agreement, shopped or shop at any Kmart Store or Closed Kmart Store in the Statutory Minimum Damages States or who allege that they would have shopped or would shop at one or more Kmart Stores or Closed Kmart Stores in the Statutory Minimum Damages States but for allegedly being denied on the basis of disability the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of such Kmart Store(s) or Closed Kmart Store(s).
3.11 “Damages Settlement Sub-Class Member” means any member of the Damages Settlement Sub-Class.
3.12 “Damages Sub-Class Fund” means a fund consisting of eight (8) million dollars in cash and five (5) million dollars in Gift Cards that will be distributed in accordance with the terms of this Agreement.
3.13 “Damages Settlement Sub-Class Named Plaintiffs” means the individuals who serve as representative plaintiffs for the Damages Settlement Sub-Class.
3.14 “Dispute Resolution” means the process described in Paragraph 19 hereof.
3.15 “Drive Aisles” means the main aisles through a Kmart Store and around the perimeter of the store that are a minimum of eight (8) feet wide.
3.16 “Final Approval” means the approval of this Agreement by a United States District Judge by signature of an order in a form substantially similar to that submitted by the Parties that, among other things, attaches this Agreement as an exhibit, retains jurisdiction for the Court for the Term of this Agreement in order to enforce this Agreement, and has become final and non-appealable.

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3.17 “Fixed Displays” means displays on fixtures that are fixed to the floor and/or are rearranged less than once each year. Gondolas, perimeter walls and “I” walls are examples of Fixed Displays.

3.18 “Four-Way Rack” means a fixture for the display of clothing or other hanging merchandise that has four (4) arms that protrude in four (4) different directions arranged at 90-degree angles to one another.

3.19 “Gift Card” means a card that is redeemable at full face value for purchases of any goods sold at Kmart Stores other than alcohol and tobacco.

3.20 “Kmart Personnel” means all persons who are employed by Kmart and who either work in a Kmart Store or who have managerial responsibility for the operations, layout or design of Kmart Stores. This shall include but not be limited to all sales personnel, store managers and district or regional managers who oversee multiple Kmart Stores or regions.

3.21 “Kmart Settlement Contact” means a Kmart employee designated as the initial point of contact for Class Counsel with respect to issues concerning this Agreement. Kmart shall notify Class Counsel in writing of the person designated as the Kmart Settlement Contact within ten (10) days of Final Approval. Kmart will also notify Class Counsel in writing should a new individual be designated as the Kmart Settlement Contact during the Term of this Agreement.

3.22 “Kmart Store” means any store listed in Exhibit 1. The term shall include all elements and facilities on the site of each Kmart Store that are open to and available for use by the public including but not limited to those parking spaces and sidewalks that Kmart owns or leases or over which Kmart has a right of alteration or control.

3.23 “Moveable Displays” means displays that are not affixed, that may be rearranged from time to time throughout the year, and on which clothing, clothing accessories or other goods are displayed. Round racks and Four-Way Racks are examples of Moveable Displays.

3.24 “Moveable Display Areas” means the areas in which the following merchandise is displayed:

3.24.1 3.24.2 3.24.3 3.24.4 3.24.5 3.24.6

Ladies’ clothing Girls’ clothing Men’s clothing Boys’ clothing Infants’ clothing Sleepwear

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3.24.7 Intimate clothing 3.24.8 Jewelry 3.24.9 Hosiery 3.24.10 Accessories 3.24.11 Shoes
3.25 “Mystery Shopper” means an anonymous shopper retained to shop at Kmart Stores pursuant to Kmart’s Mystery Shopper program.
3.26 “Named Plaintiffs” means Carrie Ann Lucas, Debbie Lane and Julie Reiskin.
3.27 “Notice Deadline” means the deadline for publishing notice to be set by the Court as part of the Preliminary Approval process.
3.28 “Other Barrier” is a defined term only for the purpose of allocating monetary relief provided herein and means: (1) an impediment to accessibility to persons who use wheelchairs or scooters for mobility caused by a failure to maintain accessible features, for example, an obstructed aisles, parking spaces, restrooms or fitting rooms, or failure to open Accessible Checkout Lane; or (2) clothing racks or other Moveable Displays that are placed in a manner that impedes accessibility to persons who use wheelchairs or scooters for mobility.
3.29 “Preliminary Approval” means the initial approval by the Court of the terms of this Agreement, which shall occur prior to any notice being provided in accordance with Paragraph 23 of this Agreement.
3.30 “Settlement Class” means the class of all persons who, at any time from May 6, 2003 through the Term of this Agreement, used, use or will use wheelchairs or scooters for mobility and who shopped or shop at any Kmart Store or any Closed Kmart Store or who allege they would shop or would have shopped at one or more Kmart Stores or Closed Kmart Stores but for allegedly being denied on the basis of disability the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of such Kmart Store(s) or Closed Kmart Store(s).
3.31 “Settlement Class Member” means any member of the Settlement Class.
3.32 “Standards” means the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A. The version of the Standards in existence at the time of Final Approval of this Agreement shall be the version to which this term refers except that, if amendments to or a different version of the Standards are adopted by the Department of Justice, that different version shall govern any actions taken or required to be taken after the effective date thereof. Kmart shall not be required to make alterations to any work it has done prior to that effective date.

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3.33 “State Specific Fund” means the amount from the Damages Sub-Class Fund allocated to a particular Statutory Minimum Damages State. The amount of each State Specific Fund is set forth in Exhibit 8.
3.34 “Statutory Minimum Damages” means any minimum damages available in a specified amount by operation of or pursuant to the following state statutes or codes that may be recovered regardless of the amount of actual damages proved: California – Cal. Civil Code §§ 52, 54.3; Colorado – C.R.S. § 24-34-602; Hawaii – Hawaii Statutes § 489-7.5; Massachusetts – M.G.L.A. ch. 272 § 98; New York – N.Y. Civ. R. §§ 40-c, 40-d, N.Y. Exec. § 296(2)(a); Oregon – O.R.S. § 659A.885; and Texas – Tex. Hum. Res. Code §§ 121.003, 121.004, and any other statute, codes or laws (as previously or presently codified, or as they may be codified in the future) providing for minimum damages in a specified amount in such States.
3.35 “Statutory Minimum Damages Amount” means the minimum amount of Statutory Damages available in a specified amount pursuant to statute or code in a Statutory Minimum Damages State. The Statutory Minimum Damages Amount as of the date of the execution of this Agreement for each Statutory Minimum Damages State is set forth in Exhibit 8.
3.36 “Statutory Minimum Damages States” means California, Colorado, Hawai’i, Massachusetts, New York, Oregon, and Texas.
3.37 “Structurally Impracticable” means only those rare circumstances when the unique characteristics of terrain prevent the incorporation of accessibility features.
3.38 “Subsequently Acquired Store” means any facility that starts being operated as a Kmart Store after Final Approval of this Agreement.
3.39 “Subsequently Relinquished Store” means any Kmart Store that ceases to be operated as a Kmart Store after Final Approval of this Agreement.
3.40 “Technically Infeasible” means with respect to an alteration of a building or a facility, that it has little likelihood of being accomplished because existing structural conditions would require removing or altering a load-bearing member which is an essential part of the structural frame; or because other existing physical or site constraints prohibit modification or addition of elements, spaces, or features which are in full and strict compliance with the minimum requirements for new construction and which are necessary to provide accessibility.
4 Conditions Precedent. This Agreement shall be conditioned upon and shall be effective only upon the occurrence of all of the following events. Prior to the occurrence of the

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following events, the Parties’ only obligations pursuant to this Agreement shall be those set forth in Paragraphs 20.1, 22 and 23.
4.1 Class Counsel and Kmart shall jointly request a preliminary approval hearing.
4.2 Class Counsel and Kmart shall move jointly for an Order Granting Preliminary Approval of this Agreement, Preliminarily Certifying the Damages Settlement Sub-Class for Settlement Purposes Only, Preliminarily Enjoining Class Members and Damages Settlement Sub-Class Members from Asserting Any Claims to be Released by the Agreement, and Approving Issuance of Notice in Accordance with the Procedures for Providing Notice Submitted by the Parties and such motions are granted by the Court.
4.3 Upon preliminary approval of this Agreement and approval of the Notice and the procedures for providing notice, notice shall be provided to the Settlement Class and the Damages Settlement Sub-Class in accordance with the procedures for providing notice approved by the Court.
4.4 A Fairness Hearing shall be held in accordance with Paragraph 24 below.
4.5 The Court shall grant Final Approval of this Agreement, enjoin Settlement Class Members and Damages Settlement Sub-Class Members from bringing any claims released by this Agreement, and enter Judgment in accordance with the terms set forth herein after a Fairness Hearing has been conducted, and all such orders and approvals have become final and non-appealable. The Judgment shall finally resolve all issues raised in this proceeding.
4.6 Following Final Approval, Kmart shall withdraw its appeal currently pending before the United States Court of Appeals for the Tenth Circuit, No. 05-0504.
5 Term of Agreement. This Agreement shall have a term (“Term”) that expires thirty (30) days after the day on which the last verification is conducted pursuant to Paragraph 7 or the last Dispute Resolution process is concluded, whichever comes later.
6 Kmart Stores to Comply with the Standards.
6.1 Subject to all of the other provisions of this Paragraph, Kmart agrees to bring into compliance with the Standards to the extent that they relate to accessibility for people with disabilities who use a wheelchair or scooter for mobility all of the elements listed in Exhibit 2 hereto at all Kmart Stores.
6.2 Subject to all the other provisions of this Paragraph, Kmart agrees to bring into compliance with the Standards or Title 24 of the California Code of Regulations to the extent that such regulations relate to accessibility for people with

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disabilities who use a wheelchair or scooter for mobility, whichever standard requires greater accessibility, all of the elements listed in Exhibit 2 hereto at all Kmart Stores in the State of California. To the extent that the following provisions of Paragraph 6 use the term the “Standards,” that term shall be deemed to mean the “Standards and/or Title 24 of the California Code of Regulations” for the purposes of Kmart Stores in the State of California.

6.3 In no event will Kmart be required to do more than comply with the Standards that apply to the elements to be surveyed.

6.4 All dimensions are subject to conventional building industry tolerances for field conditions.

6.5 Departures from particular technical and scoping requirements of the Standards by the use of other designs and technologies are permitted where the alternative designs and technologies used will provide substantially equivalent or greater access to and usability of the facility.

6.6 Kmart is not required to bring any element in any Kmart Store into compliance if doing so would be Structurally Impracticable.

6.7 Kmart is not required to bring any element into compliance if doing so would be Technically Infeasible, provided that where compliance is Technically Infeasible, Kmart shall provide access to the maximum extent feasible.

6.8 At glass display cases where Section 7.2(1) of the Standards would require a 36inch-wide auxiliary counter, Kmart may provide a 24-inch-wide auxiliary counter.

6.9 Parking lots:

6.9.1

Subject to Paragraph 6.9.3 below, Kmart will ensure that the dimensions and signage of accessible parking spaces and parking access aisles at Kmart Stores comply with the Standards.

6.9.2

Where the slope and/or cross slope of the parking lot (including parking spaces and accessible routes) at a Kmart Store is out of compliance with the Standards but would not require regrading to comply, subject to Paragraph 8.4 below, Kmart will ensure that the slope and/or cross slope comply.

6.9.3

Where the slope and/or cross slope of a parking lot at a Kmart Store are out of compliance with the Standards and would require regrading of the parking lot to comply, Kmart will not be required to regrade provided that

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6.9.3.1

If the slope and/or cross slope of an Accessible Route are out of compliance, Kmart will use its best efforts to locate a more compliant Accessible Route, and to take such steps as do not require regrading to bring it as close as possible to compliance with the Standards.

6.9.3.2

If the slope and/or cross slope of accessible parking spaces or parking access aisles are out of compliance, Kmart shall attempt to find an area of the parking lot in which the slope and/or cross slope are (if possible) fully compliant and (if full compliance is not possible) more compliant and will create an additional set of accessible parking spaces and parking access aisles such that there are as many parking spaces and parking access aisles as required by Section 4.1.2(5) of the Standards both in the original location and in the new location. Parking spaces in the new location shall, to the greatest extent feasible, be on an Accessible Route.

6.10 Elements or facilities that are intended for and marked for use by Kmart Personnel only are not covered by this Agreement.

6.11 Commencing on the date of Final Approval of this Agreement, Kmart shall have an eight (8) month period in which to survey the Stores and perform other tasks necessary prior to the commencement of work on the Stores, provided, however, that Kmart is not obligated to complete the surveys of all the Kmart Stores during such period.

6.12 Kmart Surveys

6.12.1 Kmart shall determine the order of the Kmart Stores to be surveyed and the order of the Stores at which work is done pursuant to this Paragraph.

6.12.2

Kmart shall retain Evan Terry Associates, P.C. (“Terry”) for the purposes described in this Paragraph. If, during the Term of this Agreement, James Terry becomes unable to perform or supervise the tasks assigned to Terry in this Agreement, the Parties will meet and confer to agree on another individual to perform those tasks.

6.12.3

In consultation with Kmart and Class Counsel, Terry will prepare the mutually agreed upon survey instrument (the “Survey Form”) in keeping with the Agreement’s list of compliance elements (Exhibit 2) that shall be used to survey the Kmart Stores.

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6.12.4 Terry shall train Kmart Personnel in the proper use of the Survey Form and the proper manner to conduct the surveys.

6.12.5

Terry, working in combination with Kmart Personnel, who will accompany Terry’s surveyors as part of their training, shall survey the first twenty-five (25) Kmart Stores to be surveyed pursuant to this Agreement. Thereafter, Kmart may, at its option, continue to utilize Terry to survey the Kmart Stores or cause the surveys to be conducted by its employees. In either event, the surveys shall be conducted utilizing the mutually agreed upon Survey Form.

6.12.6

Kmart shall enter into a contract with Terry for use of the database (“Database”) that has been mutually developed. All completed Survey Forms and evidence of completion of the work required thereby shall be inputted into the Database. In order to permit Class Counsel to verify the compliance of any change made pursuant to this Paragraph, Kmart will take, or will cause its contractors to take, photographs of each changed element. Such photographs will be made available to Class Counsel through the Database. Where the change in question required compliance with a measurable standard, the photograph shall include a measuring device and, if necessary to read the measuring device, a second, close-up, photograph will be taken. Class Counsel shall have access to those portions of the Database containing the completed Survey Forms and evidence of completion of the work required for the duration of the Term of this Agreement. Class Counsel shall be entitled to review the completed Survey Forms and evidence of completion with respect to each Kmart Store to verify Kmart’s compliance with this Agreement. Regardless of who performs the surveys, all completed Survey Forms and evidence of completion shall be entered into the Database.

6.13 Kmart will bring a minimum of one hundred fifty (150) Kmart Stores into compliance by the end of the twelve (12) month period commencing upon the expiration of the eighth (8th) month after the Final Approval of this Agreement. Kmart will bring an additional two hundred fifteen (215) Kmart Stores into compliance by the end of each subsequent twelve (12) month period until all of the Kmart Stores have been brought into compliance.

6.14 All expenses of the survey process in this Paragraph shall be borne by Kmart.

6.15 If, after conducting a store survey in accordance with this Agreement and identifying those elements of a Kmart Store that do not fully comply with the Standards, Kmart determines in good faith that the cost of remediation of a particular element at a particular Kmart Store is substantially disproportionate to

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the cost to remedy such elements at other Kmart Stores, Kmart shall notify Class Counsel of the issue and the alternative steps, short of full remediation, that it proposes to take to improve the accessibility of that element. The Parties anticipate that this Paragraph will apply only rarely and only to extraordinary and unforeseen circumstances. Under such circumstances, Kmart and Class Counsel shall then meet and confer in good faith to determine how best to remedy this element. Class Counsel, at its option, may agree to permit Kmart to take alternative steps or may insist upon full compliance with the remainder of this Paragraph 6.

7 Verification of Compliance.

7.1 Within six (6) weeks after the first five (5) Kmart Stores have been surveyed pursuant to the procedure set forth in Paragraph 6.12.5, the Parties and Terry shall meet and confer on site in each of the five (5) Kmart Stores about the results of the surveys for the purpose of ensuring that there is agreement that the surveys cover the work required to bring the Kmart Stores into compliance. Once any work required pursuant to Paragraph 6 has been completed on these five (5) Kmart Stores, Class Counsel shall be entitled to request that Terry inspect the changes (or “solutions”) made to those Kmart Stores.

7.2 Following completion of the process described in Paragraph 7.1, Class Counsel shall be entitled to verify compliance with Paragraph 6 by requesting that Terry inspect any changes (or “solutions”) made in the twenty (20) additional Kmart Stores that Terry will have surveyed pursuant to Paragraph 6.12.5, once any work required pursuant to Paragraph 6 has been completed.

7.3 Following completion of the process described in Paragraph 7.2, in addition to having access to the Database, which will contain information on every Kmart Store, Class Counsel shall be entitled to the following:

7.3.1 In the event that all the surveys are conducted by Kmart Personnel:

7.3.1.1

Class Counsel shall be entitled to request that Terry perform a full survey of up to fifteen (15) of the first one hundred (100) Kmart Stores following the twenty-five (25) stores referred to in Paragraphs 7.1 and 7.2 for which any work required pursuant to Paragraph 6 has been completed.

7.3.1.2

If in Terry’s sole view, the surveys referred to in Paragraph 7.3.1.1 are satisfactory, Class Counsel shall be entitled to request that Terry perform a full survey of no more than ten (10) of the next one hundred (100) Kmart Stores. If in Terry’s sole view, the surveys referred to in Paragraph 7.3.1.1

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reveal a pattern of deficiencies in the survey process, Paragraph 7.3.1.1 shall apply to the next one hundred (100) stores.

7.3.1.3

If in Terry’s sole view, the surveys in the ten (10) Stores referred to in Paragraph 7.3.1.2 are satisfactory, Class Counsel shall be entitled to request that Terry perform a full survey of no more than five (5) percent of the remainder of the Kmart Stores. If in Terry’s sole view, the surveys in referred to in Paragraph 7.3.1.2 reveal a pattern of deficiencies in the survey process, Paragraph 7.3.1.2 shall apply to the next one hundred (100) stores.

7.3.1.4

Under any circumstances in which Terry determines that a set of surveys reveals a pattern of deficiencies in the survey process, the Parties shall meet and confer to discuss any adjustments necessary to the survey process or the training of surveyors.

7.3.1.5

In addition to the provisions of Paragraphs 7.3.1.1 through 7.3.1.4, Class Counsel shall be entitled to request that Terry inspect the changes (or “solutions”) made as a result of the surveys in an additional five (5) of the Kmart Stores for every one hundred (100) stores for which any work required pursuant to Paragraph 6 has been completed.

7.3.2

In the event that Kmart exercises its option, pursuant to Paragraph 6.12.5, to have Terry survey additional stores beyond the initial twentyfive (25) Kmart Stores surveyed;

7.3.2.1

With respect to the additional Kmart Stores surveyed by Terry, Class Counsel shall be entitled to request that Terry inspect the changes (or “solutions”) made as a result of the surveys in ten (10) percent of the Kmart Stores for which any work required pursuant to Paragraph 6 has been completed.

7.3.2.2 With respect to any additional Kmart Stores not surveyed by Terry, Paragraphs 7.3.1.1 through 7.3.1.5 shall apply.

7.4 Kmart shall notify Class Counsel within thirty (30) days of the completion of the work required pursuant to Paragraph 6 in the Kmart Stores in question. Terry will complete the appropriate verification pursuant to Paragraphs 7.1, 7.2 or 7.3 within ninety (90) days of Class Counsel’s receipt of such notice.

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7.5 Class Counsel shall notify Kmart of any store they are requesting Terry to inspect or survey pursuant to this Paragraph by noon the business day before the inspection or survey will take place. Class Counsel shall instruct Terry to use its best efforts not to interfere with the operation of the Kmart Store during such inspections or surveys.
7.6 Within thirty (30) days after any inspection or survey conducted by Terry for Class Counsel pursuant to this Paragraph, Terry shall notify Kmart of any areas of non-compliance with the provisions of Paragraph 6 of this Agreement that were encountered at the Kmart Store.
7.7 Kmart shall remedy any areas of non-compliance identified pursuant to Paragraph 7.6 within ninety (90) days of receipt of the notice described in that Paragraph if it is practically feasible to do so and shall notify Class Counsel of the completion of any measures required by this Paragraph within fifteen (15) days after they are completed. If Kmart determines that such remediation cannot be achieved within ninety (90) days, the Parties shall confer in good faith to agree upon a schedule for completion. Following completion, Class Counsel may, at their option, request that Terry reinspect the areas that had been noted as non-compliant in the Kmart Store in question. If Kmart disputes any item identified pursuant to Paragraph 7.6, either party may submit the matter to Dispute Resolution. In the event that Kmart disputes any such item, its time period for remedying any area of noncompliance shall not commence until it has been finally determined, through the Dispute Resolution process, that such area of non-compliance exists.
7.8 Any inspections or surveys conducted by Terry for Class Counsel shall be conducted using the Survey Form.
7.9 If the inspections or surveys conducted pursuant to this Paragraph reveal a pattern of non-compliance with the provisions of Paragraph 6, the Parties shall meet and confer to attempt to address the issue. If any disputes remain following this meet and confer, either Party may submit the matter to Dispute Resolution.
7.10 All expenses of the verification process in this Paragraph shall be borne by Kmart.
8 Permits and Consent.

8.1 Kmart may be required to obtain building or other permits or consent for some of the measures required to comply with Paragraph 6 or Paragraph 7. Kmart shall use its reasonable best efforts to obtain such permits or consent, including drafting applications in good faith to enhance the possibility of approval.

8.2 If a permit for a measure required by Paragraph 6 or Paragraph 7 is issued on a conditional basis or is denied outright, Kmart shall notify Class Counsel of the

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conditions or denial in a sufficiently timely fashion to permit Class Counsel to take whatever action they deem necessary -- including, but not limited to, consultation with building officials, administrative remedies, or court action -- to obtain required permits or consent. Kmart shall support Class Counsel’s actions to obtain such permits or consent to the extent that it determines in good faith that such efforts are reasonable.

8.3 If Class Counsel succeeds in obtaining the required permit or consent, Kmart shall be responsible for Class Counsel’s reasonable attorneys’ fees and Costs in connection with that permit or consent, provided that Class Counsel shall first make a good faith effort to recover such fees and Costs from any third party opposing their actions and provided that Kmart will not be required to pay for any work by Class Counsel that amounts to economic waste, i.e., the costs are far greater than the potential benefit to the Settlement Class.

8.4 Kmart shall take such measures as are required to bring parking lots and other common elements in common areas into compliance with Paragraph 6 and Paragraph 7 to the extent to which such elements and areas are the obligation of Kmart to repair or improve under the relevant store lease. Where such elements or areas are not the obligation of Kmart to repair or improve under the relevant store lease, the following provisions will apply:

8.4.1

Kmart will write to the relevant landlord, informing it of its legal obligations to comply with the ADA, describing the specific ways in which the area in question does not comply with the ADA, and requesting that it comply with the ADA.

8.4.2

If the landlord does not commit within sixty (60) days of such letter to perform such actions as are necessary in order for the area in question to come into compliance with the ADA, Kmart and Class Counsel shall meet and confer in order to determine the most reasonable way to achieve compliance with the ADA. If the Parties are unable to reach agreement on how to proceed, Class Counsel may, at its option, proceed unilaterally to attempt to obtain landlord compliance.

9 New Construction and Subsequently Acquired Stores.

9.1 Any Kmart Store that is built after Final Approval of this Agreement shall be constructed and maintained in compliance with the ADA in the manner set forth in this Agreement.

9.2 Each Subsequently Acquired Store shall be subject to the requirements of this Agreement.

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9.3 Annually beginning no later than one year after Final Approval of this Agreement, Kmart shall provide Class Counsel with a list of Subsequently Acquired Stores.

10 Subsequently Relinquished Stores.

10.1 Each Subsequently Relinquished Store shall cease to be subject to the terms of this Agreement as of the date it becomes a Subsequently Relinquished Store. Nothing herein will prohibit Kmart from selling, closing or otherwise terminating operations at any location. If a Subsequently Relinquished Store has not yet been brought into compliance with Paragraphs 6 and Paragraph 7 hereof, it will not be covered by the Release of Injunctive Claims in Paragraph 26.1 below, but it will be covered by the Release of Statutory Minimum Damages in Paragraph 26.2 and the provisions of Paragraph 26.3 below.

10.2 Annually beginning no later than one year after Final Approval of this Agreement, Kmart shall provide Class Counsel with a list of Subsequently Relinquished Stores.

11 Maintenance of Access. Kmart agrees to maintain in operable and working condition those elements of Kmart Stores that are covered by this Agreement and its Exhibits in the condition required by this Agreement and its Exhibits, provided, however, that nothing in this Agreement shall prohibit isolated or temporary interruptions in service or access due, for example, to maintenance or repair.

12 Policies, Practices and Procedures.

12.1 To the extent if any that it has not already done so, within three (3) months after Final Approval of this Agreement, Kmart shall adopt and implement the following policies in all Covered Areas in all Covered Stores:

12.1.1 There will be a distance of at least thirty-two (32) inches between garments on any side of a Four-Way Rack that is adjacent to another Four-Way Rack.

12.1.2

There will be a distance of at least thirty-two (32) inches between the front and back sides (i.e., the longer sides) of any table used to display merchandise and the front and back sides of any other table used to display merchandise.

12.1.3 At a minimum, there will be a path of at least thirty-two (32) inches to at least one side of each Moveable Display in all Covered Areas. In order

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to avoid “dead ends” that would cause Settlement Class Members to have to drive their wheelchairs or scooters backwards among Moveable Displays, to the extent architectural elements permit, all such thirty-two (32) inch paths will connect at each end with another path of at least thirty-two 32 inches in width.

12.2 To the extent if any that it has not already done so, within three months after Final Approval of this Agreement, Kmart shall adopt and implement the following policies in eighty (80) percent of the Moveable Display Areas in Kmart Stores that are non-Covered Stores:

12.2.1 There will be a distance of at least thirty (30) inches between garments on any side of a Four-Way Rack that is adjacent to another Four-Way Rack.

12.2.2

There will be a distance of at least thirty (30) inches between the front and back sides (i.e., the longer sides) of any table used to display merchandise and the front and back sides of any other table used to display merchandise.

12.3 Customer service relating to access to apparel and furniture:

12.3.1 Kmart shall post signs near each entrance of each store that will:

12.3.1.1

state that Kmart offers a service for customers who are disabled and use a wheelchair or scooter for mobility, and who may experience difficulty accessing furniture and merchandise on apparel racks; and

12.3.1.2 inviting such customers to come to the customer service desk for assistance.

12.3.2

The signs referred to in Paragraph 12.3.1 shall be at least two (2) feet high and one and a half (1½) feet wide, shall be mounted approximately forty-eight (48) inches above the finished floor, and shall be substantially in the form of Exhibit 3 hereto.

12.3.3 All customers who are disabled and use a wheelchair or scooter for mobility will be offered the following options by the customer service desk:

12.3.3.1 A member of Kmart Personnel will be made available to assist the customer in accessing apparel or furniture that is inaccessible; or

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12.3.3.2

A two-way communication device will be made available to the customer. The customer would be able to use that device to contact the customer service desk if and when the customer runs into difficulty accessing merchandise items and requires assistance in doing so. At such time, the customer service desk will arrange for a member of Kmart Personnel to assist the customer in accessing apparel or furniture that is inaccessible.

12.3.3.3

Kmart will use its best efforts to ensure that Kmart Personnel will begin providing assistance within three (3) minutes of a request under Paragraph 12.3.3.1 or a contact by the two-way communication device requesting assistance.

12.4 If a customer who uses a wheelchair or scooter requests assistance from Kmart Personnel in accessing inaccessible merchandise, the person receiving the request shall provide such assistance regardless of whether he or she is assigned to the area of the store in which assistance is requested.

12.5 At least one checkout lane at the front of the store that complies with Section 7.3 of the Standards (“Accessible Checkout Lane”) shall be open and staffed at all times that the Kmart Store in question is open. If there is only one Accessible Checkout Lane at the front of the store that is open and staffed, its use shall not be limited in any way, for example, to “express checkout” for customers with fewer than a designated number of items. It is adequate for these purposes for the Accessible Checkout Lane to be the Service Desk if the Service Desk is the only checkout lane open for all customers and if it complies with the Standards.

12.6 Kmart Stores shall be maintained so that people who use wheelchairs or scooters have access to each Kmart Store and to all facilities and merchandise within each Kmart Store as follows:

12.6.1

All merchandise displayed on Fixed Displays shall be on an Accessible Route, provided that, boxes or other containers of merchandise that are being used in the stocking process may obstruct access to merchandise if the associate engaged in stocking is in attendance, working with the boxes or containers in question, provided further that the boxes or containers may be left unattended for a brief period of time when, for example, the associate is required to assist a customer. Access to merchandise on Fixed Displays may not be obstructed by ladders, equipment or, with the exception set forth in Paragraph 12.6.4, Aisle Stacks, provided that a ladder or piece of equipment may be left in an aisle if it is being attended by an associate or is left unattended for a brief

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period of time when, for example, the associate is required to assist a customer.

12.6.2 All appliances that are displayed directly on the sales floor shall be on an Accessible Route.

12.6.3 There shall be a path of thirty-six (36) inches to all merchandise displayed in a Drive Aisle.

12.6.4

“Aisle Stacks,” defined as displays of merchandise placed in an aisle adjacent to shelving, are permitted only in the Pantry of a Big K Kmart Store or the Grocery of a SuperK Kmart Store. Furthermore, Aisle Stacks must be placed so that they do not obstruct access for people who use wheelchairs or scooters to any category of merchandise.

12.6.5 Fitting rooms required under the Standards to be accessible shall be on an Accessible Route, shall be free and clear of obstructions, and shall only be locked if all other fitting rooms are locked.

12.6.6

Restrooms required under the Standards to be accessible shall be on an Accessible Route, shall be free and clear of obstructions, shall only be locked if all other restrooms are locked, and shall be accessible through a door that requires no more than five pounds of force to open.

12.6.7

Parking spaces and parking access aisles required under the Standards to be accessible shall be on an Accessible Route and shall be free and clear of obstructions. Periodic restriping shall be conducted so that the parking spaces and access aisles are in compliance with the Standards.

12.6.8

If merchandise is displayed for sale on a sidewalk or in a parking lot at a Kmart Store, it will be arranged so that an Accessible Route is maintained to the merchandise so displayed and to an accessible entrance to the Kmart Store.

12.6.9

Each service counter that is not a checkout counter shall be on an Accessible Route. At each service counter that is not a checkout lane but that contains a cash register, the lowered portion of such counter shall be clear and free of obstructions, including but not limited to the cash register or there shall be a flip down counter that provides substantially equivalent access to the maximum extent practicable, which flip down counter shall be maintained in working condition, free and clear of obstructions.

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12.6.10 Access to an entire area of a Kmart Store may be blocked if access is blocked for all customers, regardless of disability.
12.6.11 It is understood between the Parties that the footwear departments of the Kmart Stores are operated by a third party pursuant to a license agreement. Kmart will use its reasonable best efforts to attempt to ensure compliance with Paragraph 12 of this Agreement by such third party, provided that failure by such third party to comply shall not subject Kmart to any remedies under this Agreement. If a pattern of noncompliance is identified in the footwear departments of Kmart Stores pursuant to Paragraph 14 below, Kmart will write to the entity that controls the footwear department in question, inform it of its legal obligations to comply with the ADA, describe the specific ways in which the area in question does not comply with the ADA, and request the entity to bring the area in question into compliance. Kmart shall provide a copy of any such correspondence to Class Counsel at the same time it is sent to the addressee entity.
12.6.12 Kmart will ensure that any future contracts, licenses or other arrangements through which it permits a third party to conduct retail operations within a Kmart Store will require the third party to comply with Title III of the ADA.
12.7 Kmart shall use its best efforts to ensure that all of its employees who work in the public spaces of Kmart Stores provide requested assistance to people who use wheelchairs or scooters, including, but not limited to, retrieving merchandise and carrying purchases to vehicles, provided that Kmart Personnel may request that the vehicle be moved to a reasonable location. Kmart Personnel shall use their reasonable best efforts in attempting to identify the driver of any vehicle blocking a vehicle belonging to a person who uses a wheelchair or scooter, such as by making announcements on the public address system and will, in the course of regular restriping of its parking lots and to the extent it is responsible for such restriping, cause the words “No Parking” to be painted into all parking access aisles in letters at least twelve (12) inches in height.
12.8 Kmart shall permit individuals who use wheelchairs or scooters to be accompanied by a service animal while shopping in a Kmart Store to the extent required by the ADA, the Department of Justice regulations and written guidance on service animals.
13 Operations, Policy and Training Materials.
13.1 Kmart shall train Kmart Personnel to follow the requirements of this Agreement and to treat customers with disabilities with respect and courtesy.

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13.2 Within one hundred and twenty (120) days of Final Approval, Kmart shall provide to Class Counsel a draft of the materials it proposes to use to implement Paragraph 13.1. These materials shall include the following elements:

13.2.1

Kmart shall produce a training videotape, the sole topic of which is providing service to people with disabilities, including but not limited to the policies in Paragraph 12. This videotape shall be shown to all store employees once per year and to all new store employees.

13.2.2

Kmart will instruct its store managers and its assistant store managers as to the specific obligations of Kmart under this Agreement and the legal consequences of failing to comply with it. As part of this process, Kmart will provide its store managers and its assistant store managers with a copy and summary of this Agreement.

13.2.3

The policies required by Paragraph 12 shall be explained prominently in any training and policy materials that address the specific operational areas in question, for example, stocking, store layout, merchandising, cleaning and maintenance.

13.2.4

Kmart will produce materials to train store managers, assistant store managers, and any employees responsible for the layout of merchandise on Moveable Displays with respect to the policies required by Paragraph 12 of this Agreement.

13.2.5 Kmart will instruct Kmart Personnel who work on the sales floor of any Kmart Stores that,

13.2.5.1

upon request by a customer who uses a wheelchair or scooter to assist in accessing inaccessible merchandise, they must provide assistance regardless of whether they are assigned to the area of the store in which assistance is requested; and

13.2.5.2 they must respond to a customer service request pursuant to Paragraph 12.3.3 within three (3) minutes.

13.2.6

Kmart will train Kmart Personnel responsible for arranging Moveable Displays to be aware that many Kmart customers use wheelchairs and scooters and to attempt to provide as much access as possible to the merchandise on Moveable Displays and at a minimum such access as is required by Paragraphs 12.1 and 12.2 (as appropriate) of this Agreement.

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13.2.7

Kmart Personnel shall periodically be reminded of the need to ensure the accessibility of the store for people who use wheelchairs and scooters by, for example, including that information in periodic bulletins or in-store training.

13.2.8

The senior member of store management on duty in each Kmart Store shall be designated to respond to customer questions concerning accessibility for people who use wheelchairs and scooters and about this Agreement.

13.3 Class Counsel shall have sixty (60) days from receipt of the proposed materials required by Paragraph 13.2 to notify Kmart whether they object to or have comments on any part of it.

13.4 If Class Counsel notify Kmart of any objection or comments pursuant to Paragraph 13.3, the Parties shall meet and confer within thirty (30) days to attempt to address the objections or comments. If any objections remain following this meet and confer, either party may submit the matter to Dispute Resolution.

14 Monitoring of Compliance.

14.1 The Parties shall monitor Kmart’s compliance with Paragraph 12 as more fully described in this Paragraph.

14.2 Class Counsel shall be entitled to visit any Kmart Store at any time without notice for the purpose of evaluating compliance with Paragraph 12. Class Counsel will not take any photographs, take any measurements, or undertake any similar activities unless Class Counsel has reasonably in advance discussed their desire to do so with the Kmart Settlement Contact so that the Kmart Settlement Contact can alert the relevant store manager or manager on duty that Class Counsel intend to take photographs, take measurements or undertake similar activities.

14.3 Starting by the date six (6) months from Final Approval, Kmart shall employ Mystery Shoppers to evaluate Kmart’s compliance with Paragraph 12 in accordance with the following:

14.3.1

It is understood that Kmart has in place an ongoing program of employing Mystery Shoppers who visit each Kmart Store one time per month. To the extent this program continues, it is agreed that Kmart’s compliance with Paragraph 12 may be evaluated by the incorporation into such program of a set of at most fifteen (15) questions, to be agreed upon between Kmart and Class Counsel, addressing substantially the subjects listed in Exhibit 4 hereto.

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14.3.2

Kmart will make a good faith effort to ensure that at least ten (10) percent of the Mystery Shoppers are people who require a wheelchair or scooter for mobility. Kmart will make a good faith effort to ensure that ten (10) percent of the Mystery Shopper visits to Kmart Stores are by people who require a wheelchair or scooter for mobility, and that each Kmart Store is visited by a Mystery Shopper who uses a wheelchair or scooter at least once each year. Mystery Shopper forms will require the Mystery Shopper to state whether or not he or she uses a wheelchair or scooter for mobility.

14.3.3

Kmart and Class Counsel will meet and confer to agree on additions to the Mystery Shopper training sufficient to permit Mystery Shoppers to understand the significance of the questions referred to in Paragraph 14.3.1 to people who use wheelchairs or scooters.

14.3.4 Kmart shall ensure that a Mystery Shopper visits each Kmart Store at least once each month.

14.3.5

Kmart shall provide copies of the portions of the completed Mystery Shopper forms relating to compliance with Paragraph 12 and any compilations or summaries, in whole or in part, relating to compliance with Paragraph 12 prepared by the company that runs the Mystery Shopper program to Class Counsel on a monthly basis.

14.3.6 All expenses of the Mystery Shopper program shall be borne by Kmart.

14.3.7

If Kmart discontinues or materially changes its Mystery Shopper program, it will notify Class Counsel at least sixty (60) days before such action is to be taken. The Parties will meet and confer concerning how to put in place a system that provides, at Kmart’s expense, a monitoring system as effective as the Mystery Shopper program.

14.4 Starting by the date six (6) months from Final Approval, Kmart shall establish a toll-free telephone number that customers may call and an accessible website that customers may use to convey to Kmart their comments concerning the accessibility of Kmart Stores.

14.4.1

During the term of this Agreement, Kmart shall post and maintain signs prominently throughout each Kmart Store, informing customers who use wheelchairs or scooters that it is soliciting their comments, and providing both the toll-free telephone number and the website address. The signs shall be substantially in the form of Exhibit 5 hereto and shall be posted in at least the following locations so as to be visible to

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individuals who use wheelchairs or scooters: at each exit (facing in); and at the customer service counter (facing the customer).

14.4.2

The website shall pose specific questions covering substantially the areas listed in Exhibit 6 hereto, as well as provide an opportunity for individuals to make comments in their own words. Kmart will provide a link to the website on its main page (currently http://www.kmart.com/home.jsp) that is close enough to the top of the page to be visible in the first frame. Kmart will use its good faith efforts to design and generate each page of the website so that each substantially complies with Priorities 1 and 2 of the Web Content Accessibility Guidelines found at www.w3.org.

14.4.3

Kmart shall maintain comment forms at the customer service counter. The comment forms shall be postcard-sized forms that provide a space for general comments and also list the url for the website referred to in Paragraph 14.4.2 and the telephone number referred to in Paragraph 14.4.4, and shall include a mailing address to which the forms are intended to be sent. Upon request, Kmart Personnel will provide assistance in filling out the form.

14.4.4 Kmart maintains a toll-free telephone number for customer comments. Kmart shall provide an option on this telephone number for commenting on the accessibility of Kmart Stores to customers with disabilities.

14.4.5

Kmart shall provide copies of the responses and comments generated by the website and the in-store forms and records of the calls received at the toll-free telephone number relating to the accessibility of Kmart Stores to individuals who use wheelchairs or scooters to Class Counsel on a monthly basis.

14.4.6

All expenses of the website, toll-free telephone number, and comment forms in this Paragraph shall be borne by Kmart. In addition, Kmart shall bear the expense of ensuring that the information from the website and the comment forms is entered into a single database, to which Kmart and Class Counsel both have access. At its option, Kmart will either enter the information itself, or reimburse Class Counsel for entering the information.

14.5 If any of the materials provided to Class Counsel pursuant to Paragraphs 14.2 through 14.4 reveal a pattern of noncompliance with this Agreement, the Parties shall meet and confer to attempt to address the issue. If any disputes remain following this meet and confer, either party may submit the matter to Dispute Resolution.

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14.6 Starting by the date six (6) months from Final Approval through a date two (2) years from when such monitoring commences, Kmart will monitor compliance with Paragraphs 12.1 and 12.2 as follows:

14.6.1

Once per week, the store manager or an assistant store manager in each Kmart Store will review all Moveable Displays in all Moveable Display Areas using a thirty-two (32) inch or thirty (30) inch measuring device (as appropriate), to ascertain whether those Moveable Displays are in compliance with Paragraph 12.1 or 12.2 (as appropriate). If the store manager or an assistant store manager discovers that the Store is out of compliance with Paragraph 12.1 or 12.2 (as appropriate) he or she will cause the noncompliance to be remedied within the same business day.

14.6.2 No less than once each month, the Kmart employee who conducted the reviews referenced in Paragraph 14.6.1 will record the results of the review into a form based on Exhibit 7.

14.6.3 Kmart shall provide copies of the forms referenced in Paragraph 14.6.2 to Class Counsel on a monthly basis.

14.6.4

In the event that Class Counsel believes there is a pattern of noncompliance with the policies set forth in Paragraphs 12.1 and 12.2, the Parties shall meet and confer to attempt to address the issue. In addressing the issue, the Parties shall take into account, among other things, the extent to which Kmart is out of compliance, the reasons for noncompliance, the season, and any changes to Kmart business strategies that may occur during the Term of this Agreement.

14.7 Kmart shall ensure that the results of the monitoring described in this Paragraph, including but not limited to the results of the Mystery Shopper program, shall be one of the criteria in the evaluations used in consideration of salaries, bonuses and advancement for Kmart store management, so that Kmart store management will be encouraged to maintain an accessible store, and discouraged from permitting inaccessible conditions to persist.

15 Monetary Relief and Claims Procedure.

15.1 Monetary Settlement Funds

15.1.1

To satisfy and settle all claims for damages of the Named Plaintiffs in the Lawsuit, and all claims for Statutory Minimum Damages of members of the Damages Settlement Sub-Class, Kmart will pay thirteen million and thirty-six thousand (13,036,000) dollars, to be split as follows:

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(a) ten thousand (10,000) dollars each to the three (3) Named Plaintiffs; (b) one thousand (1,000) dollars each to the six (6) Damages Settlement Sub-Class Named Plaintiffs; and (c) eight million (8,000,000) dollars in cash and five million (5,000,000) dollars in Gift Cards, comprising the Damages Sub-Class Fund, to be allocated among the Damages Settlement Sub-Class in the manner set forth in Paragraph 15.5.

15.1.2 Creation of Funds

15.1.2.1

Within thirty (30) days after Final Approval of this Agreement, Kmart shall transfer to an interest-bearing trust account (the “Account”) the sum of thirty-six thousand (36,000) dollars (the “Named Plaintiff Fund”), and the sum of eight million (8,000,000) dollars (the “Cash Fund”) representing the cash portion of the Damages Sub-Class Fund. All interest earned on the Account between the time the Funds are deposited and the time the Funds are distributed to the Named Plaintiffs, Damages Settlement SubClass Named Plaintiffs, and Damages Settlement Sub-Class, less taxes owed on such interest, shall be used to pay the Named Plaintiffs, Damages Settlement Sub-Class Named Plaintiffs, and Damages Settlement Sub-Class in accordance with the provisions of this Agreement. In addition, in accordance with generally accepted accounting principles, Kmart shall establish and maintain a segregated account on its books, in the amount of five million (5,000,000) dollars (the “Gift Card Fund”) representing the Gift Card portion of the Damages Sub-Class Fund. Together, the Cash Fund and the Gift Card Fund (collectively, the “Funds”) shall be used to satisfy and settle claims of and make payments to and/or provide Gift Cards to members of the Damages Sub-Class who are determined to be “Eligible Claimants” (as that term is defined in Paragraph 15.3 herein).

15.1.2.2

Kmart shall retain an independent claims administrator (the “Claims Administrator”), who is mutually selected by the Parties, to: (1) distribute notice and Claims Forms; (2) receive and track returned Claims Forms; (3) obtain supplemental information from claimants, as necessary; (4) receive and forward to the Parties and the Court Opt-Out Statements and Objections; (5) verify the validity of each claim submitted and certify those who are Eligible Claimants; (6) administer and disburse awards from the Funds; and (7) perform such other duties as agreed by the Parties that are

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necessary to carry out the provisions of the Agreement. The Claims Administrator shall be an organization or entity experienced and qualified in the administration of class action monetary settlement distribution and/or claims proceedings. Kmart shall be responsible for all reasonable fees, expenses, and costs incurred by the Claims Administrator. Kmart shall provide the Claims Administrator check-writing authority on the Account as necessary and appropriate to satisfy its responsibilities under this Agreement.

15.2 Payments to the Named Plaintiffs. Within thirty-five (35) days after Final Approval of the Agreement, the Claims Administrator shall make payment of $36,000 from the Named Plaintiff Fund to the Named Plaintiffs and Damages Settlement Sub-Class Named Plaintiffs as follows:

Carrie Lucas Debbie Lane Julie Reiskin Damages Settlement Sub-Class Named Plaintiffs

$10,000 $10,000 $10,000 $1,000 each

The Claims Administrator shall cause to be mailed, via certified mail, return receipt requested, checks in the amounts specified in this paragraph and 1099 forms to the Named Plaintiffs and Damages Settlement Sub-Class Named Plaintiffs.

15.3 Eligibility for Payments from the Damages Sub-Class Fund. To be an “Eligible Claimant” and be eligible for an award from the Damages Sub-Class Fund, an individual must satisfy each and all of the following criteria:

15.3.1 Return a completed “Claim Form” (in a form substantially similar to that attached hereto as Exhibit 9) that is postmarked by no later than the deadline stated in the Claim Form;

15.3.2

State under oath that he/she is an individual who used or uses a wheelchair or scooter for mobility who has been to a Kmart Store or Closed Kmart Store located in a Statutory Minimum Damages State between May 6, 2003 and the deadline for Opt-Out Statements;

15.3.3 State under oath the approximate location(s) of the Kmart Store(s) or Closed Kmart Store(s) that he or she went to, including at a minimum the city(ies) and state(s) in which the Store(s) are located;

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15.3.4

State under oath that, during a visit to one of the Kmart Stores or Closed Kmart Stores, (a) he/she encountered an Architectural Barrier that hindered his/her access at the Store or (b) he/she encountered an Other Barrier that hindered his/her access at the Store; and (c) describe the manner in which his/her access was hindered at the Store. A visit that complies with Paragraphs 15.3.2 and 15.3.4 shall be referred to as a “Qualifying Visit.”

15.3.5 Not previously have released his/her claims against Kmart; and

15.3.6 Not have validly opted out of any claim for damages as permitted by Paragraph 16 of this Agreement.

15.3.7 Notwithstanding Paragraph 15.2, Named Plaintiffs shall be eligible for payments from the Damages Sub-Class Fund in accordance with the same criteria and procedures applicable to other Eligible Claimants.

15.4 Claims Determination Process

15.4.1

Distribution of Claim Forms. Commencing with the Notice Deadline set by the Court and continuing through the Claim-filing deadline provided in Paragraph 15.4.2 herein, the Claims Administrator shall mail a Claim Form to each potential Damages Settlement Sub-Class Member who makes a written or telephone request therefor. For any request for a Claim Form received prior to fourteen (14) days before the Claim-filing deadline, the Claims Administrator shall mail the Claim Form within seven (7) days after receiving a written or telephone request. Thereafter, and until the Claim-filing deadline, the Claims Administrator shall mail a Claim Form within three (3) business days after receiving a written or telephone request for a Claim Form from a potential Damages Settlement Sub-Class Member. Any written request for Claim Forms received by Class Counsel or Kmart’s counsel shall be forwarded to the Claims Administrator by electronic mail or facsimile within forty-eight (48) hours (excluding weekends and holidays) of its receipt, and within three (3) business days of receipt by the Claims Administrator, the Claims Administrator shall mail a Claim Form to the potential claimant. Any potential claimant who telephones Class Counsel or Kmart’s counsel and requests a Claim Form shall immediately be referred to the Claims Administrator.

15.4.2

Filing of Completed Claim Forms. All claims for monetary payment or Gift Cards from the Damages Sub-Class Fund shall be made in writing using the Claim Form. All Claim Forms must be signed by the claimant under penalty of perjury. Each potential Damages Settlement Sub-Class

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Member, including minors, must submit his/her own Claim Form. A parent, legal guardian or next of kin may complete and sign a Claim Form on behalf of a minor. A designated representative may complete and sign a Claim Form on behalf of a claimant who, because of disability, cannot sign his or her name. If a potential Damages Settlement Sub-Class Member experienced more than one discriminatory incident, all such incidents must be detailed on one (1) Claim Form. All Claim Forms must be mailed to the Claims Administrator and postmarked by no later than the date that is twenty (20) days after the final approval hearing.

15.4.3

Review of Claim Forms. The Claims Administrator shall initially review all Claim Forms to determine if the form is filled out completely and is signed properly. If the Claim Form is incomplete or is not signed properly, the Claims Administrator shall return the Claim Form to the claimant and the claimant shall be given thirty (30) days from the date of that mailing within which to return to the Claims Administrator the Claim Form completed and/or signed properly. The failure of a claimant to complete, sign and return his or her Claim Form within thirty (30) days shall result in a denial of his or her claim.

15.4.4

Approval of Claims. The Claims Administrator shall then conduct a review of all Claim Forms to determine whether they present valid claims in accordance with the terms and provisions of this Agreement. All claimants whose claims are determined to be valid by the Claims Administrator shall be eligible for an award from the Damages SubClass Funds.

15.4.5

Disputed Claims. If upon initial review of the Claim Form, the Claims Administrator is unable to determine the validity of the claim, the Claims Administrator shall so notify the claimant in writing and state the reasons why the information contained on the Claim Form is insufficient to determine the validity of the claim. The claimant shall be given thirty (30) days from the date of mailing of the notification in which to supplement or amend the Claim Form or provide such other information he or she wishes to assist the Claims Administrator in determining the validity of the claim. Upon further review of the Claim Form, including such additional information as may be submitted by the claimant, the Administrator shall (i) approve the claim, in which case, the claimant is eligible for an award from the Funds; or (ii) reject the claim.

15.4.6 Rejected Claims. If the Claims Administrator rejects a claim as not meeting the terms or provisions of this Agreement, the Administrator shall so notify the claimant in writing.

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15.4.7

Deadline for Administrator Review of All Claims. The Claims Administrator shall complete its review and issue a determination as to claim eligibility of all Claim Forms within ninety (90) days of the deadline for submission of Claim Forms set forth in Paragraph 15.4.2.

15.4.8 Determination – Final and Binding. All determinations of the Claims Administrator shall be final, binding, and non-appealable. Kmart shall have no responsibility for or role in the claims determination process.

15.5 Class Monetary Distribution.

15.5.1

The purpose of this Paragraph is to distribute the Damages Sub-Class Fund by: (a) determining the State Specific Fund for each Statutory Minimum Damages State; and (b) distributing each State Specific Fund to Eligible Claimants who visited Kmart Stores or Closed Kmart Stores in that state.

15.5.2 Determining State Specific Funds.

15.5.2.1

The purpose of this Paragraph is to determine the State Specific Fund for each Statutory Minimum Damages State in a manner that reflects the number of Kmart Stores and Closed Kmart Stores in each Statutory Minimum Damages State, and the Statutory Minimum Damages Amount in each Statutory Minimum Damages State.

15.5.2.2

To accomplish this purpose, each Statutory Minimum Damages State will be assigned a “Factorial,” which is the product of the number of Kmart Stores and Closed Kmart Stores in that state times that state’s Statutory Minimum Damages Amount. For example, there are 130 Kmart Stores and Closed Kmart Stores in California, and California’s Minimum Statutory Damages Amount is $4,000. Thus the California Factorial is 520,000 (the product of 130 times 4,000). The percentage of the Damages Sub-Class Fund allocated to a Statutory Minimum Damages State is determined by dividing that state’s Factorial by the combined sum of the Factorials of all Statutory Minimum Damages States. Exhibit 8 sets forth the Factorials and the State Specific Funds for each Statutory Minimum Damages State.

15.5.3 Distribution of State Specific Funds.

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15.5.3.1

Each State Specific Fund will be distributed only to Eligible Claimants who visited one or more Kmart Stores or Closed Kmart Stores in that State, or to the designated Cy Pres recipient for that State Specific Fund as set forth in Paragraph 15.6.

15.5.3.2

For each Qualifying Visit to a Kmart Store or Closed Kmart Store located in a Statutory Minimum Damages State, an Eligible Claimant shall receive from that State Specific Fund a pro rata award worth up to the state’s Statutory Minimum Damages Amount.

15.5.3.3

The maximum number of visits to Kmart Stores or Closed Kmart Stores for which an Eligible Claimant may obtain recovery is two (2). An Eligible Claimant who has been to Kmart Stores or Closed Kmart Stores in more than one Statutory Minimum Damages State will obtain recovery from the State Specific Fund with the greatest Statutory Minimum Damages Amount. By way of illustration, an Eligible Claimant who made four (4) Qualifying Visits to Kmart Stores in California, and four (4) Qualifying Visits to Kmart Stores in Colorado, would obtain a pro rata recovery from the California Specific Fund for two (2) California visits because the California Statutory Minimum Damages Amount is greater than the Colorado Statutory Minimum Damages Amount.

15.5.3.4

To the extent that the claims submitted and found to be eligible with respect to a State Specific Fund exceed the amount of the State Specific Fund, the Claims Administrator shall make pro rata reductions in the awards from that State Specific Fund.

15.5.3.5

Eligible Claimants may express a preference for receiving their award in cash or in Gift Cards. The Claims Administrator shall take such elections into consideration to the extent reasonably possible. The Claims Administrator’s distribution formula, allocation determinations, and award amounts shall be final and binding on all class members and not subject to appeal.

15.5.3.6 No later than ten (10) days after the deadline for completion of the claims determination process set forth in Paragraph 15.4.7, the Claims Administrator shall provide Class Counsel

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and Kmart with a list of the names, addresses, telephone numbers, email addresses, a copy of the claims forms, and the pro rata amount of the validated claim from the Cash Fund and Gift Card Fund, of all persons who have submitted claims in connection with the Lawsuit. Each Gift Card shall be issued in increments of twenty-five (25) dollars or fifty (50) dollars with some minimum number of Gift Cards being issued in a lesser amount for purposes of rounding. Kmart will forward the Gift Cards to the Claims Administrator within thirty (30) days of receiving the list from the Claims Administrator.

15.5.3.7

Not later than ten (10) business days after receiving the Gift Cards from Kmart, the Claims Administrator shall cause to be mailed, via certified mail, return receipt requested, checks and/or Gift Cards in the amounts specified in the claims determination process, and 1099 forms to Eligible Claimants. All checks shall be negotiable for no more than one (1) year from the date of mailing. Gift Cards shall have no expiration date.

15.5.3.8

All returned checks and Gift Cards of claimants for whom no additional address is obtained shall be held by the Claims Administrator for sixty (60) days. If no claim is made for such checks or Gift Cards during this time period, the funds from such checks and half of the Gift Cards (by value) shall become part of the funds to be allocated to the Cy Pres and distributed in accordance with Paragraph 15.6 of this Agreement. The other half of such Gift Cards (by value) shall be cancelled.

15.6 Cy Pres.

15.6.1

In the event that any portion of a State Specific Fund has not been distributed as provided for by this Agreement after a period of four hundred (400) days has elapsed from the date on which settlement checks are mailed by the Claims Administrator, then such remaining amounts shall be used first to pay any otherwise valid claims against that State Specific Fund that were excluded from the Class Monetary Distribution through error or omission of the Claims Administrator. If, after such further actions, Gift Cards or funds that were available to be distributed through Gift Cards still have not been distributed, Kmart may cancel half the total value of such remaining Gift Cards or amount available to be distributed through Gift Cards and shall release half the

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amount remaining in the Gift Card Fund attributable to the relevant State Specific Fund. Any further balance remaining in such State Specific Fund, including all remaining cash and the other half of the Gift Cards (by value), shall be paid as follows:

15.6.1.1

Remaining funds from the State Specific Fund for California shall be paid to the Disability Rights Education & Defense Fund, 2212 Sixth Street, Berkeley, CA 94710.

15.6.1.2

Remaining funds from the State Specific Fund for Colorado shall be paid to the Colorado Cross-Disability Coalition, 655 Broadway, Suite 775, Denver, CO 80203.

15.6.1.3

Remaining funds from the State Specific Fund for Hawai’i shall be paid to the Hawai’i Disability Rights Center, 900 Fort Street Mall, Suite 1040, Honolulu, Hawaii 96813.

15.6.1.4

Remaining funds from the State Specific Fund for Massachusetts shall be paid to the Disability Law Center, Inc., 11 Beacon Street, Suite 925, Boston, MA 02108.

15.6.1.5

Remaining funds from the State Specific Fund for New York shall be paid to the Anti-Discrimination Center of Metro New York, 299 Broadway, Suite 1820, New York, NY 10007-1913.

15.6.1.6

Remaining funds from the State Specific Fund for Oregon shall be paid to the Oregon Advocacy Center, 620 SW Fifth Ave., 5th Floor, Portland, OR 97204-1428.

15.6.1.7

Remaining funds from the State Specific Fund for Texas shall be paid to Advocacy, Inc., 7800 Shoal Creek Boulevard, Suite 171-E, Austin, Texas 78757-1024.

15.6.2 The Cy Pres recipients may raffle, donate, transfer, or use Gift Cards in order to support their exempt purposes and activities.

16 Opt-Out Right.

16.1 Any potential Damages Settlement Sub-Class Member (but not a Named Plaintiff) may request exclusion from the sub-class for purposes of monetary relief only. Potential Damages Settlement Sub-Class Members who wish to opt out of the sub-class for purposes of participation in the monetary portion of the settlement must submit a written and signed request for exclusion (“Opt-Out Statement”) to

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the Claims Administrator. Opt-Out Statements must be postmarked and mailed to the Claims Administrator not later than sixty (60) days after the Notice Deadline set by the Court. The Opt-Out Statement shall, at minimum, contain the following language:
I wish to opt out of the monetary portion of the settlement of this case. I understand that by requesting to be excluded from the class monetary settlement, I will receive no money or Gift Cards from the settlement funds created in accordance with the Agreement entered into by Kmart. I understand that if I am excluded from the class monetary settlement, I may bring a separate action seeking damages. I understand that in any separate lawsuit, I may receive nothing or less than I would have received if I had filed a claim under the monetary provisions of this Agreement. I also understand that I may not seek exclusion from the non-monetary relief set forth in the Agreement, and that I will be bound by the class injunctive provisions of the Agreement entered into by Kmart if the Agreement is approved by the Court.
16.2 To the extent a potential Damages Settlement Sub-Class Member submits an OptOut Statement with language that differs from the foregoing, either party reserves the right to seek review of the Court to have the Opt-Out Statement declared valid or invalid. All potential Damages Settlement Sub-Class Members who do not timely opt out of the damages provisions of this Agreement shall be bound by the resolution of any and all issues arising in connection with the Damages Settlement Sub-Class claims for damages and attorneys’ fees.
16.3 No Settlement Class Member may opt out of the injunctive relief provisions of this Agreement. No Named Plaintiff may opt out of any of the provisions of this Agreement.
16.4 The Claims Administrator shall stamp the date received on the original of any Opt-Out Statement it receives and serve copies of the Statement on Class Counsel and Kmart’s counsel not later than three (3) business days after receipt thereof and shall file the date-stamped originals of any Opt-Out Statements with the Clerk of the Court not later than ten (10) business days prior to the date set for the final approval hearing. The Claims Administrator shall retain copies of all Opt-Out Statements in its files until such time as the Claims Administrator is relieved of its duties and responsibilities under this Agreement.
17 Additional Information to Class Counsel.
17.1 Class Counsel may request additional information regarding any matter covered by this Agreement if such additional information is necessary to determine whether or not Kmart is in compliance with this Agreement.

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17.2 Kmart shall provide such additional information or state its objection to providing such information within fourteen (14) days of its receipt of a written request by Class Counsel.
17.3 If either Party disagrees concerning information to be provided pursuant to this Paragraph, either Party may submit the matter to Dispute Resolution.
18 Periodic Meetings Between the Parties and Annual Report to the Court.
18.1 Class Counsel and Kmart will meet once every ninety (90) days until the first anniversary of Final Approval, and once every one hundred twenty (120) days thereafter, to discuss and review the implementation of this Agreement. Such meetings may be either in person or by telephone, as the Parties agree.
18.2 Each year on the anniversary of the date of Final Approval, the Parties shall submit a report to the Court, stating the status of the implementation of this Agreement and identifying any outstanding issues on which the Parties are then in disagreement.
19 Dispute Resolution. The Parties shall address disputes relating to the provisions of this Agreement as follows.
19.1 Informal dispute resolution
19.1.1 If either Party believes that a dispute exists relating to the provisions of this Agreement, it shall notify the other Party in writing, describing the dispute. The other Party shall respond in writing to such notice within fifteen (15) business days of receipt of the notice.
19.1.2 Within fifteen (15) business days of receipt of the response described in Paragraph 19.1.1, counsel for both Parties shall meet and confer by telephone or in person and attempt to resolve the issue informally. If the Parties believe it would be useful to enter mediation on the issue in dispute, they may agree to do so.
19.1.3 Kmart shall be responsible for all reasonable attorneys’ fees and Costs incurred by Class Counsel in pursuing informal dispute resolution pursuant to this Paragraph 19.1.
19.2 Submission to the Court
19.2.1 If the meet and confer process pursuant to Paragraph 19.1 above does not result in a resolution of the dispute within a reasonable time, any Party

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may make a motion for resolution of the dispute by Judge John Kane or any other United States District Judge who may be assigned to the case.
19.2.2 In the event either Party finds that it is necessary to seek resolution of the dispute by the Court, the Court shall award reasonable attorneys’ fees and Costs incurred in pursuing dispute resolution as set forth in this Paragraph 19.2 of the Agreement in accordance with the prevailing party standards under the ADA.
20 Attorneys’ Fees and Costs up to the Date of Final Approval.
20.1 Subject to the presentation of appropriate documentation by Class Counsel, Kmart shall pay an amount not greater than $125,000 on account of disbursements actually incurred by Class Counsel through execution of this Agreement within the later of ten (10) days after the presentation of appropriate documentation or the execution of this Agreement by sending a check made out to Fox & Robertson, P.C., to 910 16th Street, Suite 610, Denver, CO 80202.
20.2 Subject to Court approval, Kmart shall pay Class Counsel’s reasonable attorneys’ fees incurred in connection with this matter up to and including the date of Final Approval of this Agreement by the Court in the amount of $3,250,000. Kmart shall pay the amount on account of attorneys’ fees within ten (10) days of Final Approval by sending a check made out to Fox & Robertson, P.C., to 910 16th Street, Suite 610, Denver, CO 80202.
20.3 If the amount paid to Class Counsel for disbursements pursuant to Paragraph 20.1 is less than $125,000, subject to the presentation of proper documentation by Class Counsel, Kmart shall pay additional amounts on account of disbursements actually incurred by Class Counsel through Final Approval, but only up to an amount such that the total payment on account of disbursements prior to Final Approval does not exceed $125,000. Under such circumstances, Kmart shall pay any such additional amounts within the later of ten (10) days after the presentation of proper documentation or the Final Approval of this Agreement by sending a check made out to Fox & Robertson, P.C., to 910 16th Street, Suite 610, Denver, CO 80202.
21 Attorneys’ Fees and Costs after Final Approval.
21.1 Kmart shall pay reasonable attorneys’ fees and Costs incurred by Class Counsel after Final Approval of this Agreement for work performed by Class Counsel pursuant to this Agreement or as necessary to defend this Agreement. Kmart recognizes that such Costs include, but are not limited to, any fees, costs and expenses incurred by Class Counsel in retaining an expert to assist with such work.

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21.2 Monthly during the term of this Agreement, beginning one month after Final Approval, Class Counsel shall submit to Kmart a statement of reasonable attorneys’ fees and Costs incurred pursuant to this Agreement. This submission shall include a statement of the work performed, the persons performing the work, the hourly rate of each such person and a description of the particular Costs and expenses.
21.3 If Kmart disagrees with the amount of attorneys’ fees and Costs requested, it may submit the matter to Dispute Resolution. Kmart concedes, by operation of Paragraph 21.1 above, that it is obligated to pay to Class Counsel reasonable attorneys’ fees and Costs for work performed following Final Approval, provided, however, that Kmart retains the right to dispute the reasonableness of issues raised or disputes pursued by Class Counsel and the reasonableness of the incurrence of fees or expenses in connection therewith.
21.4 Kmart shall pay Class Counsel all reasonable attorneys’ fees and Costs that Class Counsel claim pursuant to Paragraph 21.2 within sixty (60) days of Kmart’s receipt of Class Counsel’s submission. If Kmart disputes this amount pursuant to Paragraph 21.3, it shall pay the undisputed portion of the amount within sixty (60) days of Kmart’s receipt of Class Counsel’s submission and the remaining amount, if any, within thirty (30) days of resolution of any dispute.
22 Preliminary Approval, Objections and Fairness Hearing.
22.1 Promptly after execution of this Agreement, the Parties shall jointly request that the Court schedule a preliminary approval hearing within ten (10) days of the request or as soon thereafter as the Court may set the hearing and that the Court preliminarily approve the Agreement, preliminarily certify the Damages Settlement Sub-Class for settlement purposes only, preliminarily enjoin Settlement Class Members and Damages Settlement Sub-Class Members from bringing any claims to be released pursuant to this Agreement, and approve the proposed form of Notice and plan for providing notice submitted by the Parties.
22.2 Class Counsel and Kmart shall ask the Court to schedule a fairness and final approval hearing for eighty (80) days after the Notice Deadline set by the Court, or as soon thereafter as the Court may set the hearing.
22.3 Class Counsel and Kmart shall ask the Court to order the following procedures for objections: Any Settlement Class Member or Damages Settlement Sub-Class Member may object to the proposed Agreement by filing, within sixty (60) days after the Notice Deadline set by the Court, written objections with the Clerk of the Court. Only such objecting Settlement Class Members and Damages Settlement Sub-Class Members shall have the right, and only if they expressly seek it in their

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objection, to present objections orally at the Fairness Hearing. Responses by Kmart and Class Counsel to any timely-filed objections shall be made no less than five (5) days before the Fairness Hearing.
23 Notice: At Kmart’s expense, notice of this Agreement (the “Notice”), which shall be in a form agreed to by the Parties, will be provided to the Settlement Class and the Damages Settlement Sub-Class, informing class members of at least the following: (1) a general description of the terms of this Agreement; (2) their right to object to the Agreement; (3) their right to opt out of the damages provisions of this Agreement; and (4) with respect to members of the Damages Settlement Sub-Class, the prerequisites for recovery from the Damages Sub-Class Fund. The Notice and the plan for providing notice must satisfy the requirements of Federal Rule of Civil Procedure 23 and applicable legal precedent, and must be approved by the Court. In their motion seeking preliminary approval of the Agreement, the Parties will propose a Notice Deadline and the proposed Notice Deadline will be as soon as reasonably possible.
24 Judgment, Final Approval and Dismissal.
24.1 At the time of the Fairness Hearing, Kmart and Class Counsel shall jointly request that the Court enter a Final Judgment and Order in a form agreeable to the Parties granting Final Approval of this Agreement, finally certifying the Damages Settlement Sub-Class for settlement purposes only, and enjoining Settlement Class Members and Damages Settlement Sub-Class Members from asserting any Released Injunctive Claims or Released Damages Claims. Among other things, the Final Judgment and Order shall attach this Agreement as an exhibit and shall provide that the Court retains jurisdiction through the Term of the Agreement in order to enforce this Agreement.
24.2 This Lawsuit shall be dismissed with prejudice pursuant to Rule 41 of the Federal Rules of Civil Procedure, no later than thirty (30) days following the expiration of the Term of this Agreement.
25 Terms Not Confidential; Communication with the Press.
25.1 The terms of this Agreement shall not be confidential.
25.2 At a time mutually agreeable to the parties, Fox & Robertson, P.C., on behalf of Class Counsel may issue a press release concerning the Agreement. Fox & Robertson will show a draft of such press release to Kmart prior to issuing it and will provide Kmart a reasonable opportunity to comment on, and have input into, the press release. With respect to the preparation of such press release, Class Counsel acknowledges that this Agreement was negotiated at arm’s length in good faith and that Kmart, as part of the settlement process, has worked diligently and in good faith to ensure adequate accessibility for the disabled at Kmart Stores.

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25.3 Fox & Robertson or Kmart may discuss the Agreement with members of the media provided that neither shall make any statement to the media that is inconsistent with the third sentence of Paragraph 25.2 or its duties under Paragraph 34.

26 Releases:

26.1 Release of Claims for Injunctive Relief

26.1.1 Effective on the date of Final Approval, Named Plaintiffs and all Settlement Class Members and each of their executors, successors, heirs, assigns, administrators, agents and representatives (collectively, the “Injunctive Releasing Parties”), in consideration of the relief set forth herein, the sufficiency of which is expressly acknowledged, unconditionally and forever do fully and finally release, acquit, and discharge Kmart and its present and former parents and subsidiaries and each of their respective present, former or future officers, directors, employees, shareholders, administrators, executors, affiliates, successors and assigns (collectively, the “Kmart Parties”) from the Released Injunctive Claims as defined below.

26.1.2 The “Released Injunctive Claims” are any and all claims, rights, demands, charges, complaints, actions, suits and causes of action, whether known or unknown, suspected or unsuspected, accrued or unaccrued, for injunctive, declaratory or other non-monetary relief, however described, based on conduct preceding Final Approval of this Agreement that were brought, could have been brought or could be brought now or in the future that relate in any way to the accessibility of Kmart Stores to persons who use wheelchairs or scooters under:

26.1.2.1

Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181 et seq., and all rules and regulations promulgated thereunder;

26.1.2.2

Cal. Code Regs., Title 24 and all rules and regulations promulgated thereunder, and any other provision of California law to the extent it grants a right of action for alleged violations of the foregoing; and

26.1.2.3

Any state or local statutory, administrative, regulatory or code provisions that either (a) directly incorporate Title III of the Americans with Disabilities Act or any of the rules or regulations promulgated thereunder or (b) set forth

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standards or obligations coterminous with or equivalent to Title III of the Americans with Disabilities Act or any of the rules or regulations promulgated thereunder.
26.1.3 The “Released Injunctive Claims” also include all claims, rights, demands, charges, complaints, actions, suits, causes of action or liabilities of any kind for injunctive, declaratory or other non-monetary relief, however described, (collectively, for this subparagraph, “claims”) based on conduct that occurs after Final Approval of this Agreement and during the Term of this Agreement to the extent that such claims arise out of or relate to actions, omissions, or conduct (including physical conditions at Kmart Stores) that are in compliance with the terms of this Agreement.
26.1.4 Covenant Not to Sue: Effective on the date of Final Approval, the Injunctive Releasing Parties, in consideration of the relief set forth herein, the sufficiency of which is expressly acknowledged, covenant and agree never to file or institute against any of the Kmart Parties any claim, right, demand, charge, complaint, suit, cause of action, action or proceeding of any kind or nature whatsoever, whether at law, in equity or otherwise, in or before any court, administrative agency, arbitral panel or other tribunal wherever situated, asserting, directly or indirectly, any Released Injunctive Claim or any claim, demand, cause or right of action of any kind or nature whatsoever, whether known or unknown, contingent or absolute, suspected or unsuspected, disclosed or undisclosed, hidden or concealed, based upon or arising out of the Released Injunctive Claims.
26.2 Release of Claims for Statutory Minimum Damages
26.2.1 Effective on the date of Final Approval, Named Plaintiffs and all Damages Settlement Sub-Class Members and each of their executors, successors, heirs, assigns, administrators, agents and representatives (collectively, the “Damages Releasing Parties”), in consideration of the relief set forth herein, the sufficiency of which is expressly acknowledged, unconditionally and forever do fully and finally release, acquit, and discharge the Kmart Parties from the Released Damages Claims as defined below.
26.2.2 The “Released Damages Claims” are any and all claims, rights, demands, charges, complaints, actions, suits, causes of action, and liabilities of any kind, whether known or unknown, suspected or unsuspected, accrued or unaccrued, for Statutory Minimum Damages based on conduct preceding Final Approval of this Agreement that were brought, could have been brought or could be brought now or in the future that relate in any way to

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the accessibility of Kmart Stores or Closed Kmart Stores to persons who use wheelchairs or scooters.
26.2.3 The “Released Damages Claims” also include all claims, rights, demands, charges, complaints, actions, suits, causes of action or liabilities of any kind for Statutory Minimum Damages (collectively, for this subparagraph, “claims”) based on conduct that occurs after Final Approval of this Agreement and during the Term of this Agreement to the extent that such claims arise out of or relate to actions, omissions, or conduct (including physical conditions at Kmart Stores) that are in compliance with the terms of this Agreement.
26.2.4 The Released Damages Claims do not include any claims, rights, demands, charges, complaints, actions, causes of action or liabilities for any damages other than Statutory Minimum Damages.
26.2.5 Covenant Not to Sue: Effective on the date of Final Approval, the Damages Releasing Parties, in consideration of the relief set forth herein, the sufficiency of which is expressly acknowledged, covenant and agree never to file or institute against any of the Kmart Parties any claim, right, demand, charge, complaint, suit, cause of action, action, liability or proceeding of any kind or nature whatsoever, whether at law, in equity or otherwise, in or before any court, administrative agency, arbitral panel or other tribunal wherever situated, asserting, directly or indirectly, any Released Damages Claim or any claim, demand, cause or right of action of any kind or nature whatsoever, whether known or unknown, contingent or absolute, suspected or unsuspected, disclosed or undisclosed, hidden or concealed, based upon or arising out of the Released Damages Claims.
26.3 Known or Unknown Claims. The Damages Releasing Parties and the Injunctive Releasing Parties shall collectively be referred to as the “Releasing Parties.” The Releasing Parties 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 attributable to any conduct of the Kmart Parties, whether known by the Releasing Parties or whether or not any Releasing Party believes he may have any claims, and that any and all rights granted to the Releasing Party under Section 1542 of the California Civil Code or any analogous state law or federal law or regulations, are hereby expressly WAIVED, if applicable. Said Section 1542 of the California Civil Code reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM

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MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
27 No Third Party Beneficiaries.
27.1 Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity not a Party to this Agreement any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
27.2 For purposes of interpreting or enforcing this Agreement, individual class members shall not be deemed to be third-party beneficiaries of this Agreement. Only the Named Plaintiffs through Class Counsel may seek to enforce the terms of this Agreement through the Dispute Resolution process provided for herein or before the Court. To the extent individual class members have complaints regarding Kmart’s implementation of the terms of this Agreement, they should bring them to the attention of the Named Plaintiffs and/or Class Counsel.
28 Entire Agreement. This Agreement contains all the agreements, conditions, promises and covenants among Kmart, Named Plaintiffs, Class Counsel, the Settlement Class, and the Damages Settlement Sub-Class regarding matters set forth in it and supersedes all prior or contemporaneous agreements, drafts, representations or understandings, either written or oral, with respect to the subject matter of the present Agreement.
29 Communications to Kmart And Class Counsel. All notices or communications required by this Agreement shall be in writing by facsimile and U.S. Mail or overnight delivery service addressed as follows:
29.1 To Named Plaintiffs, Class Counsel or the Settlement Class:
Amy F. Robertson Fox & Robertson, P.C. 910 - 16th Street Suite 610 Denver, CO 80202 303.595.9700 facsimile: 303.595.9705 arob@foxrob.com
29.2 To Kmart:
General Counsel Sears Holding Corporation 3333 Beverly Road Hoffman Estates, IL 60179 facsimile: 847.286.2471

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Amy R. Wolf Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, NY 10019 facsimile: 212.403.2000
Kmart may change the individuals to whom notices and communications required by this Agreement shall be sent by providing Fox & Robertson, P.C. with written notification that it wishes to do so.
30 Modification. Prior to Final Approval, this Agreement can only be amended by written agreement of the Parties hereto. Following Final Approval, no modification of this Agreement shall be effective unless it is pursuant to Court Order.
31 Severability. If any provision or any part of this Agreement thereof shall at any time be held unlawful, or inconsistent with applicable law, in whole or in part, under any federal, state, county, municipal or other law, ruling or regulation, then the remaining provisions of this Agreement shall remain effective and enforceable.
32 Drafting of this Agreement. This Agreement is deemed to have been drafted by all Parties hereto, as a result of arm’s length negotiations among the Parties. Whereas all Parties have contributed to the preparation of this Agreement, it shall not be construed more strictly against one Party than another.
33 Execution by Facsimile and in Counterparts. This Agreement may be executed by the Parties hereto by facsimile and in separate counterparts, and all such counterparts taken together shall be deemed to constitute one and the same agreement.
34 Duty to Support and Defend Agreement. Named Plaintiffs, Class Counsel and Kmart each agree to abide by all of the terms of this Agreement in good faith and to support it fully, and shall use their best efforts to defend this Agreement from any legal challenge, whether by appeal or collateral attack.
35 Continuing Jurisdiction. The Parties agree that the United States District Court for the District of Colorado shall have continuing jurisdiction throughout the Term of this Agreement to interpret and enforce this Agreement.
36 Stay of Appeal. On or about the date of execution of this Agreement, the Parties will jointly request that the appeal currently pending before the United States Court of Appeals for the Tenth Circuit, No. 05-0504, shall be stayed up to and including the date set for the fairness and final approval hearing. The Parties will request such additional stays as appropriate beyond the date set for the fairness and final approval hearing in order to effectuate the terms of this Agreement, including seeking a stay to cover the

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time, if any, that the decision to finally approve the Agreement is sub judice with the Court.
37 Deadlines. The Parties and the Court recognize that from time to time unforeseen events, such as exigent business circumstances, labor disputes, natural disasters, personnel issues, and negotiations with third parties, cause delays in the accomplishment of objectives no matter how well intentioned and diligent the Parties may be. Accordingly, with regard to the provisions of this Agreement that require that certain acts be taken within specified periods, the Parties understand and agree that Court approval shall not be required for reasonable extensions of deadlines. In the event that any Party determines that an action required by this Agreement cannot be taken within the specified time period, that Party shall promptly notify the other Parties that it anticipates a delay, the reasons for the delay and a proposed alternative deadline. The Parties shall endeavor to cooperate in reasonably rescheduling such deadlines. However, if the other Party does not agree to the proposed delay, the Parties shall submit the matter to Dispute Resolution.

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Carrie Ann Lucas
Date: Debbie L. Lane

Kmart Corporation By: Its Date:

Date: Julie Reiskin

Date: APPROVED AS TO FORM & CONTENT: FOX & ROBERTSON, P.C.

WACHTELL, LIPTON, ROSEN & KATZ

By: Amy F. Robertson Timothy P. Fox 910 - 16th Street Suite 610 Denver, CO 80202
Counsel for Named Plaintiffs and the Settlement Class

By: Meyer G. Koplow 51 West 52nd Street New York, New York 10019
Counsel for Kmart Corporation

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 Case 1:99-cv-01923-JLK-CBS Document 258 Filed 06/29/09 USDC Colorado Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-cv-01923-JLK CARRIE ANN LUCAS, DEBBIE LANE, JULIE REISKIN, EDWARD MUEGGE, ROBERT G. GEYER, STACY BERLOFF, JEAN RYAN, JAN CAMPBELL,
on behalf of themselves and all others similarly situated, Plaintiffs,
v. KMART CORPORATION,
Defendant.
JOINT MOTION TO AMEND SETTLEMENT AGREEMENT
The parties, by and through their respective attorneys, hereby submit this Joint Motion to Amend Settlement Agreement. The Parties propose to amend the Settlement Agreement to permit Kmart to remedy 150 stores during the period between May 8, 2009 and May 8, 2010, rather than the 215 stores called for in the Settlement Agreement. This request is based on changed circumstances -- the current economic crisis and its impact on the retail sector -- and will not undermine the ultimate goal -- or the original timing -- of the Settlement.

Case 1:99-cv-01923-JLK-CBS Document 258 Filed 06/29/09 USDC Colorado Page 2 of 4
BACKGROUND In February 2006, following years of litigation of claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 - 12189, as well as state law, plaintiffs and Kmart agreed to a ground-breaking settlement resolving claims by a nationwide class of Kmart customers who use wheelchairs or scooters for mobility. The settlement was preliminarily approved by this Court on March 22, 2006, and following notice, the final approval hearing, and the expiration of the period for appeal, the settlement became final on September 8, 2006. Under the settlement, Kmart agreed (i) to make physical changes to its stores over a seven-and-a-half year period to make them more accessible for customers who use wheelchairs and scooters; (ii) to revise its policies and training materials with respect to customers who use wheelchairs and scooters; and (iii) to pay damages to resolve claims for statutory minimum damages in seven states that provide for such damages. In return, the class released accessibility claims under the ADA and state laws that incorporate or are parallel to the ADA, including claims for statutory minimum damages, and is enjoined from bringing injunctive or statutory minimum damages claims for the seven-and-a-half year remediation period. Pursuant to the Settlement Agreement, Kmart was required to bring 150 stores into compliance by May 8, 2008, and another 215 during each subsequent twelve-month period. Settlement Agreement ¶ 6.13. By May 8, 2008, Kmart had notified Class Counsel that it had completed work on 150 stores, and the parties have been working diligently to review compliance and resolve all outstanding issues with respect to those stores. Miller Decl. ¶ 3. Kmart recently notified Class Counsel that work had been completed on the 215 stores required
2

Case 1:99-cv-01923-JLK-CBS Document 258 Filed 06/29/09 USDC Colorado Page 3 of 4
to be completed by the May 8, 2009 deadline. Id. ¶ 4. Class Counsel, in turn, have been reviewing photographs documenting the remediation efforts and have completed review of the first 150 stores. These photographs show a very high degree of success in Kmart’s remediation efforts. Decl. of Amy F. Robertson (“Robertson Decl.”) ¶ 3.
More than just meeting the previous two deadlines, Kmart personnel have been working assiduously with Class Counsel to address questions that have arisen during the survey and remediation process, and have -- in the view of Class Counsel -- taken a very enthusiastic and proactive approach to the implementation of the Settlement Agreement. Robertson Decl. ¶ 4.
As Kmart began planning for the May 8, 2009 - May 8, 2010 time period, it faced one of the worst economic environments in recent memory. As a result of these circumstances, Kmart requested and Plaintiffs agreed that Kmart be required to complete remediation on 150 stores during the next year rather than the required 215. Perhaps most important, by remedying only 150 stores during the next year, the ultimate completion date of the settlement will not be affected. This is because when the parties first agreed to the schedule in Paragraph 6.13, Kmart had approximately 1,420 stores. See Settlement Agreement Ex. 1. At the original pace in Paragraph 6.13, remediation would be concluded on May 8, 2014, when Kmart reported on the completion of the final approximately 195 stores. Kmart currently has approximately 1,350 stores, Miller Decl. ¶ 5; even with the requested amendment, the last of these stores will be reported complete on May 8, 2014. There will be no need to extend the Settlement Agreement past its anticipated completion.
3

Case 1:99-cv-01923-JLK-CBS Document 258 Filed 06/29/09 USDC Colorado Page 4 of 4

Because this matter affects the injunctive class, rather than the damages sub-class, the proposed amendment is signed only by the representatives of the former class and this motion is brought by those representatives only.
The Settlement Agreement requires Court approval for any modification. Id. ¶ 30. For the reasons set forth above, the Parties respectfully request that this Court approve the Amendment to Settlement Agreement attached as Exhibit 1 to this Motion.

Respectfully submitted,
FOX & ROBERTSON, P.C.
/s Amy Farr Robertson Amy Farr Robertson Timothy P. Fox Fox & Robertson, P.C. 104 Broadway Suite 400 Denver, CO 80203 Voice: 303.595.9700 Fax: 303.595.9705 Email: arob@foxrob.com
Attorneys for Plaintiffs
June 29, 2009

KMART CORPORATION
/s Lori K. Miller Lori K. Miller Assistant General Counsel Sears Holdings Corporation 3333 Beverly Road B6-225B Hoffman Estates, Illinois 60179 Phone: 847.286.4482 Fax: 847.286.6544 Email: lmill64@searshc.com
Attorney for Defendant Kmart Corporation

4

 
 Case 1:99-cv-01923-JLK-CBS Document 259 Filed 06/29/09 USDC Colorado Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-cv-01923-JLK CARRIE ANN LUCAS, DEBBIE LANE, JULIE REISKIN, EDWARD MUEGGE, ROBERT G. GEYER, STACY BERLOFF, JEAN RYAN, JAN CAMPBELL,
on behalf of themselves and all others similarly situated, Plaintiffs,
v. KMART CORPORATION,
Defendant.
ORDER GRANTING MOTION TO AMEND SETTLEMENT AGREEMENT
Plaintiffs Carrie Ann Lucas, Debbie Lane, and Julie Reiskin, on behalf of themselves and all others similarly situated, and Defendant Kmart Corporation (“Kmart”), jointly moved for this Court’s approval of the Amendment to the Settlement Agreement in this case.
For the reasons set forth in the parties’ Joint Motion to Amend Settlement Agreement, which this Court finds persuasive, the parties Motion is GRANTED and the Amendment to the Settlement Agreement is hereby APPROVED.

Case 1:99-cv-01923-JLK-CBS Document 259 Filed 06/29/09 USDC Colorado Page 2 of 2

Dated: June 29, 2009

BY THE COURT:
S/John L. Kane John L. Kane SENIOR U.S. DISTRICT COURT JUDGE

2

 
 Lucas v. Kmart Corp., 234 F.R.D. 688 (2006)

234 F.R.D. 688 United States District Court,
D. Colorado.
Carrie Ann LUCAS, Debbie Lane, Julie Reiskin, Edward Muegge, Robert G. Geyer, Stacy Berloff, Jean Ryan, Jan Campbell, on behalf of themselves
and all others similarly situated, Plaintiffs, v.
KMART CORPORATION, Defendant.
No. 99–CV–01923–JLK. | March 22, 2006.
Synopsis Background: Customers who used wheelchairs or scooters filed class action alleging that retailer failed to comply with accessibility requirements of Title II of Americans with Disabilities Act (ADA). Parties filed joint motion for preliminary approval of settlement agreement.
Holdings: The District Court, Kane, Senior District Judge, held that:
[1] proposed settlement was fair, reasonable, and adequate;
[2] proposed notice program was reasonable and satisfied due process; and
[3] class members would be preliminarily enjoined from asserting or pursuing any claims to be released pursuant to proposed settlement agreement.
Motion granted.
Attorneys and Law Firms
*690 Amy Farr Robertson, Timothy Patrick Fox, Fox & Robertson, P.C., Kevin William Williams, Colorado Cross–Disability Coalition, Michael Wayne Breeskin, Arc of Denver, Inc., Denver, CO, Brian D. East, Denette Vaughn, Advocacy, Inc., Austin, TX, Earl R. Mettler, Stephen T. Lecuyer, Mettler & Lecuyer, PC, Albuquerque, NM, James Earl Teague, Advocacy, Inc., Lubbock, TX, L. Javier Cavazos, Atty. at Law, Harlington, TX, Steven R. Greenberger, DePaul College

of Law, Chicago, IL, for Plaintiffs.
David F. McDowell, Morrison & Foerster, LLP, Los Angeles, CA, Robert A. Naeve, Morrison & Foerster, LLP, Irvine CA, Steven M. Kaufmann, Morrison & Foerster, LLP, Denver, CO, for Defendant.
Opinion
ORDER GRANTING JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT
AGREEMENT
KANE, Senior District Judge.
Plaintiffs Carrie Ann Lucas, Debbie Lane, Julie Reiskin, Edward Muegge, Robert Geyer, Stacy Berloff, Jean Ryan and Jan Campbell, and Defendant Kmart Corporation (“Kmart”), jointly moved the Court for an Order: (1) preliminarily approving the proposed settlement in this case as fair, reasonable and adequate; (2) finding that the proposed plan to provide notice of the settlement to the class and the proposed forms of notice satisfy the requirements of due process and F.R.C.P. 23; (3) preliminarily enjoining class members and sub-class members from asserting any of the claims to be released pursuant to the proposed settlement; and (4) scheduling a Fairness Hearing on this proposed settlement for 10:00 a.m. on July 27, 2006. After considering the parties’ brief and applicable law, the Court will grant the motion.
Applicable Law, Facts and Procedural History
I. Applicable Statutes Title III of the ADA prohibits disability discrimination in places of public accommodation. 42 U.S.C. § 12181 et seq. The specific design criteria required by Title III are set forth in the Department of Justice Standards for Accessible Design (“Standards”). 28 C.F.R. pt. 36, app A. Title III is enforceable through a private right of action for injunctive relief, but Title III does not provide a damages remedy for private plaintiffs. 42 U.S.C. § 12188(a)(1) & (2). Prevailing plaintiffs are, however, entitled to attorneys’ fees. Id., § 12205. Under California law, plaintiffs may also seek injunctive relief to require
1

Lucas v. Kmart Corp., 234 F.R.D. 688 (2006)

compliance with California’s access standards, set forth in Title 24 of the California Code of Regulations. See, e.g., Cal. Civ.Code §§ 51(b), 52(c)(3), 54(a), 54.3(b); People ex rel. Deukmejian v. CHE, Inc., 150 Cal.App.3d 123, 197 Cal.Rptr. 484, 491 (1983).
California, Colorado, Hawai‘i, Massachusetts, New York, Oregon and Texas (together, the “Sub–Class States”) each has a statute pursuant to which a prevailing plaintiff in a disability discrimination action against a public accommodation can be awarded damages in an amount specified by statute without proving actual damages (“Statutory Minimum Damages”). The Statutory Minimum Damages recoverable in each state are as follows: California ($4,000);1 Colorado *691 ($50);2 Hawaii ($1,000);3 Massachusetts ($300);4 New York ($100);5 Oregon ($200);6 and Texas ($200).7

1

Cal. Civ.Code § 52(a). Minimum damages of $1,000

are recoverable pursuant to Cal. Civ.Code § 54.3.

2

Colo.Rev.Stat. § 24–34–602.

3

Hawaii Statutes § 489–7.5.

4

M.G.L.A. ch. 272 § 98.

5

N.Y. Civ. R. §§ 40–c, 40–d; N.Y. Exec. § 296(2)(a).

6

O.R.S. § 659A.885.

7

Tex. Hum. Res.Code §§ 121.003; 121.004.

II. History of the Litigation and Negotiation This action was filed in 1999. Between the spring of 2000 and January 2002, the parties conducted extensive discovery, including the production of over 100,000 pages of documents and more than 50 depositions. Plaintiffs

filed their motion for class certification in July 2001 and there was extensive briefing on that issue. On January 4, 2002, Kmart declared bankruptcy. During the pendency of Kmart’s bankruptcy, plaintiffs attempted unsuccessfully to lift the bankruptcy stay as it applied to this case. After Kmart emerged from bankruptcy on May 6, 2003, the parties appeared before this Court to address whether this matter had been discharged in bankruptcy. This Court ruled that the matter could proceed.
On July 13, 2005, after additional briefing, the Court granted plaintiffs’ motion for class certification and certified a nationwide class of individuals who use wheelchairs or scooters and who shop at Kmart stores (the “Nationwide Class”). Kmart immediately sought and obtained permission from the Tenth Circuit to appeal that decision under F.R.C.P. 23(f). As a result of the settlement agreement presently before the Court, briefing before the Tenth Circuit was not completed.
In August 2005, the parties initiated settlement negotiations that have yielded the settlement agreement submitted to the Court. These settlement negotiations were ongoing from August 2005 to February 2006. As part of those negotiations, Kmart provided plaintiffs with additional documents relating to topics addressed during the negotiations and made arrangements for plaintiffs’ expert to survey two Kmart stores. In addition to extensive telephone and email conversations, the parties engaged in two multi-day, in-person negotiating sessions along with other shorter meetings.
The parties’ initial negotiations concerned injunctive relief. The parties reached agreement concerning a large part of the injunctive relief before turning to damages, and the negotiations concerning damages and injunctive relief were kept completely separate from one another. The parties did not discuss attorneys’ fees until there was substantial agreement on all parts of the injunctive and damages settlement. Both parties have been represented throughout these negotiations by counsel with extensive experience in disability rights and class action litigation.
Once the settlement was almost finalized, class counsel provided the draft settlement agreement to prominent members of the disability rights community across the country. The parties incorporated into the settlement agreement several suggestions that they received through this process.
2

Lucas v. Kmart Corp., 234 F.R.D. 688 (2006)
III. Summary of the Settlement In summary, under the proposed settlement agreement:
• Kmart will survey and, with few exceptions, bring all of its stores into compliance with the Department of Justice Standards for Accessible Design and all of its stores in California into compliance with Title 24 of the California Code of Regulations within approximately seven and a half years (Agreement ¶ 6);
• Kmart will ensure that all merchandise on “fixed displays”—including gondolas, perimeter walls, and “I” walls—as well as large appliances, drive aisle displays and sidewalk displays will be on an accessible route of at least 36 inches (Agreement ¶¶ 12.6.1–.3, 12.6.8);
• Kmart will ensure that all accessible restrooms and fitting rooms will be on an accessible route and maintained free and *692 clear of obstructions (Agreement ¶¶ 12.6.5–.6);
• Kmart will ensure that one accessible check-out lane is open at all times the store is open (Agreement ¶ 12.5);
• Kmart will, in all but 10% of its stores, provide a path of at least 32 inches to at least one side of moveable apparel displays in 80% of floor space occupied by moveable displays as well as a distance of 32 inches between certain types of moveable apparel displays when they are placed next to one another (Agreement ¶¶ 12.1–.2);
• Kmart will implement a customer service system for access to moveable apparel displays and furniture displays under which customers with disabilities who use wheelchairs or scooters for mobility will have the option of requesting assistance or requesting that Kmart provide them with a two-way communications device so that they may summon assistance when they need it (Agreement ¶ 12.3);
• Kmart will amend its policy and training materials to implement these new policies (Agreement ¶ 13);
• Compliance will be monitored using “mystery shoppers,” as well as customer feedback through the Internet, a toll-free phone line, and in-store forms (Agreement ¶¶ 14.3–.4);
• The Nationwide Class will release claims for

injunctive relief under Title III of the ADA, under state statutes that incorporate or are equivalent to Title III, and under California law through the end of the term of the settlement, which is expected to be approximately 2014 (Agreement ¶ 26.1);
• Kmart will establish a fund (the “Damages Sub–Class Fund”) in the amount of $13,000,000 (consisting of $8,000,000 in cash and $5,000,000 in gift cards redeemable at face value) from which members of a Damages Sub–Class that plaintiffs have requested the Court to preliminarily certify for settlement purposes concurrently with the requested preliminary approval of this settlement are eligible to recover (Agreement ¶ 15.1.1);
• The Damages Sub–Class Fund will be allocated among the Sub–Class States based on a formula, described in detail below, that reflects the number of Kmart Stores in each Sub–Class State, and the Statutory Minimum Damages recoverable in each Sub–Class State (Agreement ¶ 15.5.2);
• For each qualifying visit to a Kmart store, a member of the Sub–Class may recover up to the Statutory Minimum Damages recoverable in the Sub–Class State in which he or she shopped, and the maximum number of qualifying visits for which a Sub–Class member may recover is two (Agreement ¶ 15.5.3.3);
• Kmart will pay damages in the amount of $10,000 each to the three original named plaintiffs, and $1,000 each to the six named plaintiffs of the proposed damages subclass (Agreement ¶ 15.2);
• The majority of any funds remaining in the Damages Sub–Class Fund after the claims period will be given to specified non-profit entities that advocate for the rights of persons with disabilities (Agreement ¶ 15.6);
• Members of the Sub–Class have the right to opt out of the damages provisions of the Settlement Agreement, but members of the Class and Sub–Class cannot opt out of the injunctive provisions (Agreement ¶ 16);
• In addition to releasing claims for injunctive relief under Title III, equivalent state statutes, and California law, Sub–Class members will release claims for Statutory Minimum Damages under the
3

Lucas v. Kmart Corp., 234 F.R.D. 688 (2006)
laws of the seven Sub–Class States through the end of the term of the Agreement, but will not release claims for any other damages (Agreement ¶ 26.2);
• No member of the Nationwide Class will release damages claims with respect to the laws of any state other than those of the Sub–Class States (Agreement ¶ 26.2);
• Notice will be provided to the class in the manner set forth below;
• Kmart will pay attorneys’ fees up to the date of final approval in the amount of *693 $3,250,000, subject to Court approval, and will pay class counsel additional reasonable fees in the future for work that they do during the term of the Agreement implementing and assuring compliance with the Agreement (Agreement ¶ 20.2); and
• This Court would retain continuing jurisdiction throughout the term of the Agreement to interpret and enforce the Agreement (Agreement ¶ 35).
DISCUSSION
I. The Agreement is Granted Preliminary Approval. [1] The purpose of the preliminary approval process is to determine whether there is any reason not to notify the class members of the proposed settlement and to proceed with a fairness hearing. See, e.g., Gautreaux v. Pierce, 690 F.2d 616, 621 n. 3 (7th Cir.1982); see also 4 Robert Newberg, Newberg on Class Actions, § 11:25 at 38 (4th ed.2002) (hereinafter “Newberg” ). The Court finds that there is no such reason here.
[2] [3] Under F.R.C.P. 23(e)(1)(C), a class action settlement must be “fair, reasonable and adequate.” In the Tenth Circuit, the following factors are to be analyzed in determining whether this standard is met:
(1) whether the proposed settlement was fairly and honestly negotiated; (2) whether serious questions of law and fact exist, placing the ultimate outcome of the litigation in doubt; (3) whether the value of an immediate recovery outweighs the mere possibility of future relief

after protracted and expensive litigation; and (4) the judgment of the parties that the settlement is fair and reasonable.
Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1188 (10th Cir.2002). The proposed settlement meets each of these four prongs.
A. The Agreement was Fairly and Honestly Negotiated. There are numerous indicia that the settlement negotiations in this case have been fair, honest and at arm’s length.
First, the parties to this litigation have “vigorously advocated their respective positions throughout the pendency of the case.” See Wilkerson v. Martin Marietta Corp., 171 F.R.D. 273, 284 (D.Colo.1997). This case has been litigated over the course of six years, during which time both parties engaged in extensive written and deposition discovery, filed a number of contested discovery motions, and filed more than a dozen briefs related to class certification. The settlement agreement itself took six months to negotiate, and came only after several previous attempts at negotiating a settlement had failed. There have been multiple meetings and both sides have been represented by multiple counsel with expertise on the ADA and complex class action litigation.
[4] Because the settlement resulted from arm’s length negotiations between experienced counsel after significant discovery had occurred, the Court may presume the settlement to be fair, adequate, and reasonable. See, e.g., Wal–Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir.), cert. denied sub nom., Leonardo’s Pizza by the Slice, Inc. v. Wal–Mart Stores, Inc., 544 U.S. 1044, 125 S.Ct. 2277, 161 L.Ed.2d 1080 (2005) (a “ ‘presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm’s-length negotiations between experienced, capable counsel after meaningful discovery.’ ” (quoting Manual for Complex Litigation, Third § 30.42 (1995))).
The fact that the parties did not discuss damages until they had made substantial progress on the injunctive issues, and did not discuss attorneys’ fees until all other issues were virtually finalized, is also indicative of a fair and arm’s-length process. See, e.g., Manual for Complex Litig., Fourth § 21.7 at 335 (2004) (“Separate negotiation of the class settlement before an agreement on fees is
4

Lucas v. Kmart Corp., 234 F.R.D. 688 (2006)
generally preferable.”).
B. Serious Questions of Law and Fact Exist. Although it is not the role of the Court at this stage of the litigation to evaluate the merits, Wilkerson, 171 F.R.D. at 284, it is clear that the parties could reasonably conclude that there are serious questions of law *694 and fact that exist such that they could significantly impact this case if it were litigated.
For example, Kmart argued that plaintiffs’ claims were discharged through its bankruptcy. Although the Court rejected that argument, Kmart could appeal this issue, argue that plaintiffs’ claims should have been dismissed, and potentially wipe out any successful result that the plaintiffs might achieve. Similarly, the Tenth Circuit granted interlocutory appeal of the decision certifying the Nationwide Class in this case. If this case were litigated, the Tenth Circuit could reverse or modify this Court’s certification decision.
There is also a serious disagreement between the parties concerning the legal standards applicable to stores built before January 26, 1993. With respect to those stores, Kmart contends that it was required to make only those changes that were “readily achievable” under 42 U.S.C. § 12182(b)(2)(A)(iv). Plaintiffs disagree, arguing that, pursuant to 42 U.S.C. § 12183(a)(2), Kmart was required to bring those stores into compliance with the Department of Justice Standards for Accessible Design. There are numerous contested factual issues that relate to this point.
The question of access to merchandise on moveable displays was also hotly contested. Plaintiffs took the position that all such merchandise was required to be on an accessible route of at least 36 inches. See Standards § 4.1.3(12)(b). Defendants argued that the case law provided that there was no such requirement. See, e.g., Colorado Cross–Disability Coalition v. Too (Delaware), Inc., 344 F.Supp.2d 707, 715 (D.Colo.2004); Lieber v. Macy’s West, Inc., 80 F.Supp.2d 1065, 1077 (N.D.Cal.1999).
It is thus clear that there were numerous factual and legal questions yet to be addressed in this litigation that could have had a serious impact on the results for either side.
C. The Value of an Immediate Recovery Outweighs the

Mere Possibility of Future Relief after Protracted and Expensive Litigation. If this case were to be litigated, in all probability it would be many years before it was resolved. The appeal of this Court’s class certification decision alone could take a year. And if this Court’s decision were upheld, then the parties would potentially be faced with the possibility of surveying each of Kmart’s stores so that disputed factual issues could be resolved. By contrast, the proposed settlement agreement provides the class with substantial, guaranteed relief. For example, pursuant to the settlement agreement:
• Kmart will survey each of its stores in the United States, Puerto Rico, Guam, and the Virgin Islands using surveyors trained by Jim Terry, a nationally-known expert in ADA compliance.
• With very few exceptions, architectural elements that are found through the survey to be out of compliance with the Standards will be brought into compliance. As part of the settlement, Kmart has agreed not to assert the readily-achievable defense under the ADA during this process. See 42 U.S.C. § 12182(b)(2)(A)(iv).
• Kmart will put in place policies to ensure that its stores are accessible to class members, including, for example, making sure than an accessible check-out lane is open, that all merchandise on fixed displays is on an accessible path of travel, that Kmart employees are available to assist class members in accessing moveable apparel displays and furniture displays, and that restrooms and fitting rooms are accessible.
The settlement agreement also provides for substantial damages for members of the proposed Damages Sub–Class. The settlement establishes a $13,000,000 fund from which members of the sub-class may recover. In return, members of the sub-class are releasing only their claims for Statutory Minimum Damages and not their claims for actual damages. See, e.g., Bowling v. Pfizer, Inc., 143 F.R.D. 141, 170 (S.D.Ohio 1992) (approving class action settlement in part because of limited nature of damages release, such that class members retained most of their rights).
*695 D. The Judgment of the Parties That the Settlement Is Fair and Reasonable.
5

Lucas v. Kmart Corp., 234 F.R.D. 688 (2006)
[5] “Counsels’ judgment as to the fairness of the agreement is entitled to considerable weight.” Marcus v. Kansas Dept. of Revenue, 209 F.Supp.2d 1179, 1183 (D.Kan.2002). Here, the parties’ counsel—among whom are attorneys with substantial experience in complex class action litigation and disability class actions—unanimously support this settlement.

E. Allocation of the Damages Sub–Class Fund. The Court has also considered whether the distribution plan contained in the settlement is fair, reasonable, and adequate. See, e.g., In re Lorazepam & Clorazepate Antitrust Litig., 205 F.R.D. 369, 381 (D.D.C.2002). The Court finds that it is.
“Allocation formulas ... are recognized as an appropriate means to reflect the comparative strengths and values of different categories of the claim.... An allocation formula need only have a reasonable, rational basis, particularly if recommended by ‘experienced and competent’ class counsel.” In re Am. Bank Note Holographics, Inc., 127 F.Supp.2d 418, 429–30 (S.D.N.Y.2001) (citations omitted); see also Maley v. Del Global Techs. Corp., 186 F.Supp.2d 358, 367 (S.D.N.Y.2002) (same).
In this case, the settlement provides compensation for the release of claims for Statutory Minimum Damages under the laws of the seven Sub–Class States. Two factors affect the relative strength and value of the claims among these states.
First, the Statutory Minimum Damages that may be recovered differ among the states, from $50 in Colorado to $4,000 in California.
Second, the number of class members differs among the states. States with a greater number of class members who encountered barriers at Kmart stores should receive a larger portion of the damages. There is no way to determine the precise number of class members who encountered barriers in each state. As a reasonable approximation,8 the parties have used the number of Kmart stores in each state, based on the common-sense assumption that the greater the number of Kmart stores in a state, the greater the number of class members who have encountered barriers in that state.

8

In a class action settlement, “damages need not be

calculated with precision in determining a plan of

allocation for settlement proceeds; the only requirement is that the allocation be fair and reasonable.” In re Veritas Software Corp. Securities Litigation, No. C–03–0283 MMC, 2005 WL 3096079, at *7 (N.D. Cal. Nov. 15, 2005).
The allocation formula agreed upon by the parties is as follows: Each Sub–Class State is assigned a “Factorial,” which is the product of the number of Kmart Stores (including any stores that were open at any time during which damages are recoverable) in that state times the Statutory Minimum Damages recoverable in the state. For example, the California Factorial is 520,000, which is the product of 130 (the number of California Kmart Stores) and 4,000 (the Statutory Minimum Damages recoverable in California).
The percentage of the Damages Sub–Class Fund allocated to a Sub–Class State is determined by dividing that state’s Factorial by the combined sum of the Factorials of all Sub–Class States.
By allocating the Damages Sub–Class Fund based on the Statutory Minimum Damages recoverable in each state, and by the number of Kmart stores in each state, the formula has a “reasonable, rational basis,” and is recommended by experienced, competent counsel. Thus the allocation formula satisfies F.R.C.P. 23. See In re Am. Bank Note Holographics, Inc., 127 F.Supp.2d at 429–30.
For the reasons set forth above, the Court grants preliminary approval of the proposed settlement and preliminarily finds that it is fair, reasonable and adequate.
II. The Proposed Notice Satisfies the Requirements of Due Process and F.R.C.P. 23. [6] The Court also finds that the proposed notice program for this settlement satisfies the requirement of F.R.C.P. 23 and due *696 process and approves the three forms of notice proposed by the parties. As part of the preliminary approval process, plaintiffs have asked the Court to preliminarily certify the Damages Settlement Sub–Class for settlement purposes under both F.R.C.P. 23(b)(2) and 23(b)(3) and the Court has now done so. Because the Court has certified the Sub–Class under F.R.C.P. 23(b)(3), F.R.C.P. 23(c)(2)(B) requires that the notice of the settlement be “the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.”9
6

Lucas v. Kmart Corp., 234 F.R.D. 688 (2006)

9

The Nationwide Class was certified under F.R.C.P.

23(b)(2) and only seeks injunctive relief. With respect

to this class, extensive notice of the proposed

settlement is not necessary. See F.R.C.P. 23(d).

Nevertheless, the notice program proposed by the

parties and approved by the Court will provide

extensive notice of the entire settlement, not just those

aspects of it that relate to the Sub–Class, to the

Nationwide Class.

“The hallmark of the notice inquiry ... is reasonableness.” Sollenbarger v. Mountain States Telephone and Telegraph Co., 121 F.R.D. 417, 436 (D.N.M.1988). Unlike many class action settlements, there is no readily accessible list of the potential members of the class or subclass here. And it would likely take months of effort and huge expenditure to create such a list. Under such circumstances, the Court finds that individual notice is not required. Id. at 437 (publication notice sufficient to subgroup of class when efforts required for creating list of individuals would be excessive under the circumstances); Moore’s Federal Practice 3d § 23.103[2][b], at 23–390. The parties nevertheless propose to mail approximately two hundred thousand notices, and perhaps more, directly to individuals who use wheelchairs (and therefore are potential members of the Class and the Sub–Class), the names of whom they are going to obtain by purchasing proprietary marketing lists. The Court finds that the efforts of the parties and the proposed Claims Administrator in this respect go above and beyond the “reasonable efforts” required for identifying individual class members under F.R.C.P. 23(c)(2)(B).
The parties propose to supplement the individual notices with the following extensive notice program, which the Court approves and holds will satisfy the requirements of F.R.C.P. 23 and due process:
(1) Publishing the summary notice in various nationwide publications, currently contemplated to be Parade, USA Weekend, People, Reader’s Digest, People en Espanol, and Vista. See Moore’s Federal Practice 3d § 23.102[3][b], at 23–384 (“[p]ublication of notice is often the best notice practicable for class members who cannot be identified or located specifically through reasonable efforts”); 7 Newberg, § 22:85 at 368 (when class members cannot be identified through reasonable efforts, courts have usually required a combination of first-class mailed notice to the identifiable members and publication in one or more publications).

(2) Publishing the summary notice in several leading publications targeted at individuals who use wheelchairs or scooters: New Mobility, Paraplegia News, and Sports N’ Spokes. See, e.g., Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1304 n. 2 (9th Cir.1990) (court directed notice to publications that class members would be more likely to read).
(3) Mailing the notice to more than 500 organizations focused on people with disabilities, including organizations of paralyzed veterans, individuals with spinal cord injuries and individuals with cerebral palsy, and advocacy organizations for individuals with disabilities.
(4) Mailing the notice to all individuals who have contacted Class Counsel about the issues raised in this litigation.
(5) Posting a one-page version of the summary notice at all Kmart stores.
(6) Providing a link to the settlement notice on Kmart’s website.
The parties inform the Court that this notice program is expected to cost upwards of $1 million. The Court finds this extensive proposed notice program to be more than adequate and approves it as the “best notice practicable under the circumstances” and consistent with the requirements of F.R.C.P. 23 and due process.
*697 The Court also approves the three forms of proposed notice submitted by the parties—a long notice (Exhibit F to the Joint Motion) for Preliminary Approval of Settlement Agreement and for Fairness Hearing (“Joint Motion”), a summary form for publication (Exhibit G to the Joint Motion), and a summary form for posting in stores (Exhibit H to the Joint Motion)—or notices substantially similar thereto as being consistent with the requirements of F.R.C.P. 23(c)(2)(B) and due process.
The Court therefore holds that the requirements of due process and F.R.C.P. 23 will be satisfied if, on or before May 8, 2006, which shall be the Notice Deadline, as that term is used in the Agreement: (1) a copy of the long-form notice is sent to all persons on the proprietary mailing lists, and to all individuals who have contacted Class Counsel about the issues raised in this litigation and provided their address; (2) Kmart enters into contracts, or otherwise make arrangements, with nationwide and
7

Lucas v. Kmart Corp., 234 F.R.D. 688 (2006)
disability-focused publications as described above to publish the summary notice; (3) copies of both the long-form and in-store notices are sent to disability focused organizations; (4) copies of the in-store notices are posted in all Kmart stores; and (5) a link to the long-form notice is placed on Kmart’s website.
III. Procedures for Opt–Outs and Objections [7] The Court further approves the procedures for opt-outs and objections proposed by the parties.
Potential members of either the Nationwide Class or the Damages Sub–Class will not be able to opt-out of the injunctive relief in the proposed settlement. However, potential members of the Damages Sub–Class will have the opportunity to opt-out of the monetary portions of the settlement by filing a written opt-out statement with the Claims Administrator according to the procedures set forth in the settlement notice. The opt-out statement must be post-marked and mailed to the Claims Administrator on or before July 7, 2006.
Members of either class who wish to object to the proposed settlement may do so by filing a written objection with the Court (with copies to counsel) on or before July 7, 2006. Only class members who have filed written objections will have the right to present objections orally at the Fairness Hearing, and only if they expressly state in their written objection that they would like to do so. Any members of the Nationwide Class or the Damages Sub–Class who do not make their objections to the settlement in the manner described above shall be deemed to have waived all objections and opposition to the fairness, reasonableness and adequacy of the settlement and any other matters pertaining to the lawsuit.
IV. Class and Sub–Class Members will be Preliminarily Enjoined from Asserting Released Claims. [8] The Court also finds it appropriate to preliminarily enjoin members of the Nationwide Class and the Damages Sub–Class from asserting or pursuing any of the claims to be released pursuant to this settlement in either federal or state court, as numerous other courts have done in connection with preliminary approval of proposed class action settlements. See, e.g., In re Mexico Money Transfer Litig., No. 98 C 2407, 98 C 2408, 1999 WL 1011788, at *3 (N.D.Ill. October 19, 1999); In re WorldCom Inc. Sec.

Litig., No. 02 Civ. 3288(DLC), 03 Civ. 9490(DLC), 2005 WL 78807, at *3 (S.D.N.Y. Jan. 11, 2005) (enjoining “[p]rosecution by any Class Member of any action or claim that is subject to the release and dismissal contemplated by the Settlement ...”).10

10

In addition to the Court’s inherent power, this Court

“may issue all writs necessary or appropriate in aid of

[its] respective jurisdictions and agreeable to the usages

and principles of law” pursuant to the All Writs Act. 28

U.S.C. § 1651(a). Numerous courts have held that

under the All Writs Act, a court presiding over a class

action may enjoin class members from bringing related

litigation in other courts. See, e.g., Liles v. Del Campo,

350 F.3d 742, 746 (8th Cir.2003) (under All Writs Act,

“[i]njunctions of related proceedings in other federal

courts are appropriate when necessary for adjudication

or settlement of a case.”); Hillman v. Webley, 115 F.3d

1461, 1469 (10th Cir.1997) (in connection with class

action settlement, “[t]he district court undoubtedly had

the authority under the All Writs Act to enjoin parties

before it from pursuing conflicting litigation in the state

court ...”); In re VMS Sec. Litig., 103 F.3d 1317, 1324

(7th Cir.1996) (“in the context of complex class action

litigation, a federal district court may appropriately use

the All Writs Act to ... enjoin the prosecution of

subsequent state court claims ...”); see also 7B Charles

Alan Wright, et al., Federal Practice and Procedure §

1798.1 (if a class action “proceeds to the settlement

stage, then an injunction [against state court litigation]

to protect the court’s power to effectuate a settlement

may be upheld.”).

*698 Because the Court believes that it would aid in the protection of its jurisdiction and in the management of the settlement approval process, members of the Nationwide Class and the Damages Sub–Class are hereby preliminarily enjoined from asserting or pursuing the following claims:
(a) Claims seeking injunctive relief relating in any way to the accessibility of Kmart stores to persons who use wheelchairs or scooters under Title III of the Americans with Disabilities Act; Cal.Code Regs., Title 24, and any other provision of California law to the extent it grants a right of action for alleged violations of the foregoing; and any state or local statutory, administrative, regulatory or code provisions that either (1) directly incorporate Title III of the Americans with Disabilities Act or any of the rules or regulations promulgated thereunder or (2) set forth standards or obligations coterminous with or equivalent to Title III of the Americans with
8

Lucas v. Kmart Corp., 234 F.R.D. 688 (2006)
Disabilities Act or any of the rules or regulations promulgated thereunder;
(b) Claims for Statutory Minimum Damages relating in any way to the accessibility of Kmart stores or closed Kmart stores to persons who use wheelchairs or scooters by operation of or pursuant to the following state statutes or codes that may be recovered regardless of the amount of actual damages proved: California—Cal. Civil Code §§ 52, 54.3; Colorado—C.R.S. § 24–34–602; Hawaii—Hawaii Statutes § 489–7.5; Massachusetts—M.G.L.A. ch. 272 § 98; New York—N.Y. Civ. R. §§ 40–c, 40–d, N.Y. Exec. § 296(2)(a); Oregon—O.R.S. § 659A.885; and Texas—Tex. Hum. Res.Code §§ 121.003, 121.004,

and any other statute, codes or laws (as previously or presently codified, or as they may be codified in the future) providing for minimum damages in a specified amount in such states.
V. Fairness Hearing The Court will hold a Fairness Hearing on this proposed settlement at 10:00 a.m. on July 27, 2006, to determine whether the proposed settlement is fair, reasonable and adequate and therefore should be approved, whether to approve the agreed-upon payment of attorneys’ fees, and any other matters relevant to the settlement or this lawsuit.

9

 
 Case: 1:99-cv-01923-JLK-CBS As of: 05/24/2010 12:37 PM MDT 1 of 23
REOPEN, SuppressAnsRpt, TERMED
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:99−cv−01923−JLK−CBS

Lucas, et al v. Kmart Corporation Assigned to: Judge John L. Kane Referred to: Magistrate Judge Craig B. Shaffer Demand: $0 Cause: 42:12101 Americans With Disabilities Act (ADA)
Plaintiff

Date Filed: 10/01/1999 Date Terminated: 07/27/2006 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Carrie Ann Lucas

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

Antonio Michael Lawson Lawson Law Offices 835 Mandana Boulevard Oakland, CA 94610 510−419−0940 Fax: 510−419−0948 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bill Lann Lee Lewis, Feinberg, Lee, Renaker &Jackson, P.C. 1330 Broadway #1800 Oakland, CA 94612 510−839−6824 Fax: 510−839−7839 Email: blee@lewisfeinberg.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian D. East Advocacy, Inc.−Austin 7800 Shoal Creek Boulevard #171−E Austin, TX 78757 512−454−4816 Fax: 512−454−3999 Email: Beast@advocacyinc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Denette Vaughn Advocacy, Inc. 1001 Main Street # 200 Lubbock, TX 79401 806−765−7794 Fax: 765−0496 LEAD ATTORNEY

Case: 1:99-cv-01923-JLK-CBS As of: 05/24/2010 12:37 PM MDT 2 of 23
ATTORNEY TO BE NOTICED
Earl R. Mettler Mettler &LeCuyer, PC 4308 Carlisle Boulevard North East # 208 Albuquerque, NM 87107 505−884−3244 Fax: 884−4143 TERMINATED: 12/13/2004 LEAD ATTORNEY
James Earl Teague J. E. Teague, PC, Law Office of 812 North Live Oak Rockport, TX 78382 361−727−2632 Email: je_teague@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin William Williams Colorado Cross−Disability Coalition 655 Broadway #775 Denver, CO 80203 303−839−1775 Fax: 303−839−1782 Email: kwilliams@ccdconline.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
L. Javier Cavazos L. Javier Cavazos, Atty at Law P.O. Box 329 Harlington, TX 78551 956−428−7348 LEAD ATTORNEY
Mari Mayeda Mari Mayeda, Attorney at Law P.O. Box 5138 Berkeley, CA 94705 510−841−4970 Fax: 510−841−8115 Email: marimayeda@earthlink.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Wayne Breeskin Arc of Denver, Inc. 1905 Sherman Street #300 Denver, CO 80203 303−831−7733 Fax: 303−839−5178 Email: mbreeskin@arcofdenver.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen T. LeCuyer Mettler &LeCuyer, PC 4308 Carlisle Boulevard North East # 208 Albuquerque, NM 87107

Case: 1:99-cv-01923-JLK-CBS As of: 05/24/2010 12:37 PM MDT 3 of 23

505−884−3244 Fax: 884−4143 TERMINATED: 12/13/2004 LEAD ATTORNEY

Steven R. Greenberger DePaul College of Law 25 East Jackson Boulevard Chicago, IL 60604 312−362−8138 Fax: 362−5448 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 Debbie Lane

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

Antonio Michael Lawson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian D. East (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Denette Vaughn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Earl R. Mettler (See above for address) TERMINATED: 12/13/2004 LEAD ATTORNEY

James Earl Teague (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin William Williams (See above for address) LEAD ATTORNEY

Case: 1:99-cv-01923-JLK-CBS As of: 05/24/2010 12:37 PM MDT 4 of 23

ATTORNEY TO BE NOTICED

L. Javier Cavazos (See above for address) LEAD ATTORNEY

Mari Mayeda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Wayne Breeskin (See above for address) TERMINATED: 06/04/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen T. LeCuyer (See above for address) TERMINATED: 12/13/2004 LEAD ATTORNEY

Steven R. Greenberger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Plaintiff
Julie Reiskin for themselves and all others similarly situated

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

Antonio Michael Lawson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian D. East (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Denette Vaughn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Earl R. Mettler (See above for address) TERMINATED: 12/13/2004 LEAD ATTORNEY

James Earl Teague

Case: 1:99-cv-01923-JLK-CBS As of: 05/24/2010 12:37 PM MDT 5 of 23

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin William Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

L. Javier Cavazos (See above for address) LEAD ATTORNEY

Mari Mayeda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Wayne Breeskin (See above for address) TERMINATED: 06/04/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen T. LeCuyer (See above for address) TERMINATED: 12/13/2004 LEAD ATTORNEY

Steven R. Greenberger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Plaintiff Stacy Berloff

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

Plaintiff Jan Campbell

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

Plaintiff Robert Geyer

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

Plaintiff Edward Muegge

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

Case: 1:99-cv-01923-JLK-CBS As of: 05/24/2010 12:37 PM MDT 6 of 23

Plaintiff Jean Ryan

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

V. Defendant Kmart Corporation

represented by David F. McDowell Morrison &Foerster, LLP−Los Angeles 555 West Fifth Street Floor 35 Los Angeles, CA 90013−1024 213−892−5383 Fax: 213−892−5454 Email: dmcdowell@mofo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John William Mill Sherman &Howard, L.L.C.−Denver 633 17th Street #3000 Denver, CO 80202−3622 303−299−8358 Fax: 298−0940 Email: jmill@sah.com TERMINATED: 04/01/2004 LEAD ATTORNEY
Jose−Manuel A. de Castro Foley &Lardner−California 2029 Century Park East 35th Floor Los Angeles, CA 90067 310−277−2223 Fax: 557−8475 TERMINATED: 07/11/2003 LEAD ATTORNEY
Lawrence W. Treece Brownstein Hyatt Farber Schreck, LLP−Denver 410 17th Street #2200 Denver, CO 80202−4437 303−223−1257 Fax: 303−223−1111 Email: ltreece@bhfs.com TERMINATED: 04/01/2004 LEAD ATTORNEY
Lori K. Miller Sears Holdings Management Corporation 3333 Beverly Road B6−225B Hoffman Estates, IL 60179 847−286−4482 Fax: 847−286−6544 Email: lmill64@searshc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:99-cv-01923-JLK-CBS As of: 05/24/2010 12:37 PM MDT 7 of 23
Robert A. Naeve Morrison &Foerster, LLP−Irvine 19900 MacArthur Boulevard Twelfth Floor Irvine, CA 92612−2445 949−251−7500 Fax: 949−251−0900 Email: rnaeve@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shana T. Mintz Foley &Lardner−California 2029 Century Park East 35th Floor Los Angeles, CA 90067 310−277−2223 Fax: 557−8475 TERMINATED: 07/11/2003 LEAD ATTORNEY
Steven M. Gutierrez Holland &Hart, LLP−Denver P.O. Box 8749 555 17th Street #3200 Denver, CO 80201−8749 303−295−8531 Fax: 1−800−840−4986 Email: sgutierrez@hollandhart.com TERMINATED: 08/04/2000 LEAD ATTORNEY
Steven M. Kaufmann Morrison &Foerster, LLP−Denver 370 17th Street Republic Plaza #5200 Denver, CO 80202−5638 303−592−1500 Fax: 303−592−1510 Email: skaufmann@mofo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theodore Alan Olsen Sherman &Howard, L.L.C.−Denver 633 17th Street #3000 Denver, CO 80202−3622 303−299−8212 Fax: 303−298−0940 Email: tolsen@sah.com TERMINATED: 04/01/2004 LEAD ATTORNEY
Walter B. Connolly , Jr. Foley &Lardner−Michigan 150 West Jefferson #1000 Detroit, MI 48226 313−963−9517 Fax: 963−9308 TERMINATED: 07/11/2003

Case: 1:99-cv-01923-JLK-CBS As of: 05/24/2010 12:37 PM MDT 8 of 23

LEAD ATTORNEY

Claimant Richard Quintana

represented by Richard Quintana #128529 S.C.F. Unit #3 Post Office Box 6000 Sterling, CO 80751 PRO SE

Interested Party Marc Miller

represented by Marc Miller 1418 N. Clinton Blvd. Bloomington, IL 61701 PRO SE

Date Filed 10/01/1999 10/01/1999 10/19/1999
11/03/1999 11/04/1999
11/23/1999 11/24/1999
12/14/1999 12/17/1999
02/10/2000 02/10/2000
02/11/2000
03/21/2000 03/22/2000

# Docket Text
1 COMPLAINT (Summons(es) issued) (former empl) (Entered: 10/04/1999)
FILING FEE PAID: on 10/1/99 in the amount of $ 150, receipt # 209954. (former empl) (Entered: 10/04/1999)
2 RETURN OF SERVICE of Summons and Complaint upon Cindy Krehmeyer (clerk authorized to accept service for The Corp Co, reg agent) for defendant Kmart Corporation on 10/14/99 (former empl) (Entered: 10/20/1999)
3 Unopposed MOTION by defendant to extend time to 11/23/99 to answer (former empl) (Entered: 11/04/1999)
4 MINUTE ORDER by Judge John L. Kane granting motion to extend time to 11/23/99 to answer [3−1] (cc: all counsel) entry date : 11/5/99 (former empl) (Entered: 11/05/1999)
5 2nd Unopposed MOTION by defendant to extend time to 12/14/99 to answer (former empl) (Entered: 11/24/1999)
6 MINUTE ORDER : by Judge John L. Kane granting dft's second motion to extend time to 12/14/99 to answer [5−1] (cc: all counsel) ; entry date : 11/26/99 (lam) (Entered: 11/26/1999)
7 ANSWER &Affirmative Defenses by defendant to complaint [1−1] (former empl) (Entered: 12/15/1999)
8 Minute ORDER FOR RULE 16 CONFERENCE by Judge John L. Kane ; Rule 16 conference set for 9:30 2/10/00 (cc: all counsel) (former empl) (Entered: 12/20/1999)
9 NOTICE of Change of Address of Fox &Robertson by plaintiff (former empl) (Entered: 02/14/2000)
10 COURTROOM MINUTES OF SCHED CONF by Judge John L. Kane rule 16 conf held on 2/10/00 ; entry date : 2/14/00 Court Reporter: Adrienne Whitlow (former empl) (Entered: 02/14/2000)
11 Stipulated SCHEDULING &Discovery ORDER Judge John L. Kane discovery cutoff 7/31/00; dispositive motions due 8/30/00 (cc: all counsel) (former empl) (Entered: 02/15/2000)
12 Unopposed MOTION by defendant Kmart Corporation to extend time to serve responses to discovery reqs to 4/4/00 (lam) (Entered: 03/23/2000)
13 MINUTE ORDER : by Judge John L. Kane granting dft's unopposed motion to extend time to serve responses to discovery reqs to 4/4/00 [12−1] (cc: all counsel) ; entry date : 3/24/00 (lam) (Entered: 03/24/2000)

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04/04/2000 04/05/2000 04/20/2000 04/21/2000 04/24/2000 04/27/2000 04/27/2000 04/27/2000 04/27/2000 05/02/2000 05/04/2000 05/05/2000
05/10/2000 05/11/2000 05/11/2000 05/12/2000
05/22/2000 05/25/2000 05/25/2000 05/30/2000

14 Unopposed second MOTION by defendant Kmart Corporation to extend time serve responses to pltf's first set of written discovery (former empl) (Entered: 04/07/2000)
15 MINUTE ORDER : by Judge John L. Kane granting to/including 4/11/00 dft's motion to extend time serve responses to pltf's first set of written discovery [14−1] (cc: all counsel) ; entry date : 4/7/00 (former empl) (Entered: 04/07/2000)
16 Unopposed MOTION by defendant Kmart Corporation to refer to Mag Judge for settlement purposes (lam) (Entered: 04/21/2000)
17 ORDER stmlt Case referred to Magistrate Judge Bruce D. Pringle by Judge John L. Kane (cc: to counsel) (gms) (Entered: 04/24/2000)
18 MINUTE ORDER : by Magistrate Judge Bruce D. Pringle ; settlement conf set for 9:00 6/13/00 (cc: all counsel) ; entry date : 4/28/00 (gms) (Entered: 04/28/2000)
19 ATTORNEY APPEARANCE for plaintiff by Michael Wayne Breeskin &Amy F. Robertson (gms) (Entered: 04/28/2000)
20 MOTION by plaintiff for lv to amend class action cmp w/ cert of compliance (gms) (Entered: 04/28/2000)
Tendered Amended Class Action Cmp submitted by plaintiff re: motion for lv to amend class action cmp [20−1] (gms) (Entered: 04/28/2000)
21 MINUTE ORDER : by Judge John L. Kane. Deft to respond to pltf's [20−1] motion for lv to amend class action cmp by 5/4/00 (cc: all counsel) entry date : 4/28/00 (gms) (Entered: 04/28/2000)
22 MINUTE ORDER by Magistrate Judge Bruce D. Pringle stlmt conf reset for 9:30 6/28/00 (cc: all counsel) ; entry date : 5/4/00 (former empl) (Entered: 05/04/2000)
23 MOTION by defendant for extension of time to resp to motion to amd cmp to 5/10/00 (gms) (Entered: 05/08/2000)
24 MINUTE ORDER : by Judge John L. Kane granting deft's motion for extension of time to resp to motion to amd cmp to 5/10/00 [23−1], regarding [20−1] motion for lv to amend class action cmp (cc: all counsel) ; entry date : 5/8/00 (gms) (Entered: 05/08/2000)
25 RESPONSE by defendant in opposition to motion for lv to amend class action cmp [20−1] (gms) (Entered: 05/12/2000)
26 NOTICE of Change of Address of Kevin W. Williams by plaintiff (gms) (Entered: 05/12/2000)
27 Unopposed MOTION by plaintiff for leave to file reply to motion for lv to amd class action cmp w/ cert of compliance (gms) (Entered: 05/12/2000)
28 MINUTE ORDER by Judge John L. Kane granting motion for leave to file reply to motion for lv to amd class action complaint [27−1] to 5/26/00, regarding [20−1] motion for lv to amend class action cmp (cc: all counsel) ; entry date : 5/15/00 (former empl) (Entered: 05/15/2000)
29 MINUTE ORDER by Magistrate Judge Bruce D. Pringle status / settlement conf reset for 3:00 6/30/00 (cc: all counsel) ; entry date : 5/23/00 (former empl) (Entered: 05/23/2000)
30 MINUTE ORDER by Magistrate Judge Bruce D. Pringle settlement conf reset for 10:30 8/8/00 (cc: all counsel) ; entry date : 5/26/00 (former empl) (Entered: 05/26/2000)
31 REPLY by plaintiff in support of motion for lv to amend class action cmp [20−1] (former empl) (Entered: 05/26/2000)
32 MINUTE ORDER by Judge John L. Kane granting motion for lv to amend class action cmp [20−1] (cc: all counsel) ; entry date : 6/1/00 (former empl) (Entered: 06/01/2000)

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05/30/2000 06/09/2000 06/12/2000 06/13/2000 06/14/2000 06/16/2000 06/19/2000
06/29/2000 08/01/2000 08/02/2000
08/03/2000 08/03/2000 08/04/2000 08/04/2000 08/30/2000 08/30/2000 08/31/2000 08/31/2000 09/01/2000

33 AMENDED Class Action COMPLAINT [1−1]; adding plaintiff Debbie Lane, Julie Reiskin (former empl) (Entered: 06/01/2000)
34 Unopposed MOTION by defendant to extend time to 6/29/00 to answer amd complaint (former empl) (Entered: 06/12/2000)
35 MINUTE ORDER : by Judge John L. Kane granting motion to extend time to 6/29/00 to answer amd complaint [34−1] (cc: all counsel) ; entry date : 6/13/00 (gms) (Entered: 06/13/2000)
36 AMENDED CERTIFICATE OF SERVICE by defendant Kmart Corporation to motion to extend time to 6/29/00 to answer amd complaint [34−1] (former empl) (Entered: 06/15/2000)
37 MINUTE ORDER : by Judge John L. Kane granting motion to extend time to 6/29/00 to answer amd complaint [34−1] (cc: all counsel) ; entry date : 6/15/00 (former empl) (Entered: 06/15/2000)
38 Joint MOTION by plaintiffs, defendant, plaintiff to amend stipulated scheduling &discovery order (gms) (Entered: 06/19/2000)
39 MINUTE ORDER : by Judge John L. Kane granting jt motion to amend stipulated scheduling &discovery order [38−1] regarding [11−1] schedule order ; discovery ddl set 1/31/01 ; disp mtn ddl set 2/28/01 (cc: all counsel) ; entry date : 6/20/00 (gms) (Entered: 06/20/2000)
40 ANSWER by defendant to amd complaint [33−1] (former empl) (Entered: 06/30/2000)
41 MOTION by defendant for extension to time to file answers to plaintiff's second set of interrogatories and responses to requests for production of documents to 8/15/00 (former empl) (Entered: 08/02/2000)
42 MINUTE ORDER : by Judge John L. Kane granting motion for extension to time to file answers to plaintiff's second set of interrogatories and responses to requests for production of documents to 8/15/00 [41−1] (cc: all counsel) ; entry date : 8/3/00 (former empl) (Entered: 08/03/2000)
43 MOTION by defendant for withdrawal and substitution of counsel (former empl) (Entered: 08/04/2000)
44 Unopposed MOTION by defendant to vacate and reschedule settlement/status conference (former empl) (Entered: 08/04/2000)
45 MEMORANDUM by Judge John L. Kane referring to Magistrate Judge Bruce D. Pringle the motion to vacate and reschedule settlement/status conference [44−1] (former empl) (Entered: 08/04/2000)
46 MINUTE ORDER : by Judge John L. Kane granting motion for withdrawal and substitution of counsel [43−1] withdrawing attorney Steven M. Gutierrez for Kmart Corporation (cc: all counsel) ; entry date : 8/7/00 (gms) (Entered: 08/07/2000)
47 MOTION by plas Carrie Ann Lucas, Debbie Lane, Julie Reiskin to extend the deadline to amend pleadings and join parties to 11/30/00 (former empl) (Entered: 08/31/2000)
48 MOTION by defendant to amend answer [40−1] to amended class action amended complaint and affirmative defenses (former empl) (Entered: 08/31/2000)
49 Addendum (APPENDIX) filed by plas Carrie Ann Lucas, Debbie Lane, Julie Reiskin to plas' motion to extend the deadline to amend pleadings and join parties to 11/30/00 [47−1] (former empl) (Entered: 08/31/2000)
50 Amended CERTIFICATE OF MAILING BY plas of motion to extend the deadline to amend pleadings and join parties to 11/30/00 to show service on Theodore A. Olsen, Esq. [47−1] (former empl) (Entered: 08/31/2000)
51 MINUTE ORDER : by Judge John L. Kane granting plas motion to extend the deadline to amend pleadings and join parties to 11/30/00 [47−1], granting dft's motion to amend answer [40−1] to amended class action amended complaint and

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09/27/2000 11/27/2000 12/01/2000 12/05/2000
01/08/2001 01/30/2001 02/20/2001 03/09/2001 03/13/2001 05/07/2001 05/09/2001 05/25/2001 05/25/2001 06/05/2001
06/07/2001 06/07/2001 06/07/2001
06/08/2001 06/11/2001

affirmative defenses [48−1] (cc: all counsel) ; entry date : 9/5/00 (former empl) (Entered: 09/05/2000)
52 MINUTE ORDER : by Magistrate Judge Bruce D. Pringle each party shall file supplemental confidential settlement statements by 1/31/01 (cc: all counsel) ; entry date : 9/27/00 (former empl) (Entered: 09/27/2000)
53 ATTORNEY APPEARANCE for defendant by Walter B. Connolly Jr. (former empl) (Entered: 11/28/2000)
54 Unopposed MOTION by plaintiffs to amend stip schedule order [11−1] and discovery order (former empl) (Entered: 12/04/2000)
55 MINUTE ORDER : by Judge John L. Kane granting pla's unopposed motion to amend stip schedule order [11−1] and discovery order [54−1] ; discovery ddl set 7/31/01 ; disp mtn ddl set 8/31/01 (cc: all counsel) ; entry date : 12/6/00 (former empl) (Entered: 12/06/2000)
56 MINUTE ORDER : by Judge John L. Kane Case referred to Magistrate Judge Craig B. Shaffer (cc: all counsel) ; entry date : 1/9/01 (former empl) (Entered: 01/09/2001)
57 ATTORNEY APPEARANCE for defendant by Shana T. Mintz (former empl) (Entered: 01/31/2001)
58 NOTICE of Change of Address of Carrie Ann Lucas by plaintiff (former empl) (Entered: 02/22/2001)
59 Joint MOTION by plaintiffs, defendant for order to increase numerical limitation on depos (former empl) (Entered: 03/12/2001)
60 MINUTE ORDER : by Judge John L. Kane granting motion for order to increase numerical limitation on depos [59−1] as set forth (cc: all counsel) ; entry date : 3/14/01 (former empl) (Entered: 03/14/2001)
61 ATTORNEY APPEARANCE for plaintiffs by Brian East (former empl) (Entered: 05/07/2001)
62 ATTORNEY APPEARANCE for plaintiffs by Steven R. Greenberger (former empl) (Entered: 05/10/2001)
63 PROTECTIVE ORDER by Judge John L. Kane : (cc: all counsel) (former empl) (Entered: 05/29/2001)
64 JOINT MOTION to Amend Stipulated Scheduling and Discovery Order (former empl) (Entered: 05/29/2001)
65 MINUTE ORDER : by Judge John L. Kane granting motion to Amend Stipulated Scheduling and Discovery Order [64−1] ; discovery ddl set 10/31/01 ; disp mtn ddl set 11/30/01 (cc: all counsel) ; entry date : 6/5/01 (former empl) (Entered: 06/05/2001)
66 MOTION by plaintiff for Class Certification (former empl) (Entered: 06/08/2001)
67 SEALED Memorandum by plaintiff in support of motion for Class Certification [66−1] (placed in the Sealed Area of the Exhibit Room) (former empl) (Entered: 06/08/2001)
68 APPENDIX filed by plaintiff to brief [67−1] Volumes I thru IV with SEALED Tabs 9−13, 14 &15. The Sealed Tabs were placed in the Sealed Area of the Exhibit Room. The remaining Appendix was placed on an Exhibit Room shelf as an oversized document. (former empl) (Entered: 06/08/2001)
69 MINUTE ORDER : by Judge John L. Kane regarding [66−1] motion for Class Certification − response from Dft due 7/9/01 &Pltf's reply due 7/30/01. (cc: all counsel) ; entry date : 6/8/01 (former empl) (Entered: 06/08/2001)
70 ATTORNEY APPEARANCE for plaintiff by James Earl Teague (former empl) (Entered: 06/11/2001)

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06/11/2001 06/14/2001 06/20/2001 06/21/2001 06/25/2001
06/26/2001 06/26/2001 06/27/2001
06/28/2001 06/29/2001
07/02/2001
07/09/2001 07/10/2001
07/13/2001 07/30/2001 08/10/2001 08/10/2001

71 ATTORNEY APPEARANCE for plaintiff by Denette Vaughn (former empl) (Entered: 06/11/2001)
72 ATTORNEY APPEARANCE for plaintiff by Earl − Mettler (former empl) (Entered: 06/14/2001)
73 ATTORNEY APPEARANCE for plaintiffs by Stephen T. LeCuyer (former empl) Modified on 06/21/2001 (Entered: 06/21/2001)
74 MOTION by plaintiffs UNSEAL as to Plaintiffs Memo in Support of Mtn for Class Certification [67−1] (former empl) (Entered: 06/22/2001)
75 MINUTE ORDER : by Judge John L. Kane granting motion UNSEAL as to Plaintiffs Memo in Support of Mtn for Class Certification [67−1] [74−1] (cc: all counsel) ; entry date : 6/27/01 NOTE: doc. #67 was removed from the sealed area and placed in the public file (former empl) Modified on 06/27/2001 (Entered: 06/27/2001)
76 MOTION by defendant Kmart Corporation to Defer Deadline for Opposition to Pltfs' Motion for Class Certification [66−1] (former empl) (Entered: 06/27/2001)
77 SUPPLEMENTAL Deposition Page Citations by defendant Kmart Corporation to motion to Defer Deadline for Opposition to Pltfs' Motion for Class Certification [66−1] [76−1] (former empl) (Entered: 06/27/2001)
78 MINUTE ORDER : by Judge John L. Kane regarding [76−1] motion to Defer Deadline for Opposition to Pltfs' Motion for Class Certification [66−1] − Pltf shall respond by 7/16/01 and Dfts shall reply by 7/26/01 (cc: all counsel) ; entry date 6/28/01 (former empl) (Entered: 06/28/2001)
79 MOTION by defendant Kmart Corporation to clarify minute order [78−1] (former empl) (Entered: 06/28/2001)
80 MINUTE ORDER : by Judge John L. Kane referring to motion to clarify minute order [78−1] [79−1] the current ddl is stayed pending briefing and ruling on the mtn to defer (cc: all counsel) ; entry date : 6/29/01 (former empl) (Entered: 06/29/2001)
81 JOINT MOTION to Resolve Dft's Mtn to Defer Deadline for Opposition to Pltfs' Mtn for Class Certification to permit KMart to w/draw its Mtn to Defer, to permit Pltfs to resubmit their Memo in Support of Mtn for Class Certification and three of the exhibits in the Appendix thereto, to adopt the briefing sched proposed by the parties, and to accept the other terms set forth in this motion (former empl) (Entered: 07/03/2001)
82 ATTORNEY APPEARANCE for plaintiff by L. Javier Cavazos (former empl) (Entered: 07/09/2001)
83 MINUTE ORDER : by Judge John L. Kane granting motion to Resolve Dft's Mtn to Defer Deadline for Opposition to Pltfs' Mtn for Class Certification [81−1] − the court orders 1. Mtn to Defer Ddl is denied as moot, 2. Pltfs have until 7/13/01 to resubmit their Memo in Support of Mtn for Class Cert, 3. Dft shall respond by 8/10/01 and 4. Pltfs have until 9/7/01 to reply (cc: all counsel) ; entry date : 7/10/01 (former empl) (Entered: 07/10/2001)
84 Substituted Memorandum by plaintiffs in support of motion for Class Certification [66−1] (Oversized Document Placed in the Exhibit Room) (former empl) (Entered: 07/13/2001)
85 ATTORNEY APPEARANCE for defendant Kmart Corporation by Jose Manuel de Castro (former empl) (Entered: 07/31/2001)
86 RESPONSE Memorandum in Opposition by defendant to motion for Class Certification [66−1] (former empl) (Entered: 08/13/2001)
87 DECLARATION of Ann Morgan by defendant re: motion response [86−1] (former empl) (Entered: 08/13/2001)

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08/10/2001 08/10/2001 08/10/2001 08/10/2001 08/10/2001 08/10/2001 08/10/2001 08/10/2001 08/10/2001 08/10/2001 08/10/2001 08/10/2001 08/20/2001
08/20/2001 08/20/2001 08/20/2001 08/22/2001
08/22/2001

88 DECLARATION of Joyce E. Tucker and Heidi L. Van by defendant re: motion response [86−1] (former empl) (Entered: 08/13/2001)
89 DECLARATION of Laurie Muhn by defendant re: motion response [86−1] (Exhibit 2 is a Video Tape which was placed in the Exhibit Room) (former empl) (Entered: 08/13/2001)
90 SEALED DECLARATION of Michael Francis by defendant re: motion response [86−1] (Filed Under Seal and Placed in the Sealed Area of the Exhibit Room) (former empl) (Entered: 08/13/2001)
91 SEALED DECLARATION of Robert D. Frame by defendant re: motion response [86−1] (Filed Under Seal and Placed in the Sealed Area of the Exhibit Room) (former empl) (Entered: 08/13/2001)
92 SEALED DECLARATION of Roberta Kaselitz by defendant re: motion response [86−1] (Filed Under Seal and Placed in the Sealed Area of the Exhibit Room) (former empl) (Entered: 08/13/2001)
93 DECLARATION of Bruce Glasser by defendant re: motion response [86−1] (Large Document Placed in the Exhibit Room) (former empl) (Entered: 08/13/2001)
94 DECLARATION of KMart Store Managers by defendant re: motion response [86−1] (Large Document Placed in the Exhibit Room) (former empl) (Entered: 08/13/2001)
95 DECLARATION of Shana T. Mintz by defendant re: motion response [86−1] (Large Document Placed in the Exhibit Room) (former empl) (Entered: 08/13/2001)
96 DECLARATION of Jose−Manuel A. de Castro Volume I by defendant re: motion response [86−1] (Large Document Placed in the Exhibit Room) (former empl) (Entered: 08/13/2001)
97 DECLARATION of Jose−Manuel A. de Castro Volume II by defendant re: motion response [86−1] (Large Documents Placed in the Exhibit Room) (former empl) (Entered: 08/13/2001)
98 CERTIFICATE of Service for Docs. 86 − 97 by defendant (former empl) (Entered: 08/13/2001)
99 MOTION by defendant Request for Oral Argument on Pltfs' Mtn for Class Certification and its Briefing (former empl) (Entered: 08/13/2001)
100 MOTION by plaintiffs to Continue the Deadline to Reply to Dft Kmart Corporation's Memo in Opposition to Pltfs' Motion for Class Certification and Certificate of Compliance w/District of Colorado Local Rule 7.1(A) (former empl) (Entered: 08/21/2001)
101 MOTION by plaintiffs to Compel Production of Documents (former empl) (Entered: 08/21/2001)
102 SEALED DECLARATION of Amy F. Robertson by plaintiffs in Support of motion to Compel Production of Documents [101−1] (Placed in the Sealed Area of the Exhibit Room) (former empl) (Entered: 08/21/2001)
103 Certificate of Compliance by plaintiff re: motion to Compel Production of Documents [101−1] (former empl) (Entered: 08/21/2001)
104 MINUTE ORDER : by Judge John L. Kane regarding [101−1] motion to Compel Production of Documents − Dfts shall respond by 8/27/01 and Pltfs shall reply by 8/31/016; granting motion to Continue the Deadline to Reply to Dft Kmart Corporation's Memo in Opposition to Pltfs' Motion for Class Certification and Certificate of Compliance w/District of Colorado Local Rule 7.1(A) [100−1] (cc: all counsel) ; entry date : 8/22/01 (former empl) (Entered: 08/22/2001)
106 RESPONSE by defendant to motion to Continue the Deadline to Reply to Dft Kmart Corporation's Memo in Opposition to Pltfs' Motion for Class Certification and Certificate of Compliance w/District of Colorado Local Rule 7.1(A) [100−1]

Case: 1:99-cv-01923-JLK-CBS As of: 05/24/2010 12:37 PM MDT 14 of 23

08/23/2001 08/27/2001 08/31/2001 09/20/2001
09/28/2001 10/17/2001 10/19/2001 10/23/2001 10/29/2001 10/31/2001
10/31/2001 11/02/2001 11/06/2001 11/29/2001 12/03/2001 12/03/2001 12/03/2001 12/03/2001 12/03/2001

(former empl) (Entered: 08/24/2001)
105 MINUTE ORDER : by Judge John L. Kane regarding [101−1] motion to Compel Production of Documents ; in court hrg set for 10:00 9/20/01 (cc: all counsel) ; entry date : 8/24/01 (former empl) (Entered: 08/24/2001)
107 RESPONSE by defendant to motion to Compel Production of Documents [101−1] (former empl) (Entered: 08/28/2001)
108 REPLY by plaintiff to response to motion to Compel Production of Documents [101−1] (former empl) (Entered: 09/04/2001)
109 COURTROOM MINUTES by Judge John L. Kane ; in court hrg held 9/20/01 granting in part and denying in part motion to Compel Production of Documents [101−1] − denied as to item 10 and granted as to all other items ; entry date : 9/20/01 Court Reporter: ECR (former empl) (Entered: 09/20/2001)
110 1st Legal SUPPLEMENT by defendant to memorandum in opposition to pla's motion for class certification [86−1] (gms) (Entered: 10/01/2001)
111 TRANSCRIPT of Hearing on 9/20/01 before Judge Kane, Jr. ( pages: 17) Prepared By: Fed Rpting Svc (certified copy) (former empl) (Entered: 10/18/2001)
112 DISCOVERY AND SCHEDULING STATUS REPORT by plaintiffs (former empl) (Entered: 10/22/2001)
113 MINUTE ORDER : by Judge John L. Kane granting report [112−1] ; status report ddl set for 11/2/01 (cc: all counsel) ; entry date : 10/23/01 (former empl) (Entered: 10/23/2001)
114 JOINT MOTION to Continue Discovery Deadlines (former empl) (Entered: 10/29/2001)
115 MINUTE ORDER : by Judge John L. Kane granting motion to Continue Discovery Deadlines [114−1]; parties shall submit a revised proposed discovery shed w/in 10 days after the court's ruling on Pltf's Motion for Class Certification (cc: all counsel) ; entry date : 10/31/01 (former empl) (Entered: 10/31/2001)
116 SECOND LEGAL SUPPLEMENT by defendant Kmart Corporation to memorandum in opposition to Pltfs' Motion for Class Certification [86−1] (former empl) (Entered: 11/01/2001)
117 SECOND DISCOVERY AND SCHEDULING STATUS REPORT by plaintiff (former empl) (Entered: 11/02/2001)
118 MINUTE ORDER : by Judge John L. Kane regarding [117−1] report, regarding [66−1] motion for Class Certification, Pltfs reply is due 12/3/01 (cc: all counsel) ; entry date : 11/7/01 (former empl) (Entered: 11/07/2001)
119 MINUTE ORDER : by Magistrate Judge Craig B. Shaffer ; settlement conf set for 2:00 1/4/02 (cc: all counsel) ; entry date : 11/30/01 (former empl) (Entered: 11/30/2001)
120 REPLY Memorandum by plaintiff to response to motion for Class Certification [66−1] (former empl) (Entered: 12/04/2001)
121 APPENDIX filed by plaintiff to motion reply [120−1] TABS 1 − 6 (placed in the Exhibit Room) (former empl) (Entered: 12/04/2001)
122 SEALED APPENDIX filed by plaintiff to motion reply [120−1] SEALED TAB 7 (placed in Exhibit Room) (former empl) (Entered: 12/04/2001)
123 APPENDIX filed by plaintiff to motion reply [120−1] TABS 8 − 12 (placed in Exhibit Room) (former empl) (Entered: 12/04/2001)
124 SEALED APPENDIX filed by plaintiff to motion reply [120−1] SEALED TAB 13 − VOLUME I OF III (placed in Exhibit Room) (former empl) (Entered: 12/04/2001)

Case: 1:99-cv-01923-JLK-CBS As of: 05/24/2010 12:37 PM MDT 15 of 23

12/03/2001 12/03/2001 12/03/2001 12/06/2001 12/06/2001 12/11/2001
12/21/2001 12/21/2001 12/26/2001 12/26/2001
01/04/2002 01/07/2002 01/08/2002 02/06/2002 03/05/2002 03/06/2002
03/07/2002

125 SEALED APPENDIX filed by plaintiff to motion reply [120−1] SEALED TAB 13 − VOLUME II OF III (placed in Exhibit Room) (former empl) (Entered: 12/04/2001)
126 SEALED APPENDIX filed by plaintiff to motion reply [120−1] SEALED TAB 13 − VOLUME III OF III (placed in Exhibit Room) (former empl) (Entered: 12/04/2001)
127 APPENDIX filed by plaintiff to motion reply [120−1] TAB 14 − 24 (placed in Exhibit Room) (former empl) (Entered: 12/04/2001)
128 MOTION by defendant for Leave to File a Sur−Reply Memo in Further Opposition to Pltfs' Motion for Class Cert (w/Stmt Pursuant to LR 1.7) (former empl) (Entered: 12/07/2001)
129 RESPONSE by plaintiff to motion for Leave to File a Sur−Reply Memo in Further Opposition to Pltfs' Motion for Class Cert [128−1] (former empl) (Entered: 12/07/2001)
130 MINUTE ORDER : by Judge John L. Kane granting motion for Leave to File a Sur−Reply Memo in Further Opposition to Pltfs' Motion for Class Cert [128−1]; due by 12/21/01 and limited to the info KMart provided to Pltfs and the 5 cases cited in paragraph 8 of the Pltfs' Response filed 12/6/01; sur−reply limited to 15 pages; Pltfs may respond by 1/4/02 (cc: all counsel) ; entry date : 12/12/01 (former empl) (Entered: 12/12/2001)
131 SUR−REPLY Memorandum in Opposition by defendant Kmart Corporation to pla's motion for Class Certification [66−1] (dlb) (Entered: 12/24/2001)
132 DECLARATION of Shana T. Mintz by defendant Kmart Corporation re: reply [131−1], re: motion for Class Certification [66−1] *filed under seal purs to proto (dlb) (Entered: 12/24/2001)
133 MOTION by defendant for leave to substitute original declaration of Shana T. Mintz (w/ exhibits) for faxed copy with the court (gms) (Entered: 12/26/2001)
Tendered Second Declaration of Shana T. Mintz in opposition to Plas' motion for class certification submitted by defendant re: motion for leave to substitute original declaration of Shana T. Mintz (w/ exhibits) for faxed copy with the court [133−1] (Submitted under SEAL − placed with SEALED documents) (gms) (Entered: 12/26/2001)
134 RESPONSE by plaintiffs to Dft Kmart Corp.'s Sur−reply [131−1] Memorandum in Opposition to Pltfs' Motion for Class Certification (former empl) (Entered: 01/04/2002)
135 MINUTE ORDER : by Judge John L. Kane granting motion for leave to substitute original declaration of Shana T. Mintz (w/ exhibits) for faxed copy with the court [133−1] (cc: all counsel) ; entry date : 1/8/02 (former empl) (Entered: 01/08/2002)
136 MINUTE ORDER : by Magistrate Judge Craig B. Shaffer ; settlement conf set for 10:30 3/12/02 ; joint or in the alternative, individual status report ddl set for 3/1/02 (cc: all counsel) ; entry date : 1/9/02 (former empl) (Entered: 01/09/2002)
137 NOTICE by defendant of filing bankruptcy CASE STAYED as to Kmart Corp. stay motion [137−1] (former empl) (Entered: 02/08/2002)
138 JOINT MOTION to vacate settlement conf set for 10:30 3/12/02 ; joint or in the alternative, individual status report ddl set for 3/1/02 [136−1] (former empl) (Entered: 03/06/2002)
139 MEMORANDUM by Judge John L. Kane referring to Magistrate Judge Craig B. Shaffer the motion to vacate settlement conf set for 10:30 3/12/02 ; joint or in the alternative, individual status report ddl set for 3/1/02 [136−1] [138−1] (former empl) (Entered: 03/06/2002)
140 MINUTE ORDER : by Magistrate Judge Craig B. Shaffer granting motion to vacate settlement conf set for 10:30 3/12/02 ; joint or in the alternative, individual status report ddl set for 3/1/02 [136−1] [138−1] ; settlement conf vacated for

Case: 1:99-cv-01923-JLK-CBS As of: 05/24/2010 12:37 PM MDT 16 of 23

08/29/2002
05/09/2003 05/13/2003 05/13/2003 06/03/2003 06/04/2003
06/09/2003 06/09/2003 06/16/2003 06/20/2003 06/20/2003 06/23/2003
06/27/2003 07/09/2003 07/11/2003
07/14/2003

3/12/02 (cc: all counsel) ; entry date : 3/8/02 (former empl) (Entered: 03/08/2002)
141 ORDER by Judge John L. Kane this case is Administratively Closed, to be reopened for further proceedings upon motion by any party to this action no later than 30 days following a disposition of the bankruptcy case (cc: all counsel) ; entry date : 8/29/02 (former empl) (Entered: 08/29/2002)
142 MOTION by plaintiff to reopen the case , and for status conference (hearing) (dlb) (Entered: 05/09/2003)
143 MINUTE ORDER : by Judge John L. Kane granting motion to reopen the case; counsel will be contact re: status conf [142−1] (cc: all counsel) ; entry date : 5/14/03 (dlb) (Entered: 05/14/2003)
144 MINUTE ORDER : by Judge John L. Kane ; status conf set for 10:00 6/23/03 (cc: all counsel) ; entry date : 5/14/03 (dlb) (Entered: 05/14/2003)
145 MOTION by counsel for plaintiffs to withdraw attorney (dlb) (Entered: 06/04/2003)
146 MINUTE ORDER : by Judge John L. Kane granting motion to withdraw attorney [145−1] attorney Michael Wayne Breeskin for Julie Reiskin, attorney Michael Wayne Breeskin for Debbie Lane (cc: all counsel) ; entry date : 6/5/03 (dlb) (Entered: 06/05/2003)
147 LETTER to court from counsel for defendant Kmart Corporation re: CASE STAYED LIFTED as to Kmart Corp. and confirmation of plan [137−1] [137−1] [137−2] (dlb) Modified on 06/19/2003 (Entered: 06/09/2003)
148 MINUTE ORDER : by Judge John L. Kane regarding [147−1] letter from counsel for dft; pla shall respond by 6/16/03 (cc: all counsel) ; entry date : 6/10/03 (dlb) (Entered: 06/10/2003)
149 RESPONSE by plaintiff to minute order [148−1] re: dft's letter dated 6/6/03 [147−1] (dlb) (Entered: 06/17/2003)
150 STATUS Conference REPORT and statement re Future Case Proceedings by defendant (pap) (Entered: 06/20/2003)
151 STATUS REPORT by plaintiffs (dlb) (Entered: 06/23/2003)
152 COURTROOM MINUTES by Judge John L. Kane ; status conf held 6/23/03; ORDERED: with regard to supplemental briefs; dft shall file its brief on the class action issue within 20 days; if necessary, pla may have a short period of discovery to resp to dft's new arguments before filing respon; withon 20 days, pla shall file their brief addressing the implications of dft's post−bankruptcy status; answer briefs filed within 20 days of the supplemental briefs; replies within 15 days of the answer briefs; dft's request to close this action is denied; as for the remainder of the case, everything (including merits discovery, dispo mtns) will cont to be on hold pending termin of pla's class certification ; entry date : 6/24/03 Court Reporter: Gwen Daniel (dlb) (Entered: 06/24/2003)
153 TRANSCRIPT of Status Conference on June 23, 2003 before John L. Kane, Jr. ( pages: 1 − 11) Prepared By: Gwen Daniel (certified copy) (dlb) (Entered: 06/30/2003)
154 MOTION by counsel for defendant, KMart to withdraw attorney (dlb) (Entered: 07/10/2003)
155 MINUTE ORDER : by Judge John L. Kane granting Unopposed motion to withdraw attorney [154−1]; withdrawing attorney Jose Manuel de Castro for Kmart Corporation, withdrawing attorney Shana T. Mintz for Kmart Corporation, withdrawing attorney Walter B. Connolly Jr. for Kmart Corporation (cc: all counsel) ; entry date : 7/14/03 (pap) (Entered: 07/14/2003)
156 Supplemental BRIEF on Class Certification FILED by defendant minutes [152−2] (pap) (Entered: 07/15/2003)

Case: 1:99-cv-01923-JLK-CBS As of: 05/24/2010 12:37 PM MDT 17 of 23

07/14/2003 07/14/2003 08/04/2003 08/06/2003 08/22/2003 08/22/2003 02/18/2004 02/18/2004 02/18/2004 02/23/2004 02/23/2004 03/01/2004 03/15/2004 03/16/2004
04/01/2004 04/01/2004
04/05/2004 04/09/2004 04/09/2004 04/14/2004

157 SUPPLEMENTal pleading re: Bankruptcy, Class Certification and attorneys' fees by plaintiffs pursuant to minutes [152−2] (pap) (Entered: 07/15/2003)
158 Disclosure STATEMENT by defendant Kmart Corporation (dlb) (Entered: 07/15/2003)
159 RESPONSE by plaintiff to dft's supplemental brief re: class certification [157−1] re: minutes [152−2] (dlb) (Entered: 08/05/2003)
160 RESPONSE by defendant Kmart Corporation to [157−1], pla's supplemental pleading re: bankruptcy, class certification and attorney fees; [152−1] [152−2] (dlb) (Entered: 08/07/2003)
161 SUPPLEMENT by defendant Kmart Corporation to dft's response [160−1] to DFt's Supplemental Brief on Class Certification (minutes) [152−2] (dlb) (Entered: 08/25/2003)
162 Reply BRIEF FILED by plaintiffs in support of their supplemental pleading regarding bankruptcy, class certification and attorneys' fees (minutes) [152−2] (dlb) (Entered: 08/25/2003)
163 MOTION by defendant Kmart Corporation for leave to file proposed supplemental brief re: recovery of pre−confirmation attys' fees (dlb) (Entered: 02/19/2004)
Tendered Proposed Supplemental Brief submitted by defendant Kmart Corporation re: motion for leave to file proposed supplemental brief [163−1] (dlb) (Entered: 02/19/2004)
164 ATTORNEY APPEARANCE for defendant Kmart Corporation by Robert A. Naeve, Steven M. Kaufmann, David F. McDowell (dlb) (Entered: 02/19/2004)
165 MINUTE ORDER : by Judge John L. Kane granting motion for leave to file proposed supplemental brief [163−1] (cc: all counsel) ; entry date : 2/23/04 (dlb) (Entered: 02/23/2004)
166 SUPPLEMENTAL Brief by defendant Kmart Corporation to minutes re: recovery of pre−confirmation attys' fees [152−2] (dlb) (Entered: 02/23/2004)
167 RESPONSE by plaintiff to dft's supplemental brief [166−1], re: recovery of pre−confirmation attorneys' fees minutes [152−2] (dlb) (Entered: 03/02/2004)
168 MOTION by plaintiffs for leave to submit recently decided authority in sup of mtn for class certif *attached to motion (dlb) (Entered: 03/16/2004)
169 MINUTE ORDER : by Judge John L. Kane granting motion for leave to submit recently decided authority in sup of mtn for class certif [168−1], regarding [66−1] motion for Class Certification; dft may file a response no later than 4/5/04 (cc: all counsel) ; entry date : 3/16/04 (dlb) (Entered: 03/16/2004)
170 MOTION by counsel for defendant Kmart Corporation to withdraw attorney Sherman &Howard LLC (dlb) (Entered: 04/01/2004)
171 MINUTE ORDER : by Judge John L. Kane granting motion to withdraw attorney Sherman &Howard LLC [170−1] attorney Lawrence W. Treece for Kmart Corporation, attorney John William Mill for Kmart Corporation, attorney Theodore Alan Olsen for Kmart Corporation (cc: all counsel) ; entry date : 4/2/04 (dlb) (Entered: 04/02/2004)
172 RESPONSE by defendant Kmart Corporation to motion for leave to submit recently decided authority in sup of mtn for class certif [168−1] (dlb) (Entered: 04/06/2004)
173 MOTION by plaintiffs to compel supplementation of discovery (dlb) (Entered: 04/12/2004)
174 Submission of Published Decision (SUPPLEMENT) by plaintiffs (dlb) (Entered: 04/12/2004)
175 MINUTE ORDER : by Judge John L. Kane regarding [173−1] pla's motion to compel supplementation of discovery, dft shall respond by 4/22/04 (cc: all counsel)

Case: 1:99-cv-01923-JLK-CBS As of: 05/24/2010 12:37 PM MDT 18 of 23

04/22/2004 04/26/2004 04/26/2004 04/27/2004
04/27/2004 04/28/2004 06/08/2004 06/08/2004 06/09/2004
06/09/2004 06/18/2004 06/25/2004 07/07/2004 07/08/2004 07/13/2004 07/26/2004 12/10/2004 12/13/2004
07/13/2005

; entry date : 4/15/04 (dlb) (Entered: 04/15/2004)
176 RESPONSE by defendant Kmart Corporation to motion to compel supplementation of discovery [173−1] (dlb) (Entered: 04/23/2004)
177 MOTION by plaintiffs for leave to file a reply brief in support of mtn to compel supplementation of discovery (dlb) (Entered: 04/27/2004)
Tendered Plas' Reply Brief submitted by plaintiff re: motion for leave to file a reply brief in support of mtn to compel supplementation of discovery [177−1] (dlb) (Entered: 04/27/2004)
178 MINUTE ORDER : by Judge John L. Kane granting motion for leave to file a reply brief in support of mtn to compel supplementation of discovery [177−1] regarding [173−1] motion to compel supplementation of discovery (cc: all counsel) ; entry date : 4/28/04 (dlb) (Entered: 04/28/2004)
179 REPLY by plaintiff to response to motion to compel supplementation of discovery [173−1] (dlb) (Entered: 04/28/2004)
180 MINUTE ORDER : by Judge John L. Kane granting motion to compel supplementation of discovery [173−1] (cc: all counsel) ; entry date : 4/29/04 (dlb) (Entered: 04/29/2004)
181 MOTION by defendant Kmart Corporation for leave to file mtn to augment factual record re: class certification (dlb) (Entered: 06/08/2004)
Tendered Motion to Augment submitted by defendant Kmart Corporation re: motion for leave to file mtn to augment factual record re: class certification [181−1] (dlb) (Entered: 06/08/2004)
182 MINUTE ORDER : by Judge John L. Kane granting motion for leave to file mtn to augment factual record re: class certification [181−1], regarding [66−1] motion for Class Certification (cc: all counsel) ; entry date : 6/10/04 (dlb) (Entered: 06/10/2004)
183 MOTION by defendant Kmart Corporation for order to augment factual record re: class certification (dlb) (Entered: 06/10/2004)
184 BRIEF by plaintiff in opposition to motion for order to augment factual record re: class certification [183−1] (dlb) (Entered: 06/18/2004)
185 REPLY by defendant Kmart Corporation to response to motion for order to augment factual record re: class certification [183−1] (dlb) (Entered: 06/25/2004)
186 ORDER by Judge John L. Kane denying motion for order to augment factual record re: class certification [183−1] (cc: all counsel) ; entry date : 7/8/04 (dlb) (Entered: 07/08/2004)
187 Second MOTION by plaintiffs for leave to submit recently decided authority in sup of mtn for class certification *attached to motion (dlb) (Entered: 07/09/2004)
188 MINUTE ORDER : by Judge John L. Kane granting motion for leave to submit recently decided authority in sup of mtn for class certification [187−1] (cc: all counsel) ; entry date : 7/14/04 (dlb) (Entered: 07/14/2004)
189 RESPONSE by defendant Kmart Corporation to pla's second motion for leave to submit recently decided authority in sup of mtn for class certification [187−1] (dlb) (Entered: 07/27/2004)
190 MOTION to Withdraw as Attorney Earl Mettler and Stephen LeCuyer by Plaintiffs Carrie Ann Lucas, Debbie Lane, Julie Reiskin. (dlb, ) (Entered: 12/13/2004)
191 ORDER granting 190 MOTION to Withdraw as Attorney Earl Mettler and Stephen LeCuyer by Plaintiffs Carrie Ann Lucas, Debbie Lane, Julie Reiskin Attorney Stephen T. LeCuyer and Earl R. Mettler terminated by Judge John L. Kane on 12/13/04. (dlb, ) (Entered: 12/15/2004)
192 ORDER granting 66 MOTION by plaintiff for Class Certification. Plas Carrie Ann Lucas, Debbie Lane and Julie Reiskin are appointed representatives of the

Case: 1:99-cv-01923-JLK-CBS As of: 05/24/2010 12:37 PM MDT 19 of 23

07/21/2005 08/02/2005 08/09/2005 08/09/2005 08/09/2005 08/09/2005
08/22/2005
08/30/2005 09/06/2005 09/06/2005 09/07/2005 09/15/2005
09/15/2005
11/08/2005 11/10/2005
11/15/2005

nationwide class of individuals. Signed by Judge John L. Kane on 7/13/05. (dlb, ) (Entered: 07/13/2005)
193 MINUTE ORDER: Status Report due by 8/2/2005. Status Conference set for 8/9/2005 10:00 AM in Courtroom A 802 before Judge John L. Kane by Judge John L. Kane on 7/21/05. (dlb, ) (Entered: 07/21/2005)
194 STATUS REPORT Joint Status Report by Plaintiffs Carrie Ann Lucas, Debbie Lane, Julie Reiskin. (Robertson, Amy) (Entered: 08/02/2005)
195 NOTICE of Entry of Appearance of Antonio M. Lawson by Amy Farr Robertson on behalf of Carrie Ann Lucas, Debbie Lane, Julie Reiskin (Robertson, Amy) (Entered: 08/09/2005)
196 NOTICE of Entry of Appearance of Bill Lann Lee by Amy Farr Robertson on behalf of Carrie Ann Lucas, Debbie Lane, Julie Reiskin (Robertson, Amy) (Entered: 08/09/2005)
197 NOTICE of Entry of Appearance Mari Mayeda by Amy Farr Robertson on behalf of Carrie Ann Lucas, Debbie Lane, Julie Reiskin (Robertson, Amy) (Entered: 08/09/2005)
198 Minute Entry for proceedings held before Judge John L. Kane : Status Conference held on 8/9/2005. ORDERED: Unopposed request that Mari Meyeda, Bill Lann Lee and Mr. Lawson be appointed class counsel is GRANTED. (Court Reporter Janet Coppock.) (dlb, ) (Entered: 08/09/2005)
199 (NOTICE OF APPEAL) Order from the Court of Appeals dated 8/22/05 granting Kmart Corp.'s petitioner for leave to appeal under 28 U.S.C. 1292(b) as to 192 Order on Motion to Certify Class by Defendant Kmart Corporation. Filing fee $ 255, receipt number 262523. Notice mailed to all counsel on 9/30/05. Transcript Order Form due by 9/6/2005. (Attachments: # 1 Receipt)(djs, ) (Entered: 08/30/2005)
200 LETTER re Appeal to all counsel advising of the transmittal of the 199 Notice of Appeal to the U.S. Court of Appeals. (Retained counsel, fees paid) (djs, ) (Entered: 08/30/2005)
201 TRANSCRIPT ORDER FORM re 199 Notice of Appeal, by Defendant Kmart Corporation (Kaufmann, Steven) (Entered: 09/06/2005)
202 USCA Case Number 05−1411 for 199 Notice of Appeal filed by Kmart Corporation. (djs, ) (Entered: 09/07/2005)
203 REPORTER TRANSCRIPT ORDER FORM filed by Janet Coppock. Transcripts ordered 8/9/05 re: 199 Notice of Appeal. Transcript due by 10/7/2005. TOF deadline terminated.(djs, ) (Entered: 09/08/2005)
204 Joint MOTION to Continue Discovery and Related Briefing by Defendant Kmart Corporation. (Attachments: # 1 Proposed Order (PDF Only) Granting Joint Motion to Continue Discovery and Related Briefing)(Kaufmann, Steven) (Entered: 09/15/2005)
205 ORDER granting 204 Joint MOTION to Continue Discovery and Related Briefing by Defendant and the schedule currently set for discovery issues, a scheduling order and briefing related thereto is continued. Signed by Judge John L. Kane on 9/15/05. (dlb, ) (Entered: 09/15/2005)
206 LETTER re Appeal from the USCA to court reporter Janet Coppock advising that the transcript is now due as to 199 Notice of Appeal. (djs, ) (Entered: 11/09/2005)
207 TRANSCRIPT of Status Conference held on August 9, 2005 before Judge John L. Kane, Jr.. Prepared by: Janet M. Coppock. Pages: 1 − 9. (certified copy) Text Only Entry − Available in paper format at the Clerk's Office (dlb, ) (Entered: 11/15/2005)
208 LETTER re Appeal to USCA and all counsel advising that the record on appeal is now complete as to 199 Notice of Appeal. (djs, ) (Entered: 11/15/2005)

Case: 1:99-cv-01923-JLK-CBS As of: 05/24/2010 12:37 PM MDT 20 of 23

01/26/2006 01/27/2006 02/06/2006 02/09/2006 03/13/2006
03/13/2006 03/13/2006
03/14/2006 03/22/2006 03/22/2006 03/22/2006 03/22/2006 03/22/2006

209 MINUTE ORDER: Status Conference set for 2/8/2006 01:00 PM in Courtroom A 802 before Judge John L. Kane by Judge John L. Kane on 1/26/06. (dlb, ) (Entered: 01/26/2006)
210 MINUTE ORDER: Status Conference RESET for 2/8/2006 02:00 PM before Judge John L. Kane by Judge John L. Kane on 1/27/06. (dlb, ) (Entered: 01/27/2006)
211 MINUTE ORDER RESETTING Status Conference set for 2/9/2006 04:00 PM in Courtroom A 802 before Judge John L. Kane by Judge John L. Kane on 2/6/06. (dlb, ) (Entered: 02/07/2006)
212 Minute Entry for proceedings held before Judge John L. Kane : Status Conference held on 2/9/2006. Pre−approval/Settlement Conference set for 3/22/2006 10:00 AM before Judge John L. Kane. Final Approval Hearing/In Court Hearing set for 6/28/2006 at 10:00 AM before Judge John L. Kane.(Court Reporter Adrianne Whitlow.) (dlb, ) (Entered: 02/10/2006)
213 Unopposed MOTION to Amend/Correct/Modify for Leave to File a Second Amended Class Action Complaint re: 33 AMENDED Class Action COMPLAINT by Plaintiffs Carrie Ann Lucas, Debbie Lane, Julie Reiskin. (Attachments: # 1 Proposed Document Second Amended Class Action Complaint# 2 Proposed Order (PDF Only) Proposed Order)(Robertson, Amy) (Modified on 3/14/2006 to add linkage) (dlb, ). (Entered: 03/13/2006)
214 Unopposed MOTION to Certify Class for Preliminary Certification of a Damages Sub−Class for Settlement Purposes Only by Plaintiffs Carrie Ann Lucas, Debbie Lane, Julie Reiskin. (Attachments: # 1 Proposed Order (PDF Only) Proposed Order Granting Plaintiffs' Unopposed Motion for Preliminary Certification of a Damages Sub−Class for Settlement Purposes Only)(Robertson, Amy) (Entered: 03/13/2006)
215 Joint MOTION for Order to Preliminarily Approve Settlement Agreement and for Fairness Hearing by Plaintiffs Carrie Ann Lucas, Debbie Lane, Julie Reiskin. (Attachments: # 1 Exhibit A − Settlement Agreement (pt. 1)# 2 Exhibit A − Settlement Agreement (pt. 2)# 3 Exhibit B − Declaration of Amy F. Robertson# 4 Exhibit C − Declaration of Bill Lann Lee# 5 Exhibit D − Declaration of Meyer G. Koplow# 6 Exhibit E − Declaration of Robert A. Naeve# 7 Exhibit F − Proposed notice − long form# 8 Exhibit G − Proposed notice − publication# 9 Exhibit H − Proposed notice − in−store# 10 Proposed Order (PDF Only) Proposed Order Granting Joint Motion for Preliminary Approval of Settlement Agreement)(Robertson, Amy) (Entered: 03/13/2006)
216 Docket Annotation re: 213 Unopposed MOTION to Amend/Correct/Modify for Leave to File a Second Amended Class Action Complaint re: 33 AMENDED Class Action COMPLAINT by Plaintiffs. [Entry modified to add linkage]. Text only entry − no document attached. (dlb, ) (Entered: 03/14/2006)
217 ORDER granting 215 Joint MOTION for Order to Preliminarily Approve Settlement Agreement and for Fairness Hearing by Plaintiffs . Signed by Judge John L. Kane on 3/22/06. (dlb, ) (Entered: 03/22/2006)
218 ORDER granting 214 Unopposed MOTION to Certify Class for Preliminary Certification of a Damages Sub−Class for Settlement Purposes Only by Plaintiffs . Signed by Judge John L. Kane on 3/22/06. (dlb, ) (Entered: 03/22/2006)
219 ORDER granting 213 Unopposed MOTION to Amend/Correct/Modify for Leave to File a Second Amended Class Action Complaint re: 33 AMENDED Class Action COMPLAINT by Plaintiffs . Signed by Judge John L. Kane on 3/22/06. (dlb, ) (Entered: 03/22/2006)
220 SECOND AMENDED CLASS ACTION COMPLAINT against Kmart Corporation , filed by Stacy Berloff, Jan Campbell, Robert Geyer, Edward Muegge, Jean Ryan, Carrie Ann Lucas, Debbie Lane, Julie Reiskin.(dlb, ) (Entered: 03/22/2006)
221 Minute Entry for proceedings held before Judge John L. Kane : Motion Hearing held on 3/22/2006. 213 Unopposed MOTION to Amend/Correct/Modify for Leave to File a Second Amended Class Action Complaint 33 AMENDED Class Action COMPLAINT by Plaintiffs is granted. 214 Unopposed MOTION to Certify Class

Case: 1:99-cv-01923-JLK-CBS As of: 05/24/2010 12:37 PM MDT 21 of 23

05/19/2006 05/23/2006 06/26/2006 07/12/2006 07/21/2006
07/21/2006 07/21/2006 07/21/2006
07/21/2006 07/21/2006 07/21/2006 07/24/2006
07/27/2006

for Preliminary Certification of a Damages Sub−Class for Settlement Purposes Only by Plaintiffs is granted. 215 Joint MOTION for Order to Preliminarily Approve Settlement Agreement and for Fairness Hearing by Plaintiffs is granted. (Court Reporter 3/22/06.) (dlb, ) (Entered: 03/23/2006)
222 Letter (CLAIM) by Richard Quintana, Claimant . (dln, ) (Entered: 05/22/2006)
223 LETTER re: 222 Claim by Plaintiffs Carrie Ann Lucas, Stacy Berloff, Jan Campbell, Robert Geyer, Edward Muegge, Jean Ryan, Debbie Lane, Julie Reiskin. (Robertson, Amy) (Entered: 05/23/2006)
224 Letter/Objection from Marc Miller re 217 ORDER granting 215 Joint MOTION for Order to Preliminarily Approve Settlement Agreement and for Fairness Hearing by Plaintiffs. (dln, ) (Entered: 06/26/2006)
225 MINUTE ORDER : Fairness Hearing/In Court Hearing set for 7/27/2006 at 09:00 AM in Courtroom A 802 before Judge John L. Kane by Judge John L. Kane on 7/12/06. (dln, ) (Entered: 07/12/2006)
226 Joint MOTION for Order to Final Approval of Settlement Agreement by Plaintiffs Carrie Ann Lucas, Stacy Berloff, Jan Campbell, Robert Geyer, Edward Muegge, Jean Ryan, Debbie Lane, Julie Reiskin. (Attachments: # 1 Exhibit Settlement Agreement (pt.1)# 2 Exhibit Settlement Agreement (pt. 2)# 3 Exhibit Exhibits 2−8 (Declarations of Named Plaintiffs))(Robertson, Amy) (Entered: 07/21/2006)
227 DECLARATION of Amy F. Robertson by Plaintiffs Carrie Ann Lucas, Stacy Berloff, Jan Campbell, Robert Geyer, Edward Muegge, Jean Ryan, Debbie Lane, Julie Reiskin. (Attachments: # 1 Exhibit Exhibits 1−10)(Robertson, Amy) (Entered: 07/21/2006)
228 DECLARATION of Jennifer M. Keough by Plaintiffs Carrie Ann Lucas, Stacy Berloff, Jan Campbell, Robert Geyer, Edward Muegge, Jean Ryan, Debbie Lane, Julie Reiskin. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Robertson, Amy) (Entered: 07/21/2006)
229 DECLARATION of Jeanne C. Finegan by Plaintiffs Carrie Ann Lucas, Stacy Berloff, Jan Campbell, Robert Geyer, Edward Muegge, Jean Ryan, Debbie Lane, Julie Reiskin. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6 pt. 1# 7 Exhibit 6 pt. 2# 8 Exhibit 6 pt. 3# 9 Exhibit 6 pt. 4# 10 Exhibit 7 pt. 1# 11 Exhibit 7 pt. 2# 12 Exhibit 7 pt. 3# 13 Exhibit 8)(Robertson, Amy) (Entered: 07/21/2006)
230 MOTION for Attorney Fees by Plaintiffs Carrie Ann Lucas, Stacy Berloff, Jan Campbell, Robert Geyer, Edward Muegge, Jean Ryan, Debbie Lane, Julie Reiskin. (Attachments: # 1 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 07/21/2006)
231 DECLARATION of Timothy P. Fox by Plaintiffs Carrie Ann Lucas, Stacy Berloff, Jan Campbell, Robert Geyer, Edward Muegge, Jean Ryan, Debbie Lane, Julie Reiskin. (Attachments: # 1 Exhibit 1−9# 2 Exhibit 10−15# 3 Exhibit 16−18)(Robertson, Amy) (Entered: 07/21/2006)
232 DECLARATION of Darold W. Killmer by Plaintiffs Carrie Ann Lucas, Stacy Berloff, Jan Campbell, Robert Geyer, Edward Muegge, Jean Ryan, Debbie Lane, Julie Reiskin. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Robertson, Amy) (Entered: 07/21/2006)
233 NOTICE re 226 Joint MOTION for Order to Final Approval of Settlement Agreement − Submission of Proposed Order by Plaintiffs Carrie Ann Lucas, Stacy Berloff, Jan Campbell, Robert Geyer, Edward Muegge, Jean Ryan, Debbie Lane, Julie Reiskin (Attachments: # 1 Proposed Order (PDF Only) # 2 Appendix pt. 1# 3 Appendix pt 2)(Robertson, Amy) (Entered: 07/24/2006)
234 ORDER granting 230 MOTION for Attorney Fees by Plaintiffs. An award of costs incurred through 7/21/06 of $123,312.56 plus add'l reasonable costs incurred with the total costs not to exceed $125,000; and award of reasonble costs relating to implementing and monitoring the agreement after final approval. Signed by Judge John L. Kane on 7/27/06. (dln, ) (Entered: 07/27/2006)

Case: 1:99-cv-01923-JLK-CBS As of: 05/24/2010 12:37 PM MDT 22 of 23

07/27/2006 07/27/2006 07/27/2006 08/08/2006 08/08/2006
08/09/2006 08/09/2006 10/11/2006 10/23/2006 11/08/2006
11/21/2006
01/18/2007 01/19/2007 09/10/2007 09/08/2008 09/09/2008

235 ORDER granting 226 Joint MOTION for Order to Final Approval of Settlement Agreement by Plaintiffs . Signed by Judge John L. Kane on 7/27/06. (dln, ) (Entered: 07/27/2006)
236 Minute Entry for proceedings held before Judge John L. Kane : In Court Hearing held on 7/27/2006 re 226 Joint MOTION for Order to Final Approval of Settlement Agreement is granted. (Court Reporter Therese Lindblom.) (dln, ) (Entered: 07/27/2006)
237 Letter/OBJECTIONS by Marc Miller to 226 Joint MOTION for Order to Final Approval of Settlement Agreement by Plaintiffs (dln, ) ( (Entered: 07/27/2006)
238 Supplemental CERTIFICATE of Mailing by Clerk of Court re 235 ORDER granting 226 Joint MOTION for Order to Final Approval of Settlement Agreement by Plaintiffs (dln, ) (Entered: 08/08/2006)
239 NOTICE OF SUBMISSION OF PROPOSED FINAL JUDGMENT by Plaintiffs Carrie Ann Lucas, Stacy Berloff, Jan Campbell, Robert Geyer, Edward Muegge, Jean Ryan, Debbie Lane, Julie Reiskin (Attachments: # 1 Proposed Document Final Judgment# 2 Appendix Settlement Agreement# 3 Appendix Settlement Agreement Exhibits)(Robertson, Amy) (Entered: 08/08/2006)
240 FINAL JUDGMENT . Signed by Judge John L. Kane on 8/9/06. (Attachments: # 1 Attachment)(dln, ) (Entered: 08/09/2006)
241 supplemental CERTIFICATE of Mailing by Clerk of Court re 240 FINAL JUDGMENT. (dln, ) (Entered: 08/09/2006)
242 MANDATE of USCA: Upon consideration of the the stipulation to dismiss this appeal, it is ordered that the 199 Notice of Appeal filed by Kmart Corporation is dismissed pursuant to Rule 42(b) of the FRAP. Each party shall bear its own costs on appeal. (USCA case no. 05−1411) (bjr2, ) (Entered: 10/12/2006)
243 NOTICE of Filing Supplemental Declaration of Jennifer M. Keough Re: Class Notification by Defendant Kmart Corporation (Attachments: # 1 Affidavit Supplemental Declaration of Jennifer M. Keough Re: Class Notification# 2 Exhibit 1Exclusion Requests)(Kaufmann, Steven) (Entered: 10/23/2006)
244 TRANSCRIPT of Preliminary Approval Hearing held on March 22, 2006 before Judge John L. Kane, Jr.. Prepared by: Janet M. Coppock. Pages: 1 − 24. (certified copy) Text Only Entry − Per statute, copies of transcripts are available for inspection in the clerk's office. Parties interested in a copy may contact the court reporter or, in the case of a transcript prepared from a digital−audio taped record, the courtroom deputy for the judicial officer. (dln, ) (Entered: 11/09/2006)
245 TRANSCRIPT of Final Approval of Settlement Agreement held on July 27, 2006 before Judge John L. Kane, Jr.. Prepared by: Therese Lindblom. Pages: 1 − 92. (certified copy) Text Only Entry − Per statute, copies of transcripts are available for inspection in the clerk's office. Parties interested in a copy may contact the court reporter or, in the case of a transcript prepared from a digital−audio taped record, the courtroom deputy for the judicial officer. (dln, ) (Entered: 11/21/2006)
246 Mail Returned as Undeliverable re: 245 Transcript. Addressed to Richard Quintana. (jjh, ) (Entered: 01/18/2007)
247 Mail Returned as Refused re: 244 Transcript. Addressed to Richard Quintana. Richard Quintana on Parole. (jjh, ) (Entered: 01/19/2007)
248 STATUS REPORT by Plaintiffs Carrie Ann Lucas, Stacy Berloff, Jan Campbell, Robert Geyer, Edward Muegge, Jean Ryan, Debbie Lane, Julie Reiskin. (Attachments: # 1 Exhibit A: Third−Party Self−Service Devices Rider)(Robertson, Amy) (Entered: 09/10/2007)
249 NOTICE of Change of Address of Fox &Robertson, P.C., by Amy Farr Robertson (Robertson, Amy) (Entered: 09/08/2008)
250 MOTION For Extension of Time to File Status Report by Plaintiffs Carrie Ann Lucas, Stacy Berloff, Jan Campbell, Robert Geyer, Edward Muegge, Jean Ryan, Debbie Lane, Julie Reiskin. (Attachments: # 1 Proposed Order (PDF

Case: 1:99-cv-01923-JLK-CBS As of: 05/24/2010 12:37 PM MDT 23 of 23

09/09/2008 09/09/2008 09/16/2008 09/17/2008 09/25/2008 09/30/2008 02/06/2009 06/29/2009
06/29/2009 07/01/2009
07/14/2009 09/08/2009
09/09/2009

Only))(Robertson, Amy) (Entered: 09/09/2008)
251 MINUTE ORDER granting Plaintiff's 250 Unopposed Motion for Extension of Time to File Status Report up to and including 9/17/2008, by Judge John L. Kane on 9/9/2008.(sss, ) (Entered: 09/09/2008)
252 Utility Setting/Resetting Deadlines/Hearings: Pursuant to minute order of 9/9/2008, Status Report due by 9/17/2008. Text only entry − no document attached. (sss, ) (Entered: 09/10/2008)
253 Joint STATUS REPORT by Plaintiffs Carrie Ann Lucas, Stacy Berloff, Jan Campbell, Robert Geyer, Edward Muegge, Jean Ryan, Debbie Lane, Julie Reiskin. (Robertson, Amy) (Entered: 09/16/2008)
254 Mail Returned as Undeliverable re: 252 Utility Event, 251 Order Addressed to Richard Quintana. (Attachments: # 1 Returned Mail) (sss, ) (Entered: 09/17/2008)
255 Mail Returned as Undeliverable re: 252 Utility Setting Addressed to Antonio Michael Lawson. (sss, ) (Entered: 09/25/2008)
256 Mail Returned as Undeliverable re: 251 Order on Motion for Extension of Time Addressed to Antonio Michael Lawson. (sss, ) (Entered: 10/01/2008)
257 NOTICE of Change of Address by Amy Farr Robertson (Robertson, Amy) (Entered: 02/06/2009)
258 Joint MOTION to Amend/Correct/Modify 226 Joint MOTION for Order to Final Approval of Settlement Agreement by Plaintiffs Carrie Ann Lucas, Debbie Lane, Julie Reiskin, Edward Muegge, Robert Geyer, Stacy Berloff, Jean Ryan, Jan Campbell. (Attachments: # 1 Amendment to Settlement Agreement, # 2 Declaration of Amy F. Robertson, # 3 Declaration of Lori K. Miller, # 4 Proposed Order (PDF Only))(Robertson, Amy) Modified on 7/1/2009 to add filers (wjc, ). (Entered: 06/29/2009)
259 ORDER granting 258 Motion to Amend Settlement Agreement and the Amendment to the Settlement Agreement is hereby APPROVED, by Judge John L. Kane on 06/29/09.(wjc, ) (Entered: 06/29/2009)
260 Docket Annotation re: 258 Joint MOTION to Amend/Correct/Modify 226 Joint MOTION for Order to Final Approval of Settlement Agreement. Modified on 7/1/2009 to add filers. Text only entry − no document attached. (wjc, ) (Entered: 07/01/2009)
261 Mail Returned as Undeliverable re: 259 Order on Motion to Amend/Correct/Modify Addressed to Richard Quintana. (wjc, ) (Entered: 07/14/2009)
262 Joint STATUS REPORT by Plaintiffs Carrie Ann Lucas, Debbie Lane, Julie Reiskin, Edward Muegge, Robert Geyer, Stacy Berloff, Jean Ryan, Jan Campbell. (Robertson, Amy) Modified on 9/9/2009 to add filers (wjc, ). (Entered: 09/08/2009)
263 Docket Annotation re: 262 Status Report. Modified on 9/9/2009 to add filers. Text only entry − no document attached. (wjc, ) (Entered: 09/09/2009)

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-K-1923 CARRIE ANN LUCAS, DEBBIE LANE, and JULIE REISKIN, for themselves and all others similarly situated,
Plaintiffs, v. KMART CORPORATION,
Defendant.
AMENDED CLASS ACTION COMPLAINT
Plaintiffs Carrie Ann Lucas, Debbie L. Lane and Julie Reiskin, by and through their attorneys, Fox & Robertson, P.C., and Kevin Williams, hereby bring this Amended Class Action Complaint against Defendant Kmart Corporation (“Kmart”) for violation of the Americans with Disabilities Act, 42 U.S.C. § 12182 et seq. (“ADA”) and the Colorado Anti-Discrimination Act, C.R.S. § 24-34-601 et seq. (“CADA”).
INTRODUCTION 1. On July 26, 1990, President Bush signed the ADA, thereby establishing the most important civil rights law for persons with disabilities in our country’s history. The ADA was effective as to Kmart on January 26, 1992. One of the principal goals of the ADA was the integration of people with disabilities into our economic and social life. Kmart’s actions frustrate this purpose and continue to impede the important goals of the ADA. 2. Over nine years later – and despite extensive publicity – Kmart continues to discriminate against persons who use wheelchairs. Among other violations, Kmart provides insufficient parking for persons with disabilities, has counters that are too high for persons who use

wheelchairs, fails to provide accessible check-out aisles to persons who use wheelchairs, fails to provide accessible fitting rooms and blocks access to merchandise aisles for persons who use wheelchairs. Kmart has failed to remedy this discrimination despite being told about these problems on numerous occasions by Plaintiff Carrie Ann Lucas.
JURISDICTION 1. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343 and pendent jurisdiction over the state law claims alleged herein. 2. Venue is proper within this District pursuant to 28 U.S.C. § 1391.
PARTIES 1. Plaintiff Carrie Ann Lucas is and was at all times material hereto a resident of Colorado. As a result of a bone infection and bone tumor and related treatment, Ms. Lucas is substantially impaired in several major life activities and requires a wheelchair for mobility. Ms. Lucas has shopped at Kmart stores in various locations in Colorado and other states and plans to continue to do so in the near and distant future. 2. Plaintiff Debbie L. Lane is and was at all times material hereto a resident of Colorado. As a result of epilepsy and spastic paraparesis, Ms. Lane is substantially impaired in several major life activities and requires a power wheelchair for mobility. Ms. Lane has shopped at Kmart stores in various locations in Colorado and plans to continue to do so in the near and distant future. 3. Plaintiff Julie Reiskin is and was at all times material hereto a resident of Colorado. As a result of multiple sclerosis, Ms. Reiskin is substantially impaired in several major life activities and requires a power wheelchair for mobility. Ms. Reiskin has shopped at Kmart stores in various locations in Colorado and plans to continue to do so in the near and distant future. 4. Defendant Kmart Corporation is a corporation incorporated in Michigan with its principal place of business in Troy, Michigan. Kmart is registered to do business in the state of Colorado.
2

Kmart owns and operates over 2,000 large retail stores selling general merchandise throughout

the United States. In 1999, Kmart had almost $36 billion in sales.

CLASS ACTION ALLEGATIONS

1. Plaintiffs seek to maintain this action as a class action under Rule 23(b)(1) and/or Rule

23(b)(2) of the Federal Rules of Civil Procedure. The class consists of all persons with

disabilities who use wheelchairs or scooters for mobility who have been denied, or are currently

being denied, full and equal enjoyment of the goods, services, facilities, privileges, advantages,

or accommodations of any public accommodation that was designed or constructed by or is

owned, operated, or leased by or leased to Kmart anywhere in the United States.

2. The class identified in Paragraph 9 is believed to consist of well over 1,000 members, and

joinder of all of such members in this lawsuit is impracticable.

3. There are numerous questions of law and fact common to the class including, though not

limited to, the following:

a.

Whether Kmart stores are “public accommodations” under

the ADA;

b.

Whether Kmart stores deny the full and equal enjoyment of

their goods, services, facilities, privileges, advantages, or accommodations

to people who use wheelchairs, in violation of the ADA;

c.

Whether Kmart is required by the ADA to maintain access

for persons who use wheelchairs to its displayed merchandise;

d.

Whether Kmart is required to maintain access for persons

who use wheelchairs to accessible restrooms and dressing rooms;

e.

Whether Kmart is required by the ADA to maintain open,

accessible, check-out aisles during store hours;

3

f.

Whether it would be readily achievable, given Kmart’s

resources, to bring those Kmart stores built prior to the effective date of

the ADA into compliance with the ADA; and

g.

What measures are legally required to bring Kmart stores

into compliance with the ADA.

4. Plaintiffs’ claims are typical of the claims of the members of the class. They – like other

members of the class – use wheelchairs for mobility and claim Kmart has violated the ADA by

failing to make its stores accessible to people who use wheelchairs.

5. Plaintiffs will fairly and adequately protect the interests of the class. They are all familiar

with the requirements of the ADA and committed to ensuring access for people who use

wheelchairs though enforcement of its provisions. None of the Plaintiffs has any interest that

conflicts in any way with the interests of the class.

6. In addition, Plaintiffs have retained counsel with extensive experience in litigation,

including class action litigation. Plaintiffs’ counsel have been found by this Court on two

occasions to be qualified to represent a class in bringing claims under the ADA. Two of

Plaintiffs’ counsel, Timothy Fox and Kevin Williams, are thoroughly familiar with issues

concerning people who use wheelchairs because both are tetraplegics and both have used

wheelchairs for more than 13 years.

7. This action may be maintained as a class action pursuant to Federal Rule of Civil

Procedure 23(b)(1) because separate actions against Kmart for its violations of the ADA would

create a risk of inconsistent or varying adjudications that would establish incompatible standards

of conduct for Kmart.

8. This action may be maintained as a class action pursuant to Federal Rule of Civil

Procedure 23(b)(2) because Kmart’s violations of the ADA – including but not limited to

inaccessible aisles, insufficient parking, insufficient accessible check-out aisles and inaccessible

4

changing rooms – are applicable to all members of the class. Therefore, an injunction requiring compliance with the ADA is appropriate. Declaratory and injunctive relief is the only relief sought on behalf of the class.
FACTS 1. Plaintiff Carrie Lucas often shops at Kmart stores in Colorado and elsewhere. Her experiences shopping at Kmart stores include but are not limited to those described below. 2. In November or December of 1996, Plaintiff Lucas went to Kmart store number 4131 located at 200 W. Belleview Avenue in Englewood, Colorado (“the 200 W. Belleview Kmart”) to shop. At that time, Plaintiff’s disability had not progressed to the point where she required a wheelchair; rather, at that time, she used crutches to ambulate. 3. When she arrived at the 200 W. Belleview Kmart, she was unable to find any accessible parking. It was snowing at that time. Because she had no choice, Ms. Lucas parked in the fire lane in order to be able to leave her car and access the store. 4. During that visit, Ms. Lucas complained to the manager on duty about the parking situation. The manager on duty told Ms. Lucas that she would relay her concerns to the manager. 5. Ms. Lucas returned to the 200 W. Belleview Kmart several months later and discovered that the problem had not been remedied and that, in fact, only four spaces were designated for parking for persons with disabilities in a parking lot of over 400 spaces. The spaces that were so designated were not the correct size. A parking lot of this size should have at least nine accessible spaces with at least one van-accessible space of the dimensions required by the Americans with Disabilities Act Accessibility Guidelines (“ADAAG”). 6. During this second visit, Ms. Lucas wrote a note to the manager, Rick Mercurio and asked the Kmart employees at the customer service counter to relay the message to him. The employees stated they would do so.
5

7. Ms. Lucas spoke with Mr. Mercurio soon thereafter. She explained the problem with the parking spaces and Mr. Mercurio said he would look into it. A few weeks later Ms. Lucas received a letter from Mr. Mercurio stating that Kmart was looking into the problem and would come into compliance. She heard nothing further from Mr. Mercurio or Kmart until she contacted the former over a year later in the spring of 1998. 8. Sometime in the spring of 1998, Ms. Lucas again went to the 200 W. Belleview Kmart. By this time, Ms. Lucas’s disability had progressed to the point where she was using a manual wheelchair for mobility. Ms. Lucas attempted to park but was unable to find an accessible parking space. As a result, because she had no choice, she parked in the fire lane in order to be able to exit her vehicle. When she went into the store, she asked to speak with Mr. Mercurio but was told that he was not in the store at the time. Although she had gone to the store to assess the parking situation and contact Mr. Mercurio, she was interested in doing some shopping while she was there. However, there was a great deal of merchandise in the aisles, making shopping difficult. As such, she left without buying anything. 9. Ms. Lucas called Mr. Mercurio after this visit to inquire concerning the parking situation. Mr. Mercurio stated that he believed Kmart had a sufficient number of spaces for the lot. 10. Following this conversation, Ms. Lucas filed a complaint with the Department of Justice (“DOJ”). In or about July of 1998, Ms. Lucas received word from the DOJ that her complaint was being referred to mediation. In October of 1998, she was contacted by Jinu Evan of the Key Bridge foundation. Ms. Evan stated that she had spoken with Kmart and that she did not think the issue would need to go to mediation because Kmart appeared to be willing to remedy the problem. 11. Several weeks later, Ms. Evan contacted Ms. Lucas to report that Kmart claimed to have remedied the problem.
6

12. On or about November 18, 1998, Ms. Lucas went to the 200 W. Belleview Kmart to ascertain whether the problem had been remedied. It had not: while the proper number of spaces were designated for use by persons with disabilities, very few of them were of the required dimensions. For example, most did not have any access aisles – necessary for people who use wheelchairs or have other mobility impairments to get out of their cars – and none had a van-accessible aisle. In addition, some of the spaces did not have correct signage. 13. Ms. Lucas called Ms. Evan and stated that the parking situation at the 200 W. Belleview Kmart was still out of compliance with the ADA and ADAAG. 14. In approximately late November, 1998, Ms. Evan contacted Ms. Lucas and told her that Kmart did not want to mediate, so the Key Bridge Foundation would be sending the complaint back to the DOJ. 15. On or about November 18, 1998, Ms. Lucas shopped at Kmart store number 7303 at 363 S. Broadway in Denver, Colorado (“the 363 S. Broadway Kmart”). When she arrived, the handbaskets were stacked so high that she could not reach them, some of the aisles were blocked by merchandise, and no accessible check-out aisles were open. When Ms. Lucas inquired why no such aisle was open, she was told by a Kmart employee that the cashier was on break. There were other – non-accessible – check-out aisles open at that time. Finally, the automatic door was broken and the other doors were too heavy for Ms. Lucas to open on her own. 16. On or about November 27, 1998, Ms. Lucas shopped at Kmart store number 4224 at 2150 S. Monaco Parkway, Denver, Colorado (“the 2150 S. Monaco Kmart”). On prior occasions when Ms. Lucas had shopped at this location, no accessible check-out aisles had been open. When she entered the store on this occasion, one such line was open. However, by the time she had completed her shopping and was ready to check out, there were no accessible check-out aisles open. When she complained to the manager about this situation, she was told that the cashier was on break. There were other, non-accessible, check-out aisles open at that time. In
7

addition, throughout the store merchandise was left in aisles, and in other places displayed in the aisles. In the clothing sections the racks were too close together. This impeded Ms. Lucas’s access to merchandise and caused her to knock some clothing off of racks and onto the floor. 17. In or about May, 1999, Ms. Lucas shopped at the 2150 S. Monaco Kmart. Again, when she entered the store an accessible check-out line was open. And again, by the time she had completed her shopping and was ready to check out, there were no accessible check-out aisles open though there were other, non-accessible, check-out aisles open at that time. Ms. Lucas went to the customer service counter to request that an accessible check-out aisle be opened and Kmart did so. 18. On or about August 20, 1999, Ms. Lucas shopped at Kmart store number 3627 at 8500 W. Crestline Avenue in Littleton (“the 8500 W. Crestline Kmart”). As she entered the store, Ms. Lucas noted that there were two accessible check-out aisles, but that neither of them was open. She paused after she came through the door at which point a Kmart employee at the customer service counter by the name of Jennifer asked Ms. Lucas if she needed help. As such, Kmart was aware that Ms. Lucas – now using a power wheelchair – was shopping in the store. 19. Ms. Lucas was unable to access parts of the gardening, school supplies, furniture and household departments because numerous aisles were blocked by merchandise and other items. The electronics check-out counter was 41 inches high throughout. The women’s fitting room had no bench and had clothes hooks that were mounted at a height of approximately 60 inches. 20. When Ms. Lucas went to check out, neither of the accessible check-out aisles was open. She got in the shortest inaccessible line but when she reached the front of the line, was unable to get through the aisle. She informed the clerk that she was unable to get through the aisle and that there were no accessible aisles open. The clerk responded by leaving the aisle – and Ms. Lucas and the line of customers behind her. Several minutes later the store opened another aisle – though still not one of the accessible aisles. Ms. Lucas continued to wait at the now-abandoned
8

aisle but when the clerk did not return and no accessible aisle opened, she proceeded to the customer service counter to complain. The woman by the name of Jennifer – who had initially asked Ms. Lucas whether she needed help – made clear that she knew Kmart was required to keep an accessible check-out aisle open but informed Ms. Lucas that the clerk on that aisle was on break. 21. Ms. Lucas asked to speak with a manager. She explained the problem to floor manager Craig Bass. Mr. Bass shrugged and offered to help Ms. Lucas at the customer service counter. While this counter had a lowered portion, it was covered with boxes, notebooks and merchandise and, as such, was not usable by Ms. Lucas. Mr. Bass refused to open an accessible check-out aisle. 22. The 8500 W. Crestline Kmart has approximately 363 total parking spaces, only four of which are accessible and none of which is wide enough to be van-accessible. Two of the four allegedly accessible spaces do not comply with the requirements of ADAAG. Two additional spaces on the north end of the building are marked as if to be accessible but were blocked by a roll-off trash container on the day Ms. Lucas shopped there. There is, in any event, no curb cut to the sidewalk near those two spaces. 23. On or about August 20, 1999, Ms. Lucas shopped at the 200 W. Belleview Kmart. She was unable to access merchandise in various areas throughout the store because of items blocking the aisles. In addition, the single accessible fitting room was unusable because it was filled with a shopping cart full of merchandise. The electronics checkout counter was 41 inches high throughout. 24. On or about August 20, 1999, Ms. Lucas shopped at Kmart store number 4187 located at 2770 W. Evans Avenue in Denver, Colorado (“the 2770 W. Evans Kmart”). She was unable to access merchandise in various areas throughout the store because of items blocking the aisles. In addition, the route to the accessible fitting room was blocked so that Ms. Lucas was unable to get
9

to it. The electronics checkout counter was 41 inches high throughout. The women’s restroom did not have an accessible stall. 25. The 2770 W. Evans Kmart has approximately 423 total parking spaces only seven of which are accessible. Many of the spaces are improperly marked, causing confusion and often leading to the situation in which cars are parked too close to one another for proper access. 26. On or about October 19, 1999, Ms. Lucas was in the Nashville, Tennessee area to attend to matters related to the adoption of her daughter. At that time, she went to Kmart store number 3716 at 4646 Lebanon Pike in Hermitage, Tennessee. She needed to get some pictures developed and to purchase a few other items. She had trouble finding an accessible space in which to park her rented van. When she attempted to make her purchases, most of the aisles she attempted to enter were blocked by merchandise. Because she was ultimately unable to access the merchandise she had come to purchase, she left without buying anything. 27. On a number of occasions since October, 1999, Ms. Lucas has shopped at the 363 S. Broadway Kmart. On several of these occasions, she was accompanied by her daughter who also uses a wheelchair. Each time, Ms. Lucas and, at times, her daughter, have encountered barriers, policies and treatment that deny them the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of the store, including but not limited to: problems related to parking; aisles obstructed by merchandise; failure to open an accessible check-out aisle and/or failure to open a sufficient number of accessible check-out aisles; failure of store employees to assist in removal of barriers; and rude treatment in response to requests for reasonable accommodation. 28. Plaintiff Debbie L. Lane often shops at Kmart stores. She has shopped at Kmart stores in Colorado and elsewhere. Her experiences shopping at Kmart stores include but are not limited to those described below.
10

29. On a number of occasions since October, 1999, Ms. Lane has shopped at Kmart store number 4181, located at 3325 28th Street in Boulder, Colorado (the “28th Street Kmart”). On many of the occasions she has shopped at the 28th Street Kmart, Ms. Lane has encountered aisles that are blocked by merchandise. Because of these barriers to access, she has been unable to get to the merchandise on her own and has had to enlist the assistance of a non-disabled friend to move items out of her way or to reach merchandise she was blocked from reaching. In addition, on none of the occasions that she has shopped at the 28th Street Kmart has there been an accessible check-out aisle open. On more than one occasion, Ms. Lane has asked store personnel to open an accessible check-out aisle. She has been instructed to use the customer service counter instead. Although she was able to pay for her merchandise at the customer service counter, this transaction was rendered more difficult because the customer service counter is too high. 30. Plaintiff Julie Reiskin often shops at Kmart stores in Colorado. Her experiences shopping at Kmart stores include but are not limited to those described below. 31. On at least ten occasions over the past two years, Ms. Reiskin has shopped at the 363 S. Broadway Kmart. On many of those occasions, Ms. Reiskin has encountered barriers, policies and treatment that deny her the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of the store, including but not limited to: aisles obstructed by merchandise; display racks situated too close together; failure to open an accessible check-out aisle and/or failure to open a sufficient number of accessible check-out aisles; and designation of the only accessible check-out aisle as limited to patrons buying a limited number of items. 32. On information and belief, Kmart store number 4276, located at 2244 S. Reynolds Road in Toledo, Ohio has features that deny the full and equal enjoyment of the store’s goods, services, facilities, privileges, advantages, and/or accommodations to persons who use
11

wheelchairs or scooters. These features include but are not limited to the fact that the aisles are used to display merchandise and/or to store merchandise prior to stocking the shelves and clothing racks are placed too close together. 33. On information and belief, Kmart store number 7230 located at 3316 Denton Highway in Haltom City, Texas has features that deny the full and equal enjoyment of the store’s goods, services, facilities, privileges, advantages, and/or accommodations to persons who use wheelchairs or scooters. These features include but are not limited to the fact that the sidewalk in front of the store is used to display merchandise, leaving a path that is too narrow to traverse in a wheelchair and that objects, including boxes and rolling ladders, are positioned in aisles so as to block access to persons in wheelchairs. In addition, on information and belief, the store provides insufficient wheelchair-accessible parking. 34. On information and belief, Kmart store number 4806 located at 1013 Riley Street in Folsom, California has features that deny the full and equal enjoyment of the store’s goods, services, facilities, privileges, advantages, and/or accommodations to persons who use wheelchairs or scooters. These features include but are not limited to the fact that the aisles are used to display merchandise and/or to store merchandise prior to stocking the shelves and the customer service desk does not have a lowered portion. 35. On information and belief, Kmart store number 7579, located at 13450 Maple Road in Omaha, Nebraska, has features that deny the full and equal enjoyment of the store’s goods, services, facilities, privileges, advantages, and/or accommodations to persons who use wheelchairs or scooters. These features include but are not limited to the following: using the aisles to display merchandise and/or to store merchandise prior to stocking the shelves; dressing rooms that are too small and that are blocked by racks of return merchandise; merchandise displayed on the sidewalk in front of the store, blocking or impeding access to the store; clothing
12

racks that are placed too close together for a wheelchair to pass; and inaccessible and unusable bathrooms. 36. On information and belief, Kmart has over 2,000 stores nationwide, many of which have the same and other features that deny the full and equal enjoyment of their goods, services, facilities, privileges, advantages, or accommodations to people who use wheelchairs or scooters in violation of the ADA.
FIRST CLAIM FOR RELIEF (On behalf of Plaintiffs and all others similarly situated for violation of the Americans with Disabilities Act) 1. Plaintiffs reallege and incorporate by reference the allegations set forth in paragraphs 1 52 above as if fully set forth herein. 2. 42 U.S.C. § 12182(a) of the ADA provides that:
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. 1. Kmart owns, operates, leases and/or leases to places of public accommodation. 2. 42 U.S.C. § 12183(a) of the ADA requires that new construction be readily accessible to and usable by persons with disabilities. 3. On information and belief, some of the Kmart stores described above were designed and constructed for first occupancy after January 26, 1993 but are not readily accessible to and usable by persons with disabilities. 4. Through the actions and architectural barriers described above and other barriers at its stores and its failure to provide facilities that are readily accessible to and usable by persons in wheelchairs, Defendant Kmart has denied Plaintiff the full and equal enjoyment of its goods,
13

services, facilities, privileges, advantages, or accommodations in violation of the Americans with Disabilities Act, including but not limited to 42 U.S.C. §§ 12182 and 12183 and its implementing regulations. 5. Plaintiffs and similarly-situated individuals have been damaged and will continue to be damaged by this discrimination as more fully set forth above. 6. Plaintiffs intend to continue to shop at Kmart stores in the near future.
SECOND CLAIM FOR RELIEF (On behalf of named Plaintiffs for violation of the Colorado Anti-Discrimination Act)
1. Plaintiffs reallege and incorporate by reference the allegations set forth in paragraphs 1 60 above as if fully set forth herein. 2. The Colorado Anti-Discrimination Act 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, because of disability, race, creed, color, sex, marital status, national origin, or ancestry, 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). 3. The CADA defines a “place of public accommodation” to include “any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public, including but not limited to any business offering wholesale or retail sales to the public . . .” C.R.S. § 24-34-601(1). 4. Kmart stores are places of public accommodation as defined in the CADA. 5. By maintaining architectural barriers and policies that discriminate against people with disabilities and through the other actions described above, Kmart has, directly and/or indirectly, refused, withheld from, and denied to named Plaintiffs, because of their disabilities, the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations.
14

6. Named Plaintiffs have been damaged and will continue to be damaged by this discrimination as more fully set forth above.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray: 1. That this Court assume jurisdiction; 2. That this Court certify the class described in Paragraph 9 pursuant to Rule 23(b) of the Federal Rules of Civil Procedure and certify Plaintiffs as representatives of that class; 3. That this Court issue an Order declaring Defendant to be in violation of the ADA and the CADA; 4. That this Court issue an injunction ordering Kmart to bring all places of public accommodation in the United States that it designed, constructed, owns, operates, leases or leases to others into compliance with the ADA; 5. That this court award statutory damages of $500 for each instance of discrimination experienced by the named Plaintiffs pursuant to C.R.S. § 24-34-602; 6. That this Court award Plaintiffs their reasonable attorneys’ fees and costs; and
15

7. That this Court award such additional or alternative relief as may be just, proper and

equitable.

Respectfully submitted,

FOX & ROBERTSON, P.C.

Amy F. Robertson Michael W. Breeskin Timothy P. Fox 910 - 16th Street , Suite 610 Denver, CO 80202 303.595.9700

Kevin W. Williams General Counsel Colorado Cross Disability Coalition 1210 East Colfax Avenue, Suite 405 Denver, CO 80218 303.839.1775

Dated: April 27, 2000

Attorneys for Plaintiff

Address of Plaintiff Carrie Ann Lucas:

2901 York Street Denver, CO 80205

Address of Plaintiff Debbie Lane:

5505 Valmont Road No. 340 Boulder, CO 80301

Address of Plaintiff Julie Reiskin

3645 Milwaukee St. Denver, Colorado, 80205

16

 
 Court: Case Title: Appeal From: Termed: Date Filed:
Case Number: Case Type: Case Subtype:

US COURT OF APPEALS FOR THE TENTH CIRCUIT LUCAS, ET AL v. KMART CORPORATION UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 10/11/2006 09/06/2005 CASE INFORMATION
05-1411 APPEALS CIVIL PRIVATE

Nature of Suit: Key Nature of Suit:

3440 OTHER CIVIL RIGHTS CIVIL RIGHTS; OTHER FEDERAL CIVIL RIGHTS (110.45) LOWER COURT INFORMATION

District: Lower Court Docket Number: Trial Judge(s): Court Reporter(s): Date Filed: Date NOA Filed:

1082-1 99-CV-01923-JLK-CBS JOHN L. KANE JUNIOR, SENIOR U.S. DISTRICT JUDGE CHARLOTTE HOARD 10/01/1999 08/22/2005

OTHER CASES

Current Case(s): Relationship:
PRIOR

Lead Docket: 05-0504

Member Docket: Start Date:

-NAMES

09/06/2005

End Date: --

Name: Type: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone:
Name: Type: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone:

CARRIE ANN LUCAS PLAINTIFF - APPELLEE ANTONIO MICHAEL LAWSON LAWSON LAW OFFICES 835 MANDANA BOULEVARD OAKLAND, CA 94610 510-419-0940 AMY FARR ROBERTSON FOX & ROBERTSON 910 16TH STREET SUITE 610 DENVER, CO 80202 303-595-9700
DEBBIE LANE PLAINTIFF - APPELLEE MICHAEL WAYNE BREESKIN ARC OF DENVER 1905 SHERMAN ST. SUITE 300 DENVER, CO 80203 303-831-7733 L. JAVIER CAVAZOS L. JAVIER CAVAZOS, ATTY AT LAW P.O. BOX 329 HARLINGTON, TX 78551 956-428-7348 TIMOTHY P. FOX FOX & ROBERTSON 910 16TH STREET SUITE 610 DENVER, CO 80202 303-595-9700 STEVEN R. GREENBERGER DEPAUL COLLEGE OF LAW 25 E. JACKSON BLVD. CHICAGO, IL 60604 312-362-8138 ANTONIO MICHAEL LAWSON STEPHEN T. LECUYER METTLER & LECUYER, PC 4308 CARLISLE, NE #208 ALBUQUERQUE, NM 87107 505-884-3244 BILL LANN LEE LIEFF, CABRASER, HEIMANN & BERNSTEIN LLP 275 BATTERY STREET EMBARCADERO CENTER WEST 30TH FLOOR SAN FRANCISCO, CA 94111 415-956-1000

Attorney: Attorney Address:
Firm Phone: Attorney: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone:
Name:
Type: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney:
Name: Type: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone:

MARI MAYEDA P.O. BOX 5138 BERKELEY, CA 94705 510-841-4970 AMY FARR ROBERTSON JAMES EARL TEAGUE ADVOCACY, INC. 1001 MAIN ST. #200 LUBBOCK, TX 79401 806-765-7794 DENETTE VAUGHN ADVOCACY, INC. 1001 MAIN ST. #200 LUBBOCK, TX 79401 806-765-7794 KEVIN W. WILLIAMS COLORADO CROSS-DISABILITY COALITION 655 BROADWAY SUITE 775 DENVER, CO 80203 303-839-1775
JULIE REISKIN, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED PLAINTIFF - APPELLEE MICHAEL WAYNE BREESKIN L. JAVIER CAVAZOS TIMOTHY P. FOX STEVEN R. GREENBERGER AMY FARR ROBERTSON JAMES EARL TEAGUE DENETTE VAUGHN KEVIN W. WILLIAMS
KMART CORPORATION DEFENDANT - APPELLANT STEVEN M. KAUFMANN MORRISON & FOERSTER 370 17TH STREET SUITE 5200 REPUBLIC PLAZA DENVER, CO 80202-5638 303-592-1500 DAVID F. MCDOWELL MORRISON & FOERSTER 555 WEST FIFTH STREET SUITE 3500 LOS ANGELES, CA 90013-1024 213-892-5200

Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address: Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone:
ENTRY #: --
--
--
--

MARK E. MEDINA MORRISON & FOERSTER 370 17TH STREET SUITE 5200 REPUBLIC PLAZA DENVER, CO 80202-5638 303-592-1500 JOHN WILLIAM MILL SHERMAN & HOWARD 633 17TH STREET, SUITE 3000 DENVER, CO 80202 303-399-8316 ROBERT A. NAEVE MORRISON & FOERSTER 19900 MACARTHUR BLVD. 12TH FLOOR IRVINE, CA 92612-2445 949-251-7500 JOSE-MANUEL A. DE CASTRO FOLEY & LARDNER 2029 CENTURY PARK EAST 35TH FLOOR LOS ANGELES, CA 90067 310-277-2223

DOCKET PROCEEDINGS

DATE: 09/10/2007

DESCRIPTION: [9511548] CASE FILE CLOSED. SHIPMENT TO RECORDS CENTER DUE 08/05/2010.

10/11/2006

[1963719] MANDATE ISSUED.

10/11/2006

[1963717] RULE 33 CASE TERMINATED. PROCEDURALLY TERMINATED WITHOUT JUDICIAL ACTION; F.R.A.P. 42.

10/11/2006

[1963716] ORDER FILED BY CLERK GRANTING STIPULATION TO DISMISS CASE [1962952-1]. PARTIES SERVED BY MAIL.

--

10/10/2006

[1962954] DOCUMENT [1962952-1] STIPULATION TO

DISMISS FILED BY APPELLEES CARRIE ANN LUCAS,

DEBBIE LANE, JULIE REISKIN, AND APPELLANT KMART

CORPORATION SUBMITTED TO CONFERENCE

ATTORNEYS.

--

10/06/2006

STIPULATION TO DISMISS FILED BY CARRIE ANN

LUCAS, DEBBIE LANE, JULIE REISKIN, AND KMART

CORPORATION IN 05-1411.

--

09/28/2006

[1960671] ON THE COURT'S OWN MOTION AND

PURSUANT TO 10TH CIR. R. 33.1. ORDER FILED BY

CLERK TO EXTEND TIME TO FILE APPELLANT'S BRIEF

UNTIL 10/16/06. [05-1411] APPELLANT'S BRIEF AND

APPENDIX DUE 10/16/06 FOR KMART CORPORATION.

PARTIES SERVED BY MAIL.

--

08/11/2006

[1945859] ON THE COURT'S OWN MOTION AND

PURSUANT TO 10TH CIR. R. 33.1. ORDER FILED BY

CLERK TO EXTEND TIME TO FILE APPELLANT'S BRIEF

AND APPENDIX FOR 46 DAYS TO 9/25/06 FOR KMART

CORPORATION. PARTIES SERVED BY MAIL.

--

05/30/2006

[1923373] ON THE COURT'S OWN MOTION AND

PURSUANT TO 10TH CIR. R. 33.1. ORDER FILED BY

CLERK TO EXTEND TIME TO FILE APPELLANT'S BRIEF

AND APPENDIX UNTIL 8/10/06. APPELLANT'S BRIEF AND

APPENDIX ARE DUE 8/10/06 FOR KMART

CORPORATION. PARTIES SERVED BY MAIL.

--

02/13/2006

[1889296] ON THE COURT'S OWN MOTION AND

PURSUANT TO 10TH CIR. R. 33.1. ORDER FILED BY

CLERK TO EXTEND TIME TO FILE APPELLANT'S BRIEF

AND APPENDIX FOR 60 DAYS [05-1411] OR UNTIL 5/12/06

FOR KMART CORPORATION. PARTIES SERVED BY

MAIL.

--

01/30/2006

[1884884] ON THE COURT'S OWN MOTION AND

PURSUANT TO 10TH CIR. R. 33.1. ORDER FILED BY

CLERK TO EXTEND TIME TO FILE APPELLANT'S BRIEF

FOR 31 DAYS [05-1411] OR UNTIL 3/13/06 FOR KMART

CORPORATION. PARTIES SERVED BY MAIL.

--

12/09/2005

[1870909] ON THE COURT'S OWN MOTION AND

PURSUANT TO 10TH CIR. R. 33.1. ORDER FILED BY

CLERK TO EXTEND TIME TO FILE APPELLANT'S BRIEF

AND APPENDIX UNTIL 2/10/06. APPELLANTS BRIEF AND

APPENDIX ARE DUE 2/10/06 FOR KMART

CORPORATION. PARTIES SERVED BY MAIL.

--

11/15/2005

[1863385] FILED NOTICE RECORD IS COMPLETE 11/15/05.

APPELLANT'S BRIEF AND APPENDIX DUE 12/27/05 FOR

KMART CORPORATION.

--

11/08/2005

[1861031] ORDER FILED BY CLERK DIRECTING THAT

TRANSCRIPT BE FILED BY 11/18/05 FOR JANET

CAPPOCK. PARTIES SERVED BY MAIL.

--

10/06/2005

[1853205] CASE REFERRED FOR MEDIATION

CONFERENCING.

--

09/19/2005

[1847140] NOTICE OF APPEARANCE FILED BY TIMOTHY

P. FOX AND AMY FARR ROBERTSON IN 05-1411 AS

ATTORNEY'S FOR CARRIE ANN LUCAS, DEBBIE LANE,

AND JULIE REISKIN. CERT. OF INTERESTED PARTIES

(Y/N): N.

--

09/08/2005

[1843875] TRANSCRIPT ORDER FORM FILED BY JANET

CAPPOCK. TRANSCRIPT DUE 10/11/05 FOR JANET

CAPPOCK.

--

09/08/2005

[1843575] NOTICE OF APPEARANCE FILED BY ROBERT

A. NAEVE IN 05-1411 AS ATTORNEY FOR KMART

CORPORATION IN 05-1411. CERT. OF INTERESTED

PARTIES (Y/N): Y.

--

09/06/2005

[1843179] NOTICE OF APPEARANCE FILED BY DAVID F.

MCDOWELL AS ATTORNEY FOR KMART CORPORATION

IN 05-1411. CERT. OF INTERESTED PARTIES (Y/N): Y.

--

09/06/2005

[1843144] ACKNOWLEDGEMENT OF TRANSCRIPT

ORDER FILED BY KMART CORPORATION IN 05-1411.

(JANET CAPPOCK-8/9/05 STATUS CONFERENCE)

TRANSCRIPT ORDER DUE 9/16/05 FOR CHARLOTTE

HOARD.

--

09/06/2005

[1843053] NOTICE OF APPEARANCE FILED BY STEVEN

M. KAUFMANN IN 05-1411 AS ATTORNEY FOR KMART

CORPORATION. CERT. OF INTERESTED PARTIES (Y/N):

Y.

--

09/06/2005

[1843051] NOTICE OF APPEARANCE FILED BY MARK E.

MEDINA IN 05-1411 AS ATTORNEY FOR KMART

CORPORATION. CERT. OF INTERESTED PARTIES (Y/N):

Y.

--

09/06/2005

[1843024] ACKNOWLEDGEMENT OF TRANSCRIPT

ORDER FILED BY KMART CORPORATION IN 05-1411.

TRANSCRIPT ORDER DUE 9/16/05 JANET CAPPOCK.

--

09/06/2005

[1842784] DOCKETING STATEMENT FILED BY KMART

CORPORATION IN 05-1411. ORIGINAL AND 4 COPIES.

C/S: Y.

--

09/06/2005

[1842717] CIVIL CASE DOCKETED. PRELIMINARY

RECORD FILED. DATE RECEIVED: 8/30/05. TRANSCRIPT

ORDER FORM DUE 9/20/05 FOR CHARLOTTE HOARD

PURSUANT TO R.42.1. DOCKETING STATEMENT DUE

9/20/05 FOR KMART CORPORATION. NOTICE OF

APPEARANCE DUE 9/20/05 FOR KMART CORPORATION,

JULIE REISKIN, DEBBIE LANE, AND CARRIE ANN

LUCAS.

 
 . Court: Case Title: Appeal From: Termed: Date Filed:
Case Number: Case Type: Case Subtype:

US COURT OF APPEALS FOR THE TENTH CIRCUIT KMART CORPORATION v. LUCAS, ET AL 10TH - TEAM 2 09/06/2005 07/28/2005
CASE INFORMATION
05-0504 APPEALS MISCELLANEOUS FED. R. CIV. P. 23(F)

Key Nature of Suit:

APPEALS (030) LOWER COURT INFORMATION

District: Lower Court Docket Number:

10-0 99-K-1923 (CBS)

OTHER CASES

Current Case(s): Relationship:
PRIOR

Lead Docket: 05-0504

Member Docket: Start Date:

-NAMES

09/06/2005

Name: Type: Attorney: Firm Name: Firm Address:
Firm Phone:

KMART CORPORATION PETITIONER WALTER B. CONNOLLY JR. FOLEY & LARDNER 150 W. JEFFERSON #1000 DETROIT, MI 48826 313-963-9517

End Date: --

Attorney: Firm Name: Firm Address:
Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Firm Name: Firm Address:
Firm Phone:

STEVEN M. GUTIERREZ HALL & EVANS 1200 17TH STREET SUITE 1700 DENVER, CO 80202 STEVEN M. KAUFMANN MORRISON & FOERSTER 370 17TH STREET SUITE 5200 REPUBLIC PLAZA DENVER, CO 80202-5638 303-592-1500 DAVID F. MCDOWELL MORRISON & FOERSTER 555 WEST FIFTH STREET SUITE 3500 LOS ANGELES, CA 90013-1024 213-892-5200 JOHN WILLIAM MILL SHERMAN & HOWARD 633 17TH STREET, SUITE 3000 DENVER, CO 80202 303-399-8316 SHANA T. MINTZ FOLEY & LARDNER 2029 CENTURY PARK EAST 35TH FLOOR LOS ANGELES, CA 90067 310-277-2223 ROBERT A. NAEVE MORRISON & FOERSTER 19900 MACARTHUR BLVD. 12TH FLOOR IRVINE, CA 92612-2445 949-251-7500 THEODORE A. OLSEN SHERMAN & HOWARD 633 17TH STREET #3000 DENVER, CO 80202 303-299-8380 LAWRENCE W. TREECE 303-299-8460 SHERMAN & HOWARD L.L.C. 633 17TH STREET SUITE 3000 DENVER, CO 80202 JOSE-MANUEL A. DE CASTRO FOLEY & LARDNER 2029 CENTURY PARK EAST 35TH FLOOR LOS ANGELES, CA 90067 310-277-2223

Name: Type: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:

CARRIE ANN LUCAS RESPONDENT MICHAEL WAYNE BREESKIN ARC OF DENVER 1905 SHERMAN ST. SUITE 300 DENVER, CO 80203 303-831-7733 L. JAVIER CAVAZOS L. JAVIER CAVAZOS, ATTY AT LAW P.O. BOX 329 HARLINGTON, TX 78551 956-428-7348 BRIAN D. EAST ADVOCACY, INC. - AUSTIN 7800 SHOAL CREEK BLVD. #171-E AUSTIN, TX 78757 512-454-4816 TIMOTHY P. FOX FOX & ROBERTSON 910 16TH STREET SUITE 610 DENVER, CO 80202 303-595-9700 STEVEN R. GREENBERGER DEPAUL COLLEGE OF LAW 25 E. JACKSON BLVD. CHICAGO, IL 60604 312-362-8138 STEPHEN T. LECUYER METTLER & LECUYER, PC 4308 CARLISLE, NE #208 ALBUQUERQUE, NM 87107 505-884-3244 AMY FARR ROBERTSON FOX & ROBERTSON 910 16TH STREET SUITE 610 DENVER, CO 80202 303-595-9700 JAMES EARL TEAGUE ADVOCACY, INC. 1001 MAIN ST. #200 LUBBOCK, TX 79401 806-765-7794 DENETTE VAUGHN ADVOCACY, INC. 1001 MAIN ST. #200

Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone:
Name: Type: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney:
Name:
Type: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney:
ENTRY #: --

LUBBOCK, TX 79401 806-765-7794 KEVIN W. WILLIAMS COLORADO CROSS-DISABILITY COALITION 655 BROADWAY SUITE 775 DENVER, CO 80203 303-839-1775

DEBBIE LANE RESPONDENT MICHAEL WAYNE BREESKIN L. JAVIER CAVAZOS BRIAN D. EAST TIMOTHY P. FOX STEVEN R. GREENBERGER STEPHEN T. LECUYER AMY FARR ROBERTSON JAMES EARL TEAGUE DENETTE VAUGHN KEVIN W. WILLIAMS

JULIE REISKIN, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED RESPONDENT MICHAEL WAYNE BREESKIN L. JAVIER CAVAZOS BRIAN D. EAST TIMOTHY P. FOX STEVEN R. GREENBERGER STEPHEN T. LECUYER AMY FARR ROBERTSON JAMES EARL TEAGUE DENETTE VAUGHN KEVIN W. WILLIAMS

DOCKET PROCEEDINGS

DATE: 09/06/2005

DESCRIPTION: [1842809] PROCEDURALLY TERMINATED AFTER OTHER JUDICIAL ACTION; PETITION FOR PERMISSION TO APPEAL WAS GRANTED ON 8/22/05. TRANSFERRED TO CASE NO 05-1411. PARTIES SERVED BY MAIL ON 9/6/05.

--

08/22/2005

[1838582] ORDER FILED BY JUDGES KELLY, HARTZ,

AND TYMKOVICH GRANTING PETITION FOR

PERMISSION TO APPEAL; 28 USC 1292 [1830392-1].

PARTIES SERVED BY MAIL.

--

08/16/2005

[1836999] PETITION FOR PERMISSION TO APPEAL; 28

USC 1292 AND RESPONSE TO THE PETITION FOR

PERMISSION TO APPEAL SUBMITTED TO COURT.

--

08/05/2005

[1834398] APPENDIX FILED BY RESPONDENTX CARRIE

ANN LUCAS, DEBBIE LANE AND JULIE REISKIN.

ORIGINAL AND 3 COPIES: APPENDIX PAGES: 91.

--

08/05/2005

[1834395] RESPONSE FILED BY CARRIE ANN LUCAS,

DEBBIE LANE AND JULIE REISKIN TO PETITION FOR

PERMISSION TO APPEAL; 28 USC 1292. ORIGINAL AND 3

COPIES. C/S: Y

--

08/04/2005

[1834923] NOTICE OF APPEARANCE FILED BY ROBERT

A. NAEVE AS ATTORNEY FOR KMART CORPORATION.

CERT. OF INTERESTED PARTIES (Y/N): Y.

--

08/04/2005

[1834390] NOTICE OF APPEARANCE FILED BY TIMOTHY

P. FOX AND AMY FARR ROBERTSON AS ATTORNEYS

FOR CARRIE ANN LUCAS, DEBBIE LANE AND JULIE

REISKIN. CERT. OF INTERESTED PARTIES (Y/N): Y.

--

08/04/2005

[1834030] NOTICE OF APPEARANCE FILED BY DAVID F.

MCDOWELL AS ATTORNEY FOR KMART

CORPORATION. CERT. OF INTERESTED PARTIES (Y/N):

Y.

--

08/01/2005

[1832388] NOTICE OF APPEARANCE FILED BY STEVEN

M. KAUFMANN AS ATTORNEY FOR KMART

CORPORATION. CERT. OF INTERESTED PARTIES (Y/N):

Y.

--

07/28/2005

[1830402] APPENDIX TO PETITION FILED BY

PETITIONER KMART CORPORATION. ORIGINAL AND 2

COPIES. C/S: Y.

--

07/28/2005

[1830392] CASE DOCKETED. PETITION FOR PERMISSION

TO APPEAL UNDER 28 U.S.C. 1292(B) FILED. ORIGINAL

AND 3 COPIES. C/S: Y. DATE RECEIVED: 7/27/05.

--

07/28/2005

[1830599] OTHER E-DOCUMENT RECEIVED FROM

KMART CORPORATION. PLEADING TYPE: PETITION

FOR PERMISSION TO APPEAL. SUBMISSION TYPE:

EMAIL.