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UNITED STATES DISTRICT COURT --", I'"., ,.,
FOR THE MIDDLE DISTRICT OF FLORIDA . .,' ;: !::-y

ORLANDO DIVISION

MAHALA AULT, STACIE RHEA, DA~

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WALLACE, for themselves and

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on behalf of all others similarly situated, )

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Plaintiff,

)

)

v.

) Jury Trial Demanded

)

WALT DISNEY WORLD CO.,

)

)

Defendant.

)

COMPLAINT

Now COME the Plaintiffs, Mahala Ault [hereafter" Ault"], Stacie Rhea [hereafter

" Rhea"], Dan Wallace [hereafter "Wallace"][from time to time Ault, Rhea and Wallace

are collectively referred to as " Plaintiffs"], by themselves and on behalf of all others

who are similarly situated, by and through their attorneys, and in support of their

complaint against the Walt Disney World Co. [hereafter sometimes referred to as

"Disney"], state as follows:

NATURE OF COMPLAINT

1. Plaintiffs bring this suit, both individually and on behalf of all others who

are similarly situated, against the Walt Disney World Co.. This suit is brought pursuant
to Title III of the Americans With Disabilities Act, 42 U.s.c. § 12182, et. seq. [hereafter
the" ADA"). In this suit the Plaintiffs seek injunctive relief that would mandate that the

Walt Disney World Co. modify certain policies it has in place at its four Walt Disney

World Resort theme parks located within the judicial confines of the Middle District of

Florida.
2. In 1990 the United States Congress made findings regarding physically
disabled persons, finding that laws were needed to more fully protect "some 43 million
Americans [with] one or more physical or mental disabilities"; that "historically society
has tended to isolate and segregate individuals with disabilities"; and that "such forms
of discrimination against individuals with disabilities continue to be a serious and
pervasive social problem"; that "the Nation's proper goals regarding individuals with
disabilities are to assure equality of opportunity, full participation, independent living
and economic self sufficiency for such individuals"; and that" the continuing existence
of unfair and unnecessary discrimination and prejudice denies people with disabilities
the opportunity to compete on an equal basis and to pursue those opportunities for
which our free society is justifiably famous ..... " 42 U.s.c. § 12101.
3. Title III of the ADA establishes the general rule that:
[n]o 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 operates a place of public accommodation. 42 U.S.c. § 12182(a).
The ADA goes on to define" discrimination" to include:
a failure to make reasonable modifications in policies practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of
Page 20f 12

such goods, services, facilities, privileges, advantages or accommodations. 42 U.S.c. § 12182(b)(2)(A)(ii).
The regulations promulgated by the United States Department of Justice provide:
Participation in unequal benefit. A public accommodation shall not afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals. 28 C.F.R. § 36.202(b).
JURISDICTION AND VENUE
4. This lawsuit is brought under the ADA and, as such, constitutes a federal
question giving this Court jurisdiction under 28 u.s.c. § 1331. Venue is appropriate
because the defendant, the Walt Disney World Co., engages in business activities within
the judicial confines of this District.
PARTIES
5. Ault is a disabled resident of the State of Illinois. Ault brings this suit
on her own behalf and on behalf of all of those who are similarly situated.
6. Rhea is a disabled adult resident of the State of Iowa. Rhea brings this
suit on her own behalf and on behalf of all of those who are similarly situated.
7. Wallace is a disabled adult resident of the State of Illinois. Wallace brings
this suit on his own behalf and on behalf of all of those who are similarly situated. 8. The Walt Disney World Co. is a corporation incorporated in the
State of Florida. The Walt Disney World Co. owns and operates the Walt Disney World
Page 3 of 12

Resort located within the judicial confines of the Middle District of Florida.

9. The Walt Disney World Resort contains four separate theme parks, The

Magic Kingdom, Epcot, Disney-MGM Studios and Disney's Animal Kingdom. The four

theme parks require a public accommodation as that term is defined by the ADA. 42
U.s.c. § 12181(7)(1).

The Segway

ALLEGATIONS

10. The Segway PT [hereafter "Segway"] is a two-wheeled, self balancing

transportation device. It is available in various models and is manufactured and

distributed by Segway, Inc. The name "Segway PT" stands for "Segway Personal

Transporter."

11. While the Segway was not initially marketed to individuals who have disabilities, it is estimated that somewhere between 4,000 and 7,000 individuals who

have mobility related disabilities rely upon a Segway to enhance their mobility. This

group includes individuals who suffer from multiple sclerosis, arthritis, COPD,

amputees, spinal injuries, Parkinsons, and ALS (Lou Gehrig's Disease), etc. In fact,

there are a growing number of disabled Iraq war veterans who are relying upon the

Segway to enhance their mobility.

Walt Disney World Co. Policies 12. The Walt Disney World Co. prohibits the usage of a Segway at The
Magic Kingdom, Epcot, Disney-MGM Studios and Disney's Animal Kingdom by the

Page 4 of 12

general public. This ban provides no exception for those who utilize a Segway to provide mobility assistance because of a disability.
13. ''\Then Plaintiffs travel to the Walt Disney World Resort the policy of the four theme parks is to not allow them to utilize their Segway to assist them in navigating their way around the parks.
14. The Walt Disney World Co. policy of prohibiting the usage of the Segway at the four theme parks violates Title III of the ADA in that it has the effect of denying full access and enjoyment of the parks to those disabled individuals, like Plaintiffs, who rely upon the Segway for their mobility. Facts Pertaining to AuIt
15. Ault is thirty-three years old and suffers from Multiple Sclerosis. 16. As a result of her multiple sclerosis, Ault's physical mobility is very limited. Ault utilizes a Segway as her mobility device. Ault does not own a wheelchair or scooter. 17. Ault is planning a family vacation to Walt Disney World in December, 2007. After booking the vacation, Ault and her husband learned that Disney prohibits the use of the Segway at all Disney theme parks. 18. Ault's husband has spoken with representatives from Disney who have advised him that Ault will not be allowed to use her Segway at any Disney park. 19. Due to the fact that Ault will not be allowed to utilize her Segway at any of the four Disney theme parks she will not be able to fully enjoy the parks.
Page 5 of 12

Facts Pertaining to Rhea 20. Rhea suffers from Amyotrophic Lateral Sclerosis [" ALS" or "Lou Gehrig's
Disease"]. 21. Rhea's ALS greatly limits her mobility and does not allow her to walk
more than very short distances without the assistance of a mobility device. 22. Rhea relies upon a Segway as her mobility device. She does not own a
wheelchair or scooter. 23. Rhea has two young children ages three and five. Rhea's children do not
know that their mother suffers from a serious disease. Rhea's usage of a Segway, as opposed, to a wheelchair allows her family to enjoy their daily activities as normally as possible under the circumstances.
24. In September, 2007 Rhea, her husband, her children and their extended family went on a trip to Disney World.
25. Despite the requests made by Rhea's husband and attorney, Disney would not allow Rhea to utilize her Segway at any of its theme parks. Rhea did not want her children to see her relying upon a wheelchair for her mobility. As a result, Rhea was only able to take in a very small portion of the Disney theme parks.
26. Rhea was not able to fully enjoy the Parks on a September 2007 visit and will not be able to do so during any future visit if the current policy is in place.
Page 6 of 12

Facts Pertaining to Wallace 27. On October 6, 1999 Wallace was severely injured when he was involved in
an accident with a train in Staunton, Illinois. As a result of that accident Wallace lost his left foot.
28. As a result of Wallace's accident described above, he is no longer capable of walking distances in excess of one block. His prosthetic device allows him to walk short distances, however, he is not able to walk more than one block.
29. When Wallace visits any of the Four theme parks outlined above his disability would prevent him from walking around the parks.
30. As an aid to assist his mobility Wallace has purchased a Segway PT. 31. Wallace relies solely upon his Segway as a mobility device. Wallace does not own any other device [wheelchair, scooter, etc.] to assist him with his mobility. 32. Wallace intends to travel, in the near future, with his fiance and children to the Walt Disney World Resort in Florida. Wallace wants to visit The Magic Kingdom, Epeot, Disney-MGM Studios and Disney's Animal Kingdom with his fiance and children. 33. Due to the fact that Wallace will not be allowed to utilize his Segway at any of the four Disney theme parks he will not be able to fully enjoy the parks. Facts Pertaining to all Plaintiffs 34. Given the current policies in place at the Walt Disney World Resort, a disabled individual's only option would be to rent a motorized scooter or a wheelchair.
Page 7 of 12

The cost of motorized scooters is $35.00 per day. Given that the daily admission price for an adult to one of the theme parks is $67.00 per day, forcing a disabled individual to rent a motorized scooter increases his costs by more than 50% over a person who does not suffer from a mobility related disability. Similarly, additional cost are incurred in renting a wheelchair.
35. Scooter and wheelchair rentals are not available in the parking lots. For a disabled person with mobility problems, it is a long walk from the parking areas to the place where scooters and wheelchairs are rented. There would be no such walking requirement if the disabled person was allowed to bring the Segway into the Resort.
36. Renting a scooter or wheelchair will not provide the same access to all Resorts and their use is more dangerous for the disabled individual, as that individual will not have as good of a visual field from a seated position as opposed to a standing position.
37. Disney has furnished Segways for use of its employees who, upon information and belief, are not disabled with mobility problems.
CLASS ACTION ALLEGATIONS
38. Plaintiffs are bringing this action on behalf of themselves and, under Federal Rules of Civil Procedure 23(a) and 23(b), as the representative of the following class of individuals:
Those individuals who: (1) suffer from a mobility disability; (2) who rely upon a Segway PT for assistance with their mobility; and (3) who have or who intend to visit The Magic
Page 8 of 12

Kingdom, Epcot, Disney-MGM Studios and/or Disney's Animal Kingdom. 39. This action satisfies the numerosity, commonality, typicality, adequacy, predominance and superiority requirements of the Federal Rules of Civil Procedure 23(a) and 23(b). 40. Plaintiffs do not know the exact size of this proposed class. It is estimated that approximately 4,000 to 7,000 disabled American citizens rely upon the Segway PT for assistance with their mobility. Given the popularity of the four theme parks [an estimated 16.2 million people visited the Magic Kingdom in 2005 alone] it is estimated that at least ten percent of these disabled individuals would like to visit at least one of the four theme parks in the next ten years. As such, Plaintiffs believe that this potential class is in excess of fifty (50) individuals and is dispersed geographically and that, as a result, joinder in this action is impracticable. 41. The facts alleged by the Plaintiffs are substantially similar to those of other potential class members. 42. The legal issues surrounding Plaintiffs' claims are, in all relevant respects, identical to those of other potential class members. In this respect the issue is whether the policy of the Walt Disney World Co. prohibiting the usage of Segway PT's by disabled individuals violates the ADA. Further, the relief sought by the Plaintiffs is injunctive and would apply to all named and unnamed class members equally.
Page 9 of 12

43. The foregoing questions of law and fact predominate over any questions affecting only individual class members.
44. Ault, Rhea and Wallace will fairly and adequately protect class members' interests and have no interests which are antagonistic to those of other class members. Ault, Rhea and Wallace have retained counsel who are experienced in federal litigation including claims brought under the ADA.
45. That this class action is superior to the alternatives, if any, for the fair and efficient adjudication of this controversy.
WHEREFORE, Ault, Rhea and Wallace, on behalf of themselves, and on behalf of all similarly situated individuals, respectfully request that this Court certify the class and thereafter enter judgment in their favor and in favor of the class and against the Walt Disney World Co., and provide the following relief:
A. A declaration that the policies of the Walt Disney World Co. that prohibit the use of Segway PT's for disabled individuals violates Title III of the ADA.
B. A permanent injunction direction the Walt Disney World Co. to modify its policies pertaining to the use of Segway PT's by disabled patrons;
C. Aware any other declaratory and injunctive relief the Court deems appropriate;
D. Retain jurisdiction over this matter until such time as the Court is satisfied that the policy that Ault, Rhea and Wallace complain of has been rectified; and
Page 10 of 12

E. Award Ault, Rhea and Wallace all of their costs and expenses in maintaining this suit as well as all reasonable attorney fees incurred by them in bringing this action. MAHALA AULT, STACIE RHEA and DAN WALLACE

Bernard H. Dempsey, Jr.

Florida Bar No. 0107697

Nancy A. Johnson

Florida Bar No. 0597562

Dempsey & Associates, P.A.

1560 Orange Avenue, Suite 200

Winter Park, Florida 32789

Telephone:

(407) 422-5166

Facsimile:

(407) 422-8556

E-mail:

bhd@dempsey-law.com

naj@dempsey-law.com

John A. Baker!

J. Phillip Krajewski

Baker, Baker & Krajewski, LLC

415 South Seventh Street

Springfield, Illinois 62701

Telephone:

(217) 522-3445

Facsimile:

(217) 522-8234

E-mail:

johnbakerli:lw@sbq;lobal.net

jpklaw@sbc~lobal.net

! Plaintiffs are in the process of preparing their Motions to Appear Pro Hac Vice and Consents to Designation for all out-of-state counsel.
Page 11 of 12

Jason M. Medley

O'Donnell, Ferebee, Medley & Keiser, P.e. 450 Gears Road, 8th Floor

Houston, Texas 77067

Telephone:

(281) 875-8200

Facsimile:

(281) 875-4962

E-mail:

jmedley@ofmklaw.com

Page 12 of 12

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MAHALA AULT, STACIE RHEA and DAN WALLACE,

Plaintiffs,

-vs-

Case No. 6:07-cv-1785-Orl-31KRS

WALT DISNEY WORLD CO.,

Defendant. ______________________________________

ORDER

This matter comes before the Court on Defendant’s Motion to Dismiss (Doc. 20) and

Plaintiffs’ Response thereto (Doc. 40).

I. Background

Plaintiffs Mahala Ault (“Ault”), Stacie Rhea (“Rhea”) and Dan Wallace (“Wallace”) bring

this action, on behalf of themselves and others similarly situated, against Defendant Walt Disney

World, Co. for violations of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12182, et

seq. (“the ADA”).

Plaintiffs allege that they are disabled and rely solely on the Segway Personal Transporte

(“Segway”) for mobility. A Segway is a two-wheeled, self-balancing, motorized transportation

device, which an individual must stand on to ride. The Walt Disney World Resort (“WDW”)

prohibits the use of Segways by visitors at all four of its amusement parks. Plaintiffs allege that

this prohibition has the effect of denying them the full use and enjoyment of the theme parks at

WDW. Plaintiffs seek declaratory and injunctive relief, as well as costs and attorneys fees. (Doc. 1 at 10-11). II. Standard of Review
In ruling on a motion to dismiss, this Court must view the complaint in the light most favorable to the Plaintiff. Scheuer v. Rhodes, 416 U.S. 232 (1974), and must limit its consideration to the pleadings and any exhibits attached thereto. FED. R. CIV. P. 10(c); see also GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir. 1993). The Court will liberally construe the complaint’s allegations in the Plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Plaintiff must plead “enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct].” Bell Atlantic Corp. v. Twombly, 550 U.S. __, 127 S. Ct. 1955, 1965 (2007). In ruling on a motion to dismiss, “conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).
In reviewing a complaint on a motion to dismiss under Federal Rule of Civil Procedure (“Rule”) 12(b)(6), the rule to be applied is that, “courts must be mindful that the Federal Rules require only that the complaint contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’” U.S. v. Baxter Intern., Inc., 345 F.3d 866, 880 (11th Cir. 2003) (citing FED. R. CIV. P. 8(a)). This is a liberal pleading requirement, one that does not require a plaintiff to plead with particularity every element of a cause of action. Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001). Instead, the complaint need only “contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Id. (internal citation and quotation omitted). “A
-2-

complaint need not specify in detail the precise theory giving rise to recovery. All that is required is that the defendant be on notice as to the claim being asserted against him and the grounds on which it rests.” Sams v. United Food and Comm’l Workers Int’l Union, 866 F.2d 1380, 1384 (11th Cir. 1989). III. Legal Analysis
Defendant argues, inter alia, that this Court lacks subject matter jurisdiction over this matter because Plaintiffs have failed to allege sufficient facts to establish that they have standing to obtain injunctive relief. “When standing is challenged on a factual basis, the plaintiff must demonstrate that standing exists by a preponderance of the evidence.” Rosenkrantz v. Markopoulos, 254 F. Supp. 2d 1250, 1252 (M.D. Fla. 2003) (citing Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981) and Perry v. Village of Arlington Heights, 186 F.3d 826 (7th Cir. 1999)).
To obtain injunctive relief, a plaintiff must allege four things: first, that she has suffered an injury-in-fact; second, the existence of a “causal connection between the asserted injury-in-fact and the challenged action of the defendant;” third, that the injury will be redressed by a favorable decision; and, fourth, “a real and immediate -- as opposed to a merely conjectural or hypothetical – threat of future injury.” Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (emphasis in original) In ADA cases, a plaintiff lacks standing to pursue injunctive relief unless she “alleges facts giving rise to an inference that he will suffer future discrimination by the defendant.” Id. (internal citations and quotations omitted); see also Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (“Allegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be ‘certainly impending’ to constitute injury in fact.”) (internal citation and
-3-

quotation omitted); Johnson v. Bd. of Regents of the Univ. of Ga., 263 F.3d 1234, 1265 (11th Cir.
2001) (“to have standing to obtain forward-looking relief, a plaintiff must show a sufficient
likelihood that [she] will be affected by the allegedly unlawful conduct in the future”).1
Defendant correctly argues that Rhea fails to allege any intention to visit WDW in the
future. Therefore, she has not established that she will likely suffer from discrimination at the
Defendant’s hands in the future and, accordingly, lacks standing to pursue injunctive relief.
Wallace does allege that he and his family intend to visit WDW in the near future (Doc. 1 at
7) and argues that this is sufficient to establish a likelihood of future injury under Stevens v.
Premier Cruises, Inc., 215 F.3d 1237, 1239 (11th Cir. 2000). However, Wallace’s intent to visit
WDW is far more speculative than that of the plaintiff in Stevens, who had previously taken a
cruise on one of the Defendant’s ships and indicated an intent to do so again. There is no indication
that Wallace has ever visited WDW in the past, or that he has made any attempt to do so.2
1See also Shotz, 256 F.3d at 1082 (where complaint only alleged past incidents of discrimination, and did not allege that plaintiffs either attempted to return to defendant’s facility or intended to return in the future, plaintiff failed to allege real and immediate threat of future discrimination); Access Now, Inc. v. S. Fla. Stadium Corp., 161 F. Supp. 2d 1357 (S.D. Fla. 2001) (“Absent an allegation that he intends to return to the public accommodation, an ADA plaintiff fails to demonstrate this “irreducible minimum” and thus lacks standing to sue for injunctive relief.”); Atakpa v. Perimeter OB-GYN Assocs., P.C., 912 F. Supp. 1566, 1573-74 (N.D. Ga. 1994) (plaintiff lacked standing under ADA and Rehabilitation Act where she failed to allege likelihood that she would use defendant as health care provider in the future and that if she did that they would discriminate against her).
2
The Supreme Court in Lujan commented that to sufficiently establish injury in fact a plaintiff must prove more than an intent to return to places previously visited. Lujan v. Defenders of Wildlife, 504 U.S. 555, 563-64, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992). The Court stated that “such ‘someday intentions--without any description of concrete plans, or indeed even any speculation of when the some day will be-do not support a finding of ‘actual or imminent’ injury that our cases require.” Id. at 564 (emphasis in original).
-4-

Therefore, not only is the likelihood of future injury to Wallace speculative, but there is no allegation that he has suffered an injury in fact. Thus, Wallace does not have standing to obtain injunctive relief.
Finally, with regard to Ault, at the time the complaint was filed she had definitive future plans to visit WDW, in December 2007. (Doc. 1 at 5). However, because that date has passed, any injunctive relief granted by this Court cannot redress her injury. Therefore, Ault also lacks standing to obtain injunctive relief. IV. Conclusion
Accordingly, it is ORDERED that Defendant’s Motion to Dismiss (Doc. 20) is GRANTED and Plaintiffs’ Complaint is DISMISSED. Plaintiffs shall have leave to file an amended complaint within 10 days of this Order. DONE and ORDERED in Chambers, Orlando, Florida on February 20, 2008.
Copies furnished to: Counsel of Record Unrepresented Party
Rosenkrantz, 254 F. Supp. 2d at 1252.
-5-

 
 Case 6:07-cv-01785-GAP-KRS Document 81-2 Filed 12/26/08 Page 1 of 12 PageID 816

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MAHALA AULT, STACIE RHEA, DAN

)

WALLACE, for themselves and

)

on behalf of all others similarly situated, )

)

Plaintiffs,

)

)

v.

)

)

WALT DISNEY WORLD CO.,

)

)

Defendant.

)

Case No. 07-cv-1785

SECOND AMENDED COMPLAINT NOW COME the Plaintiffs, Mahala Ault [hereafter “Ault”], Stacie Rhea [hereafter “Rhea”], Dan Wallace [hereafter “Wallace”][from time to time Ault, Rhea and Wallace are collectively referred to as “Plaintiffs”], by themselves and on behalf of all others who are similarly situated, by and through their attorneys, and in support of their complaint against Walt Disney World Co. [hereafter sometimes referred to as “Disney”], state as follows:
NATURE OF COMPLAINT 1. Plaintiffs bring this suit, both individually and on behalf of all others who are similarly situated, against Walt Disney World Co.. This suit is brought pursuant to Title III of the Americans With Disabilities Act, 42 U.S.C. § 12182, et. seq. [hereafter the “ADA”]. In this suit the Plaintiffs seek injunctive relief that would mandate that Walt Disney World Co. permit the use of two-wheeled mobility devices, including Segways, within the Walt Disney World Resort in Florida and the Disneyland Resort in California. 2. In 1990 the United States Congress made findings regarding physically disabled persons, finding that laws were needed to more fully protect “some 43 million Americans [with]

Case 6:07-cv-01785-GAP-KRS Document 81-2 Filed 12/26/08 Page 2 of 12 PageID 817
one or more physical or mental disabilities”; that “historically society has tended to isolate and segregate individuals with disabilities”; and that “such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem”; that “the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living and economic self sufficiency for such individuals”; and that “the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous . . . . . “ 42 U.S.C. § 12101.
3. Title III of the ADA establishes the general rule that: [n]o 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 operates a place of public accommodation. 42 U.S.C. § 12182(a).
The ADA goes on to define “discrimination” to include: a failure to make reasonable modifications in policies practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations. 42 U.S.C. § 12182(b)(2)(A)(ii).
The regulations promulgated by the United States Department of Justice provide: Participation in unequal benefit. A public accommodation shall not afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals. 28 C.F.R. § 36.202(b).
2

Case 6:07-cv-01785-GAP-KRS Document 81-2 Filed 12/26/08 Page 3 of 12 PageID 818
JURISDICTION AND VENUE 4. This lawsuit is brought under the ADA and, as such, constitutes a federal question giving this Court jurisdiction under 28 U.S.C. § 1331. Venue is appropriate because the defendant, Walt Disney World Co., engages in business activities within the judicial confines of this District.
PARTIES 5. Ault is a disabled resident of the State of Illinois. Ault brings this suit on her own behalf and on behalf of all of those who are similarly situated. 6. Rhea is a disabled adult resident of the State of Iowa. Rhea brings this suit on her own behalf and on behalf of all of those who are similarly situated. 7. Wallace is a disabled adult resident of the State of Illinois. Wallace brings this suit on his own behalf and on behalf of all of those who are similarly situated. 8. Walt Disney World Co. is a corporation incorporated in the State of Florida. Walt Disney World Co. owns and operates the Walt Disney World Resort and the Disneyland Resort. 9. The Walt Disney World Resort and the Disneyland Resort constitute a public accommodation as that term is defined by the ADA. 42 U.S.C. § 12181(7)(I). 10. Walt Disney World Co. provides transportation services for individuals who visit its resorts. Disney acknowledges that “[t]here are many modes of transportation within the Walt Disney World Resort, including Bus, Boat and Monorail.” As such, Disney is obligated to follow the regulations of the United States Department of Transportation pertaining to the ADA. 28 C.F.R § 36.310.
3

Case 6:07-cv-01785-GAP-KRS Document 81-2 Filed 12/26/08 Page 4 of 12 PageID 819
ALLEGATIONS The Segway
11. The Segway PT [hereafter “Segway”] is a two-wheeled, self balancing transportation device. It is available in various models and is manufactured and distributed by Segway, Inc. The name “Segway PT” stands for “Segway Personal Transporter.”
12. Studies have concluded that the Segway is as safe, or safer, than a motorized scooter or motorized wheelchair when used in densely traveled areas. The United States Department of Transportation, acting pursuant to its regulatory obligations under the ADA, has concluded that:
when a [Segway] is being used as a mobility device by a person with a mobility-related disability, then the transportation provider must permit the person and his or her device onto the vehicle. This is analogous to the situation in which a transportation provider that has a general policy that does not permit pets to enter, but must permit a person with a disability to bring a service animal into a vehicle.1 The Department of Transportation further concluded that “a Segway occupies a legal position analogous to canes, walkers, etc.” 13. While the Segway was not initially marketed to individuals who have disabilities, it is estimated that somewhere between 4,000 and 7,000 individuals who have mobility related disabilities rely upon a Segway to enhance their mobility. This group includes individuals who suffer from multiple sclerosis, arthritis, COPD, amputees, spinal injuries, Parkinsons, and ALS (Lou Gehrig’s Disease), etc. In fact, there are a growing number of disabled Iraq war veterans who are relying upon the Segway to enhance their mobility. A not-for-profit organization has
1 This interpretive guideline of the DOT was written to interpret its own ADA regulations. See 49 C.F.R. § 37, et. seq.
4

Case 6:07-cv-01785-GAP-KRS Document 81-2 Filed 12/26/08 Page 5 of 12 PageID 820
already donated Segways to approximately 30 Unites States veterans who were injured in either Iraq or Afghanistan. Walt Disney World Co.
14. Walt Disney World Co. prohibits the usage of a Segway at the Walt Disney World Resort and the Disneyland Resort and on the transportation systems at those resorts by the general public. This prohibition provides no exception for those who utilize a Segway to provide mobility assistance because of a disability.
15. Walt Disney World Co. also refuses to allow its visitors to use Segways on their various transportation systems. There is no exception for disabled individuals who rely upon a Segway for their mobility.
16. Walt Disney World Co.’s prohibition against two-wheeled vehicles, including Segways, at the Walt Disney World Resort and the Disneyland Resort and on the transportation systems at those resorts has been well publicized and is known by each of the plaintiffs.
17. When Plaintiffs travel to the Walt Disney World Resort they are not permitted to utilize their Segway to assist them in navigating their way around the resorts.
18. Walt Disney World Co. prohibition against two-wheeled vehicles, including Segways, at the Walt Disney World Resort and the Disneyland Resort and on the transportation systems at those resorts violates Title III of the ADA in that it has the effect of denying full access and enjoyment of the resorts to those disabled individuals, like Plaintiffs, who rely upon the Segway for their mobility. Facts Pertaining to Ault
19. Ault is thirty-three years old and suffers from Multiple Sclerosis.
5

Case 6:07-cv-01785-GAP-KRS Document 81-2 Filed 12/26/08 Page 6 of 12 PageID 821
20. As a result of her multiple sclerosis, Ault’s physical mobility is very limited. Ault utilizes a Segway as her mobility device. Ault does not own a wheelchair or scooter.
21. Ault visited the Walt Disney World Resort in December, 2007. After booking the vacation, Ault and her husband learned that Disney prohibits the use of the Segway at all Disney Resorts.
22. Ault’s husband spoke with representatives from Disney who advised him that Ault would not be allowed to use her Segway at any Disney Resort.
23. During her visit to the Walt Disney World Resort Ault was prohibited from utilizing her Segway. Instead, Ault was forced to use a motorized wheelchair that caused severe inconvenience and physical pain that she would not have had to endure but for the denial of the use of her Segway.
24. Ault and her husband have very close personal friends who reside in the Orlando area. When they visit the Walt Disney World Resort they stay with their friends who have invited them to return. Ault and her husband have four children who all tremendously enjoy the Walt Disney World Resort and intend to return frequently.
25. The Aults currently intend to return to the Walt Disney World Resort in either late August or early September, 2008.
26. Due to the fact that Ault will not be allowed to utilize her Segway at the Walt Disney World Resort she will not be able to fully enjoy the resort during her future visits. Facts Pertaining to Rhea
27. Rhea suffers from Amyotrophic Lateral Sclerosis [“ALS” or “Lou Gehrig’s Disease”].
6

Case 6:07-cv-01785-GAP-KRS Document 81-2 Filed 12/26/08 Page 7 of 12 PageID 822
28. Rhea’s ALS greatly limits her mobility and does not allow her to walk more than very short distances without the assistance of a mobility device.
29. Rhea relies upon a Segway as her mobility device. She does not own a wheelchair or scooter.
30. Rhea has two young children ages three and five. Rhea’s children do not know that their mother suffers from a serious disease. Rhea’s usage of a Segway, as opposed to a wheelchair, allows her family to enjoy their daily activities as normally as possible under the circumstances.
31. In September, 2007 Rhea, her husband, her children and their extended family went on a trip to the Walt Disney World Resort.
32. Despite the requests made by Rhea’s husband and attorney, Disney would not allow Rhea to utilize her Segway at the Walt Disney World Resort. Rhea did not want her children to see her relying upon a wheelchair for her mobility. As a result, Rhea was only able to take in a very small portion of the Walt Disney World Resort.
33. Rhea was not able to fully enjoy the theme parks on a September 2007 visit and will not be able to do so during any future visit if the current policy is in place.
34. When Rhea traveled to the Walt Disney World Resort in September of 2007 she did so with her husband and children. Her mother-in-law arranged and financed the trip. The trip was scheduled around a business meeting she had scheduled in the Orlando, Florida area.
35. Rhea’s mother-in-law is scheduled to attend another business trip in February of 2009. She is going to bring Rhea and her family again and they again will visit the Walt Disney World Resort.
7

Case 6:07-cv-01785-GAP-KRS Document 81-2 Filed 12/26/08 Page 8 of 12 PageID 823
Facts Pertaining to Wallace 36. On October 6, 1999 Wallace was severely injured when he was involved in an
accident with a train in Staunton, Illinois. As a result of that accident Wallace lost his left foot. 37. As a result of Wallace’s accident described above, he is no longer capable of
walking distances in excess of one block. His prosthetic device allows him to walk short distances, however, he is not able to walk more than one block.
38. When Wallace visits the Walt Disney World Resort his disability would prevent him from walking around the parks.
39. As an aid to assist his mobility Wallace has purchased a Segway PT. 40. Wallace relies solely upon his Segway as a mobility device. Wallace does not own any other device [wheelchair, scooter, etc.] to assist him with his mobility. 41. For some period of time Wallace and his fiancé have been planning on traveling to the Walt Disney World Resort. They have inquired into the specifics of such vacations for some years. 42. Wallace has purchased tickets to visit Orlando and visit the Walt Disney World Resort from September 24, 2008 through October 1, 2008. This time is around the birthdays of his two children. On September 6, 2008 his daughter will be seven years old and on September 14, 2008 his son will be twelve years old. During this vacation Wallace will visit The Magic Kingdom, Epcot, Disney-MGM Studios and Disney’s Animal Kingdom with his fiancé and children. 43. Due to the fact that Wallace will not be allowed to utilize his Segway at the Walt Disney World Resort he will not be able to fully enjoy the resort unless Disney allows him to bring his Segway into the resort during this vacation.
8

Case 6:07-cv-01785-GAP-KRS Document 81-2 Filed 12/26/08 Page 9 of 12 PageID 824
Facts Pertaining to all Plaintiffs 44. Given the current prohibition against the use of two-wheeled vehicles, including
Segways, at the Walt Disney World Resort and the Disneyland Resort, a disabled individual’s only option would be to rent a motorized scooter or a wheelchair. The cost of motorized scooters is approximately $35.00 per day. Given that the daily admission price for an adult to one of the theme parks is $67.00 per day, forcing a disabled individual to rent a motorized scooter increases his costs by more than 50% over a person who does not suffer from a mobility related disability. Similarly, additional cost are incurred in renting a wheelchair.
45. Scooter and wheelchair rentals are not available in the parking lots. For a disabled person with mobility problems, it is a long walk from the parking areas to the place where scooters and wheelchairs are rented. There would be no such walking requirement if the disabled person was allowed to bring the Segway into the resorts.
46. Renting a scooter or wheelchair will not provide the same access to the resorts and their use is, in many respects, more dangerous for the disabled individual, as that individual will not have as good of a visual field from a seated position as opposed to a standing position.
47. Disney has furnished Segways for use of its employees who, upon information and belief, are not disabled with mobility problems.
48. Disney also allows individuals to rent Segways at some of its parks for certain tours.
CLASS ACTION ALLEGATIONS 49. Plaintiffs are bringing this action on behalf of themselves and, under Federal Rules of Civil Procedure 23(a) and 23(b)(2), as the representative of the following class of individuals:
9

Case 6:07-cv-01785-GAP-KRS Document 81-2 Filed 12/26/08 Page 10 of 12 PageID 825
Those individuals who: (1) suffer from a mobility disability; (2) rely upon a Segway or substantially similar stand-up mobility device for assistance with their mobility; and (3) intend to visit the Walt Disney World Resort or the Disneyland Resort. 50. This action satisfies the numerosity, commonality, typicality, adequacy, predominance and superiority requirements of the Federal Rules of Civil Procedure 23(a) and 23(b)(2). 51. Plaintiffs do not know the exact size of this proposed class. It is estimated that approximately 4,000 to 7,000 disabled American citizens rely upon the Segway PT for assistance with their mobility. Given the popularity of the Walt Disney World Resort and the Disneyland Resort [an estimated 16.2 million people visited the Magic Kingdom in 2005 alone] it is estimated that at least ten percent of these disabled individuals would like to visit at least one of the two resorts in the next ten years. As such, Plaintiffs believe that this potential class is in excess of fifty (50) individuals and is dispersed geographically and that, as a result, joinder in this action is impracticable. 52. The facts alleged by the Plaintiffs are substantially similar to those of other potential class members. 53. The legal issues surrounding Plaintiffs’ claims are, in all relevant respects, identical to those of other potential class members. In this respect the issue is whether Walt Disney World Co.’s prohibition against the use of two-wheeled vehicles, including Segways, at the Walt Disney World Resort and the Disneyland Resort and on the transportation systems at those resorts by disabled individuals violates the ADA. Further, the relief sought by the Plaintiffs is injunctive and would apply to all named and unnamed class members equally. 54. The foregoing questions of law and fact predominate over any questions affecting only individual class members.
10

Case 6:07-cv-01785-GAP-KRS Document 81-2 Filed 12/26/08 Page 11 of 12 PageID 826
55. Ault, Rhea and Wallace will fairly and adequately protect class members’ interests and have no interests which are antagonistic to those of other class members. Ault, Rhea and Wallace have retained counsel who are experienced in federal litigation including claims brought under the ADA.
56. That this class action is superior to the alternatives, if any, for the fair and efficient adjudication of this controversy.
WHEREFORE, Ault, Rhea and Wallace, on behalf of themselves, and on behalf of all similarly situated individuals, respectfully request that this Court certify the class and thereafter enter judgment in their favor and in favor of the class and against Walt Disney World Co., and provide the following relief:
A. A declaration that Walt Disney World Co.’s prohibition against the use of twowheeled vehicles, including Segways, at the Walt Disney World Resort and the Disneyland Resort and on the transportation systems at those resorts by disabled individuals violates Title III of the ADA.
B. A permanent injunction directing Walt Disney World Co. to modify its prohibition against the use of two-wheeled vehicles, including Segway, at the Walt Disney World Resort and the Disneyland Resort and on the transportation systems at those resorts by patrons who have a mobility disability and rely upon a Segway for assistance with their mobility;
C. Award any other declaratory and injunctive relief the Court deems appropriate; D. Retain jurisdiction over this matter until such time as the Court is satisfied that the policy that Ault, Rhea and Wallace complain of has been rectified; and E. Award Ault, Rhea and Wallace all of their costs and expenses in maintaining this suit as well as all reasonable attorney fees incurred by them in bringing this action.
11

Case 6:07-cv-01785-GAP-KRS Document 81-2 Filed 12/26/08 Page 12 of 12 PageID 827

MAHALA AULT, STACIE RHEA and DAN WALLACE

/s/ John A. Baker One of Their Attorneys

John A. Baker

J. Phillip Krajewksi

Baker, Baker & Krajewski, LLC

415 South Seventh Street

Springfield, Illinois 62701

Telephone:

(217) 522-3445

Facsimile:

(217) 522-8234

E-mail:

johnbakerlaw@sbcglobal.net

jpklaw@sbcglobal.net

Bernard H. Dempsey, Jr.

Dempsey & Associates, P.A.

1560 Orange Avenue, Suite 200

Winter Park, FL 32789

Telephone:

(407) 422-5166

Facsimile:

(407) 422-8556

E-mail:

bhd@dempsey-law.com

Jason M. Medley

O’Donnell, Ferebee, Medley & Keiser, P.C. 450 Gears Road, 8th Floor

Houston, Texas 77067

Telephone:

(281) 875-8200

Facsimile:

(281) 875-4962

E-mail:

jmedley@ofmklaw.com

12

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MAHALA AULT, STACIE RHEA and DAN WALLACE,

Plaintiffs,

-vs-

Case No. 6:07-cv-1785-Orl-31KRS

WALT DISNEY WORLD CO.,

Defendant. ______________________________________

ORDER

This matter comes before the Court on Defendant’s Motion to Dismiss the Amended

Complaint (Doc. 50) and Plaintiffs’ Response thereto (Doc. 51).

I. Background

Plaintiffs Mahala Ault (“Ault”), Stacie Rhea (“Rhea”) and Dan Wallace (“Wallace”) bring

this action, on behalf of themselves and others similarly situated, against Defendant Walt Disney

World, Co. for violations of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12182, et

seq. (“the ADA”).

Plaintiffs allege that they are disabled and rely solely on the Segway Personal Transporter

(“Segway”) for mobility. A Segway is a two-wheeled, self-balancing, motorized transportation

device, which an individual must stand on to ride. The Walt Disney World Resort prohibits the use

of Segways by visitors at all four of its theme parks (“the Parks”). Plaintiffs allege that this

prohibition has the effect of denying them the full use and enjoyment of the Parks. Plaintiffs seek

declaratory and injunctive relief, as well as costs and attorneys fees.

II. Standard of Review In ruling on a motion to dismiss, this Court must view the complaint in the light most
favorable to the Plaintiff. Scheuer v. Rhodes, 416 U.S. 232 (1974), and must limit its consideration to the pleadings and any exhibits attached thereto. FED. R. CIV. P. 10(c); see also GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir. 1993). The Court will liberally construe the complaint’s allegations in the Plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Plaintiff must plead “enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct].” Bell Atlantic Corp. v. Twombly, 550 U.S. __, 127 S. Ct. 1955, 1965 (2007). In ruling on a motion to dismiss, “conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).
In reviewing a complaint on a motion to dismiss under Federal Rule of Civil Procedure (“Rule”) 12(b)(6), the rule to be applied is that, “courts must be mindful that the Federal Rules require only that the complaint contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’” U.S. v. Baxter Intern., Inc., 345 F.3d 866, 880 (11th Cir. 2003) (citing FED. R. CIV. P. 8(a)). This is a liberal pleading requirement, one that does not require a plaintiff to plead with particularity every element of a cause of action. Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001). Instead, the complaint need only “contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Id. (internal citation and quotation omitted). “A complaint need not specify in detail the precise theory giving rise to recovery. All that is required is that the defendant be on notice as to the claim being asserted against him and the grounds on
-2-

which it rests.” Sams v. United Food and Comm’l Workers Int’l Union, 866 F.2d 1380, 1384 (11th Cir. 1989). III. Legal Analysis
A) Standing First, Defendant argues that Plaintiffs have, again1, failed to allege sufficient facts to establish that they have standing to obtain injunctive relief. To obtain injunctive relief, a plaintiff must allege four things: first, that she has suffered an injury-in-fact; second, the existence of a “causal connection between the asserted injury-in-fact and the challenged action of the defendant;” third, that the injury will be redressed by a favorable decision; and, fourth, “a real and immediate – as opposed to a merely conjectural or hypothetical – threat of future injury. Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (emphasis in original). In ADA cases, a plaintiff lacks standing to pursue injunctive relief unless he “alleges facts giving rise to an inference that he will suffer future discrimination by the defendant.” Id. (internal citations and quotations omitted); see also Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (“Allegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be ‘certainly impending’ to constitute injury in fact.”) (internal citation and quotation omitted); Johnson v. Bd. of Regents of the Univ. of Ga., 263 F.3d 1234, 1265 (11th Cir. 2001) (“to have standing to obtain forward-looking relief, a plaintiff must show a sufficient likelihood that [she] will be affected by the allegedly unlawful conduct in the future”). In the Amended Complaint, all three Plaintiffs allege a specific intent to visit the Parks in the future. Defendant argues that these intentions are not concrete enough because Plaintiffs may
1This Court dismissed Plaintiffs’ original complaint for lack of standing and Plaintiffs’ then filed the instant Amended Complaint.
-3-

change their minds. However, this argument would essentially foreclose any suit for injunctive relief. Anybody may “change their mind” about future plans, regardless of how concrete those plans appear to be at the outset. In this case, each Plaintiff has alleged that they intend to visit the Parks at a specific point in time in the near future. These allegations are sufficient to establish standing.
B) Failure to State a Claim Defendant then argues that Plaintiffs have failed to state a claim under the ADA because they have failed to allege facts that would demonstrate that the use of Segways is a reasonable and necessary accommodation. All of these arguments would require the exploration and resolution of factual issues that are simply not before the Court at this time. IV. Conclusion For the reasons stated herein, it is ORDERED that Defendant’s Motion to Dismiss (Doc. 50) is DENIED. DONE and ORDERED in Chambers, Orlando, Florida on May 13, 2008.
Copies furnished to: Counsel of Record Unrepresented Party
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 Case 6:07-cv-01785-GAP-KRS Document 80 Filed 12/12/08 Page 1 of 5 PageID 807

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MAHALA AULT, STACIE RHEA and DAN WALLACE,

Plaintiffs,

-vs-

Case No. 6:07-cv-1785-Orl-31KRS

WALT DISNEY WORLD CO.,

Defendant. ______________________________________

ORDER

This matter came before the Court without oral argument upon consideration of the parties’

Agreed Motion for Leave to Amend Plaintiffs’ First Amended Complaint (“Agreed Motion for

Leave to Amend”) (Doc. 77).

I. Background

Plaintiffs, Mahala Ault, Stacie Rhea and Dan Wallace (collectively, “Plaintiffs”), bring this

class action, on behalf of themselves and others similarly situated, against Defendant, Walt Disney

World, Co. (“Disney”), for alleged violations of Title III of the Americans with Disabilities Act, 42

U.S.C. § 12182, et seq. (“the ADA”).

Specifically, Plaintiffs allege that they are disabled and rely primarily on the Segways, as

opposed to wheelchairs or scooters, for their mobility. A Segway is a two-wheeled, self-balancing,

motorized transportation device upon which an individual must stand in order to ride. Disney

generally prohibits the use of Segways by visitors at all of its Florida and California theme parks

Case 6:07-cv-01785-GAP-KRS Document 80 Filed 12/12/08 Page 2 of 5 PageID 808
(the “Parks”), but permits visitors to use wheelchairs or scooters. Plaintiffs allege that Disney’s prohibition on Segways has the effect of denying them the full use and enjoyment of the Parks in contravention of the ADA.
In their Agreed Motion for Leave to Amend, the parties seek leave for Plaintiffs to file a Second Amended Complaint which, inter alia, would broaden Plaintiffs’ proposed class definition. More particularly, Plaintiffs’ new class definition would include “All persons who: (1) claim to have a mobility impairment or disability; and (2) who have brought, intend to bring or may in the future bring a Segway or other two-wheeled vehicle into the Walt Disney World Resort or the Disneyland Resort” (Doc. 77-2, ¶ 49).1
While Disney denies the material allegations in the proposed Second Amended Complaint, it has agreed to permit Plaintiffs leave to amend for purposes of the Court granting preliminary approval to the parties’ proposed settlement.2 III. Analysis
The parties contend that courts have routinely allowed the scope of claims in a case to be broadened by amending the complaint at the time of settlement (Doc. 77 at 2) (relying, inter alia, on Lipuma v. Am. Express Co., 406 F. Supp. 2d 1298, 1316 (S.D. Fla. 2005). Thus, the parties now seek to include not only Disney’s Florida Parks, but also its California Parks, in their
1The class definition orig inally proposed by Plaintiffs in th eir First Amended Complaint included: “Those individuals who: (1) suffer from a mobility disability; (2) who rely upon a Segway PT for assistance with their mobility; and (3) who have or who intend to visit The Magic Kingdom, Epcot, Disney-MGM Studios and/or Disney’s Animal Kingdom” (Doc. 49, ¶ 49).
2Which has been filed separately in conjunction with the parties’ Joint Motion for Conditional Class Certification (Doc. 79).
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Case 6:07-cv-01785-GAP-KRS Document 80 Filed 12/12/08 Page 3 of 5 PageID 809
proposed class definition. They also, however, now seek to include not only those who suffer from a mobility disability and rely upon a Segway for assistance with their mobility, but those who simply claim to suffer from a mobility disability and/or intend to bring a Segway or other-two wheeled vehicle to Disney’s Parks. Compare (Doc. 77-2, ¶ 49) with (Doc. 49, ¶ 49). In addition, then, to those who are truly disabled and require a Segway, the newly proposed class definition would reasonably include: (1) individuals who are not actually disabled, but only claim to be disabled; (2) persons who have a mobility disability but do not require standing; and (3) individuals who simply wish to bring any type of two-wheeled vehicle into the Parks (including, e.g., a bicycle or motorized scooter).
Apart from the parties’ inclusion of both Disney’s Florida and California Parks, the class definition in the proposed Second Amended Complaint is too broad. As a threshold matter, the parties’ newly proposed class definition is no longer tethered to the ADA. The ADA generally prohibits places of public accommodation from discriminating against individuals because of their disabilities. More particularly, the ADA defines such discrimination to include:
a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities... [Or] a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services... 42 U.S.C. § 12182(b)(2)(A)(ii) and (iii). The parties’ newly proposed class definition fails, inter alia, to distinguish between disabled class members who actually rely on a Segway for assistance with their mobility and those who, while disabled, might simply prefer to use a Segway rather than some other sort of auxiliary
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Case 6:07-cv-01785-GAP-KRS Document 80 Filed 12/12/08 Page 4 of 5 PageID 810
device which Disney does not prohibit (e.g., a wheelchair). While the former might be entitled to some relief under the ADA, the latter would not. In short, the parties have not sufficiently limited the class to a particular group of disabled individuals that may have experienced, or could experience, unlawful discrimination at Disney’s Parks. See, e.g., Access Now Inc. v. Walt Disney World Co., 211 F.R.D. 452, 454 (M.D. Fla. 2001).
Courts must be vigilant to ensure that a certified class is properly constituted. Powers v. Hamilton County Pub. Defender Comm’n, 501 F.3d 592, 619 (6th Cir. 2007). In this regard, District Courts are permitted to limit or modify class definitions to provide necessary precision. Id. (citing In re Monumental Life Ins. Co., 365 F.3d 408, 414 (5th Cir. 2004). To this end, the Court proposes the following class definition:
Those individuals who: (1) suffer from a mobility disability; (2) who rely upon a Segway or substantially similar stand-up mobility device for assistance with their mobility; and (3) who intend to visit the Walt Disney World Resorts or the Disneyland Resorts. This definition sufficiently limits the proposed settlement class to a cohesive unit which could warrant class action treatment. III. Conclusion Based on the foregoing, it is hereby ORDERED that the Agreed Motion for Leave to Amend Plaintiffs’ First Amended Complaint (Doc. 77) is DENIED without prejudice. The parties are free to adopt the Court’s suggested class definition (or some similar definition) and re-file their Agreed Motion for Leave to Amend, Joint Motion for Class Certification, and Joint Stipulation of Settlement and Release after incorporating the new class definition.
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Case 6:07-cv-01785-GAP-KRS Document 80 Filed 12/12/08 Page 5 of 5 PageID 811 DONE and ORDERED in Chambers, Orlando, Florida on December 12, 2008.
Copies furnished to: Counsel of Record Unrepresented Party
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 Case 6:07-cv-01785-GAP-KRS Document 82 Filed 12/26/08 Page 1 of 19 PageID 828

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MAHALA AULT, STACIE RHEA and )

DAN WALLACE,

)

)

Plaintiffs,

)

)

v.

)

)

WALT DISNEY WORLD CO.,

)

)

Defendant.

)

Case No.: 6:07-CV-1785-GAP-KRS

JOINT MOTION FOR CONDITIONAL CLASS CERTIFICATION AND PRELIMINARY APPROVAL OF JOINT STIPULATION OF SETTLEMENT AND RELEASE Under Rules 23(a), 23(b) and 23(e) of the Federal Rules of Civil Procedure, plaintiffs Mahala Ault, Stacie Rhea and Dan Wallace, individually and on behalf of all others similarly situated, and defendant Walt Disney World Co. (“Worldco”) hereby move this Court for conditional class certification and preliminary approval of a settlement resolving all claims in the above-captioned matter. The parties have executed a Joint Stipulation of Settlement and Release memorializing the terms of their agreement, which is attached hereto as Exhibit 1 (“Settlement Agreement”), and an Agreed Motion for Leave to Amend Plaintiffs’ First Amended Complaint to Add Class Allegations being filed simultaneously herewith. After protracted arms-length negotiations by experienced counsel, the parties in this case have reached a settlement that resolves all issues between them with the exception of attorneys’ fees for one of the three law firms representing plaintiffs. For purposes of this settlement only, the parties have also stipulated to conditionally certify the class defined in Plaintiffs’ Second Amended Complaint. This settlement class meets all the necessary

Case 6:07-cv-01785-GAP-KRS Document 82 Filed 12/26/08 Page 2 of 19 PageID 829
requirements under Rule 23(a) and Rule 23(b)(2) and should be certified by the Court, and the Settlement Agreement is eminently fair, reasonable and adequate. Accordingly, the Court should grant the instant motion.
BACKGROUND On November 9, 2007, Mahala Ault, Stacie Rhea and Dan Wallace, residents of Illinois and Iowa who have mobility impairments, filed a Complaint alleging that Worldco prohibits all guests from using Segways in the theme parks at Worldco’s Walt Disney World Resort (“WDW”) in violation of Title III of the Americans With Disabilities Act (“ADA”). Doc. 1, Complaint. Plaintiffs alleged they were bringing the case on behalf of a class of individuals who (1) “suffer from a mobility disability; (2) who rely on a Segway PT for assistance with their mobility; and (3) who have or who intend to visit” one or more of the theme parks at WDW, id. at ¶ 38, and they sought an injunction directing Worldco to permit the use of Segways in its theme parks and on its transportation systems. Segways are two-wheeled, gyroscopically-balanced transportation devices. Worldco prohibits guest use of two-wheeled vehicles inside WDW and Disneyland Resort (“Disneyland”), no matter the type or usage, and therefore guests are prohibited from using Segways within Worldco’s properties.1 On January 22, 2008, Worldco filed a motion to dismiss the Complaint for failure to state a claim upon which relief can be granted and for lack of subject-matter jurisdiction. Doc. 20. The Court dismissed the Complaint on February 20, 2008, finding that plaintiffs lacked standing to obtain injunctive relief but granting plaintiffs leave to file an amended complaint.
1 There is one limited circumstance that is in the nature of a theme park attraction or service rather than mobility aid. As part of its display of innovative products at Epcot, Worldco offers a limited number of guests the opportunity to experience riding a Segway in the form of a strictly supervised closed course in the early morning before most guests have arrived in (continued...)
2

Case 6:07-cv-01785-GAP-KRS Document 82 Filed 12/26/08 Page 3 of 19 PageID 830
Doc. 41, Order. On March 5, 2008, plaintiffs moved to supplement the original Complaint regarding standing (Doc. 44). The Court granted this motion and on April 1, 2008, plaintiffs amended their Complaint. Doc. 49, Plaintiffs’ First Amended Complaint.
As will be demonstrated below, this action has been vigorously prosecuted and defended. The parties engaged in extensive motion practice and substantial class discovery, including the exchange of documents and interrogatory answers, subpoenas to non-parties, and several all-day depositions. Nearing the conclusion of class discovery, the parties began to assess the possibility of settling and commenced a series of confidential discussions. These led to communications by Worldco with mobility device manufacturers and discussions among design and safety professionals about technology, modification, and customization of a new and different mobility device for use in a standing position. Worldco then caused the design, construction and testing of a prototype device which would offer the benefits allegedly provided by a Segway while meeting Worldco’s concern for the safety of all its many thousands of daily guests. As a result of this negotiation and innovation the parties entered into the Settlement Agreement.2
The terms of the settlement are set forth in detail in the Settlement Agreement that is attached hereto as Exhibit 1. Specifically, the settlement provides alternate access to WDW in Florida and Disneyland in California (together, the “Disney Resorts”). That is, as part of this Settlement Agreement, Worldco has agreed to acquire at least 15 of the newly designed electric
the park. Each person on the tour must first complete an instruction and training course on the Segway. Worldco maintains these Segways, which have a special speed limiting device. 2 Notwithstanding the terms of this Settlement Agreement, Worldco denies any and all liability to the named plaintiffs and the class they represent, and denies that it has violated Title III of the ADA in any respect.
3

Case 6:07-cv-01785-GAP-KRS Document 82 Filed 12/26/08 Page 4 of 19 PageID 831
stand-up vehicles (“ESVs”) for use at the Disney Resorts by persons with a mobility impairment or disability. This ESV is intended to replicate in dimension, purpose and operation a common wheelchair or motorized scooter while allowing individuals with a mobility impairment or disability to stand upright instead of sitting down. The ESV would be rented to guests who claim to have a mobility impairment or disability and need to use a stand-up mobility device. The ESVs will be rented on the same terms as sit-down electric vehicles. Plaintiffs have agreed that the new ESV satisfies their claims to the benefits which a Segway allegedly provides and consequently that Worldco may continue to prohibit all guests from using two-wheeled vehicles including Segways within the Disney Resorts.
The Settlement Agreement also provides a monetary payment to the named plaintiffs that will allow them to stay at WDW with their families for a week with complimentary use of the new ESV.
Finally, Worldco has reached an agreement with two of the three plaintiffs as to an appropriate amount of attorneys’ fees and costs that they may request of the Court. Specifically, John A. Baker and J. Phillip Krajewski, counsel for Dan Wallace, have represented that their unbilled attorneys’ fees and costs in the case exceed $200,000, but they have agreed that $55,000 is a reasonable amount to request in light of the result achieved and other factors. Jason Medley, counsel for Stacie Rhea, has represented that his fees and costs in the case exceed $30,000, but he has agreed that $15,000 is a reasonable amount to request as his attorneys’ fees and costs. Worldco has agreed that it will not oppose a request from Mr. Baker’s firm or Mr. Medley’s firm for attorneys’ fees and costs of up to $55,000 and $15,000, respectively. However, Bernard H. Dempsey, Jr., counsel for Mahala Ault, has not reached an agreement with Worldco and he will file a separate motion for attorneys’ fees and costs in which he will allow
4

Case 6:07-cv-01785-GAP-KRS Document 82 Filed 12/26/08 Page 5 of 19 PageID 832
Worldco ample time, with the Court’s consent, to oppose his motion. In furtherance of resolving these attorneys’ fees requests, the parties propose that the Court set the following briefing schedule: plaintiffs’ motions due 30 days from the issuance of the order granting preliminary approval of the settlement, and Worldco’s responses thereto due 30 days after the filing of plaintiffs’ motions.
ARGUMENT I. THE COURT SHOULD CERTIFY THE CLASS SOLELY FOR
PURPOSES OF SETTLEMENT The parties are seeking to conditionally certify the class solely for purposes of
settlement. “A class may be certified ‘solely for purposes of settlement where a settlement is reached before a litigated determination of the class certification issue.’” Figueroa v. Sharper Image Corp., 517 F. Supp. 2d 1292, 1319 (S.D. Fla. 2007); see also In re Beef Indus. Antitrust Litig., 607 F.2d 167, 178 (5th Cir. 1979) (holding that “a tentative or temporary settlement class was proper”).3 Because this Court has not yet ruled on class certification, conditional class certification of a settlement class is proper.
In their First Amended Complaint, plaintiffs alleged that they were bringing the case on behalf of a class of individuals who “(1) suffer from a mobility disability; (2) who rely on a Segway PT for assistance with their mobility; and (3) who have or who intend to visit” one or more of the theme parks at WDW. Doc. 49, First Amended Complaint ¶ 49. For purposes of settling this case, however, the plaintiffs are moving to amend the proposed class definition to clearly include both of Worldco’s theme park resort properties, WDW and Disneyland. Courts have routinely allowed the scope of claims in a case to be broadened by amending the complaint
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at the time of settlement. See, e.g., Lipuma v. Am. Express Co., 406 F. Supp. 2d 1298, 1316 (S.D. Fla. 2005) (recognizing that amending the complaint to broaden the scope of the claims is proper “in an effort to cover everything and insure that the settlement will in fact result in an end to litigation”) (citation omitted); Access Now, Inc. v. Cunard Line Ltd., Co., No. 00-7233, slip op. (S.D.Fla. June 11, 2001) (granting motion to amend), 2001 U.S. Dist. LEXIS 21481 (S.D.Fla. Oct. 31, 2001) (approving settlement). Thus, the settlement class consists of “those individuals who: (1) suffer from a mobility disability; (2) rely upon a Segway or substantially similar standup mobility device for assistance with their mobility; and (3) intend to visit the Walt Disney World Resort or the Disneyland Resort.”
To certify a class for settlement purposes under Federal Rule of Civil Procedure 23(e), the Settlement Class must satisfy the requirements of Rules 23(a) and 23(b). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 622 (1997); Pickett v. Iowa Beef Processors, 209 F.3d 1276, 1279 (11th Cir. 2000). Because plaintiffs’ Settlement Class satisfies the requirements under Federal Rules of Civil Procedure 23(a) and 23(b)(2), class certification is appropriate.4
A. Rule 23(a) Standards Are Satisfied In order to maintain a class action under Rule 23(a), the following four
prerequisites must be met: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of
3 The Eleventh Circuit has adopted as binding precedent the rulings of the old Fifth Circuit handed down prior to October 1, 1981. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en bane).
4 As class members may not opt out of the settlement of a class action for injunctive and declaratory relief only, notice of class certification and an opportunity to opt out are not required. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 n. 14 (1974) (stating that the notice requirements under Rule 23(c)(2) are “inapplicable to class actions for injunctive or declaratory relief maintained under subdivision (b)(2)”); Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1554 (11th Cir. 1986) (“The general rule in this Circuit is that absent members of (b)(2) classes have no automatic right to opt out of a lawsuit and to prosecute an entirely separate action.”).
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representation. See Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1569 (11th Cir. 1992) (citing Fed. R. Civ. P. 23(a)). As set forth below, the Settlement Class satisfies all four requirements.
1. Numerosity Federal Rule of Civil Procedure 23(a)(1) requires plaintiffs to prove that the proposed class is so numerous that joinder would be impracticable. Fed. R. Civ. P. 23(a)(1). While there is no fixed number, the Eleventh Circuit has explained that “generally less than twenty-one is inadequate, more than forty adequate, with numbers between varying according to other factors.” Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986). Plaintiffs have identified twenty-five individuals whose emails indicate that they would likely be included in the Settlement Class. Doc. 66, Exhibit 1. Given the bi-coastal expansiveness of the Settlement Class, the Court can readily conclude that the Settlement Class is so numerous that joinder of all individual class members would be impracticable. Other factors bearing on the numerosity requirement include the geographic diversity and financial resources of class members as well as their ability to institute and maintain individual actions. Access Now, Inc. v. Ambulatory Surgery Ctr. Group, Ltd., 197 F.R.D. 522, 525 (S.D. Fla. 2000). In the instant case, where the place of public accommodation is a vacation destination and the requested relief is injunctive in nature, it is expected that the class members would be geographically dispersed and would not have the resources or access to counsel willing to take a non-monetary case. Accordingly, the parties have demonstrated that the Settlement Class satisfies the numerosity and impracticability requirements of Rule 23(a). 2. Commonality The commonality requirement is met if there are questions of law and fact common to the class. Fed. R. Civ. P. 23(a)(2). Not every question of law or fact needs to be
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Case 6:07-cv-01785-GAP-KRS Document 82 Filed 12/26/08 Page 8 of 19 PageID 835
common to all members of the class. See Prado-Steiman v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000). In fact, the commonality requirement is satisfied when the claims of both the named plaintiffs and putative class members arise from the same event, pattern or practice and are based on the same legal theory. See Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984). Here, the named plaintiffs have alleged discriminatory practices in violation of the ADA that comprise a “common nucleus of operative facts,” which supports class certification. Access Now, Inc. v. AHM CGH, Inc., No. 98-3004, 2000 U.S. Dist. LEXIS 14788, at *5 (S.D. Fla. July 12, 2000); see also Access Now, Inc., 197 F.R.D. at 524 (finding that the alleged existence of allegedly discriminatory practices satisfies the commonality requirement). Thus, the Settlement Class meets the requirements of Rule 23(a)(2).
3. Typicality The typicality requirement is met if the claims of the named representatives are typical of the claims of the class as a whole. Fed. R. Civ. P. 23(a)(3). This requirement ensures that the named plaintiffs possess the same interests and suffer the same injury as the potential class members. Cooper v. Southern Co., 390 F.3d 695, 713 (11th Cir. 2004). Even if some factual differences exist, a strong similarity of legal theories will establish typicality. Appleyard v. Wallace, 754 F.2d 955, 958 (11th Cir. 1985). Plaintiffs’ claims are typical of the claims of the putative members of the Settlement Class. First, like the named plaintiffs, each potential Settlement Class member is an individual who: (1) suffers from a mobility disability; (2) relies upon a Segway or substantially similar stand-up mobility device for assistance with their mobility; and (3) intends to visit the Walt Disney World Resort or the Disneyland Resort. Second, the named plaintiffs and putative Settlement Class members claim that Worldco prohibits all guests from using Segways in its resorts in violation of Title III of the ADA. Third, the requested declaratory and injunctive relief sought by plaintiffs, if granted, would benefit not
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just the named plaintiffs, but also all of the settlement class members. Thus, the claims of the named plaintiffs clearly satisfy the typicality requirements of Rule 23(a)(3).
4. Adequacy of Representation The final threshold requirement for class certification under Rule 23(a) is adequacy of representation. Fed. R. Civ. P. 23(a)(4). The adequacy prerequisite “serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Prods., Inc., 521 U.S. at 625 (citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157158 n. 13 (1982)). In assessing the adequacy of representation, courts examine: (1) whether the lead plaintiffs have interests in common with, and not antagonistic to, the interests of the class; and (2) whether plaintiffs’ attorneys are qualified, experienced and generally able to conduct the litigation. Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 726 (11th Cir. 1987). In this case, the named plaintiffs have protected the interests of the entire class in that all class members will be able to benefit from the relief provided in the Settlement Agreement. There is also no existing conflict that could hinder the named plaintiffs’ ability to pursue this case vigorously on behalf of the class. Therefore, the named plaintiffs will fairly and adequately protect the interests of the Settlement Class. Furthermore, the adequacy of counsel requirement can be met by showing that plaintiffs’ counsel is qualified, experienced and generally able to conduct the litigation. Counsel for the plaintiffs have put forth evidence that they have experience in handling complex civil litigations of this nature, and lead counsel for the Settlement Class, John Baker, has demonstrated considerable skill in helping to reach the instant compromise. Because adequacy of representation is usually presumed in the absence of evidence to the contrary, the requirements of Rule 23(a)(4) are met with respect to the Settlement Class. See Access Now, Inc., 2000 U.S. Dist. LEXIS 14788, at *5.
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B. Rule 23(b)(2) Standards Are Satisfied In addition to satisfying the requirements of Rule 23(a), the Settlement Class must
be certifiable under Rule 23(b). Amchem, 521 U.S. at 614. Plaintiffs seek only injunctive and declaratory relief in alleging violations of Title III of the ADA. When plaintiffs seek injunctive relief, they must satisfy the requirements under Rule 23(b)(2) by demonstrating that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2); Moore v. Am. Fed. of Television & Radio Artists, 216 F.3d 1236, 1241 (11th Cir. 2000). This is exactly the kind of case for which certification under Rule 23(b)(2) is appropriate. See Access Now, Inc., 2000 U.S. Dist. LEXIS 14788, at *5 (holding that a case seeking exclusively injunctive relief for alleged noncompliance with Title III of the ADA “fits squarely within the ambit of cases for which Rule 23(b)(2) was created”). Thus, certification of the Settlement Class is proper under Rule 23(b)(2). II. THE SETTLEMENT AGREEMENT SHOULD BE APPROVED
BECAUSE IT IS FAIR, REASONABLE, AND ADEQUATE Federal Rule of Civil Procedure 23(e) conditions settlement of any class action on
court approval. Amchem, 521 U.S. at 617. A class action settlement should be approved if it is “fair, adequate and reasonable and is not the product of collusion between the parties.” Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984). In determining whether the settlement is fair, adequate and reasonable, the Court must consider all relevant factors, including “(1) the likelihood of success at trial; (2) the range of possible recovery; (3) the point on or below the range of possible recovery at which a settlement is fair, adequate and reasonable; (4) the complexity, expense and duration of litigation; (5) the substance and amount of opposition to the settlement; and (6) the stage of proceedings at which the settlement was achieved.” Id. As
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discussed in more detail below, the Settlement Agreement is fair, adequate, and reasonable, and is not the product of collusion. Accordingly, the Court should approve it.
A. Likelihood of Success at Trial To establish a violation of the ADA’s reasonable modification provision, 42
U.S.C. § 12182(b)(2)(A)(ii), plaintiffs must prove that the requested modification is “necessary to afford access” to defendant’s facilities. See, e.g., PGA Tour, Inc. v. Martin, 532 U.S. at 688. Plaintiffs face significant obstacles to prevailing at trial in light of case law establishing that individuals with disabilities are not entitled to their choice of accommodation. Here, plaintiffs all testified that they are physically able to sit in a wheelchair or scooter. Specifically, Dan Wallace works out of his home, where he typically sits at his computer “all day.” He used a wheelchair for approximately 6 months prior to purchasing a Segway, which he prefers because people ask questions without thinking “anything is wrong with you . . . They think it’s neat.” See Doc. 72, Exhibit 1, Deposition of Dan Wallace at 11, 13, 16 and 21. Mahala Ault visited the four theme parks at WDW and spent “most of the day” and some evenings as well viewing different parts of WDW, all with a three-wheeled motorized scooter. Doc. 72, Exhibit 6, Deposition of Mahala Ault at 96. Stacie Rhea actually walked the first two days of her vacation at WDW; on the third day, she rented a motorized scooter for a couple of hours. See Doc. 72, Exhibit 7, Deposition of Stacie Rhea at 68, 80. Therefore, plaintiffs may not be able to prove that it is “beyond their capacity” to access WDW using a wheelchair or motorized scooter, and the Court could find that the Segway is simply a device plaintiffs prefer to use, and at that, only sometimes.
Furthermore, plaintiffs would have to prove that their requested modification of Worldco’s exclusion of two-wheeled vehicles does not fundamentally alter the nature of goods, services, facilities, privileges, advantages or accommodations at WDW and does not pose a
11

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direct threat to the health or safety of others. During his Rule 30(b)(6) deposition, Worldco’s chief safety officer testified that he was personally involved in the original design and testing of the Segway, is extremely knowledgeable about Segways and how they perform in different conditions, and decided with others at Worldco not to allow guests to use the device because of the safety risks Segways would pose to other guests in that environment.
Given Worldco’s numerous defenses, the risk that plaintiffs may not prevail at trial is significant. While plaintiffs recognize the risks associated with going forward, they also believe in the viability of their claims and they state that they brought this case to serve the goals of independence and dignity for persons with disabilities. All parties agree with those goals and believe that this settlement is superior to the cost of continued litigation. In comparison with the inherent risk and uncertainty of litigating this case, the Settlement Agreement provides certain, substantial and immediate benefits to the Settlement Class.
B. Range of Possible Recovery In determining the fairness of a settlement agreement, “[t]he settlement terms
should be compared with the likely rewards the class would have received following a successful trial of the case.” Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977). Plaintiffs seek exclusively declaratory and injunctive relief under Fed. R. Civ. P. 23(a), 23(b)(2) and the ADA. Plaintiffs’ range of possible recovery spans from a finding of non-liability to being granted declaratory and injunctive relief which would prevent Worldco from prohibiting all guests from using Segways and other two-wheeled vehicles.
C. The Point On or Below the Range of Possible Recovery At Which A Settlement Is Fair, Adequate and Reasonable_______________ As part of this Settlement Agreement, Worldco has agreed to acquire no less than
15 new ESVs for use by persons with a mobility impairment or disability at the Disney Resorts.
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The ESVs would only be rented to guests with a mobility impairment or disability who need a stand-up device. The plaintiffs agree that the ESV satisfies their claims to the benefits a Segway allegedly provides. The Settlement Agreement also provides the named plaintiffs with a monetary recovery with which they can stay at WDW for a week with their families, and with complimentary use of a new ESV. Finally, the Settlement Agreement provides a total of up to $70,000 to two of the three firms representing the plaintiffs.5
The relief in this Settlement Agreement does not require Worldco to allow its guests to use Segways, but provides substantial if not equivalent benefits to the plaintiffs and the class they represent, as demonstrated above. Therefore, the Settlement Agreement provides relief at the highest end of the range of possible recovery and therefore weighs heavily in favor of approval.
D. Complexity, Expense and Duration of Litigation The parties have spent a great deal of time and expense investigating and
analyzing the factual and legal issues in this case. In fact, the attorneys’ fees and costs incurred by plaintiffs’ lead counsel, even before the class certification stage has been completed, attests to the complexity and expense of this case from their standpoint and Worldco invested much technical and developmental time and resources leading to the innovative solution reflected in the settlement. Absent settlement, this case will likely require a protracted trial and potential appeal involving considerable litigation risks, costs, and delays, with highly uncertain ultimate results, and plaintiffs would face significant risks in going forward given the defenses available
5 The completeness of the settlement is dependent on the third firm’s fee request, which Mr. Dempsey has not yet made.
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Case 6:07-cv-01785-GAP-KRS Document 82 Filed 12/26/08 Page 14 of 19 PageID 841
to Worldco. In light of these inherent costs, risks and delays, the Settlement Agreement provides significant benefits to the Settlement Class.
E. Substance and Amount of Opposition to Settlement The parties do not anticipate any significant opposition to this settlement from the
Settlement Class because it provides substantial benefits responsive to the claims asserted in this action.
F. The Stage of Proceedings at Which the Settlement Was Achieved The original complaint in this matter was filed on November 9, 2007, over a year
ago. Since then, the parties have conducted extensive motions practice, substantial discovery, and multiple settlement negotiations of a very complex and technical nature. Specifically, plaintiffs had the opportunity to take the Rule 30(b)(6) deposition of Worldco’s chief safety officer, Gregory Hale. Mr. Hale provided plaintiffs with a clear explanation of Worldco’s justifications for prohibiting Segways at the Disney resorts. During the deposition, plaintiffs also learned that Worldco had given this issue a great deal of consideration and that Worldco’s officials were extremely familiar with the design, development and operation of the Segway. Furthermore, plaintiffs were informed that Worldco gave a significant amount of thought in considering the safety risks involved in allowing Segways at the Disney resorts. As a result, counsel for plaintiffs were clearly in a position to evaluate the strengths and weaknesses of the named plaintiffs’ claims and to conclude that the Settlement Agreement provides fair, reasonable and adequate relief. Because the parties have expended much effort in analyzing the issues in this case, this Court should find that the parties are at a proper juncture for settlement. Bennett, 737 F.2d at 986.
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G. The Judgment of Experienced Counsel for the Parties In evaluating the Bennett factors, the Court must not try the case on the merits,
but rather rely on the judgment of experienced counsel and, absent fraud, “should be hesitant to substitute its own judgment for that of counsel.” Cotton, 559 F.2d at 1330. Plaintiffs are represented by counsel experienced in handling complex civil litigation of this nature. Likewise, counsel for Worldco has substantial experience in class action litigation. Therefore, the judgment of these experienced counsel that the Settlement Agreement is a fair, reasonable and adequate resolution of this case weighs in favor of approval.
H. The Settlement Is Not the Product of Collusion This litigation has been hotly contested by all parties, as demonstrated by the
numerous arguments raised by Worldco in two motions to dismiss, the efforts of the parties in conducting class discovery, and the extensive settlement-related discussions and projects since last June. Therefore, there is no reason to believe that the Settlement Agreement was the product of collusion; in fact it is based on arms-length negotiations by experienced and reputable counsel for both parties, and the negotiations lasted six months. See Diaz v. Hillsborough County Hosp. Auth., No. 8:90-CV-120-T-25B, 2000 U.S. Dist. LEXIS 14061, at *15 (M.D. Fla. Aug. 7, 2000) (holding that “[t]he settlement is the result of hard-fought, adversarial, arm’s length negotiation” because the litigation was hotly contested and the parties were involved in extensive settlement negotiations over a period of several months). Notably, two of the three plaintiffs and their counsel agreed to substantially reduce their attorneys’ fees and costs, which further demonstrates that this settlement is not the product of collusion. Clearly, the absence of collusion in this case favors approval of the Settlement Agreement.
When considered together, all the Bennett factors support approval of the class action settlement under Rule 23(e). The settlement also ensures that there will be appropriate
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notice to class members. At least 60 days prior to any hearing under Rule 23(e), the parties will send by mail or email the Notice of Class Action Settlement and Hearing6 to each person known to counsel for any party in this case who claims to have a mobility impairment or disability and expressed an interest in bringing a Segway into the Disney Resorts. Counsel for both sides are in the process of completing a search of their records and estimate that there are approximately 5060 known class members to whom notice will be sent.
The parties will also provide the same notice to two organizations, Disability Rights Advocates For Technology (“DRAFT”) and Segs4Vets, which have promoted the use of Segways as mobility aids by individuals with disabilities and which have urged the elimination or modification of rules prohibiting the use of Segways in various places and facilities around the nation. Both organizations have broad national scope in reaching out to individuals with disabilities, have been widely covered by the news media and participate in projects that provide Segways to individuals throughout the country.
Providing notice to these individuals and organizations is the most effective way of reaching those interested persons on whose behalf this case was filed. This type of notice is “the best notice practicable under the circumstances” and will insure that the settlement receives full consideration before the Court makes its final determination. Perry v. FleetBoston Fin. Corp., 229 F.R.D. 105, 125 (E.D. Pa. 2005).
6 See Exhibit A to the Stipulation of Settlement, Notice of Class Action Settlement and Hearing.
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CONCLUSION For all of the foregoing reasons, the Settlement Class should be conditionally certified for settlement purposes, and the Settlement Agreement should be given preliminary approval.

Dated: December 26, 2008

s/Kerry Alan Scanlon Kerry Alan Scanlon Jeremy M. White Kaye Scholer LLP 901 15th Street, NW Washington, DC 20005 Phone: (202) 682-3500 Fax: (202) 682-3580 kscanlon@kayescholer.com jewhite@kayescholer.com

John Illinois
Em

s/Manuel Kushner

Bernard

Manuel Kushner

Florida

Florida Bar Number: 330957

Kaye Scholer LLP

Phillips Point, West Tower

Suite 900

Telephone:

777 South Flagler Drive

West Palm Beach, FL 33401-6163

Phone: (561) 802-3230

Fax: (561) 802-3217

mkushner@kayescholer.com

J.

Illinois

415 Springfield, Telephone: Facsim Em

Texas O’Donnell, 450 Houston,

Respectfully submitted,
s/John A. Baker A. Baker Bar No. 6244334
Baker, Baker & Krajewski, LLC 415 South Seventh Street Springfield, Illinois 62701 Telephone: (217) 522-3445 Facsimile: (217) 522-8234
ail: johnbakerlaw@sbcglobal.net
s/Bernard H. Dempsey, Jr. H. Dempsey Bar No. 107697
Dempsey & Associates, P.A. 1560 Orange Avenue, Suite 200 Winter Park, Florida 32789
(407) 422-5166 Facsimile: (407) 422-8556 Email: bhd@dempsey-law.com
s/J. Phillip Krajewski Phillip Krajewski Bar No. 3122935
Baker, Baker & Krajewski, LLC South Seventh Street Illinois 62701 (217) 522-3445 ile: (217) 522-8234 ail: jpklaw@sbcglobal.net
s/Jason M. Medley Jason M. Medley
Bar No. 24013153 Ferebee, Medley & Keiser, P.C.
Gears Road, 8th Floor Texas 77067

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Case 6:07-cv-01785-GAP-KRS Document 82 Filed 12/26/08 Page 18 of 19 PageID 845

Telephone: Facsim

(281) 875-8200 ile: (281) 875-4962 Email: jmedley@ofmklaw.com

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Case 6:07-cv-01785-GAP-KRS Document 82 Filed 12/26/08 Page 19 of 19 PageID 846 CERTIFICATE OF SERVICE
I hereby certify that on December 26, 2008, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all Counsel of Record.
s/Jeremy M. White Jeremy M. White Kaye Scholer LLP 901 15th Street, NW Washington, DC 20005 Phone: (202) 682-3500
13130162.DOC
19

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MAHALA AULT, STACIE RHEA and DAN WALLACE,

Plaintiffs,

-vs-

Case No. 6:07-cv-1785-Orl-31KRS

WALT DISNEY WORLD CO.,

Defendant. ______________________________________

ORDER

This matter came before the Court without oral argument upon consideration of the parties’ Second1 Agreed Motion for Leave to Amend Plaintiffs’ First Amended Complaint (“Agreed

Motion for Leave to Amend”) (Doc. 81) and Joint Motion for Conditional Class Certification and

Preliminary Approval of Joint Stipulation of Settlement and Release (“Joint Motion for

Conditional Class Certification”) (Doc. 82).

I. Background

As noted in the Court’s prior orders throughout this case, Plaintiffs, Mahala Ault, Stacie

Rhea and Dan Wallace (collectively, “Plaintiffs”), bring this class action, on behalf of themselves

and others similarly situated, against Defendant, Walt Disney World, Co. (“Disney”), for alleged

1The parties previously filed an Agreed Motion for Leave to Amend Plaintiffs’ First Amended Complaint (Doc. 77). Although the parties do not refer to the present Agreed Motion for Leave to Amend Plaintiffs’ First Amended Complaint as a “Second” motion, for ease of reference, the Court has done so throughout this Order.

violations of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12182, et seq. (“the ADA”).
Specifically, Plaintiffs allege that they are disabled and rely primarily on the Segways, as opposed to wheelchairs or scooters, for their mobility. A Segway is a two-wheeled, self-balancing, motorized transportation device upon which an individual must stand in order to ride. Disney generally prohibits the use of Segways by visitors at all of its Florida and California theme parks (the “Parks”), but permits visitors to use wheelchairs or scooters. Plaintiffs allege that Disney’s prohibition on Segways has the effect of denying them the full use and enjoyment of the Parks in contravention of the ADA.
In their Second Agreed Motion for Leave to Amend, the parties seek leave for Plaintiffs to file a Second Amended Complaint which would broaden Plaintiffs’ proposed class definition to include Disney’s theme parks located in California as well as Florida. Consistent with this Court’s December 12, 2008 Order (Doc. 80) denying the parties’ first Agreed Motion for Leave to Amend (Doc. 79), Plaintiffs Second Agreed Motion for Leave to Amend includes a class definition which sufficiently limits the proposed settlement class to a cohesive unit. Accordingly, and for the reasons articulated in the Court’s prior Order (Doc. 80), the Second Agreed Motion for Leave to Amend will be granted.
In their Joint Motion for Conditional Class Certification, the parties seek certification of a nationwide settlement class under Federal Rule of Civil Procedure 23(b)(2). After more than a year of extensive discovery and motion practice, including a pending and contested motion for class certification (Doc. 66), the parties have now reached a settlement. Specifically, the parties have agreed that Disney will make available certain electrically-powered, stand-up vehicles
-2-

(“ESVs”) at its Parks for guests who claim to have a disability which requires them to use a standup mobility device. Disney has developed these ESVs on its own and has agreed to make available no fewer than fifteen (15) of these devices at its Parks starting sometime reasonably after April 1, 2009.
After articulating the standards for class certification, the Court addresses the Joint Motion for Conditional Class Certification, infra. Having concluded that certification of a settlement-only class is appropriate in this case, the Court then analyzes the terms of the proposed settlement pursuant to Rule 23(e). The Court has jurisdiction pursuant to 28 U.S.C. § 1331. II. Standard of Review
A district court must rigorously analyze whether the requirements of Federal Rule of Civil Procedure 23 are satisfied before certifying a class. General Telephone Co. v. Falcon, 457 U.S. 147, 161 (1982); Castano v. Am. Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996); Gilchrist v. Bolger, 733 F.2d 1551, 1555 (11th Cir. 1984). This is true even in the context of a proposed settlement class. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997)(“Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems...But other specifications of [Rule 23] – those designed to protect absentees by blocking unwarranted or overbroad class definitions – demand undiluted, even heightened, attention in the settlement context.”). While the terms of a settlement may play a role in the calculus under Rule 23(a), courts cannot substitute the “fairness” of a settlement for Rule 23's certification criteria. Id. at 622.
Plaintiffs bear the burden of satisfying all of the prerequisites of Rule 23(a) and at least one of the requirements of Rule 23(b). Rutstein v. Avis Rent-a-Car Sys., Inc., 211 F.3d 1228, 1233
-3-

(11th Cir. 2000) (internal citation and quotation omitted); Gilchrist, 733 F.2d at 1556. In pertinent part, Rule 23(a) requires that:
(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. FED. R. CIV. P. 23(a). The commonalty and typicality requirements of Rule 23 are guideposts which tend to merge. Falcon, 457 U.S. at 158 n.13. Together with adequacy of representation, these requirements ask whether the proposed class would be a sufficiently cohesive unit as to warrant deviation from the usual principle that “one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.” Hansberry v. Lee, 311 U.S. 32, 40 (1940) (internal citations omitted). In addition to Rule 23(a)’s requirements, a proposed class seeking injunctive relief must also satisfy Rule 23(b)(2) by demonstrating that “the party opposing the class 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.” FED. R. CIV. P. 23(b)(2). At the class certification stage, the Court generally must view the allegations in the complaint in the light most favorable to the plaintiffs, but, in doing so, the Court need not artificially limit its examination of the factors relevant to class certification. Gibbs Props. Corp. v. Cigna Corp., 196 F.R.D. 430, 435 (M.D. Fla. 2000). The Court may appropriately look beyond plaintiffs’ allegations to determine whether Rule 23’s requirements are met. Falcon, 457 U.S. at
-4-

160 (“[S]ometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.”). However, Rule 23 does not give the Court “authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action,” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974). III. Analysis
A. Joint Motion for Conditional Class Certification As previously stated, even in the context of certifying a settlement-only class, courts must remain vigilant in ensuring that the requirements of class certification have been met. After analyzing the requirements of Rule 23(a) and 23(b)(2), infra, the Court concludes that certification of a settlement-only class is proper in this case.
1. Rule 23(a) a. Numerosity
The threshold requirement of numerosity requires that “the class is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Impracticability does not mean impossibility or infeasibility. Sandlin v. Shapiro & Fishman, 168 F.R.D. 662, 665-66 (M.D. Fla. 1996) (citation omitted). No specific number is required to satisfy numerosity. However, less than twenty-one members is generally inadequate. See, e.g., Jones v. Firestone Tire and Rubber Co., Inc., 977 F.2d 527, 534 (11th Cir. 1992)(citations omitted). Impracticability depends on the facts of each case. General Tel. Co. v. EEOC, 446 U.S. 318, 330 (1980) (The “numerosity requirement requires examination of the specific facts of each case and imposes no absolute limitations.”)
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Here, Plaintiffs have identified twenty-five individuals who would likely be included in the settlement class (Doc. 66-2). With the expansion of the class to now include Disney’s California Parks, the parties further urge the Court to consider the “bi-coastal expansiveness” of the proposed class (Doc. 82 at 7).
Although Plaintiffs have been able to identify only twenty-five actual class members, the Court is satisfied that the numerosity requirement has been met in this case. In addition to those individuals already identified by Plaintiffs, the Court agrees that the expanded class definition captures enough class members to make joinder impracticable in this case.
b. Commonality The second prerequisite of Rule 23(a) requires that there be questions of law or fact common to the class. Commonality refers to the characteristics of the class as a whole. Prado-Steiman v. Bush, 221 F.3d 1266, 1279 (citations omitted). This requirement, however, does not require that all of the questions of law or fact raised by the case be common to all class members. Id. at 1279; see also Haitian Refugee Ctr., Inc. v. Nelson, 694 F. Supp. 864, 877 (S.D. Fla. 1988). Indeed, the existence of a single factual or legal question across the class as a whole may often suffice. In re Am. Med. Sys., Inc., 75 F.3d 1069, 1080 (3d Cir. 1996). In the context of the ADA, in particular, the allegation that a defendant has engaged in a common discriminatory practice, such as failing to correct access barriers to disabled individuals, will satisfy the commonality requirement. See, e.g., Access Now, Inc. v. Ambulatory Surgery Ctr. Group, Ltd., 197 F.R.D. 522, 524 (S.D. Fla. 2000)(citations omitted). Plaintiffs have easily satisfied the commonality requirement in the instant case. Every class member, in fact, has an identical claim: Disney has prohibited its mobility-disabled patrons,
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who rely upon a Segway or substantially similar stand-up mobility device for assistance with their mobility, from using Segways at its Parks. Whatever the variation in, or extent of, particular class members’ disabilities, each member relies upon a Segway for their mobility. Accordingly, the question common to every class member is whether Disney’s general prohibition violates the ADA.
c. Typicality Under Rule 23(a)(3), the named plaintiffs, or class representatives, must present claims which are typical of the claims asserted by the absent members of the class. Appleyard v. Wallace, 754 F.2d 955, 958 (11th Cir. 1985), abrogated on other grounds by Green v. Mansour, 474 U.S. 64 (1985). Typicality does not require, however, that “all putative class members share identical claims.” Prado-Steiman, 221 F.3d at 1279 n.14 (citations omitted). Indeed, “[T]he typicality requirement may be satisfied even if there are factual distinctions between the claims of the named plaintiffs and those of other class members.” Appleyard, 754 F.2d at 958. The named plaintiffs’ claims are typical if they stem from the same event, practice, or course of conduct that forms the basis of the class claims and are based upon the same legal or remedial theory. Id.; see also Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984) (stating that “[a] sufficient nexus is established if the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory”). Thus, to meet the typicality requirement, the class representatives must demonstrate that the members of the class have the same or similar grievances as themselves. See generally Falcon, 457 U.S. 147. Plaintiffs have clearly met the typicality requirement. As with the commonality requirement, the claims of the putative class representatives in the instant case are identical to the
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claims of every class member. Every class member – whether absent from the proceedings or acting as a class representative – is asserting that Disney’s prohibition on Segways precludes them from the full use and enjoyment of the Parks. Furthermore, because both the putative class representatives and absent class members rely upon Segways for their mobility, the differences in the representatives’ and absent class members’ disabilities are irrelevant.
d. Adequacy of Representation The final requirement found in Rule 23(a) requires a showing that the representative parties will fairly and adequately protect the interests of the class. What constitutes adequate representation is a question of fact which depends upon the circumstances of each case and is entrusted to the discretion of the trial court. See 7A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1765 (3d ed. 1998); see also Schatzman v. Talley, 91 F.R.D. 270, 272 (N.D. Ga. 1981). Generally, however, the adequacy of the representation depends on two factors: (1) the named Plaintiffs must appear to be able to prosecute the action vigorously through qualified, experienced and competent counsel; and (2) the named Plaintiffs must not have interests antagonistic to those of the class. Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 726 (11th Cir. 1987) (citing Griffin v. Carlin, 755 F.2d 1516, 1532 (11th Cir. 1985)); see also Andrews v. Am. Tel. & Tel. Co., 95 F.3d 1014, 1023 (11th Cir. 1996). Just what measure of representation is adequate depends on the circumstances of each case. Guerine v. J & W Inv., Inc., 544 F.2d 863, 864-65 (5th Cir. 1977) (citations omitted). Defendants do not dispute the qualifications and competence of Plaintiffs’ counsel. The Court notes that Plaintiffs’ counsel are generally experienced and qualified to conduct the instant litigation. Furthermore, there is no conflict between the interests of the putative class
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representatives and the absent class members. Every class member has suffered the same injury and is requesting the same injunctive relief. Accordingly, the Court concludes that the named plaintiffs will fairly and adequately protect the interests of the class.
2. Rule 23(b)(2) In addition to the requirements of Rule 23(a), Plaintiffs must satisfy the requirements of Rule 23(b)(2). Rule 23(b)(2) requires a showing that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Here, Plaintiffs ask this Court to enjoin Disney from enforcing its no-Segway policy against those suffering from a disability who rely upon a Segway for assistance with their mobility. The very nature of the rights which Plaintiffs seek to vindicate requires that the relief they request run to the benefit of not only the named plaintiffs, but also to all those similarly situated. Indeed, assuming the Court were to grant injunctive relief to only one disabled individual who relies upon a Segway for his mobility, such relief would necessarily inure to the benefit of all similarly disabled individuals. As the parties note, this is precisely the sort of situation for which certification under Rule 23(b)(2) is appropriate. See, e.g., Access Now, Inc. v. AHM CGH, Inc., No. 98-cv-3004, 2000 WL 1809979, at *5 (S.D. Fla. July 12, 2000)(finding Rule 23(b)(2)’s requirements were clearly met in ADA case seeking exclusively injunctive relief). Accordingly, the Court concludes that Plaintiffs have satisfied the requirements of Rule 23(b)(2). B. Rule 23(e) - Fairness of the Settlement Agreement Class action settlements require the approval of the Court, which must ensure that the settlement is “fair, adequate and reasonable and is not the product of collusion between the
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parties.” FED. R. CIV. P. 23(e). Determination of the fairness of a class action settlement is left to the sound discretion of the district court. Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984). However, in making this determination, district courts should consider the following factors: (1) the likelihood of success at trial; (2) the range of possible recovery; (3) the point on or below the range of possible recovery at which a settlement is fair, adequate and reasonable; (4) the complexity, expense and duration of the litigation; (5) the substance and amount of opposition to the settlement; and (6) the stage of the proceedings at which the settlement was achieved. Id. (citations omitted).
As a threshold matter, Plaintiffs’ likelihood of success at trial is questionable. As they themselves concede, Plaintiffs must prove that their requested injunctive relief is necessary to afford access to Disney’s Parks (Doc. 82 at 11) (citing PGA Tour, Inc. v. Martin, 532 U.S. 661, 688 (2001)). All the named plaintiffs in this case testified that they were able to use wheelchairs or scooters (Doc. 82 at 11). Indeed, Ms. Ault, for instance, even testified that she has visited Disney’s Parks on numerous occasions by using a three-wheeled scooter (Doc. 72-7 at 25). Accordingly, the Court could easily conclude that Plaintiffs simply prefer the Segway to other types of mobility devices and that such a preference, as a matter of law, need not be accommodated under the ADA. Given Plaintiffs’ limited likelihood of success at trial, a settlement affording some relief would likely be more beneficial than receiving no relief at all.
With respect to the range of possible recovery and the point on or below the range of possible recovery at which a settlement is fair, adequate and reasonable, Plaintiffs have sought solely declaratory and injunctive relief. Consequently, the range of possible recovery is limited: Plaintiffs may either receive no relief whatsoever or an injunction precluding Disney from
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prohibiting Segways at its Parks. The parties agree, however, that Disney’s provision at its Parks of no fewer than fifteen (15) ESVs, which would be rented only to guests with a mobility disability necessitating a stand-up mobility device, would provide substantially the same relief as precluding Disney from enforcing its no-Segway policy. Accordingly, the Court concludes that the settlement places the class at the optimal point along the limited spectrum of possible outcomes in this case.
With respect to the complexity, expense and duration of the litigation, this has not been a particularly complex case. However, the parties have expended a great deal of money in prosecuting and defending this one-year-old, track three case. In addition to their extensive discovery, Plaintiffs vigorously contested a motion to dismiss (Docs. 20, 40 and 41), filed an amended complaint which was also subject to a motion to dismiss (Docs. 49, 50, 51 and 52), and drafted a thorough motion for class certification which was contested (Docs. 66 and 72). Similarly, Disney has vigorously defended this suit and has spent considerable resources in developing an alternative to Segways which meets both its safety concerns and the mobility needs of the Plaintiffs. Notwithstanding, then, the complexity of this case, the Court concludes that the settlement is fair, adequate and reasonable in light of the expense and duration of the litigation.
Lastly, with respect to the stage of the proceedings at which this settlement was reached, the Court concludes that the settlement has been reached at an appropriate time. Unlike the situation in Amchem, where the parties presented their complaint, answer, motion for conditional certification and proposed settlement on literally the same day, 521 U.S. at 601-02, the settlement here is clearly the product of a vigorously litigated case. As noted, supra, this settlement has been preceded by extensive discovery and motion practice (including a contested motion for class
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certification). In the view of the Court, there is little concern that the settlement is the product of collusion or lack of adversarial vigor.
Having assessed all of the Bennett factors, the Court grants preliminary approval to the parties’ settlement agreement. Subject to a Rule 23(e) fairness hearing, the Court will grant final approval to the settlement.
C. Notice of Settlement The Court has reviewed the parties’ proposed Notice of Class Action Settlement and Hearing (Doc. 79-3). With the exception of some minor deficiencies, the parties’ proposed notice is largely adequate. The Court, however, is ultimately responsible for ensuring that the best notice practicable is provided to the class. FED. R. CIV. P. 23(e). To this end, the Court will prepare its own notice which the parties will be directed to use. The parties suggest two methods of providing notice of the settlement. First, the parties propose to email or send a copy of the notice to “each person known to counsel for any party in this case who claims to have a mobility impairment or disability and expressed an interest in bringing a Segway to the Disney Resorts” (Doc. 82 at 16). Based on Plaintiffs prior identification of the individuals who would likely be included in the class, this method of notice will reach only twenty-five people (Doc. 66-2). Second, the parties propose to provide the same notice to Disability Rights Advocates for Technology (“DRAFT”) and Segs4Vets, a program run by DRAFT which apparently targets veterans. The parties contend that DRAFT and its Segs4Vets program have “broad national scope” which have “promoted the use of Segways as mobility aids by individuals with disabilities and which have urged the elimination or modification of rules prohibiting the use of Segways in
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various places and facilities around the nation” (Doc. 82 at 16). The parties, however, do not identify the size of DRAFT or its Segs4Vets program, their respective memberships or audiences, the method(s) by which DRAFT or Segs4Vets communicate with their members, and, most importantly, how many potential class members would likely receive notice of the settlement.
The Court concludes that the parties’ proposed means of providing notice, as presently conceived, are inadequate. While the Court has conducted a cursory review of DRAFT’s web site and finds DRAFT might be an appropriate organization through which notice could be provided, the parties have not provided the extent of DRAFT’s reach, identified any similar organizations which could also provide notice to the class, or specified the manner in which DRAFT would actually effectuate notice to the class. Accordingly, the parties are directed to file a joint supplemental brief proposing, in detail, the means by which the best notice practicable can be provided to the class. IV. Conclusion
Based on the foregoing, it is hereby ORDERED that the Second Agreed Motion for Leave to Amend Plaintiffs’ First Amended Complaint (Doc. 81) and the Joint Motion for Conditional Class Certification and Preliminary Approval of Joint Stipulation of Settlement and Release (Doc. 82) are GRANTED. Accordingly, Plaintiffs’ contested Motion for Class Certification (Doc. 66) and the prior Joint Motion for Conditional Class Certification and Preliminary Approval of Joint Stipulation of Settlement and Release (Doc. 79) are DENIED as MOOT.
The parties are FURTHER ORDERED to file a joint supplemental brief proposing, in detail, the means by which the best notice practicable can be provided to the class. More
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specifically, the parties shall identify the size and reach of DRAFT and its Segs4Vets program, the method by which this organization and its Segs4Vets program communicate with their target audiences, how many potential class members will likely receive notice of the settlement through DRAFT or Segs4Vets, and whether any similar organizations exist, including Segway, Inc. itself, through which could also be provided to the class. The parties’ joint brief will be due by no later than Friday, January 16, 2009 and shall be limited to no more than ten (10) pages in length. After reviewing the supplemental brief, the Court will enter an Order detailing the manner in which notice of the settlement shall be provided and setting a date some sixty (60) days thereafter for the fairness hearing.
DONE and ORDERED in Chambers, Orlando, Florida on January 5, 2009. Copies furnished to: Counsel of Record Unrepresented Party
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 Multiple Documents
Part Description 1 6 pages 2 Main Document DOJ Disney Class Action Settlement Objections 3 Exhibit A - DOJ May Class Action Settlement Objections 4 Exhibit B - May Class Action Order 5 Exhibit C - Title III NPRM Excerpts
© 2012 Bloomberg Finance L.P. All rights reserved. For terms of service see bloomberglaw.com // PAGE 1 Document Link: http://www.bloomberglaw.com/ms/document/X1Q6KOKV4CO2?documentName=102.xml

Case 6:07-cv-01785-GAP-KRS Document 100 Filed 03/12/09 Page 1 of 6 PageID 1319

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MAHALA AULT, STACIE RHEA, and DAN WALLACE,
Plaintiffs, v.
WALT DISNEY WORLD CO., Defendants.

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CASE NO.

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6:07-CV-1785-GAP-KRS

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UNITED STATES’ MOTION FOR LEAVE TO PARTICIPATE AS AMICUS CURIAE This action commenced just over one year ago when three private plaintiffs who use
Segways as mobility devices filed a complaint alleging that defendant Walt Disney World Company [hereinafter “Disney”] violated Title III of the Americans With Disabilities Act, 42 U.S.C. §§ 12181-12189 (“ADA”) by failing to modify its policy banning Segways from the Walt Disney World theme parks in Florida. See Complaint (filed Nov. 9, 2007) (Docket # 1). On January 5, 2009, the Court provisionally approved a nationwide class action settlement agreement. See Joint Stipulation of Settlement and Release (filed Dec. 26, 2008) (Docket # 822) [hereinafter “Disney Class Settlement Agreement”].
In sum, the Disney Class Settlement Agreement, if approved by the Court, would require Disney to make a specified number of Disney-owned four-wheeled electric stand-up vehicles

Case 6:07-cv-01785-GAP-KRS Document 100 Filed 03/12/09 Page 2 of 6 PageID 1320
(“ESVs”) available for rent by persons with disabilities at Disney resorts (though named plaintiffs would each get complimentary one-week use of an ESV), and pay the named plaintiffs over $ 80,000 in monetary relief and attorney’s fees. See Disney Class Settlement Agreement ¶ 12. In return, class members agree to waive all present and future claims – whether arising under the ADA or state disability rights law – that relate to Disney’s blanket prohibition of Segways (and similar two-wheel vehicles) at its resorts and theme parks nationwide. See id. at ¶¶ 8-9, 13-14. A fairness hearing has been scheduled for March 31, 2009. See Notice of Class Action Settlement and Fairness Hearing (filed Jan. 21, 2009) (Docket # 85-2).
The United States of America respectfully moves this Court for leave to participate as amicus curiae on issues relating to the Disney Class Settlement Agreement, including filing the accompanying written objections to this agreement and appearing at the settlement hearing. The Department of Justice (“Department”) is the federal agency with primary responsibility for enforcing Title III of the ADA and its implementing regulations against public accommodations such as amusement parks. See 42 U.S.C. §§ 12181 - 12189; 28 C.F.R. pt. 36 (1994). The Department rarely objects to the voluntary settlement of ADA claims between private litigants. However, because the procedural flaws in the Disney Class Settlement Agreement raise serious due process concerns, because judicial endorsement of this agreement would undermine the effectiveness of the Department’s current Title III rulemaking efforts which are nearing completion, and because the substantive terms of the agreement are fundamentally unfair to absent class members, amicus curiae United States seeks leave from the Court to appear in this action in order to object to this agreement.
Permitting persons or governmental entities to appear as friends of the court through the
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Case 6:07-cv-01785-GAP-KRS Document 100 Filed 03/12/09 Page 3 of 6 PageID 1321
filing of amicus briefs “can contribute to [a] court’s understanding” of the issues involved in a particular lawsuit. Harris v. Pernsley, 820 F.2d 592, 603 (3rd Cir. 1987). Indeed, the United States has routinely filed amicus briefs in both trial and appellate courts on a broad range of issues under Title III of the ADA. See, e.g., Miller v. The California Speedway Corp, 453 F.Supp.2d 1193 (C.D. Cal. 2006) (United States appearing as amicus concerning issue of whether Title III regulations required patrons at sporting events who use to wheelchairs to have lines of sight over standing spectators), rev’d, 536 F.3d 1020 (9th Cir. 2008); The Disability Rights Council of Greater Washington v. Ames Dep’t Stores, Inc., Case No. 1:99CV0-2116 (D.D.C. June 6, 2000) (granting Department of Justice’s motion to participate as amicus on exhaustion issue); Fiedler v. American Multi-Cinema, 871 F. Supp. 35 (D.D.C. 1994) (action involving location of wheelchair seating in movie theaters); Tatum v. National Collegiate Athletic Ass’n, 992 F. Supp. 1114 (E.D. Mo. 1998) (action involving application of ADA to intercollegiate athletic eligibility standards).
Moreover, federal courts frequently permit government agencies to participate as amicus for the purpose of raising objections to private settlement agreements, including proposed ADA class action settlement agreements. See, e.g., Access Now, Inc. v. The May Dep’t Stores, Co., C.A. 00-148-CIV-Moreno (S.D. Fla. 2001) (granting United States’ amicus motion for purposes of filing written objections to conditional ADA class action settlement agreement and appearing at fairness hearing); Access Now v. Carnival Corp., et al., C.A. No. 00-7233-Civ-Moreno (S.D. Fla. 2001) (same); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1028 (9th Cir. 1998) (allowing state attorneys general to file amicus objections to class action settlement regarding minivan rear liftgate latches); In re Prudential Ins. Co. of America Sales Practices Litigation, 962 F. Supp.
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Case 6:07-cv-01785-GAP-KRS Document 100 Filed 03/12/09 Page 4 of 6 PageID 1322 450, 473 (D.N.J. 1997) (permitting state insurance commissioners to appear as amicus curiae in order to object to class action settlement involving life insurance sales practices, aff’d, 148 F.3d 283 (3rd Cir. 1998), cert. denied, 525 U.S. 1114 (1999). Accordingly, both because the United States believes that its interests may be affected by the Disney Class Settlement Agreement, and because the United States believes its views will assist the Court’s understanding of the procedural and substantive issues raised by this agreement, the United States requests that it be permitted to participate as amicus curiae for the limited purpose of filing objections to the Disney agreement and appearing at the settlement hearing. Accompanying this motion are the “Objections of Amicus Curiae United States to Proposed Disney Class Action Settlement Agreement” which the United States seeks to file in this action.
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Case 6:07-cv-01785-GAP-KRS Document 100 Filed 03/12/09 Page 5 of 6 PageID 1323

DATED: March 12, 2009
A. Brian Albritton United States Attorney Middle District of Florida

Respectfully submitted,
Loretta King Acting Assistant Attorney General Civil Rights Division A. Brian Albritton United States Attorney John L. Wodatch, Acting Deputy Assistant Attorney General Civil Rights Division
Philip Breen, Special Legal Counsel Renee Wohlenhaus, Deputy Chief Disability Rights Section
/s/ Gretchen E. Jacobs
Gretchen E. Jacobs Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice P.O. Box 66738 Washington, D.C. 20035-66738 (202) 514-9584 (202) 307-1198 (fax) gretchen.jacobs@usdoj.gov
Counsel for Amicus Curiae United States of America

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Case 6:07-cv-01785-GAP-KRS Document 100 Filed 03/12/09 Page 6 of 6 PageID 1324
CERTIFICATE OF SERVICE
I hereby certify that on this 12th day of March, 2009, true and correct copies of Objections of Amicus Curiae United States to Disney Proposed Class Action Settlement Agreement were served electronically via CM/ECF and by Federal Express, postage pre-paid, on the following parties:
John A. Baker and J. Phillip Krajewski Baker, Baker & Krajewski, LLC 415 South Seventh Street Springfield, Illinois 62701 Attorney for Plaintiff Dan Wallace
Bernard H. Dempsey, Jr. Dempsey & Associates, P.A. 1560 Orange Avenue, Suite 200 Winter Park, Florida 32789 Attorney for Plaintiff Mahala Ault
Jason M. Medley O’Donnell, Ferebee, Medley & Keiser, P.C. 450 Gears Road, 8th Floor Houston, Texas 77067 Attorney for Plaintiff Stacie Rhea
Kerry Alan Scanlon Kaye Scholer LLP 901 15th Street, N.W. Washington, D.C. 2005 Attorney for Defendant Walt Disney World Co.
/s/ Gretchen E. Jacobs

Case 6:07-cv-01785-GAP-KRS Document 100-2 Filed 03/12/09 Page 1 of 22 PageID 1325

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MAHALA AULT, STACIE RHEA, and DAN WALLACE,
Plaintiffs, v.
WALT DISNEY WORLD CO., Defendants.

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CASE NO.

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6:07-CV-1785-GAP-KRS

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OBJECTIONS OF AMICUS CURIAE UNITED STATES TO PROPOSED DISNEY CLASS ACTION SETTLEMENT AGREEMENT

INTRODUCTION On January 5, 2009, the Court provisionally approved a nationwide class settlement agreement in this action which commenced just over one year ago when the named plaintiffs filed their original complaint alleging that Walt Disney World Company (“Disney”) violated Title III of the Americans With Disabilities Act, 42 U.S.C. §§ 12181-12189 (“ADA”) by failing to modify its policy banning Segways (and other two-wheeled devices) from the four Walt Disney World theme parks in Florida even for persons with disabilities who relied on such devices for their mobility. See Joint Stipulation of Settlement and Release (filed Dec. 26, 2008) (Docket # 82, Ex. 1) [hereinafter “Disney Class Settlement Agreement”]; see also Complaint (filed Nov. 9, 2007) (Docket # 1).

Case 6:07-cv-01785-GAP-KRS Document 100-2 Filed 03/12/09 Page 2 of 22 PageID 1326

The Department of Justice (“Department” or “DOJ”) recently learned of the pendency of this provisional class settlement agreement. Under the ADA, the Department is statutorily tasked with the dual roles of promulgating regulations implementing Title III’s public accommodation provisions, as well as serving as the federal agency with primary responsibility for enforcing Title III of the ADA and its implementing regulations. See 42 U.S.C. §§ 12186(b), 12188(b); 28 C.F.R. §§ 36.502 - 36.507 (1994). The Department rarely objects to the voluntary settlement of ADA claims between private litigants. However, because the procedural flaws in the Disney Class Settlement Agreement raise serious due process concerns, because judicial endorsement of this agreement would undermine the effectiveness of the Department’s current Title III rulemaking efforts which are nearing completion, and because the substantive terms of the agreement are fundamentally unfair to absent class members, amicus curiae United States is compelled to object to its approval.
ARGUMENT The terms of the Disney Class Settlement Agreement are not complex. In sum, this provisional class settlement provides that (1) Disney will make a total of 15 Disney-owned fourwheeled electric stand-up vehicles (“ESVs”) available for rent at Disney resorts in Florida and California by persons with disabilities who require use of a stand-up mobility device at the same rental rate as other Disney-owned sit-down “electric convenience vehicles” (e.g., electric scooters) beginning around April 2009;1 (2) Disney will pay $4,000 each to the three named

1

Deployment of ESVs for rental at Disney theme parks will not necessarily begin

immediately. Disney does not, in fact, agree to make any of the agreed-upon 15 ESVs available

for rental by class members on a specific date. Rather, the Disney Class Action Settlement

Agreement merely states that “delivery of the devices . . . is expected to begin on April 1, 2009,

with use beginning at a reasonably proximate date following delivery.” Disney Class Action

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Case 6:07-cv-01785-GAP-KRS Document 100-2 Filed 03/12/09 Page 3 of 22 PageID 1327

plaintiffs (which sum they may, at their discretion, use at a Disney theme park) and provide them with complimentary one-week use of an ESV at a Disney resort; and (3) Disney will stipulate to payment of a total of $70,000 in fees to two of the three class counsel, while leaving attorney’s fees for the third class counsel (representing plaintiff Ault) to be litigated. See Disney Class Settlement Agreement at ¶ 12. In return, the named plaintiffs and absent class members waive all present and future claims – whether arising under the ADA or state disability rights law – that relate to Disney’s blanket prohibition of Segways (and similar two-wheel vehicles) at its resorts and theme parks nationwide. See id. at ¶¶ 8-9, 13-14.2
The United States strongly urges the Court to reject this Disney agreement on procedural and substantive grounds. Both because the Department only recently learned of this provisional class settlement agreement, and because the United States made similar objections to a proposed class action settlement agreement in another private ADA action (Access Now, Inc. v. The May Dep’t Stores, Co., C.A. 00-148-CIV-Moreno (S.D. Fla.) (“May”)), the United States herein provides the Court with cross-references (as appropriate) to relevant portions of its written objections filed in the May case. See Objections of Amicus Curiae United States to Proposed

Settlement Agreement, ¶ 12(a). In any event, whenever these ESVs do become available for rental at the Disney resorts, their cost to class members (excluding named plaintiffs during their one-week complimentary period) would be $45.00 per day in rental fees, as well as a refundable credit card deposit of $100.00, based on Disney’s current rental rate for Disney-owned electric scooters. See Wheelchair Rentals at Disney Theme Parks, http://disneyworld.disney.go.com/ wdwi/en_CA/common/guestServicesDetail?id=GuestServicesWheelchairRentalsDetailPage&bh cp=1 (last visited March 10, 2009). This is a significant sum relative to the cost of park admission. For example, this daily ESV rate represents 60% of the base price for an adult oneday “Magic Your Way” ticket at the Magic Kingdom theme park ($75.00) and 65% of an adult one-day ticket at Disneyland ($69.00). See Disney Resorts and Theme Parks, http://home.disney.go.com/parks/ (last visited March 10, 2009).

2

Segway® is a registered trademark of Segway Incorporated.

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Case 6:07-cv-01785-GAP-KRS Document 100-2 Filed 03/12/09 Page 4 of 22 PageID 1328

Class Action Settlement Agreement, Access Now v. May Dep’t Stores Co., C.A. No. 00-148CIV-Moreno (filed July 27, 2001) (copy attached as Exhibit A) [hereinafter “DOJ May Class Settlement Objections”]. Reference to the Department’s written objections in the May litigation, the Department believes, will assist the Court in its deliberations concerning the propriety of the instant Disney agreement since many of the procedural issues presented by the provisional class settlement agreements in these two cases are nearly identical.3 As with the district court in the May case, this Court should likewise reject the Disney Class Action Settlement Agreement due to its profound procedural and substantive defects which are summarized below.
1. The provisional Disney Class Action Settlement Agreement suffers from such weighty procedural flaws that approval of the agreement would significantly compromise the interests of both absent class members and the United States. The procedural defects underlying the Disney agreement are numerous. These procedural problems include an overbroad class definition that improvidently covers Disney’s resorts nationwide, overly expansive release provisions that impermissibly waive class members’ claims outside the scope of the underlying complaint, and the lack of any mechanisms for enforcement or compliance monitoring. Each of these procedural issues are discussed below.
(a) Class Definition Improperly Covers all Disney Resorts. The Disney agreement’s

3

In the May litigation, the conditional class action settlement agreement sought to

settle physical accessibility claims against May department stores on behalf of a nationwide class

of shoppers with mobility disabilities and their companions. After reviewing the objections filed

by the United States and other parties and conducting a fairness hearing, the district court

ultimately rejected the class settlement agreement and vacated its prior order granting

conditional class certification. See Order Vacating Order Concerning Class Certification, Notice

and Scheduling, and Order Denying as Moot Motion to Intervene and Motion for extension of

Time to File Objections, Access Now v. May Dep’t Stores Co., C.A. No. 00-148-CIV-Moreno

(filed Aug. 23, 2001) (copy attached as Exhibit B).

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class definition is overbroad because it encompasses not only Disney’s resorts in Florida (which the named plaintiffs have visited), but also the Disneyland Resort in California (which they have not). See Disney Class Settlement Agreement ¶ 5; see also Notice of Class Action Settlement and Fairness Hearing (filed Jan. 21, 2009) (Docket # 85-2). In the Second Amended Complaint, the named plaintiffs’ factual allegations focus solely on the Walt Disney World Resort in Florida. See Second Amended Complaint ¶¶ 19-43 (filed Dec. 26, 2008) (Docket # 81-2). Nowhere in this operative complaint (or any other publicly-available documents filed in this action) do named plaintiffs state that they have visited – or even have any intent of visiting – the Disneyland Resort in California. See, e.g., id.; [Proposed] First Amended Complaint ¶¶ 19-43 (filed Dec. 5, 2008) (Docket # 77-2); Defendant’s Opposition to Plaintiff’s Motion for Class Certification Under Fed. R. Civ. P. 23, Exhs. 1, 6 & 7 (filed Sept. 30, 2008) (Docket ## 72-2, 727 & 72-8 (excerpts of deposition transcripts for plaintiffs Wallace, Ault, and Rhea); Complaint ¶¶ 15-33. Indeed, it appears from the record that expansion of the class definition to include the Disneyland Resort was requested by the settling parties solely for settlement purposes. See Agreed Motion for Leave to Amend Plaintiffs’ First Amended Complaint to Add Class Allegations ¶ 2 (filed Dec. 26, 2008) (Docket # 81-1).
The are several problems with such a geographic expansion of the class definition. First, well-established Eleventh Circuit precedent holds that class representatives lack standing to raise claims on behalf of a class “unless at least one named plaintiff has suffered the injury that gives rise to that claim.” Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1280 (11th Cir. 2000); see also Murray v. Auslander, 244 F.3d 807, 810-11 (11th Cir. 2001) (vacating district court’s class certification and remanding for evidentiary determination whether at least one named
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plaintiff had standing to bring non-moot claim); In re Hydrochloride Antitrust Litigation, 160 F.Supp2d 1365, 1370-72 (S.D. Fla. 2001) (conducting state-by-state analysis of classwide antitrust claims and dismissing those claims arising under laws of states in which no named plaintiffs resided or purchased the branded drugs at issue). Moreover, should the Court endorse the Disney Class Settlement Agreement (and its overbroad class definition contained therein), the practical effect would be to moot unfairly another ADA action in the Central District of California that is expressly litigating the propriety of Disney’s ban on Segways at the Disneyland Resort, but also is much farther along procedurally than this action. See Baughman v. Walt Disney World Co., C.A. No. 07-cv-01108-CJC-MLG (C.D. Cal. filed Sept. 1, 2007). Third, while it appears that Disney’s Segway ban applies equally to all Disney resorts regardless of geographic location, there is absolutely no factual support in the public record to support the conclusion that the Disney resorts in both Florida and California (or even their respective theme parks therein) share such similar physical, operational, and typographic characteristics that unitary treatment in a class is warranted. In light of these considerations, expansion of the class definition in the Disney agreement to include Disney Resorts outside Florida is legally improper.
(b) Overbroad Release Provisions. The Disney Class Settlement Agreement’s expansive terms, however, are not limited to its class definition. In addition, the release provisions in this agreement are so overbroad that the Court could, on this basis alone, reject the agreement. Under the collective reach of these provisions, class members waive – in perpetuity – any past, present, or future disability-related discrimination claims against Disney arising under federal, state, or local law that relate to Disney’s policy banning Segways and other twowheeled vehicles from all Disney resorts. See Disney Class Settlement Agreement, ¶¶ 8-9, 13-
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14. Such an expansive release of Disney class members’ claims is legally defective for several reasons.
First, release provisions in class settlement agreements that prospectively waive claims for future civil rights violations – whether arising under the ADA or other federal antidiscrimination laws – are highly disfavored since, contrary to public policy, a settling defendant otherwise would then be able to “purchase” a license to discriminate in the future. See DOJ May Class Settlement Objections at 21-22 (collecting cases).
Moreover, the release provisions in the Disney agreement impermissibly extinguish the right of absent class members to seek redress under state or local anti-discrimination laws even though such claims plainly fall outside the scope of the Second Amended Complaint. In the Second Amended Complaint, as with their two prior complaints in this action, the named plaintiffs assert only ADA-based claims predicated on Disney’s failure to allow them to use their Segways as mobility devices while visiting the Walt Disney World Resort in Florida. Given the limited scope of this Complaint, well-established federal caselaw precludes the settling parties in Disney from compromising the claims of absent class members that arise out of other legal or factual predicates. See, e.g., National Super Spuds, Inc. v. New York Mercantile Exchange, 660 F.2d 9, 18 (2nd Cir. 1981) (“If a judgment after trial cannot extinguish claims not asserted in the class action complaint, a judgment approving a settlement in such an action should not be able to do so either.”).
Third, the overly expansive scope of the Disney Class Settlement Agreement’s release provision could also compromise the Department of Justice’s independent authority to enforce the ADA. The Department of Justice is the federal agency with primary responsibility for
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enforcing Title III of the ADA and its implementing regulations against public accommodations. See 42 U.S.C. §§ 12181 - 12189; 28 C.F.R. pt. 36 (1994). In keeping with this responsibility, the Department has the statutory authority to conduct compliance reviews of entities covered by Title III, investigate alleged violations, and, when necessary and appropriate, commence a civil action in district court for equitable relief, civil penalties, and/or monetary damages for the aggrieved party or parties. 42 U.S.C. § 12188(b). Because this agreement includes broad language precluding class members from raising “any claims” in the future against Disney (including, potentially, the filing of ADA-based complaints with the Department), it could have the practical effect of hampering the Department’s ability to fully and effectively enforce the ADA against Disney. The Department does not believe that any private settlement agreement can lawfully preclude either individuals from filing Title III-based complaints with the Department or the Department from carrying out its statutory enforcement obligations. Nonetheless, it could well be that some individuals still may be deterred by the broad language in the Disney agreement’s release provisions from filing complaints with the Department, or, alternatively, Disney could read these broad release provisions as limiting the Department’s ability to engage in future enforcement efforts (if necessary) relating to Disney’s ban on Segways as mobility devices at the Disney resorts. Either result would have a deleterious impact on the Department’s ability to enforce Title III of the ADA.
Finally, the broad linguistic sweep of the release provisions suggests that, were the Disney agreement endorsed by the Court, absent class members may be viewed as having waived their rights to seek all available forms of relief under state or local law, including substantial monetary relief. See Disney Class Settlement Agreement ¶¶ 9 (“The Settlement
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Class . . . waives all rights and benefits afforded by any statutory law as to unknown claims[.]”), 13 (released claims include “any and all claims and causes of action” predicated on Disney’s ban on Segways at all resorts).4 However, when a proposed class settlement purports to waive rights to substantial monetary relief (by virtue of compromising claims under state or local disability laws for which statutory, compensatory, and/or punitive damages may be available), constitutional considerations dictate that absent class members receive both personal notice and an opportunity to opt out of the proposed settlement agreement irrespective of whether the class action has been nominally certified under Fed. R. Civ. Proc. 23(b)(2) or 23(b)(3). See DOJ May Class Settlement Objections at 12-13 (collecting cases); see also Molski v. Gleich, 318 F.3d 937,

4

Indeed, because many states provide substantial monetary remedies for violations

of state accessibility laws or regulations, some class members may find litigating their

discrimination claims more advantageous under state law than under Title III the ADA where

only equitable relief is available for private actions. Compare, e.g., 42 U.S.C. § 12188(a)

(remedies for private Title III actions) with Ark. Code. Ann. § 16-123-107 (2008) (intentional

acts of disability discrimination liable for compensatory and punitive damages); Cal. Civ. Code

§§ 52(a), 54.3(a) (2007) (permitting recovery of statutory, action, and treble damages for

violations of state disability law); Colo. Rev. Stat. § 24-34-602 (2008) (violators of Colorado

Anti-Discrimination Act liable for damages ranging from $50-500 per occurrence); Fla. Stat.

Ann. §§ 760.07, 760.11(5) (West 2004) (disability discrimination by place of public

accommodation gives rise to cause of action for “compensatory damages, including . . . mental

anguish, loss of dignity, and any other intangible injuries, and punitive damages”); Lou. Rev.

Stat. Ann. § 46:2256 (West 1999) (disabled individuals subjected to unlawful discrimination

“shall have the right to any and all remedies under the law” including compensatory damages,

attorney’s fees, and costs); Mass. Gen. Laws. ch. 272, § 98, ch. 151B, § 5 (West 2003)

(authorizing damages for disability-based discrimination); N.Y. Exec. Law §§ 296, 297

(McKinney 2000) (authorizing damages for violations of public access law); Or. Rev. Stat. §§

659A.142, 659A.885 (2008) (authorizing compensatory damages and punitive damages not to

exceed $2,500 for unlawful discrimination by public accommodation); R.I. Gen. Laws §§ 42-87-

2, 42-87-4 (1998) (permitting victims of disability discrimination to bring actions for equitable

relief, compensatory and/or punitive damages, “or for any other relief that the court deems

appropriate”); S.C. Code Ann. § 43-33-540 (1983) (civil damages not to exceed $5,000 available

for disabled individuals subject to discrimination); Tex. Hum. Res. Code Ann. § 121.004(b)

(Vernon 1995) (cause of action for disability-based discrimination with “conclusive presumption

of damages in the amount of at least $ 100”).

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945-51 (9th Cir. 2003) (holding that district court committed reversible error by failing to afford class members personal notice and an opportunity to opt out of class action agreement settling disability-rights claims when released claims included actual and treble damages under California’s Unruh Civil Rights Act). Since only a handful (e.g., about 60) of the putative Disney class members received personal notice, and no class members have been afforded the opportunity to opt out of the Disney Class Settlement Agreement, it would be reversible error for the Court to endorse this agreement should it be viewed as releasing claims for monetary relief.
Taken together, the procedural deficiencies underlying the Disney agreement’s broad release provisions – particularly the release of all future state or federal disability discrimination actions - counsel against judicial endorsement of this agreement. See, e.g., National Super Spuds, 660 F.2d at 18-19 (reversing district court’s approval of class settlement agreement with over broad release provision that provided for uncompensated release of unliquidated potato futures contracts that were not encompassed within the class complaint concerning liquidated contracts); Petruzzi’s, Inc. v. Darling-Delaware Co., Inc., 880 F. Supp. 292, 299-301 (M.D. Pa. 1995) (rejecting class settlement requiring release of all class members’ claims when only onehalf of class received any direct economic benefit from agreement).
(c) Lack of Enforcement or Compliance Monitoring Provisions. Lastly, the Disney is procedurally flawed because it lacks any mechanisms for enforcement or compliance monitoring. Indeed, the agreement fails to devote even a single sentence with respect to mechanisms for class members or class counsel to monitor Disney’s compliance or, if necessary, seek enforcement in the event they view Disney as failing to comply with some of the agreement’s terms. Absent such provisions, the only remedy for compliance and enforcement
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issues would be an action in federal court alleging breach of the settlement agreement – an expensive and time-consuming enforcement mechanism. While the absence of compliance monitoring or enforcement provisions may not alone be a reason to reject the Disney agreement, the lack of such provisions – when coupled with the agreement's other significant procedural problems – underscores the manifest injustice class members will likely suffer if the district court endorses the agreement. Cf. Van Horn v. Trickey, 840 F.2d 604, 608 (8th Cir. 1988) (affirming district court's approval of prisoners' class action challenging conditions at correctional center when settlement agreement provided, inter alia, strong compliance monitoring program by court-appointed committee of penal experts).
2. Judicial approval of the Disney Class Settlement Agreement would compromise the Department’s ability to effectively regulate a large segment of the theme park industry. As places of public accommodation, theme parks – such as the Magic Kingdom, Epcot, Animal Kingdom, Disneyland, and California Adventure – must comply with all Title III requirements applicable to their provision of goods and services. 42 U.S.C. §§ 12181(7)(I), 12182; 28 C.F.R. §§ 36.102(a), 36.104. As noted above, the ADA affords the Department of Justice primary regulatory authority for Title III-covered public accommodations and commercial facilities. See supra p. 2; see also 42 U.S.C. §§ 12186(b). To this end, the Department is currently nearing the conclusion of the requisite rulemaking process for promulgation of revised regulations implementing Title III of the ADA. See, e.g., Notice of Proposed Rulemaking, 73 Fed. Reg. 34,508 (June 17, 2008) [hereinafter “Title III NPRM”] (excerpted copy attached as Exhibit C); Advanced Notice of Proposed Rulemaking, 69 Fed. Reg. 58,768 (Sept. 30, 2004).
Among the areas addressed by the Title III NPRM are electronic personal assistive
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mobility devices (referred to as “EPAMDs”) of which the only currently-available device on the retail market is, as far as the Department understands, the Segway. See Title III NPRM, 73 Fed. Reg. at 34,518. The Title III NPRM discusses at length several of the considerations underlying the use of EPAMDs/Segways at public accommodations by persons with disabilities and, in addition, poses four EPAMD/Segway-related questions (NPRM Question Nos. 8, 13, 47, & 49) on which the Department was specifically seeking input through public comments. See Title III NPRM, 73 Fed. Reg. at 34,518 -19, 34,522 - 523 & 34,539 - 41. Moreover, in order to provide specific regulatory guidance on the status of EPAMDs/Segways under the ADA (as requested by some members of the disability community and covered entities), the Title III NPRM proposes revising the Title III regulations by adding: (i) a definition (in § 36.104) for the new regulatory term “other power-driven mobility device” which includes EPAMDs/Segways; (ii) a new subsection (§ 36.311(b)) underscoring the well-established general requirement that Title IIIcovered public accommodations must make reasonable modifications to their policies, practices, and procedures to permit use of such devices by persons with disabilities absent an affirmative demonstration by the covered entity that permitting the device would be unreasonable or would fundamentally alter its goods, services, facilities, or accommodations; and (iii) a new subsection (§ 36.311(c)) enumerating the factors public accommodations shall consider when assessing the “reasonableness” of permitting use of a class of power-driven mobility devices by persons with disabilities at their venues and facilities. See Title III NPRM, 73 Fed. Reg. at 34,539 - 41, 34,552 & 34,556.
Lastly, the Title III NPRM specifically highlights EPAMDs/Segways accommodation issues for theme parks by way of illustration using a hypothetical theme park:
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Example 1: Although people who do not have mobility disabilities are prohibited from operating EPAMDs at a theme park, the public accommodation has developed a policy allowing people with disabilities to use EPAMDs as their mobility device at the theme park. The policy states that EPAMDs are allowed in all areas of the theme park that are open to pedestrians as a reasonable modification to its general policy on EPAMDs. The public accommodation determined that the venue provides adequate space for a larger device such as an EPAMD and that it does not fundamentally alter the nature of the theme park’s goods and services. The theme park’s policies do, however, require that EPAMDs be operated at a safe speed limit. A theme park employee may inquire at the ticket gate whether the device is needed due to the user’s disability and also inform an individual with a disability using an EPAMD that the theme park’s policy requires that it be operated at or below the designated speed limit.
Title III NPRM, 73 Fed. Reg. at 34,540.
The public comment period for the Title III NPRM has now closed. Public interest on
regulatory approaches for EPAMDs/Segways at public accommodations was keen, with the
Department receiving about 160 written comments (excluding duplicative form letters) and the
views of six speakers at the public hearing held on July 15, 2008 in Washington, D.C. See
Transcript of ADA NPRM Public Hearing, http://www.ada.gov/NPRM2008/
public_hearing_transcript.htm (statements of Kerr, Timm, Dickson, Kaplan, Maccini, and
Madden). The Department is currently reviewing these comments and will be issuing final
revised Title III regulations in the near future.
Approval of the Disney Class Settlement Agreement at this juncture would thus frustrate
the regulatory process by “freezing” in place Disney’s blanket policy banning Segways from all
Disney resorts and theme parks since the agreement has no end date. To be sure, there are strong
views on all sides regarding the extent to which mobility devices such as EPAMDs/Segways
should be accommodated by Title III-covered facilities as reflected in the diversity of opinions
expressed by Segways-related comments in response to the Title III NPRM. New mobility
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devices such as EPAMDs/Segways may well pose challenges for some facilities when balancing reasonable accommodation with legitimate safety considerations. That is why the Department is considering the inclusion of specific regulatory guidance in the revised Title III regulations that will both expressly affirm the general principle that public accommodations must reasonably accommodate use of EPAMDs/Segways by persons with disabilities, and specifically enumerate permissible factors that a public accommodation may consider in its accommodation calculus.5 Neither Disney nor the named plaintiffs, however, should be permitted to short-circuit this regulatory process by agreeing to an ill-conceived class action settlement agreement stipulating in perpetuity to Disney’s ban on the use of Segways (and similar two-wheeled devices) by persons with disabilities at all Disney resorts – irrespective of such seemingly pertinent considerations as the unique characteristics of each Disney theme park and resort (i.e., size, layout, attendance, pedestrian traffic flow, nature of rides or entertainment ) or size and operational characteristics of the mobility devices at issue.
3. The substantive terms of the Disney Class Action Settlement Agreement are manifestly unfair to absent class members who receive virtually no benefits while, by contrast, named plaintiffs receive cash payments, complimentary one-week use of ESVs, and attorneys fees. Given the Disney agreement’s considerable procedural shortcomings, it is not at all clear that, even if this agreement provided significant and evenhanded substantive benefits to class

5

Indeed, both the General Services Administration and the Department of

Transportation have already issued regulations or other forms of official guidance expressly

permitting, with certain operational restrictions, persons with disabilities to use their Segways as

mobility devices in federal buildings and transportation systems. See General Services

Administration, Notice of Interim Policy, 73 Fed. Reg. 1223 (Jan. 7, 2008); Department of

Transportation, Disability Law Guidance - “Use of ‘Segways’ on Transportation Vehicles (dated

Sept. 1, 2005) (available at http://www.fra.dot.gov/ downloads/ Research/ Segways.pdf).

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members, the settlement could be deemed fair and reasonable to absent class members. The Disney agreement’s class benefits, however, are neither substantively significant nor equitably distributed. Rather, as noted previously, the agreement’s terms grossly favor the named plaintiffs who each receive $4,000, complimentary one-week use of a Disney-owned ESV at any Disney resort, and attorney’s fees. See discussion supra pp. 2-3. Other (absent) class members, on the other hand, receive only the “opportunity” to rent a Disney-owned ESV – in lieu of being able to use their personal Segways as mobility devices – whenever they visit a Disney resort. Id.6 This Court should, therefore, summarily reject the Disney agreement as being fundamentally unfair to absent class members.
Proponents of class action settlements bear the burden of proving that the proposed settlement terms are fair, reasonable, and adequate to the class as a whole. See, e.g., Holmes v. Continental Can Co., 706 F.2d 1144, 1147 (11th Cir. 1983); Parker v. Time Warner Entertainment Co., 239 F.R.D. 318, 336 (E.D.N.Y. 2007); Petruzzi’s Inc., 880 F. Supp. at 296; 4 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 11:42 (4th ed. 2002); see also Fed. R. Civ P. 23(e)(2) (district courts may only approve binding class settlement upon finding its terms “fair, reasonable, and adequate”). Moreover, where, as here, a proposed classwide

6

Nor can Disney be heard to argue that Disney-owned ESVs must be used at its

theme parks and resorts – instead of class members’ own Segways – because Segways represent

inherently dangerous devices within a theme park environment. Two of Disney’s competitors in

the theme park industry (Busch Gardens Williamsburg and Universal Studios Hollywood) do

permit patrons with disabilities to use their own Segways within their facilities. See Busch

Gardens Williamsburg - Disabled Access Guide 2008, http://www.buschgardens.com/bgw/

Access_Guide_2008_January.pdf (last accessed March 11, 2009); Universal Studios Hollywood

- Rider’s Guide for Rider Safety and Guests With Disabilities,

http://www.universalstudioshollywood.com/pdf/guest_assistance_chart.pdf (last accessed March

11, 2009).

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settlement treats the named plaintiffs more favorably, an inference of unfairness arises that can only be rebutted by a factual showing – and not mere argument of counsel – that such disproportionate benefits are based on legitimate considerations. See, e.g., Holmes, 706 F.2d at 1148-51; Plummer v. Chemical Bank, 668 F.2d 654, 659 (2nd Cir. 1982) (fairness of voluntary class settlements favoring class representatives find support in “evidentiary foundation” rather than “arguments and recommendations of counsel”); Petruzzi’s Inc., 880 F. Supp. at 299 (cautioning that proposed class settlements affording preferential treatment to named plaintiffs require “careful judicial scrutiny” to ensure that absent class members are not being treated unfairly); Reynolds v King, 790 F. Supp. 1101, 1106 (M.D. Ala. 1990) (same); see also Fed. R. Civ. P. 23 advisory committee’s notes (2003 Amendments) (“Subdivision (e) is amended to strengthen the process of reviewing proposed class action settlements . . . . [C]ourt review and approval are essential to assure adequate representation of class members who have not participated in shaping the settlement.”).
Indeed, the cautionary note sounded by the Eleventh Circuit concerning class settlements that afford preferential treatment to class representatives applies equally to this action: “We agree that ‘where representatives plaintiffs obtain more for themselves by settlement than they do for the class for whom they are obligated to act as fiduciaries, serious questions are raised as to the fairness of the settlement to the class.” Holmes, 706 F.2d at 1148 (quoting Plummer v. Chemical Bank, 91 F.R.D. 434, 441-42 (S.D.N.Y. 1981), aff’d, 668 F.2d 654 (2nd Cir. 1982)).
That the Disney Class Settlement Agreement is patently unfair to absent class members is beyond question. For not only does the agreement provide $4,000 cash payments and other inkind economic benefits (i.e., complimentary one-week use of Disney-owned ESV) to each
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named plaintiffs, but also such monetary relief is not even statutorily permitted for private causes of action under Title III of the ADA. Compare, e.g., 42 U.S.C. § 12188(a) (remedies for private Title III actions) with id. at § 12188(b) (2) (remedies available in Title III enforcement actions filed by the Attorney General); see also United States Department of Justice, Americans With Disabilities Act - Title III Technical Assistance Manual § III-8.2000 (Nov. 1993) (“Remedies available in a private suit may include a[n] . . . injunction, restraining order, or other order, but not compensatory or punitive money damages or civil penalties.”); Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002) (money damages not available in private Title III actions). Indeed, the only purported substantive “benefit” absent class members do receive under the terms of the Disney agreement – the “opportunity” to rent one of 15 Disney-owned ESVs when visiting a Disney resort in Florida or California – has little, if any, classwide value. The many substantive flaws in the Disney agreement are highlighted below.
(a) Lack of Design or Operational Specifications for ESVs. Nowhere does the Disney agreement establish design or operational parameters for Disney-owned ESVs in order to ensure that such devices will, in fact, satisfy each class members’ mobility needs by performing comparably to his or her personally-owned Segway. Class members are left with nothing more to go on than Disney’s self-serving assurance that its ESV represents “a unique and innovative device . . . intended to replicate in dimension, purpose, and operation a common wheelchair or scooter while allowing individuals with a mobility disability to stand upright instead of sit[ting] down.” Disney Class Notice at 2; see also Disney Class Settlement Agreement ¶ 12(e) (“The Settlement Class agrees that the ESV satisfies their claims to the benefits which a Segway allegedly provides, while meeting [Disney’s] concern for the safety of all its guests.”). The
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agreement thus compels class members to “give up” their rights to use their own personal mobility devices (Segways) with no assurance whatsoever either that they would be able to use the Disney-owned ESVs in light of their own respective impairments or physical limitations, or that the ESVs would permit them to enjoy the attractions at the Disney resorts with an equal measure of function, independence, and comfort as compared to their personal Segways.
(b) Imposition of Illegal Surcharge. The Disney agreement’s requirement that class members pay rental fees for Disney-owned ESVs not only fails to provide any “benefit” to class members, but it is also legally suspect. The Title III regulations expressly prohibit public accommodations from imposing surcharges on persons with disabilities to cover the costs of compliance measures. See 28 C.F.R. § 36.301(c) (“A public accommodation may not impose a surcharge on [persons with disabilities] to cover the costs of measures, such as . . . reasonable modifications in policies, practices, and procedures, that are required to provide [persons with disabilities] the nondiscriminatory treatment” required by the ADA or Title III regulations); Title III Technical Assistance Manual § III-4.1400 (reiterating surcharge prohibition and providing of illustrative examples of measures by public accommodations taken to recoup compliance costs that would run afoul of “no surcharge” rule). Disney’s attempt to recoup its costs of complying with Title III by requiring class members to pay substantial rental fees (currently, $ 45.00 per day and a refundable $100 credit cart deposit) when using Disney-owned ESVs, see supra p. 2 n. 1, represents an illegal surcharge in violation of the ADA. See, e.g., Duprey v. State of Connecticut, 28 F.Supp.2d 702, 707-10 (D. Conn. 1998) (holding fee for handicapped parking placards violated ADA and noting “[i]f the DMV wants to pass the costs of providing placards, rather than absorbing the costs itself, it must pass the cost on to all parkers, not just those
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individuals protected by the ADA”); Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 698, 717-18 (D. Or. 1997) (arena operator prohibited from charging higher price to patrons who use wheelchairs for tickets, even though wheelchair spaces require additional space, since such additional charge would constitute an illegal surcharge).
(c) No Guarantee that ESVs Will Be Available for Use by Class Members. Even assuming that Disney-owned ESVs would indeed adequately meet each class members’ mobility needs, the Disney agreement still does not guarantee that ESVs will be available for rental by a class member when visiting one of the many Disney theme parks. Instead, this agreement merely requires Disney to make a total of 15 ESVs available for rental by class members at Disney resorts – with Disney free to distribute these devices among its theme parks at its discretion. See Disney Class Settlement Agreement at ¶ 12(a). Class members, for example, thus may travel long distances to visit a Disney resort with family or friends only to find that the theme park they wished to visit on a given day either does not have any Disney-owned ESVs or had already rented all available ESVs out for the day.
(d) Disney Already Planned to Deploy ESVs Months Before the Disney Agreement. Finally, and perhaps most important, several months before the settling parties agreed to terms on a classwide settlement of this action, Disney already was planning to make production models of its ESV available for rent at Disney resorts around April 1, 2009. See Defendant’s Opposition to Plaintiff’s Motion for Class Certification Under Fed. R. Civ. P. 23, Exhibit 3 (Cardinali Dec.) ¶ 6 ((Docket ## 72-4). Class members thus will receive the same “benefit” from Disney – that is, an opportunity to rent a Disney-owned ESV when visiting a Disney resort – irrespective of whether this Court endorses the Disney Class Settlement Agreement.
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Taken together, these considerations strongly counsel that the Disney agreement cannot withstand the “careful judicial scrutiny” required of class settlement agreements that afford preferential treatment to class representatives. See, e.g., Molski, 318 F.3d at 953-56 (rejecting class settlement of ADA action on fairness grounds when class representatives received $5,000 in monetary relief and attorneys fees, while class absent class members received nothing more than assurance that defendant’s service stations would “simply meet [their] legal obligations (or perhaps even less than that required) under the ADA); Crawford v. Equifax Payment Services, Inc., 201 F.3d 877, 882 (7th Cir. 2000) (reversing district court’s approval of class action settlement because, among other things, the named plaintiff and class counsel “were paid handsomely to go away [while] the other class members received nothing . . . and lost the right to pursue class relief”); Reynolds, 790 F. Supp. at 1105-14(rejecting class settlement agreement when named plaintiffs received substantial monetary benefits, while other class members received only “token amounts”).
CONCLUSION Taken together, the Disney Class Settlement Agreement’s significant procedural and substantive flaws strongly counsel against judicial approval of the settlement. While voluntary settlement of litigation is always a laudable goal, neither the parties nor this Court can sacrifice the claims of absent disabled class members in order to avoid litigation. The United States, therefore, objects to the Disney Class Settlement Agreement and urges the Court to disapprove this agreement.
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DATED: March 12, 2009
A. Brian Albritton United States Attorney Middle District of Florida

Respectfully submitted,
Loretta King Acting Assistant Attorney General Civil Rights Division John L. Wodatch, Acting Deputy Assistant Attorney General Civil Rights Division
Philip Breen, Special Legal Counsel Renee Wohlenhaus, Deputy Chief Disability Rights Section
/s/ Gretchen E. Jacobs Gretchen E. Jacobs Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice P.O. Box 66738 Washington, D.C. 20035-66738 (202) 514-9584 (202) 307-1198 (fax) gretchen.jacobs@usdoj.gov
Counsel for Amicus Curiae United States of America

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CERTIFICATE OF SERVICE
I hereby certify that on this 12th day of March, 2009, true and correct copies of Objections of Amicus Curiae United States to Proposed Disney Class Action Settlement Agreement were served electronically via CM/ECF and by Federal Express, postage pre-paid, on the following parties:
John A. Baker and J. Phillip Krajewski Baker, Baker & Krajewski, LLC 415 South Seventh Street Springfield, Illinois 62701 Attorney for Plaintiff Dan Wallace
Bernard H. Dempsey, Jr. Dempsey & Associates, P.A. 1560 Orange Avenue, Suite 200 Winter Park, Florida 32789 Attorney for Plaintiff Mahala Ault
Jason M. Medley O’Donnell, Ferebee, Medley & Keiser, P.C. 450 Gears Road, 8th Floor Houston, Texas 77067 Attorney for Plaintiff Stacie Rhea
Kerry Alan Scanlon Kaye Scholer LLP 901 15th Street, N.W. Washington, D.C. 2005 Attorney for Defendant Walt Disney World Co.
/s/ Gretchen E. Jacobs

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Ault et al v. Walt Disney World Co., Docket No. 6:07-cv-01785 (M.D. Fla. Nov 09, 2007), Court Docket
General Information

Case Name Docket Number Status Court Nature of Suit Related Opinion(s)

Ault et al v. Walt Disney World Co. 6:07-cv-01785 Closed United States District Court for the Middle District of Florida Civil Rights: Americans with Disabilities - Other 254 F.R.D. 680

© 2012 Bloomberg Finance L.P. All rights reserved. For terms of service see bloomberglaw.com // PAGE 1 Document Link: http://www.bloomberglaw.com/ms/document/X1Q6KOKV4CO2?documentName=102.xml

 
 Case 6:07-cv-01785-GAP-KRS Document 149 Filed 04/27/09 Page 1 of 4 PageID 2384

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MAHALA AULT, STACIE RHEA and DAN WALLACE,

Plaintiffs,

-vs-

Case No. 6:07-cv-1785-Orl-31KRS

WALT DISNEY WORLD CO.,

Defendant. ______________________________________

ORDER

This matter came before the Court without oral argument upon consideration of the Motion

for Leave to File Complaint against Defendant Disney World Co. (the “Motion”) (Doc. 145) filed

by Disability Rights Advocates for Technology (“DRAFT”), Tina Baughman, Jerry Kerr and certain other individual objectors1 (see Doc. 97) and the “Notice of Proposed Class Action

Settlement Sent to State and Federal Officials” (the “Notice”) (Doc. 146) filed by Defendant Walt

Disney World Co. (“Disney”).

In their Motion, Objectors move this Court for leave to file their own complaint against

Disney because Disney failed to comply with certain provisions of the Class Action Fairness Act

(“CAFA”), specifically 28 U.S.C. § 1715(b), discussed further, infra (Doc. 145 at 1). While

Objectors concede that their proposed complaint is “similar to the pending intervention complaint”

that Plaintiffs moved this Court for leave to file in their Motion to Intervene (Doc. 128) – which

1Unless otherwise noted, forpurposes of this Order, DRAFT, Tina Baughman, Jerry Kerry and the objectors identified in Doc. 97 are referred to collectively herein as “Objectors.”

Case 6:07-cv-01785-GAP-KRS Document 149 Filed 04/27/09 Page 2 of 4 PageID 2385
the Court recently denied (Doc. 148) – Objectors nevertheless contend that Disney’s failure to comply with CAFA’s notice provisions voids the proposed settlement agreement and that, even assuming the settlement receives final Court approval, any class member may simply “choose not to be bound” by the settlement (Doc. 145 at 8).
In pertinent part, CAFA’s notice provision provides that: (b) In general. -- Not later than 10 days after a proposed settlement of a class action is filed in court, each defendant that is participating in the proposed settlement shall serve upon the appropriate State official of each State in which a class member resides and the appropriate Federal official, a notice of the proposed settlement . . . (d) Final approval. -- An order giving final approval of a proposed settlement may not be issued earlier than 90 days after the later of the dates on which the appropriate Federal official and the appropriate State official are served with the notice required under subsection (b). (e) Noncompliance if notice not provided. --
(1) In general. -- A class member may refuse to comply with and may choose not to be bound by a settlement agreement or consent decree in a class action if the class member demonstrates that the notice required under subsection (b) has not be provided. 28 U.S.C. § 1715. The proposed settlement in this class action was filed on December 26, 2008 (Doc. 82). In its Notice, Disney admits that it failed to provide notice to the appropriate state and federal officials within ten (10) days of the filing the proposed settlement as required by 28 U.S.C. § 1715(b). Disney represents, however, that upon learning of its oversight, it immediately began to provide the required notice (Doc. 146 at 1). Disney further contends that in other reported class action cases the required notice under 28 U.S.C. § 1715(b) has been sent well after the ten-day period following the initial filing of the proposed settlement (Doc. 146 at 1-2, citing Battaline v.
-2-

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Advest, Inc., No. 06-CV-569, 2008 U.S. Dist. LEXIS 77164, at *1-2 (W.D. Pa. Oct. 1, 2008); D.S. v. New York City Dep’t of Educ., 255 F.R.D. 59, 80 (E.D.N.Y. 2008)). Finally, Disney argues that the named plaintiffs, class members, and objectors have not been prejudiced by the failure to comply with 28 U.S.C. § 1715(b) because DRAFT itself was chosen to provide notice to the class and has been actively involved in the litigation and because the U.S. Department of Justice is already an amicus curiae and has had actual knowledge of the proposed settlement for some time (Doc. 146 at 2-3).
Upon review, the Court agrees that Disney’s failure to comply with 28 U.S.C. § 1715(b) has not resulted in any actual prejudice and does not necessitate the granting of Objectors’ Motion. Accordingly, it is ORDERED and ADJUDGED that:
1. The Motion for Leave to File Complaint against Defendant Disney World Co. (Doc. 145) filed by Disability Rights Advocates for Technology (“DRAFT”), Tina Baughman, Jerry Kerr and certain other individual objectors is DENIED.
2. By no later than Friday, May 15, 2009, Defendant Walt Disney World Co. shall file a notice, styled “Notice of Compliance with 28 U.S.C. § 1715(b),” certifying its compliance with 28 U.S.C. § 1715(b) and identifying the dates on which service was effected upon the appropriate state and federal officials.
3. Consistent with 28 U.S.C. § 1715(d), and assuming that the Court decides to grant final approval to the proposed settlement agreement, the Court shall withhold its grant of final approval until at least ninety (90) days after the last date on which any appropriate state or federal official was identified as having been served in Defendant Wald Disney World Co.’s Notice of Compliance with 28 U.S.C. § 1715(b).
-3-

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4. Any appropriate state or federal official who is not otherwise informed of and already actively participating in this case may file an objection to the proposed settlement agreement at any time, before or after the fairness hearing, provided such objection is filed within ninety (90) days of having been served by Defendant Walt Disney World Co. The Court shall throughly review and give all due consideration to any such objections prior to granting or refusing to grant final approval to the proposed settlement agreement.
5. Notwithstanding the provisions of 28 U.S.C. § 1715(e), provided Defendant Walt Disney World Co.’s Notice of Compliance with 28 U.S.C. § 1715(b) demonstrates actual compliance with 28 U.S.C. § 1715(b), class members may not refuse to comply with and shall be bound by the settlement agreement in the event the Court grants final approval to same.
DONE and ORDERED in Chambers, Orlando, Florida on April 27, 2009. Copies furnished to: Counsel of Record Unrepresented Party
-4-

 
 Case 6:07-cv-01785-GAP-KRS Document 194 Filed 05/29/09 Page 1 of 6 PageID 2803

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MAHALA AULT, STACIE RHEA, and DAN WALLACE,
Plaintiffs, v.
WALT DISNEY WORLD CO., Defendant.

)

)

)

)

)

)

CASE NO.

)

6:07-CV-1785-GAP-KRS

)

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)

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UNOPPOSED MOTION BY THE ATTORNEYS GENERAL OF FLORIDA, ILLINOIS, TENNESSEE, ALASKA, ARIZONA, COLORADO, CONNECTICUT, HAWAII, IOWA, KANSAS, MASSACHUSETTS, MICHIGAN, MISSOURI, NEW
HAMPSHIRE, NEW JERSEY, NEW MEXICO, NORTH DAKOTA, OKLAHOMA, OREGON, UTAH, VERMONT, WASHINGTON, AND WEST VIRGINIA FOR LEAVE TO PARTICIPATE AS AMICUS CURIAE, WITH
MEMORANDUM OF LAW

Consistent with the time frame established in this Court’s April 27, 2009 Order for the objections of the States, the Attorneys General of Florida, Illinois, Tennessee, Alaska, Arizona, Colorado, Connecticut, Hawaii, Iowa, Kansas, Massachusetts, Michigan, Missouri, New Hampshire, New Jersey, New Mexico, North Dakota, Oklahoma, Oregon, Utah, Vermont, Washington, and West Virginia (collectively, the “Attorneys General”), respectfully move this Court for leave to file the attached Brief Amicus Curiae in Opposition to the Proposed Settlement.

Case 6:07-cv-01785-GAP-KRS Document 194 Filed 05/29/09 Page 2 of 6 PageID 2804
As part of the Consumer Class Action Bill of Rights contained in CAFA, the Attorneys General are also the default state officials upon whom notices of proposed class action settlements are to be served. 28 U.S.C. §§ 1715(a)(2); 1715(b). While enforcement mechanisms vary across the States, generally speaking the Attorneys General are the primary enforcers of state disability access laws, many of which are more expansive in scope than the ADA and allow for monetary relief in contrast to the private right of action under the ADA. See, e.g., Turner v. Assoc. of Am. Medical Colleges, 167 Cal. App. 4th 1401, 1410 (Cal. App. 1 Dist. 2008) (stating that ADA standards are a “floor” under state law).
Through CAFA, Congress sought to give appropriate federal and state officials both notice and adequate time to review a proposed class action settlement to provide independent oversight and an added check against inequitable settlements. See S. Rep. 109-14 (2005), as reprinted in 2005 U.S.C.C.A.N. 3, 32. If the Defendant’s counsel complies with CAFA and submits notice to the States within ten (10) days of filing of the proposed settlement, the Attorneys General frequently contact class and defense counsel soon after receiving notice of a proposed settlement (and, thus, well in advance of the final fairness hearing) to see if the parties are willing to change provisions that the Attorneys General find objectionable. See Catherine M. Sharkley, CAFA Settlement Notice Provision: Optimal Regulatory Policy? 156 U. PA. L. REV.1971, 1988-1990 (2008) (describing both formal and informal actions taken by state attorneys general). These include, among other things, stipulations from the parties that limit the reach of
2

Case 6:07-cv-01785-GAP-KRS Document 194 Filed 05/29/09 Page 3 of 6 PageID 2805
releases, changes to an overly-expansive definition of class member, improvements to notice sent to unnamed class members, and expanded injunctive relief that better protects unnamed class members.
On occasion, the Attorneys General object to a proposed class action settlement that they find does not constitute a fair, adequate, and reasonable settlement. See, e.g., Figueroa v. Sharper Image Corp., 517 F.Supp.2d 1292 (S.D. Fla. 2007). The Attorneys General, who have no financial stake in the litigation, request leave to file the attached brief both to preserve their ability to conduct meaningful oversight over proposed class action settlements and to protect residents who stand to be adversely affected by the approval of the proposed settlement.1
WHEREFORE, the Attorneys General respectfully request the Court enter an Order allowing the filing of the attached Brief Amicus Curiae.
1 Pursuant to M.D. Fla. L.R. 3.01(g), undersigned counsel has conferred with counsel for each of the named parties and is authorized to state that the parties do not oppose the granting of this motion.
3

Case 6:07-cv-01785-GAP-KRS Document 194 Filed 05/29/09 Page 4 of 6 PageID 2806

DATED: May 29, 2009

Respectfully submitted,2
BILL McCOLLUM Attorney General
By and Through:
s/ RUSSELL S. KENT RUSSELL S. KENT Special Counsel Florida Bar No. 20257 Office of the Attorney General PL-01, The Capitol Tallahassee, FL 32399-1050 Telephone: (850) 414-3854 Facsimile: (850) 488-9134 russell.kent@myfloridalegal.com

2 This Motion is supported by Attorneys General Richard A. Svobodny of Alaska, Terry Goddard of Arizona, John Suthers of Colorado, Richard Blumenthal of Connecticut, Mark Bennett of Hawaii, Tom Miller of Iowa, Steve Six of Kansas, Martha Coakley of Massachusetts, Mike Cox of Michigan, Chris Koster of Missouri, Kelly Ayotte of New Hampshire, Anne Milgram of New Jersey, Gary King of New Mexico, Wayne Stenehjem of North Dakota, W.A. Drew Edmondson of Oklahoma, John Kroger of Oregon, Mark Shurtleff of Utah, William Sorrell of Vermont, Rob McKenna of Washington, and Darrell McGraw of West Virginia.
4

Case 6:07-cv-01785-GAP-KRS Document 194 Filed 05/29/09 Page 5 of 6 PageID 2807
LISA MADIGAN Attorney General State of Illinois
By and Through:
s/ JEFFREY FELTMAN* JEFFREY FELTMAN Assistant Attorney General Ill. Bar. No. 06237048 Office of the Illinois Attorney General 1001 East Main Street Carbondale, IL 62901 Telephone: (618) 529-6418 Facsimile: (618) 529-6416 jfeltman@atg.state.il.us
ROBERT E. COOPER, JR. Attorney General and Reporter State of Tennessee
By and Through:
s/ JOSEPH WERNER JOSEPH WERNER Assistant Attorney General Florida Bar No. 0631541 joseph.werner@ag.tn.gov
s/ BRANT HARRELL* BRANT HARRELL, TN B.P.R. No. 024470 Assistant Attorney General Office of the Tennessee Attorney General and Reporter 425 Fifth Avenue North Nashville, Tennessee 37243 (615) 741-3549 (615) 532-2910 (fax) brant.harrell@ag.tn.gov
*Special Admission Application to Follow
5

Case 6:07-cv-01785-GAP-KRS Document 194 Filed 05/29/09 Page 6 of 6 PageID 2808

CERTIFICATE OF SERVICE
I hereby certify that on May 29, 2009, I electronically filed the foregoing with the Clerk of this Court by using the CM/ECF system. I further certify that I mailed the foregoing document and the notice of electronic filing by first-class mail to the following non-CM/ECF participants:

David G. Geffen David Geffen Law Firm 530 Wilshire Blvd Suite 205 Santa Monica, CA 90401
David Ferleger 10 Presidential Boulevard Suite 115 Bala Cynwyd, PA 19004

Ron Lachman 3140 Whisperwoods Ct. Northbrook, IL 60062

s/ RUSSELL S. KENT RUSSELL S. KENT Special Counsel Florida Bar No. 20257 Office of the Attorney General PL-01, The Capitol Tallahassee, FL 32399-1050 Telephone: (850) 414-3854 Facsimile: (850) 488-9134 russell.kent@myfloridalegal.com

6

Case 6:07-cv-01785-GAP-KRS Document 194-2 Filed 05/29/09 Page 1 of 26 PageID 2809

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MAHALA AULT, STACIE RHEA, and DAN WALLACE,
Plaintiffs, v.
WALT DISNEY WORLD CO., Defendant.

)

)

)

)

)

)

CASE NO.

)

6:07-CV-1785-GAP-KRS

)

)

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)

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AMICUS CURIAE BRIEF OF THE ATTORNEYS GENERAL OF FLORIDA, ILLINOIS, TENNESSEE, ALASKA, ARIZONA, COLORADO, CONNECTICUT, HAWAII, IOWA, KANSAS, MASSACHUSETTS, MICHIGAN, MISSOURI, NEW HAMPSHIRE, NEW JERSEY, NEW MEXICO, NORTH DAKOTA, OKLAHOMA, OREGON, UTAH, VERMONT, WASHINGTON, AND WEST VIRGINIA IN OPPOSITION TO THE PROPOSED SETTLEMENT

1

Case 6:07-cv-01785-GAP-KRS Document 194-2 Filed 05/29/09 Page 2 of 26 PageID 2810
INTRODUCTION The Attorneys General of the States of Florida, Illinois, Tennessee, Alaska, Arizona, Colorado, Connecticut, Hawaii, Iowa, Kansas, Massachusetts, Michigan, Missouri, New Hampshire, New Jersey, New Mexico, North Dakota, Oklahoma, Oregon, Utah, Vermont, Washington, and West Virginia (collectively, the ―Attorneys General‖), in their capacity as amici curiae, make a special appearance1 to urge this Court to reject the proposed Joint Stipulation of Settlement and Release (Doc. 82-1) in this case or, in the alternative, hold that unnamed class members in states not properly served with notice may choose not to be bound by the settlement as a result of Defendant’s failure to provide notice to the appropriate state officials as required by the Class Action Fairness Act of 2005 (―CAFA‖). The Attorneys General, who have no financial stake in the litigation, submit this brief both to preserve their ability to conduct meaningful oversight over proposed class action settlements as intended by CAFA and to protect residents within their respective states who stand to be adversely affected by the approval of the proposed settlement. The Attorneys General respectfully submit that the proposed settlement is overbroad and contrary to the Americans with Disabilities Act (―ADA‖) and comparable state laws, many of which include remedies, such as monetary relief, that are not available under the ADA.2 The only purported benefit of the proposed settlement to unnamed class members,
1 The Attorneys General are not submitting to the Court’s jurisdiction except as amici and the submission of this brief is without prejudice to their ability to enforce and investigate claims related to the issues under dispute. 2 See, e.g., Cal. Civ. Code §§ 51(f) and 54.1(d) (making a violation of the ADA a violation of the Unruh Civil Rights Act and the Disabled Persons Act); Californians for Disability Rights v. Mervyn’s, LLC, 165 Cal. App. 4th 571, 584 (Cal. App. 1 Dist. 2008) (acknowledging that plaintiff whose ADA rights are violated may seek damages under California state law).
2

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namely the potential use of one of at least fifteen (15) four-wheeled, electrically-powered, stand-up vehicles (―ESVs‖) at a Disney Resort, is suspect because it requires class members to pay money for each day of use, is available to certain members of the general public who do not fall within the class at the same price, was part of a Disney plan decided on months before the named parties agreed to settlement terms, and amounts to an illegal surcharge to subsidize ADA and state law compliance. This lack of benefit to unnamed class members stands in stark contrast to the agreed upon relief afforded to the named class representatives and to class counsel, which though modest in the aggregate, is not justified because of the paucity of relief proposed for unnamed class members.
Moreover, Defendant, who specifically negotiated a term of the proposed settlement allowing it to unilaterally terminate the settlement following an objection by a state or other governmental official, has failed to provide the Attorneys General with a meaningful opportunity to review and respond to the proposed settlement as required by CAFA. Instead of submitting the proposed settlement within ten (10) days after it was filed on December 26, 2008, Defendant waited one hundred and eighteen (118) days to send the required notice to some of the Attorneys General — after the originally-scheduled final fairness hearing that was only rescheduled at the Court’s initiative and after the April 10, 2009 objection deadline. In short, Defendant’s failure to provide proper notice has undermined the ability of all States to act as an effective check against this inequitable settlement.
STATEMENT OF FACTS On September 30, 2008, months before the parties reduced their proposed settlement to writing, Defendant filed a Declaration of Peter Cardinali (Doc. 72-3) as part of its
3

Case 6:07-cv-01785-GAP-KRS Document 194-2 Filed 05/29/09 Page 4 of 26 PageID 2812
opposition to Plaintiffs’ (Contested) Motion for Class Certification under Fed. R. Civ. P. 23.
Mr. Cardinali states in his declaration, the following:
In order to provide an additional service to guests while maintaining consistent safety practices, [Disney] has designed, constructed and tested a prototype standing vehicle intended for use within the Walt Disney World Resort. We anticipate that production models will be available for guest use at the Walt Disney World Resort on or around April 1, 2009.
(Doc. 72-3 at ¶6).
On December 5, 2008, and later on December 26, 2008, the named parties submitted
a Joint Stipulation of Settlement and Release (Docs. 79-1 and 82-1), which the Court
preliminarily approved on January 5, 2009. (Doc. 83). As part of the proposed settlement
agreement, Defendant negotiated the following provision:
In addition to the rights under paragraph 19, [Disney] shall also have the right to unilaterally render the entire Stipulation of Settlement voidable and unenforceable if any federal, state or local regulatory or self-regulatory organization, other administrative body or government official objects to the terms of this Stipulation of Settlement, threatens to take any regulatory or legal action against [Disney] based on the allegations in this case, or requires any material modification to this Stipulation of Settlement.
(Doc. 82-1, ¶ 20) (italics added).
As part of the preliminary approval of the proposed settlement, the Final Fairness
Hearing was originally set for March 31, 2009. (Doc. 85). After considering the various
objections, the Court sua sponte postponed the fairness hearing (Doc. 116) and reset it for
June 3, 2009. (Doc. 143). Because of recent filings, the hearing will continue through June 5th if necessary. (Doc. 170). On April 23, 2009, one hundred and eighteen (118) days after
4

Case 6:07-cv-01785-GAP-KRS Document 194-2 Filed 05/29/09 Page 5 of 26 PageID 2813
filing the proposed settlement, after the originally scheduled fairness hearing, and after the April 10 objection deadline, Defendant submitted notice of the proposed settlement to some of the Attorneys General electronically, including to generic email addresses. See, e.g., Collective Ex. A.
Defendant has acknowledged that it failed to supply timely notice as required by CAFA but nevertheless insists that there has been no prejudice as a result. (Doc. 146 at 2-3). In its April 27, 2009 Order, the Court found that Disney’s failure to comply with 28 U.S.C. § 1715(b) did not result in any actual prejudice but ordered Defendant to provide proof of its compliance with CAFA. (Doc. 149). Defendant’s Notice of Compliance with 28 U.S.C. § 1715(b) states that, on April 23, 2009, ―it provided individualized notices of the proposed class action settlement in this action to the Attorney General in all 50 States and the District of Columbia and to the United States Attorney General.‖ (Doc. 165) (italics added). The Notice does not describe how notice was sent or provide other evidence as to how this notice was allegedly effectuated. Several states still have not received notice from Defendant. See, e.g., Collective Ex. A, Aff. of Ashley Davis at ¶8 (Florida), Aff. of Lawrence Otero at ¶3 (New Mexico), Aff. of Jane Wheeler at ¶4 (Oklahoma), and Aff. of Howard McCoach at ¶4 (New Jersey).
ARGUMENT I. THE PROPOSED SETTLEMENT DOES NOT CONSTITUTE A
FAIR, ADEQUATE, AND REASONABLE SETTLEMENT UNDER FEDERAL RULE OF CIVIL PROCEDURE 23(e). In Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984), the Eleventh Circuit identified six (6) factors for district courts to use in assessing whether a proposed settlement
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in a class action case is fair, reasonable, and adequate under Federal Rule of Civil Procedure 23(e)(2). These factors include the following: (1) the likelihood of success at trial; (2) the range of possible recovery; (3) the point on or below the range of possible recovery at which a settlement is fair, adequate, and reasonable; (4) the complexity, expense, and duration of the litigation; (5) the substance and amount of opposition to the settlement; and, (6) the stage of the proceedings at which the settlement was achieved. Id. at 986.
The Attorneys General respectfully submit that the proposed settlement in this case fails to pass muster under the Bennett factors, as expressed in greater detail by other objectors, and thus warrants rejection of the proposed settlement in and of itself.4 In the interests of brevity and time, the Attorneys General, while adopting the objections filed by the United States Department of Justice, have chosen to largely focus on points not previously raised by other objectors.
The proposed settlement prohibits the use of Segways and does not allow exemptions for people with disabilities, yet the Americans With Disabilities Act of 1990, § 3 et seq., 42 U.S.C. § 12102 et seq., (―ADA‖) specifically requires places of public accommodation, like Disney Resorts, to make reasonable modifications in their policies for people with disabilities. See also 28 C.F.R. § 36.302(a). In addition, the settlement effectively sets in stone Disney’s policy of charging for daily access to mobility devices even though it violates the ADA’s prohibition of imposing surcharges on people with disabilities. See 28 C.F.R. § 36.301(c). This policy is akin to a movie theater telling individuals who use hearing aids that
4 See Doc. 100-1 at 2 (objecting because of, among other things, procedural flaws that violate due process, because judicial endorsement of the proposed settlement would undermine the effectiveness of the Department’s current Title III rulemaking efforts, and because the substantive terms of the agreement are
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hearing aids are prohibited, but that the theater will provide its own hearing aids for a charge if the individual would like to enjoy the movie.
The Attorneys General recognize that this Court found Plaintiffs’ likelihood of success at trial was questionable in its January 5, 2009 Order, based on Plaintiffs’ apparent difficulty in proving that their requested injunctive relief is necessary to afford access to Disney Parks. (Doc. 83) (citing PGA Tour, Inc. v. Martin, 532 U.S. 661, 688 (2001)). Further, the Attorneys General recognize that the range of possible recovery is limited by Plaintiffs’ demand for solely declaratory and injunctive relief and applicable statutory authority. See 42 U.S.C. § 12188(a). However, the Attorneys General submit that Plaintiff’s interpretation of the PGA decision, which was incorporated in the Court’s Order conditionally approving the proposed class settlement, is misplaced for several reasons.
First, the Court’s January 5th Order merely cites the PGA decision in the context of Plaintiffs ―conceding‖ that (i) they would have difficulty carrying their burden at trial of establishing that Segways were ―necessary [for them] to afford access to Disney’s Parks‖ and, consequently that (ii) ―[p]laintiffs’ likelihood of success at trial is questionable.‖ Compare Doc. 83 at 10 with Doc. 82 at 11. A proper reading of the PGA decision, however, does not support this concession. As the United States Supreme Court itself noted, the ―narrow dispute‖ was whether requiring the Professional Golfers’ Association (―PGA‖) to modify its policy of not allowing golf carts during certain portions of tournaments for a golfer whose disability limited his ability to walk would ―fundamentally alter the nature‖ of these tournaments. PGA, 532 U.S. at 682. The analysis and holding in PGA is limited to the
fundamentally unfair to absent class members).
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―fundamental alteration‖ affirmative defense in Title III of the ADA. See 42 U.S.C.
§12182(b)(2)(A)(ii); 28 C.F.R. §36.302(a). Any discussion by the Court regarding the
―necessity‖ of any particular modification under Title III of the ADA is simply dicta.
Indeed, the majority opinion expressly noted that the ―[P]etitioner [PGA] does not contest
that a golf cart is a reasonable modification that is necessary if Martin is to play in its
tournaments.‖ PGA, 532 U.S. at 682 (italics added).
Second, it is beyond question that the Court’s holding is limited to Title III of the
ADA. Id. at 664-73 (discussing procedural history and noting that respondent-plaintiff
Martin’s suit was exclusively premised on PGA’s violation of Title III of the ADA). Thus,
whatever may be said concerning the scope of the PGA decision regarding requisite
modifications to policies under Title III of the ADA, this decision plainly has no bearing on
whether Disney’s policy banning Segways – which is enshrined in perpetuity in the proposed
settlement – violates state or local disability laws, claims that the proposed settlement
purports to release. See Doc. 82-1, ¶13. While state laws concerning disability vary among
the states, several state laws are more expansive than the ADA in establishing standards and in allowing plaintiffs to sue for monetary or statutory damages.5 The Attorneys General are
5 See, e.g., Cal. Civ. Code §§ 51(f) and 54.1(d) (making a violation of the ADA a violation of the Unruh Civil Rights Act and the Disabled Persons Act); Turner v. Assoc. of Am. Medical Colleges, 167 Cal. App. 4th 1401, 1410 (Cal. App. 1 Dist. 2008) (stating that ADA standards are a ―floor‖ under state law); and Californians for Disability Rights v. Mervyn’s, LLC, 165 Cal. App. 4th 571, 584 (Cal. App. 1 Dist. 2008) (stating that plaintiffs may now seek damages under California law for ADA violations). See also 775 ILCS 5/10-104(B)(1) (Illinois Human Rights Act prohibits discrimination on the basis of disability and provides for a $10,000 fine against first-time offenders, $25,000 for second-time offenders, and $50,000 per violation for anyone who violates the Act three or more times); N.J.S.A. §§ 10:5-12, 10:5-13 (defines disability much more broadly than the ADA does; states that ―all remedies available in common law tort actions shall be available to prevailing plaintiffs.‖); MASS. CONST. ART. AMEND. 114 (provides ―[n]o otherwise qualified handicapped individual shall, solely by reason of his handicap, be excluded from the participation in, denied the benefits of, or be subject to discrimination under any program or activity within the commonwealth); Mass. G. L. c. 93, §§ 103(a), 103(b),
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aware of no finding made by this Court in its January 5th Order or otherwise concerning Plaintiffs’ likelihood of success at trial for any potential claims under the state and local disability laws of each state in which a class member resides, but such claims are nonetheless released under the proposed settlement. Although Defendant has alleged the proposed settlement does not release state or local disability claims for monetary damages, the proposed settlement’s release is unclear. Compare Doc. 131 at 4 (stating the release is limited to claims for injunctive and declaratory relief) with Doc. 82-1. Indeed, while the proposed settlement seems to at first blush not release monetary claims, by only releasing those for injunctive and declaratory relief, it then releases such monetary claims by adding ―and any and all claims and causes of action‖ under state or local disability law. (Doc. 82-1, ¶13) (italics added). The Attorneys General respectfully submit that it would be erroneous to approve a proposed class action settlement that forever waives claims class members may have under these state and local disability laws, especially given Defendant’s expansion.6
Third, the Attorneys General do not agree that the availability of other personal devices, such as scooters, absolves Defendant of its duty to provide reasonable modifications in policy, as suggested in the Court’s January 5th Order conditionally approving the proposed class settlement. In that Order, this Court noted that:
As they themselves concede, Plaintiffs must prove that their requested injunctive relief is necessary to afford access to Disney’s Parks (Doc. 82 at 11) (citing PGA Tour, Inc. v.
and 103(d) (statutory provision enforcing Amendment 114; includes compensatory and exemplary damages in addition to attorneys’ fees and costs of litigation); Fla. Stat. §§ 760.07, 760.11(5). 6See Pete Werner, Disney to Build Resort in Maryland, available at www.wdwinfo.com/news/General_Disney_News/Disney_to_build_resort_in_Maryland.htm (last visited May 26, 2009).
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Martin, 532 U.S. 661, 688 (2001). All the named plaintiffs in this case testified that they were able to use wheelchairs or scooters. Indeed, Ms. Ault, for instance testified that she had visited Disney’s Parks on numerous occasions by using a threewheeled scooter. (Doc. 72-7 at 25). Accordingly, the Court could easily conclude that Plaintiffs simply prefer the Segway to other types of mobility devices and that such preference, as a matter of law, need not be accommodated under the ADA.
Doc. 83 at 11.
The position of the Attorneys General on this issue is consistent with the Preamble to
the Title III regulations, in which the United States Department of Justice gives the following
example of a reasonable modification in policies:
a parking facility would be required to modify a rule barring all vans or all vans with raised roofs, if an individual who uses a wheelchair-accessible van wishes to park in that facility, and if overhead structures are high enough to accommodate the height of the van.
28 C.F.R. § 36.302, App. B. According to this example, a parking facility owner cannot
escape the reasonable modification requirement simply by saying that the device chosen by the person with a disability (in this case, a wheelchair-accessible van) is not ―necessary‖
because they could use an alternative, such as riding an accessible bus over to the site.
Generally speaking, an agency’s interpretation of its own regulations is persuasive, if not
controlling, unless it is plainly erroneous or inconsistent with the regulations. See Auer v.
Robbins, 519 U.S. 452, 461 (1997); see also Disabled Rights Action Comm. v. Las Vegas
Events, Inc., 375 F.3d 861 (9th Cir. 2004) (deferring to the Department of Justice’s
reasonable interpretation of the statute under Chevron U.S.A., Inc. v. Natural Resources
Defense Council, 467 U.S. 837, 843-44 (1984)).
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Moreover, individuals with disabilities choose to use Segways over scooters and motorized wheelchairs for very understandable reasons. Scooters and motorized wheelchairs are extremely heavy, difficult to travel with, and expensive. For certain people with disabilities, including those with severe circulatory problems, it is detrimental to sit for long periods of time. Some individuals with disabilities also find that Segways are less degrading because these mobility devices allow these individuals to be at eye-level with ambulatory people. Finally, despite ADA’s mandate that the built environment be accessible to individuals with disabilities, many barriers still exist that prohibit wheelchair access. Because Segways take up much less space, they are an important option for individuals with disabilities.
Ignoring these considerations, it would be reasonable to assume that a settlement that affords some relief to class members would be preferable to an outcome in which the class members receive no relief. However, having no settlement is preferable to the terms of this proposed settlement. If the settlement was rejected today, class members would be in a better position than if the proposed settlement was approved. If the settlement was rejected, individuals would still be able to rent ESVs from Disney Resorts for a daily rental fee and would not be subject to the broad release contained in the proposed settlement. As noted by the United States Department of Justice, Defendant had made the decision to purchase the ESVs independent of settlement discussions. (Doc. 100-1, at 19); see also Doc. 72-4, ¶6.
Moreover, if the settlement was rejected, individuals would not be subject to the settlement’s broad release that purports to release, among other things:
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any and all claims and causes of action arising out of or predicated upon allegations that [Defendant’s] actions or decisions relating to the use of Segways or other two-wheeled devices at the Disney Resorts do not comply with the ADA or any other federal, state, or local law or similar disability rights statute or regulation.7
(Doc. 82-1, ¶13) (italics added). Further, the settlement release:
[I]ncludes claims which a Settlement Class Member does not know or suspect to exist in his or her favor against the Released Parties as of the date of final court approval of this settlement. The Settlement Class, and each member thereof, and the Named Plaintiffs each waives all rights and benefits afforded by any statutory law as to unknown claims, and does so understanding the significance of that waiver.
(Doc. 82-1, ¶9) (italics added).
Further, the release provisions would apply to those relying on a Segway or
substantially similar device for mobility assistance who intend to visit Defendant’s resorts in
the future. (Doc. 82-1, ¶5). While the Attorneys General contend that no settlement between
private parties can restrict their civil law enforcement ability, other actors will inevitably
point to the proposed settlement agreement, if approved, as precedent, will seek to settle
along the same terms, or will attempt to assert that the provisions bar subsequent state
enforcement.
7 The quoted language stands independent of the preceding part of the sentence limiting ―actions of any and every kind or nature‖ to injunctive or declaratory relief for ―any issue ever raised in this case‖ discussed above. (Doc. 82-2, ¶13). See also Proposed Settlement at ¶18(c) (stating ―[t]he Parties will submit a proposed final order . . . dismissing this case on the merits and with prejudice and permanently barring all Settlement Class Members from prosecuting against [Disney] or its present or former parent companies, subsidiaries, affiliates, shareholders, officers, directors, employees, partners, agents, representatives, attorneys, insurers, and any other successors and assigns, any individual or class claims which were or could be asserted in this case, including without limitation any claims for declaratory or injunctive relief arising out of the acts, facts, transactions, occurrences, representation, or omissions set forth in the Complaint and subsequent amended complaints.‖) (italics added).
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Not only do class members make an expansive release of claims under the proposed settlement, they would receive the benefit provided by the proposed settlement without it. Indeed, class members will be able to rent an ESV on the same terms as everyone else. See Doc. 82-1, ¶12(b). Moreover, the proposed settlement does not set allow class members to reserve an ESV prior to their visit to ensure availability or guarantee storage of Segways that unnamed class members may unwittingly bring to Defendant’s Resorts.
The named class representatives, class counsel, and Defendant are the only ones who stand to benefit under the proposed settlement. Named class representatives receive a $4,000 incentive award despite the fact that they are not entitled to any monetary relief under their own Complaint and under the remedies available under the private right of action under Title III. See 42 U.S.C. § 12188(a). In the aggregate, class counsel stand to receive $70,000 plus any reasonable attorneys’ fees and costs awarded to Ms. Ault’s counsel, who has requested $114,850.13. (Doc. 82-1, ¶12(c); Doc. 93, at 8). While there is some value in the settlement to Disney in concluding the litigation with the named plaintiffs to avoid further litigation costs, most of the value of the settlement to Disney – and therefore its willingness to pay attorneys’ fees and incentive payments – comes from the broad release as applied to unnamed class members. While approximately $200,000 is not an amount that shocks the conscience, it is unjustified based on the lack of any meaningful relief afforded to unnamed class members.
As to the number and substance of objections, ordinarily a low percentage of objections points to the reasonableness of a proposed settlement while a high percentage of objections signals that a proposed settlement is not fair or reasonable. Figueroa v. Sharper
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Image Corp., 517 F.Supp.2d 1292, 1328 (S.D. Fla. 2007) (internal citations omitted). Here, the difficulty in providing sufficient notice to the large class (Doc. 83), directly impacts the number of objections lodged by unnamed class members. In spite of this impediment, a large number of objectors have filed objections with this Court. Some of the Attorneys General received notices indicating that, while Defendant was unaware of specific class members, it estimated the number of class members in a given state to be between one (1) and five (5) individuals. See Collective Ex. A, Aff. of Rachel Kemp. Applying this to all fifty (50) states, a substantial number of estimated class members filed objections individually or through representative groups (94 of 250, or 37.6%). Even ignoring this aspect of the proposed settlement, the Southern District of Florida has recognized that courts should consider the vigor and substance of the objections of governmental entities when assessing this Bennett factor. Id. at 1328. In Sharper Image Corp., few class members objected to the settlement, but the district court recognized:
What distinguishes this case from other class actions, however, is the singular appearance of the Attorneys General of thirtyfive states and the District of Columbia, representing hundreds of thousands, if not millions, of eligible class members. Appearing as amicus curiae on behalf of their citizens, the Attorneys General have objected at every turn to each version of the parties’ proposed coupon settlement. The Attorneys General of Florida, Idaho, Illinois, Tennessee, Vermont, and the District of Columbia continue to object to the final version. [T]he vigor and substance of the objections presented counsels against a finding favorable to the parties on this Bennett factor. Id. at 1328. This makes sense from a policy perspective as well given the relatively high transaction costs associated with filing an objection. The Attorneys General respectfully
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submit that the Court should reach a similar conclusion in this case given the vigor and substance of the state and federal governmental entities who have objected to this settlement.
II. SELECT UNNAMED CLASS MEMBERS CAN CHOOSE NOT TO BE BOUND BY THE SETTLEMENT IN THOSE STATES NOT PROPERLY SERVED WITH ADEQUATE NOTICE BY DEFENDANT AS REQUIRED BY CAFA
The Attorneys General respectfully request that the proposed settlement be rejected. Should the Court approve the settlement, the Attorneys General alternatively submit that select unnamed class members can choose not to be bound by the settlement in those states not properly served with adequate notice by Defendant, as required by CAFA. In its April 27, 2009 Order, this Court gave state officials ninety (90) days after service of notice to file an objection, stated that it would wait ninety (90) days after service of state officials to enter an order concerning the proposed settlement, and found that Defendant’s admitted failure to provide timely notice under CAFA resulted in no actual prejudice. (Doc. 149).
A. Defendant Is Required to Serve Timely Notice of Proposed Class Action Settlement to Appropriate State Officials
Through CAFA, Congress expressly imposed a requirement that certain state and federal officials be served with notice of proposed class action settlements. See 28 U.S.C. § 1715; see also Miedema v. Maytag Corp., 450 F.3d 1322, 1329 (11th Cir. 2006). Besides provisions expanding the grounds of removal to federal court, the notice requirement to appropriate federal and state officials is the singular defining component of CAFA. As part of the Consumer Class Action Bill of Rights contained in the CAFA, each Defendant
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participating in a proposed settlement is required to serve upon the appropriate state official8
of each state in which a class member resides, a notice of the proposed settlement, as well as
additional documents and information not later than ten (10) days after a proposed settlement of a class action is filed in court.9 See 28 U.S.C. § 1715(b).
―[S]ection 1715 is designed to ensure that a responsible state and/or federal official
receives information about proposed class action settlements and is in a position to react‖
and ―ha[s] an opportunity to get involved.‖ S. REP. NO. 109-14 (2005), as reprinted in 2005
U.S.C.C.A.N. 3, 32, 33 (―Senate Report‖) (italics added). Indeed, Section 1715(d) prevents
final approval of a settlement until at least ninety (90) days after the last date on which any
appropriate official was served with CAFA notice. See 28 U.S.C. § 1715(d). The required
waiting period exists to afford the Attorneys General ―at least ninety (90) days to review the
proposed settlement and decide what (if any) action to take.‖ Senate Report at 35.
8 ―Appropriate State Official‖ is defined as ―the person in the State who has the primary regulatory or supervisory responsibility with respect to the defendant, or who licenses or otherwise authorizes the defendant to conduct business in the State, if some or all of the matters alleged in the class action are subject to regulation by that person. If there is no primary regulator, supervisor, or licensing authority, or the matters alleged in the class action are not subject to regulation or supervision by that person, then the appropriate State official shall be the State attorney general.‖ 28 U.S.C. § 1715(a)(2). 9 These other documents and information include: (1) a copy of the complaint and any materials filed with the complaint and any amended complaints, (2) notice of any scheduled judicial hearing in the class action, (3) any proposed or final notification to class members of—(A)(i) the members’ rights to request exclusion from the class action; or (ii) if no right to request exclusion exists, a statement that no such right exists; and (B) a proposed settlement of a class action; (4) any proposed or final class action settlement; (5) any settlement or other agreement contemporaneously made between class counsel and counsel for the defendants; (6) any final judgment or notice of dismissal; (7)(A) if feasible, the names of class members who reside in each State and the estimated proportionate share of the claims of such members to the entire settlement to that State’s appropriate State official; or (B) if the provision of the information under subparagraph (A) is not feasible, a reasonable estimate of the number of class members residing in each State and the estimated proportionate share of the claims of such members to the entire settlement; and (8) any written judicial opinion relating to the materials described under subparagraphs (3) through (6). See 28 U.S.C. § 1715(b).
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Aside from the legislative history, the importance of notice to state and federal officials is shown by the statute itself. Under CAFA, a class member can refuse to comply with and choose not to be bound by a class action settlement agreement if the class member demonstrates that the notice required by 28 U.S.C. § 1715(b) has not been provided. See 28 U.S.C. § 1715(e). In addition, the earliest date that an order granting final approval of a proposed settlement can be entered is based not on the schedules of the named parties and the court, but rather on when the appropriate state and federal officials receive notice of the proposed settlement. Id. at § 1715(d).
Similarly, while CAFA’s notice provisions are primarily directed at those who have the responsibility of regulating a defendant or the subject matter of a class action, the notice of a proposed class action to appropriate state officials who have potential class members in their state is required regardless of whether the matters alleged in the class action are subject to regulation by the appropriate state officials. See 28 U.S.C. § 1715(b) and 28 U.S.C. § 1715(a)(2) (designating state attorneys general as the default state official for notice purposes). While CAFA does not require the States to take any action as a result of the notices, see 28 U.S.C. § 1715(f), the Attorneys General have used the information contained in the notices to attempt to improve proposed settlements. See Catherine M. Sharkley, CAFA Settlement Notice Provision: Optimal Regulatory Policy? 156 U. PA. L. REV.1971, 19881990 (2008) (describing both formal and informal actions taken by state attorneys general).
Requiring that appropriate state and federal officials receive notice of a proposed settlement within ten (10) days of filing ensures that state and federal officials are in a position to react early on if they identify problems with a proposed settlement. Aside from
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formal objections, the Attorneys General frequently contact class and defense counsel soon after receiving notice of a proposed settlement (and, thus, well in advance of the final fairness hearing) to see if the parties are willing to change provisions that the Attorneys General find objectionable. These include, among other things, stipulations from the parties that limit the reach of releases, changes to an overly-expansive definition of class member, improvements to notice sent to unnamed class members, and expanded injunctive relief that better protects unnamed class members.
While the Attorneys General understand the Court’s reticence to add further delays to a full docket, they respectfully submit that waiting to enter the Order until ninety (90) days after service does not provide an adequate remedy for untimely notice and inadequate service. A failure to provide notice to the Attorneys General shortly after filing does not allow them a meaningful opportunity to weigh-in on fundamental aspects of a proposed settlement such as the adequacy of notice to unnamed class members, which are approved through a preliminary approval hearing.
The remedy of waiting ninety (90) days after service of notice to appropriate state and federal officials to enter an order places the Attorneys General in the awkward position of attempting to reverse the inertia of litigation if these officials find an aspect of settlement objectionable. An example of this awkwardness is vividly seen in the case that Defendant cited in its April 23, 2009 Notice. In Battaline v. Advest, Inc., No. 06-569, 2008 U.S. Dist. LEXIS 77164, at *1 (W.D. Pa. Oct. 1, 2008), the district court had already signed the settlement order when notices were sent to federal and state officials. There, the court stated:
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Unless an objection from a federal or state officials is received prior to the expiration of the 90-day period following the date that notices are sent, this Court’s Judgment in this matter, which was originally entered on September 16, 2008, shall become effective automatically at the end of the 90-day period without further action by the parties or this Court. Id at 2.10 This has the effect of reducing CAFA’s service of notice requirement to a mere formality and the oversight function of the Attorneys General to almost an afterthought, rather than the central component that Congress envisioned. The Attorneys General do not suggest that this Court, or any other, would fail to give due consideration to arguments they make after a final fairness hearing or, as in Battaline, after entry of the order approving the settlement. Instead, the Attorneys General merely acknowledge that the realities of litigation as a result of such late input place a court in the awkward position of choosing to conclude a case on an already full docket or start from scratch based on the late-filed objections from appropriate state or federal officials who did not have the benefit of their right to a full ninety (90) day review period. While courts and motivated, unnamed objecting class members provide crucial oversight to objectionable proposed settlements or settlement terms, Congress sought, through CAFA’s notice provisions, to add a separate level of oversight with officials who are well-versed in a particular subject matter. In short, a ninety (90) day hold on entry of the final approval order does not advance the interests of judicial economy, nor does it serve the
10 Defendant’s reliance on D.S. ex rel. S.S. v. New York City Dep’t. of Educ., 255 F.R.D. 59, 80 (E.D.N.Y. 2008), is similarly misplaced. While the settlement required review by state and federal education officials, the settlement was with a government agency who was a party and who had primary responsibility of providing access to high school education, which was the subject matter of the class’s complaint.
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oversight function of the Attorneys General and other appropriate officials of ―clientless litigation‖ that Congress sought to advance through CAFA’s service of notice requirements.
B. Defendant Has Failed to Comply with CAFA’s Notice Requirements to State Officials.
Defendant sent notice of the proposed class action settlement to some of the Attorneys General one hundred and eighteen (118) days after the filing of the proposed settlement with this Court, after the originally scheduled final fairness hearing, and after the amended April 10, 2009 objection deadline. While Defendant’s counsel has certified that notice of the settlement was sent to the Attorneys General of all fifty (50) states and the District of Columbia, several states have reported that they were never served with notice. See, e.g., Collective Ex. A, Aff. of Ashley Davis at ¶8 (Florida), Aff. of Lawrence Otero at ¶3 (New Mexico), Aff. of Jane Wheeler at ¶4 (Oklahoma), and Aff. of Howard McCoach at ¶4 (New Jersey).
Defendant’s ―Notice of Compliance‖ (Doc. 165) does not specify how notice was provided but merely asserts that notice was accomplished. Other district courts have held that the mere assertion that notice has been provided to appropriate state and federal officials is insufficient in itself and must be accompanied by more proof. See, e.g., True v. Am. Honda Motor Co., No. EDCV-07-287-VAP, 2009 WL 838284, at *11 (C.D. Cal. Mar. 25, 2009) (stating in the order denying preliminary approval, ―[n]evertheless, the Court requires proof the letters were timely sent before it can make the finding requested by the Plaintiffs.‖)
While CAFA does not expressly state how service is to be accomplished,11
11 See 28 U.S.C. § 1715(b) (―[E]ach defendant that is participating in the proposed settlement shall serve upon
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Defendant’s use of electronic mail, including to generic email addresses, to effectuate notice is plainly insufficient, as evidenced by the number of states who have reported receiving no notice whatsoever. Although the Attorneys General have found no case determining the propriety of email service in a CAFA case, a case from the Ninth Circuit makes clear that email service is ineffective unless the rules specifically provide for this method of service. Calderon v. IBEW Local 47, 508 F.3d 883, 884 (9th Cir. 2007) (where the rules do not allow or the Court has not ordered the case to be part of an experimental electronic service program and the recipient party has not consented to email service of notice of show-cause hearings, neither the party nor his lawyer may be deemed to have received proper notice and no actions may be taken against their interests.) Moreover, service via email is not acceptable under Federal Rule of Civil Procedure 5(b) unless the recipient consents in writing and, even if consented to, is ineffective if the serving party learns that it did not reach the recipient. See Fed. R. Civ. P. 5(b)(2)(E). No state has authorized email service in this case. Moreover, the Florida Attorney General notified Defendant on May 18, 2009 that it had not received any CAFA notice. See Collective Ex. A., Aff. of Ashley Davis (Florida).
In this case, CAFA does not provide for service by email, no order exists making non-parties subject to an electronic filing program, and the Attorneys General did not agree to receive CAFA notices by email. For this reason alone, it is proper to find that Defendant, despite its claim of compliance, has not in fact complied with the statutory service requirements. It is also proper to find that the remedy for such failure is to allow all class
the appropriate State official of each State in which a class member resides and the appropriate Federal official, a notice of the proposed settlement . . .‖).
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members who demonstrate that the required notice was not properly provided to their state official the right to refuse to comply with and not be bound by final settlement orders which, in part, rely on Defendant’s claim of compliance with Section 1715(b).
The insufficient manner in which notice was effectuated is especially troubling given the terms of the proposed settlement. Notably, Defendant was so concerned with objections from governmental entities that it negotiated a provision within the Proposed Settlement Agreement allowing it to unilaterally render the entire settlement voidable if a federal, state or local regulatory organization objected. (Doc. 82-1, ¶20). In addition, Defendant specifically asked named Plaintiffs to agree to a gag provision that prohibited them from issuing a press release, initiating any contact with the media, responding to any media inquiry or having any communications with the media about the case. (Doc. 82-1, ¶12(g)).12
C. CAFA Requires Notice to Government Officials at a Meaningful Time.
28 U.S.C. § 1715(e)(1) enables a class member to choose not to be bound by a settlement agreement if the class member can demonstrate that the notice required under subsection 1715(b) has not been provided. Specifically, subsection 1715(e)(2) states:
A class member may not refuse to comply with and may choose to be bound by a settlement agreement or consent decree under [subsection 1715(e)(1)] if the notice required under subsection (b) was directed to the appropriate official and to either the State attorney general or the person that has primary regulatory, supervisory, or licensing authority over the defendant. It is the position of the Attorneys General that this provision requires service of notice to be
12 The named parties recently asked for permission to dispense with the gag provision (Doc. 189), likely
22

Case 6:07-cv-01785-GAP-KRS Document 194-2 Filed 05/29/09 Page 23 of 26 PageID 2831
provided at a meaningful time. One could make the argument that the remedies set forth in subsection 1715(e) apply
only if the notice itself is withheld and do not apply if the timing or service requirements of the notice are violated. Such a reading is inconsistent with other provisions within CAFA and would severely undercut the purpose of CAFA’s notice provision as providing a tool for independent oversight by governmental officials on behalf of affected, unnamed class members. Under such a reading, defense counsel could withhold notice to government officials, schedule the final fairness hearing, wait to see if any class members came forward after entry of the proposed settlement, and only provide notice of the class action to government officials after the fact if any class member subsequently came forward and asserted that he was not bound by the settlement. Such a reading of CAFA would fail to provide the Attorneys General or other state or federal officials a meaningful opportunity to review and respond as appropriate.
Moreover, because the notice is designed to allow government officials to review independently proposed settlements in order to protect unnamed class members, the reading of subsection 1715(e) that the Attorneys General suggest is consistent with the body of law requiring notice of such proposed settlements to unnamed class members at meaningful times and in a meaningful manner.13 To be clear, the Attorneys General do not contend that the remedies provided in subsection 1715(e) should be applied uncompromisingly in all
expecting media inquiries as a result of this filing. 13 See, e.g., Pettway v. Am. Cast Iron Pipe Co., 576 F.2d 1157, 1169 (5th Cir. 1978) (stating ―[t]he law accords special protections, primarily procedural in nature, to individual class members whose interests may be compromised in the settlement process. These protections include notice, ensuring that class members know when their rights are being compromised, and an opportunity to voice objections to the settlement.‖).
23

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instances of technical non-compliance with the timing requirements of the notice in subsection 1715(b), as, for example, where service of notice has been made eleven (11) days after the filing of the proposed settlement. Such an application would be inconsistent with the Congressional record on this provision, which makes clear that ―a settlement should not be undermined because of a defendant’s innocent error about which federal or state officials should have received the required notice in a particular case.‖ Senate Report at 35.
But here, Defendant’s non-compliance has been substantial rather than technical. After Defendant specifically negotiated a provision enabling it to back out of the proposed settlement if a state or other official objects, and also specifically negotiated a provision restricting named Plaintiffs’ use of any media that might alert the Attorneys General or other governmental officials to the settlement, Defendant served the notice on some but not all of the Attorneys General (apparently via e-mail) one hundred and eighteen (118) days after filing the proposed settlement agreement and after the April 10 amended deadline for objections. But for this Court’s sua sponte rescheduling of the final fairness hearing, Defendant may never have provided notice until after the final fairness hearing, if at all.
CONCLUSION For the foregoing reasons, the Attorneys General respectfully request that the Court reject the Joint Stipulation and Release in its entirety or, in the alternative, hold that all class members who demonstrate the required notice was not properly served can choose not to be bound by the settlement as a result of Defendant’s substantial non-compliance with CAFA’s provisions governing service of notice to state officials.
24

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DATED: May 29, 2009

Respectfully submitted,14
BILL McCOLLUM Attorney General
By and Through:
s/ RUSSELL S. KENT RUSSELL S. KENT Special Counsel Florida Bar No. 20257 Office of the Attorney General PL-01, The Capitol Tallahassee, FL 32399-1050 Telephone: (850) 414-3854 Facsimile: (850) 488-9134 russell.kent@myfloridalegal.com

14 This brief is supported by Attorneys General Richard A. Svobodny of Alaska, Terry Goddard of Arizona, John Suthers of Colorado, Richard Blumenthal of Connecticut, Mark Bennett of Hawaii, Tom Miller of Iowa, Steve Six of Kansas, Martha Coakley of Massachusetts, Mike Cox of Michigan, Chris Koster of Missouri, Kelly Ayotte of New Hampshire, Anne Milgram of New Jersey, Gary King of New Mexico, Wayne Stenehjem of North Dakota, W.A. Drew Edmondson of Oklahoma, John Kroger of Oregon, Mark Shurtleff of Utah, William Sorrell of Vermont, Rob McKenna of Washington, and Darrell McGraw of West Virginia.
25

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LISA MADIGAN Attorney General State of Illinois
By and Through:
s/ JEFFREY FELTMAN* JEFFREY FELTMAN Assistant Attorney General Ill. Bar. No. 06237048 Office of the Illinois Attorney General 1001 East Main Street Carbondale, IL 62901 Telephone: (618) 529-6418 Facsimile: (618) 529-6416 jfeltman@atg.state.il.us
ROBERT E. COOPER, JR. Attorney General and Reporter State of Tennessee
By and Through:
s/ JOSEPH WERNER JOSEPH WERNER Assistant Attorney General Florida Bar No. 0631541 joseph.werner@ag.tn.gov
s/ BRANT HARRELL* BRANT HARRELL, TN B.P.R. No. 024470 Assistant Attorney General Office of the Tennessee Attorney General and Reporter 425 Fifth Avenue North Nashville, Tennessee 37243 (615) 741-3549 (615) 532-2910 (fax) brant.harrell@ag.tn.gov
*Special Admission Application to Follow
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 Case 6:07-cv-01785-GAP-KRS Document 165 Filed 05/17/09 Page 1 of 3 PageID 2487

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MAHALA AULT, STACIE RHEA and )

DAN WALLACE,

)

)

Plaintiffs,

)

)

v.

)

)

WALT DISNEY WORLD CO.,

)

)

Defendant.

)

Case No.: 6:07-CV-1785-GAP-KRS

NOTICE OF COMPLIANCE WITH 28 U.S.C. § 1715(b) Defendant Walt Disney World Co. (“Worldco”) hereby notifies the Court that on April 23, 2009, pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1715(b), it provided individualized notices of the proposed class action settlement in this action to the Attorney General in all 50 States and the District of Columbia and to the United States Attorney General. The notices explained that a proposed settlement had been reached in this case and identified the case caption and that Worldco was sending the notice through its attorneys Kaye Scholer LLP. In compliance with 28 U.S.C. § 1715(b)(1) through (8), Worldco’s CAFA notices also included information required by those statutory provisions and copies of documents from this case, including but not limited to the original and two amended complaints filed by the plaintiffs; the notice of proposed settlement sent out to identified class members on May 1, 2009, which includes information on the fairness hearing set for June 3 and possibly June 4, 2009 in Orlando, Florida; the proposed class action settlement; and several scheduling notices and judicial opinions relating to these materials.

Case 6:07-cv-01785-GAP-KRS Document 165 Filed 05/17/09 Page 2 of 3 PageID 2488

Dated: May 15, 2009

Respectfully submitted,

/s/ Kerry Alan Scanlon Kerry Alan Scanlon Jeremy M. White KAYE SCHOLER LLP 901 15th Street, NW Washington, DC 20005 Telephone (202) 682-3660 Facsimile (202) 414-0350 kscanlon@kayescholer.com jewhite@kayescholer.com
/s/ Manuel Kushner Manuel Kushner KAYE SCHOLER LLP Phillips Point, West Tower, Suite 900 777 South Flagler Drive West Palm Beach, FL 33401-6163 Telephone (561) 868-7517 Facsimile (561) 802-3217 mkushner@kayescholer.com
Attorneys for Defendant Walt Disney World Co.

2

Case 6:07-cv-01785-GAP-KRS Document 165 Filed 05/17/09 Page 3 of 3 PageID 2489
CERTIFICATE OF SERVICE
I hereby certify that, on May 15, 2009, I electronically filed the foregoing with the
Clerk of the Court for the Middle District of Florida by using the CM/ECF system. This system
will send electronic notice of filing to all counsel of record.
/s/ Jeremy M. White Jeremy M. White KAYE SCHOLER LLP 901 15th Street, NW Washington, DC 20005 Telephone (202) 682-3644 Facsimile (202) 414-0329 jewhite@kayescholer.com

13132390.WPD

3

 
 Case 6:07-cv-01785-GAP-KRS Document 185 Filed 05/27/09 Page 1 of 3 PageID 2772

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MAHALA AULT, STACIE RHEA and DAN WALLACE,

Plaintiffs,

-vs-

Case No. 6:07-cv-1785-Orl-31KRS

WALT DISNEY WORLD CO.,

Defendant. ______________________________________

ORDER TO SHOW CAUSE

This matter came before the Court without oral argument upon consideration of the

“Suggestion to the Court Regarding Jurisdiction” (the “Notice”) (Doc. 160) filed by certain

Objectors and Disability Rights Advocates for Technology (“DRAFT”). On May 19, 2009, the

Court construed the Notice as a motion to stay (the “Motion to Stay”) (Doc. 170) and directed the

named parties to file responses to same. On May 26, 2009, named Plaintiffs Mahala Ault and Dan

Wallace and Defendant, Walt Disney World Co. (“Disney”), filed their respective responses (see

Docs. 176, 178 and 180).

Upon review, the Court finds the Motion to Stay to be completely devoid of merit. As

Disney points out in its response to the Motion to Stay, within the past ten weeks DRAFT has filed

twelve motions and responsive briefs in this Court and on appeal: three procedural motions, three motions to compel, a motion for leave to file a new complaint, a motion to intervene, the instant motion to stay..., an opposition to the motion for extension, and a motion to expedite the appeal and for summary remand, and the reply thereto.

Case 6:07-cv-01785-GAP-KRS Document 185 Filed 05/27/09 Page 2 of 3 PageID 2773
(Doc. 178).1 Within the context of these other filings, DRAFT’s instant motion appears to be
nothing more than a thinly veiled attempt to further obfuscate these proceedings and has been of
no benefit to the Court, the named parties, objectors, and absent class members. Accordingly, it is
ORDERED that the Motion to Stay (Doc. 160) is DENIED. It is FURTHER
ORDERED that by no later than Wednesday, June 10, 2009, Objectors Disability Rights
Advocates for Technology, Tina Baughman and Jerry Kerr, and their counsel, Aaron C. Bates,
David G. Geffen, and David Ferleger, shall show cause in writing why they should not be subject
to sanctions pursuant to 28 U.S.C. § 1927 or FED. R. CIV. P. 11 for their filing of the “Suggestion
to the Court Regarding Jurisdiction”(Doc. 160).
1DRAFT filed an additional “Notice to the Court” yesterday evening (Doc. 177). In its new notice, DRAFT briefly attempts to supplement its Motion to Stay without seeking leave of the Court. Furthermore, DRAFT compels the Court,inter alia, to carefully consider the applicability of a Florida statute which DRAFT “recently identified” as establishing Florida’s “public policy” of permitting the use of Segways (Doc. 177 at 3-4, citing FLA. STAT. § 316.2068). Howe ver, Section 316.2068 specifically gives counties and municipalities the power to prohibit the use of Seg ways and other “electric personal assistive mobility devices” in the “interest of safety,” FLA. STAT. § 316.2068 (5). In filing its new notice, DRAFT “certifies that” to the best of its “knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,” its new notice is “not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” FED. R. CIV. P. 11. Had DRAFT made any reasonable inquiry before filing its new notice, however, it would have known that for more than forty years all of the Disney’s Florida theme parks have been located within the Reedy Creek Improvement District – a special entity established by the Florida legislature with municipal powers that is controlled by Disney. See Chapter 67-764, Laws of Florida, Special Acts 1967; FLA. STAT. § 163.3167(9); see also State v. R eedy Creek Improvement Dist., 216 So. 2d 202 (Fla. 1968); 77 Fla. Op. Att’y Gen. 44 (1977); Robert W. Martin, Jr., Disney World: A Kingdom Into Itself, 9 Stetson I ntramural L. Rev. 423 (1977); Ree dy Creek Improvement District, http://www.rcid.ord. It is far from clear, then, that FLA. STAT. § 316.2068 would even apply to Disney. In any event, sincethis entire case is based on afederal statute, the Court sees little relevance in the so-called “public policy” embodied in FLA. STAT. § 316.2068.
-2-

Case 6:07-cv-01785-GAP-KRS Document 185 Filed 05/27/09 Page 3 of 3 PageID 2774 DONE and ORDERED in Chambers, Orlando, Florida on May 27, 2009.
Copies furnished to: Counsel of Record Unrepresented Party
-3-

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MAHALA AULT, STACIE RHEA and DAN WALLACE,

Plaintiffs,

-vs-

Case No. 6:07-cv-1785-Orl-31KRS

WALT DISNEY WORLD CO.,

Defendant. ______________________________________

MEMORANDUM OPINION AND ORDER

On November 9, 2007, Plaintiffs brought this class action alleging that Defendant’s, Walt

Disney World Company (“Disney”), policy against Segways violates Title III of the Americans with Disabilities Act.1 On December 5, 2008, the named parties submitted a settlement to the

Court (Doc. 79). On January 5, 2009, the Court conditionally certified a settlement-only class

pursuant to FED. R. CIV. P. 23(b)(2) and granted preliminary approval to the settlement subject to

objections and a fairness hearing (Doc. 83).

After receiving more than two hundred pages of written objections from nearly one hundred individual objectors and disability-rights advocacy groups,2 the briefs of amici curiae the

1 See generally 42 U.S.C. §§ 12181 to 12189 (the “ADA”). Specifically, Plaintiffs alleged that Defendant’s policy violates 42 U.S.C. § 12182(b)(2)(A)(ii), as discussed in further detail, infra.
2 Notwithstanding the fact that Rule 23(b)(2) classes are not entitled to noti ce, the Court ordered the parties to provide the best notice practicable to the class to ensure that absent class members had a full and fair opportunity to raise their objections (see Doc. 83 at 12-14; see also Doc. 143 at 3 (ordering that second notice be sent to cla ss)). The Court also ext ended the deadline for submitting written objections (Doc. 137) and re-scheduled the fairness hearing originally set for March

U.S. Department of Justice and the Attorneys General of twenty-three States (the “amici”), and the
named parties’ responses thereto, the Court conducted an extensive two-day fairness hearing
beginning on June 3, 2009 (Docs. 208 and 209). In addition to oral argument, evidence presented
at the fairness hearing consisted of more than eight hours of live testimony from fourteen
witnesses, two-hundred pages of exhibits, video and photographic exhibits, and in-court
demonstrations of the Segway and Disney’s new electronic stand-up vehicle (see Docs. 205 -
209).3 Subsequent to the fairness hearing, the Court permitted the parties, objectors and amici to
file post-hearing briefs (see Docs. 217 – 221 and 227).4
There are two questions now before the Court: (1) whether to grant final class certification
and (2) whether to grant final approval to the parties’ settlement. However, because the Court
finds that the named Plaintiffs lack standing, these questions are no longer ripe for review.
Accordingly, the Court’s prior Order (Doc. 83) will be vacated and the Second Amended
Complaint will be dismissed without prejudice.
31, 2009 to June 3, 2009 to accommodate late objectors (see Docs. 116 and 143). In short, the Court has done all in its power to ensure that anyone with an interest in this action had an opportunity to be fully heard.
3References to the transcript of the fairness hearing are cited to herein as “(Tr. at [page number]; Doc. [208 or 209]at [page number]).” Although thetranscript is separated into two volumes (volume I may be found at Doc. 208 and volume II may be found at Doc. 209), the entire transcript is consecutively paginated.
4To cure any perceived deficiencies in notice re quired by 28 U.S.C. §§ 1715(b) and (d) (requiring, inter alia, that notice of a ny proposed class action settlement unde r the Class Action Fairness Act be pr ovided to certain federal and state officials at least ninety days before an order giving final approval to a proposed settlement is issued), the Court delayed issuing the instant Order until one hundred days after the last day of the fairness hearing (i.e., until September 14, 2009) (see Doc. 149 at 3; Tr. at 505-506; and Doc. 209 at 233-234).
-2-

I The named Plaintiffs are all disabled individuals within the meaning of the ADA. Each Plaintiff uses, albeit to varying degrees, a Segway for his or her mobility rather than a “traditional” mobility device such as a wheelchair or scooter. When the named Plaintiffs were not allowed to use their Segways at Disney’s U.S.-based theme parks (the “Parks” or “Disney’s Parks”), they brought suit. Disney’s Parks attract millions of visitors each year, many of whom have significant disabilities that impair mobility. To accommodate these disabled guests, Disney has long made wheelchairs and sit-down motorized scooters available at its Parks. Due to its assessment of safety concerns, however, Disney has consistently prohibited all of its guests – regardless of disability – from using any two-wheeled vehicles in its Parks. This policy against two-wheeled vehicles applies to Segways.5 The Segway is a gyroscopically stabilized, two-wheeled motorized transportation device upon which an individual must stand in order to ride. Slight shifts in body weight control the movement of a Segway; as a rider leans forward, the device’s computer instructs the wheels to move ahead and, as a rider leans backward, the wheels go in reverse. First unveiled in December 2001, the Segway is truly a marvel of modern technology which, although neither tested nor approved by the FDA as a medical device, has become an increasingly popular and important device for people with wide-ranging types of disabilities and mobility impairments.
5Some Disney employees, however, may use Segways in the Parks to car ry out their work. Disney also offers a tour that allows guests to visit certain portions of Epcot while riding on Disneyowned, specially programmed Segways.
-3-

Indeed, Plaintiffs allege that as many as 7,000 disabled individuals rely on Segways for their everyday mobility (Doc. 49, ¶ 13), and according to at least one Segway dealership, nearly one-third of all its sales are to mobility-disabled individuals. See Robert L. Burgdorf, Jr., Restoring the ADA and Beyond: Disability in the 21st Century, 13 TEX. J. ON C.L. & C.R. 241, 336 (2008) (citation omitted). With appropriate permitting, disabled individuals are now able to use Segways on the District of Columbia’s Metro System, San Francisco’s Bay Area Rapid Transit System, and other public transportation systems.6
Recognizing the preference of some of its disabled guests to stand rather than to sit, Disney recently created its own innovative device: an electronic stand-up vehicle (“ESV”).7 Like a Segway, an individual using Disney’s ESV must stand in order to use the device. Unlike a Segway, however, Disney’s ESV is stabilized by a traditional, four-wheeled scooter chassis and is operated not by shifts in body weight, but by a basic hand-controlled throttle and steering tiller. Although Disney has reviewed its policy against Segways annually, it has consistently concluded that Segway use may not be safe in its densely crowded Parks. For that reason, Disney’s ESV was
6At least one federal court has also found that, under Title III of the ADA, a private entity cannot require a disabled individual to indemnify it for damages before allowing the individual to use a Segway at its place of public accommodation. See McElroy v. Simon Property Group, Inc., Case No. 08-CV-4041, 2008 WL 4277716, at *7 (D. K an. Sept. 15, 2008). McElroy did not address, however, whether the ADA requires a place of public accommodation to allow the use of Segways.
7Disney began developing the ESV prior to proposing the settlement (see Doc. 72-4, ¶ 6). It is unclear, however, whether this suit was a catalyst for Disney’s development of the ESV.
-4-

built around essentially the same technology as its proprietary sit-down scooters and underwent similar safety testing.8
After vigorous litigation, Disney and the named Plaintiffs ultimately agreed to settle.
Under the proposed settlement agreement, Disney’s policy against Segways would remain in place.
However, Disney would be required to make a certain number of its ESVs available to disabled guests at its Parks.9
II
A. The Class
The Court conditionally certified a Rule 23(b)(2) settlement-only class comprised of:
Those individuals who: (1) suffer from a mobility disability; (2) who rely upon a Segway or substantially similar stand-up mobility device for assistance with their mobility; and (3) who intend to visit the Walt Disney World Resort or the Disneyland Resort. (see Doc. 81-2, ¶ 49).10
8Specifically, Disney subjected its ESV to thesafety standards for power scooters established by the Rehabilitation Engineering and Assistive Technology Society of North America.
9The settlement would also require the named Plaintiffs and absent class members to release, inter alia, all present and future claims under federal and state law for injunctive relief arising out of Disney’s policy against Segways in any of its resorts, hotels, or theme parks throughout the United States.
10The parties originally sought to certify a settlement-only class consisting of “All persons who: (1) claim to have a mobility impairment or disability; (2) who have brought, intend to bring or may in the future bring a Segway or other two-wheeled vehicle into the Walt Disney World Resort or the Disneyland Resort” ( Doc. 77-2, ¶ 49). B ecause this definition was not clea rly tethered to the substantive provisions of the ADA, the Court proposed – and the parties agreed – that the definition, supra, was more appropriate (see Order at Doc. 80).
-5-

B. Named Plaintiffs Mahala Ault Mrs. Ault suffers from progressive Multiple Sclerosis (“MS”), a disease of the central nervous system that often produces varied and unpredictable symptoms. In her case, MS has increasingly limited Mrs. Ault’s ability to walk. As a result, she sometimes uses a Segway as her mobility device.11 Mrs. Ault’s husband has sworn that his “wife’s legs get very stiff and it is difficult for her to even stand without needing to hold on to something” (Doc. 68-2, ¶ 5), but that using a Segway has given her a “sense of capability she would not have in a wheelchair or scooter” and has kept her from “becoming depressed about her disease” (Doc. 68-2, ¶13). However, Mrs. Ault testified during her deposition that she was physically able to use a sit-down scooter and, in fact, had used such a scooter during a multi-day visit to four of Disney’s Orlando-based Parks in December 2007 (Doc. 72-7 at 23-27).12
11During the fairness hearing, Mrs. Ault testified, telephonically, that she uses he r Segway “Maybe once a month. It just depends if we go on a long journey. That’s where I usually take it, if I go on a long journey” (Tr. at 456; Doc. 209 at 185). However, she also uses a cane and owns a scooter (Tr. at 456; Doc. 209 at 185).
12In an unauthenticated letter written approximately seven months after her trip to Walt Disney World, Mrs. Ault’s doctor, Susan K. Mantell, opined that Mrs. Ault’s Segway “provides necessary assistance in mobility while preserving her current balance and muscular strength. While a wheelchair would provide some mobility, it would lead to a decline in her strength and balance” (Doc. 206-6 at 1). Dr. Mantell’s statement regarding the necessity of Mrs. Ault’s Segway, however, was seriously undermined by Mrs. Ault’s testimony – given more than a year after Dr. Mantell’s statement – that she now uses her Segway maybe once a month.
-6-

Stacie Rhea Mrs. Rhea suffers from Amyotrophic Lateral Sclerosis (“ALS”),13 a progressive and fatal disease that affects the nerve cells in the central nervous system that control voluntary muscle movement. Because of her ALS, Mrs. Rhea is physically able to walk only short distances without tiring. She uses a Segway as her primary mobility device. Because Mrs. Rhea uses a Segway, as opposed to a wheelchair or scooter, her young children do not realize that she suffers from a serious disease. During her trip to Walt Disney World in September 2007, Mrs. Rhea testified that, though tiring, she was able to walk the first two days of the trip; on the third day, she rented a scooter for a couple of hours (Doc. 72-8 at 19-25). The prospect of having to use a scooter, however, was very upsetting to Mrs. Rhea because she was comfortable with her Segway, which, unlike a scooter, her “children didn’t question” (Doc. 72-8 at 80). Dan Wallace Mr. Wallace is a partial amputee who lost part of his left foot after being struck by a train. While a prosthetic permits Mr. Wallace to walk short distances, it is painful for him to walk long distances or to remain on his feet all day. He uses a Segway for his longer-distance mobility needs. Mr. Wallace is physically able to use a wheelchair or scooter; however, as he testified at the fairness hearing, he prefers his Segway because no one looks at him and wonders what is “wrong” with him (Tr. at 23; Doc. 208 at 23).
13ALS is also known as Lou Gehrig’s Disease.
-7-

C. Objectors14 Major Daniel Gade A decorated veteran, Major Gade is a hip-level amputee who lost his right leg while serving in Iraq. After enlisting at seventeen and graduating from West Point, Major Gade led a tank company in Korea and then in Iraq, where he was nearly killed by the roadside bomb that destroyed his leg. While Major Gade uses a prosthetic, his ability to walk long distances is limited. Initially he relied on wheelchairs for his mobility but quickly began to look for an alternative that, in his perspective, would restore his dignity (Tr. at 194-95; Doc. 208 at 194-95). In this regard, Major Gade testified: [W]hen I was in a wheelchair, when I was a wheelchair user, when I would go into a public place, I was – I was viewed and I could hear – often hear small children and sometimes adults, who should know better, openly feeling sorry for me, saying, “Oh, look at that poor guy,” and that is – more so than an amputation that causes you to limp, that is a disabling feeling. (Tr. at 195-96; Doc. 208 at 195-96). Major Gade eventually discovered the Segway in the summer of 2005 and has used it ever since for most of his mobility needs.15 Within “minutes” of first using a Segway, it became “clear . . . that a [Segway] was going to be my mobility solution because it was literally like gliding, like a magic carpet” (Tr. at 202; Doc. 208 at 202).
14Although more than one hundred individuals filed written objections, nine objectors testified at the fairness hearing. Because these nine individuals made the same orsimilar objections as others who did not testify , the Court has limited its dis cussion of the objec tors to a cr oss-section of the testimony given by certain objectors at the fairness hearing.
15Major Gade still owns and can use a wheelchair (Tr. at 202; Doc. 208 at 202).
-8-

Indeed, Major Gade has used his Segway in the White House while working as an associate
director of the White House’s Domestic Policy Counsel; at the Pentagon; in the halls of Congress
and on the floor of the U.S. House of Representatives; on the District of Columbia’s Metro
System; on the streets of downtown District of Columbia after a Fourth of July fireworks display;
in his home; around his one-year-old son and seven-year-old daughter; and even while walking his
dog (Tr. at 192-241; Doc. 208 at 192-241).
Beyond simply improving his mobility, the Segway has changed the way people relate to
Major Gade. In one telling incident, Major Gade testified that when he was riding to work one
day,
[T]his girl behind me was part of a school group of 13-year-old girls, you know, and she said to her friend, she said, “That man is the laziest man I’ve ever seen in my whole life,” and she was ten feet behind me.
So I literally just put my hand in my pocket and raised my pants leg just a little bit until she could see [the] metal [of my prosthetic], and I heard her go (gasp), and this girl – that’s the difference between when you’re riding a Segway and when you look like I do, and I’m not obviously disabled when I’m fully clothed. The difference for me was people . . never thought I was disabled.
So the benefit of that was that I was able to then relate to them on the basis of my mind and on the basis of my – you know, who I am and not as – you know, not put in the disability box that people unfortunately have, the stigma of “Oh, this disabled person might be sensitive about being disabled.”
(Tr. at 202-03; Doc. 208 at 202-03).
Like the named Plaintiffs, Major Gade was denied the use of his Segway at Disney World
in December 2006 (Tr. at 210-11; Doc. 208 at 210-11). Although he could have used a wheelchair
or scooter, he choose not to go to the Park and went scuba diving instead (Tr. at 212; Doc. 208 at
212).
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When asked whether he would be comfortable using an ESV at Disney World, Major Gade testified: “I would be physically comfortable and psychologically miserable and, as a result, would go scuba diving again” (Tr. at 241; Doc. 208 at 241).
Noel Lee After being exposed to radiation approximately thirty years ago while working at the Lawrence Livermore National Laboratory, Mr. Lee suffers from a neurological disorder that has caused the nerves in his spine to gradually deteriorate, resulting in a complete loss of mobility below his calves (Tr. at 242; Doc. 208 at 242). Although he cannot walk, Mr. Lee can still stand. For Mr. Lee, the Segway was the perfect mobility device; without it, he – like Major Gade – felt as though he had lost his dignity (Tr. at 244; Doc. 208 at 244). While visiting a Disney hotel in California with his daughter, Mr. Lee was prohibited from using his Segway. Instead, he was offered a wheelchair or scooter. Although Mr. Lee is able to use a wheelchair and owns a scooter-like device, he strongly prefers his Segway. McKenzie Kilgore Ms. Kilgore is a fourteen-year-old who was born with cerebral palsy (Tr. at 390; Doc. 209 at 119). A remarkable young woman, she has overcome the challenges of her condition and maintained her independence by using a Segway. Although she can use a wheelchair, when asked how it felt to be pushed around in one, Ms. Kilgore testified: I hated it so much. It made me feel like more disabled than I already am; and people were – like, they constantly wonder why, like, I was in a wheelchair; and it also greatly affected my social life because, like, my friends would ditch me because it was too slow for them; and yeah, it really took an emotional impact on me. (Tr. at 391; Doc. 209 at 120).
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When Ms. Kilgore starts high school next year, she will be using her Segway to navigate between classes and to keep up with her peers (Tr. at 391; Doc. 209 at 120).
III At the very outset of this case, Disney filed a motion to dismiss based on Plaintiffs’ lack of ordinary Article III standing (Doc. 20 at 3). The Court agreed with Disney, finding that Plaintiffs had failed to allege a specific intent to visit or return to Disney World, and dismissed Plaintiffs’ Complaint without prejudice (Doc. 21). Upon the filing of the Amended Complaint, Disney filed a subsequent motion to dismiss in which it renewed its standing argument and also argued that Plaintiffs had failed to allege that the requested change in Disney’s policy against Segways was “necessary” to afford them access to the Parks (Doc. 50 at 6) (citing PGA Tour, Inc. v. Martin, 532 U.S. 661, 688 (2001) and 42 U.S.C. § 12182(b)(2)(A)(ii)). The Court denied Disney’s subsequent motion to dismiss (Doc. 52). Because the Amended Complaint clearly alleged an intent to visit the Parks at a specific point in time in the near future, the Court found that Plaintiffs had alleged a concrete and particularized injury that was traceable to Disney’s conduct and that could likely be addressed by favorable injunctive relief. With respect to Disney’s contention that Plaintiffs had failed to allege that a policy modification was “necessary,” the Court concluded that this argument “would require the exploration and resolution of factual issues that are simply not before the Court at this time” (Doc. 52 at 4). On the record as it stands now, however, it is clear that the named Plaintiffs’ requested relief is not “necessary” and, therefore, the named Plaintiffs’ claims fall outside the zone of interests created by 42 U.S.C. § 12182(b)(2)(A)(ii). Although the parties did not address this
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prudential limitation in their initial arguments over ordinary Article III standing, for the reasons discussed, infra, the Court is compelled to conclude that it was without jurisdiction to initially certify a class or give preliminary approval to the parties’ settlement.16
A As the Supreme Court has often stated, standing “involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.” Warth v. Seldin, 422 U.S. 490, 498 (1975) (citations omitted). Apart, then, from the requirement that there be “a logical nexus between the status asserted and the claim sought to be adjudicated,” Flast v. Cohen, 392 U.S. 83, 102 (1968), prudential limitations are judicially self-imposed limits on the exercise of federal jurisdiction that are “founded in the concern about the proper – and properly limited – role of the courts in a democratic society.” Id. at 498; see also Allen v. Wright, 468 U.S. 737, 751 (1984). They relate to an idea, “which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government.” Allen, 468 U.S. at 750 (1984) (quotation omitted). Numbered among these prudential limitations is the requirement that a plaintiff’s grievance must arguably fall “within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit.” Bennett v. Spear, 520 U.S. 154, 162 (1997)
16Inasmuch as the named Plaintiffs’ standing is a prerequisite to jurisdiction that is antecedent to the propriety of class certification, Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) is inapposite. See, e.g., Lewis v. Casey, 518 U.S. 343 (1996); Simon v. E. Ky. Welfare Rights Orgs., 426 U.S. 26 (1976); see also Rules Enabling Act, 28 U.S.C. § 2072(b) (federal rules of procedure shall not “enlarge or modify any substantive right”).
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(citations omitted). Whether the interest sought to be protected by the complainant is within the
zone of interests to be protected by the statute varies according to the provisions of law at issue.
Id. While the test is not “especially demanding,” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399-
400 (1987), it must turn on the specific statutory provision that serves “as the gravamen of the
complaint” – not on the overall purpose of the statutory act in question. Bennett, 520 U.S. at 175-
76 (citations omitted); see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 88 3 (1990); Assoc. of
Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 155-56 (1970); Haitian Refugee Ctr. v.
Gracey, 809 F.2d 794, 813-14 (D.C.Cir. 1987) (“in applying the zone [of interest] test a court must
discern whether the interest asserted by a party in the particular instance is one intended by
Congress to be protected . . . by the statute under which suit is brought”) (quotation and citation
omitted).
B
The citizen-suit provision of Title III of the ADA states:
The remedies and procedures set forth in section 2000a-3(a) of this title are the remedies and procedures this subchapter provides to any person who is being subjected to discrimination on the basis of disability in violation of this subchapter . . . .
42 U.S.C. § 12188(a)(1).
Section 2000a-3(a), in turn, provides that:
Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice prohibited by [this title], a civil action for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order, may be instituted by the person aggrieved and, upon timely application, the court may, in its discretion, permit the Attorney General to intervene in such civil action if he certifies that the case is of general public importance . . . .
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42 U.S.C. § 2000a-3. On its face, Title III’s citizen-suit provision authorizes private suits, subject to the possible
intervention of the Attorney General, for injunctive relief only that are brought by individuals who are being (or are about to be) subjected to “discrimination.” In comparison to other citizen-suit provisions, Title III of the ADA is arguably limited. See, e.g., Bennett, 520 U.S. at 164-65 (comparing various statutory formulations of certain citizen-suit provisions and characterizing, for example, a provision with the language, “any person injured in his business or property,” as restrictive). Indeed, notwithstanding the fact that injunctive relief – the only relief available under the ADA to private citizens absent intervention by the Attorney General – must be specific and narrowly tailored, see, e.g., FED. R. CIV. P. 65(d), an individual’s interests against “discrimination” are not writ large. As a threshold matter, one must assert that the discrimination at issue is specifically prohibited by the ADA.
Thus, while Title III of the ADA generally provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods [and] services . . . of any place of public accommodation,” 42 U.S.C. § 12182(a), to actually be “discriminated against,” an individual must allege that the discrimination comes within the ambit of at least one of the five specific prohibitions contained in 42 U.S.C. § 12182(b)(2).17
17Section 12182(b)(1) also conta ins “general” – ra ther than “ specific” – ty pes of discrimination. Section 12182(b)(1), however, has never been at issue in this case.
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In this case, the named Plaintiffs have relied exclusively on only one of the five specific
prohibitions: Section 12182(b)(2)(A)(ii),18 which defines “discrimination” as
(ii) a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations . . . .
42 U.S.C. § 12182(b)(2)(A)(ii).
By its plain language, Section 12182(b)(2)(A)(ii) protects only those interests that arguably
arise from a public accommodation’s failure to make reasonable modifications that are “necessary”
for a disabled individual to be afforded goods or services. The word “necessary” means
“indispensable; vital, essential; requisite.” OXFORD ENGLISH DICTIONARY (2d ed. 1989), available
by subscription at http://dictionary.oed.com/; see also 1WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 1510 (1961) (defining “necessary” to mean “unavoidable; inevitable . . .”);
1AMERICAN HERITAGE DICTIONARY 834 (2d. College ed. 1982) (defining “necessary” to mean
“absolutely essential; indispensable”). Thus, a claim is not within the zone of interests that
18(see Doc. 1, ¶3 (Complaint); Doc. 49,¶ 3 (Amended Complaint); and Doc. 81-2. ¶ 3 (Second Amended Complaint)). Plaintiffs also cite to 28 C.F.R. §36.202, an ADA regulation promulgated by the Justice Department concerning participation in unequal benefits. Neither Plaintiffs, Disney, objectors, nor amici have ever developed a case for r elying on this re gulatory provision. Even assuming, arguendo, however, that they had, the interests that Plaintiffs seek to vindicate in this case still fall outside this provision’s z one of protected interests. In pertinent part, regulation 36.202 provides: “A public accommodation shall not afford an individual or class of individuals, on the basis of a disability or disabilities of such individual . . ., with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afofrded to other individuals.” 28 C.F.R. § 36.202(b); Cf. 42 U.S.C. § 12182(b)(1)(A)(ii) (also prohibiting participation in unequal benefits). As discussed further, infra, the named Plaintiffs’ case has little to do with unequal benefits or necessary policy modifications.
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Congress sought to protect in Section 12182(b)(2)(A)(ii) unless the discrimination at issue involves a modification that is at least arguably indispensable or essential to afford access.19
C It is beyond peradventure that Title III of the ADA requires places of public accommodation to allow mobility-disabled individuals to use certain mobility devices. The more difficult question, of course, is which devices must be allowed. Although the ADA has historically been applied, in significant part, to increase wheelchair accessibility, nothing in the ADA’s text limits the disabled to that or any other particular mobility device. As better devices emerge, many individuals who were formerly confined to wheelchairs, or restricted by other devices, will have increasingly better options. The Court’s power to recognize new devices under the ADA, however, is not without limit and must comport with the statutory and regulatory framework that is established and amended by Congress and appropriate federal agencies. All of the named Plaintiffs and objectors who testified in this case are able to use wheelchairs or scooters. Although some individuals may, with good reason, not want to use those devices and instead prefer to use a Segway, that preference – standing alone – is not essential to accessing Disney’s Parks. Although there may be some disabled individuals for whom an upright mobility device such a Segway – and not a wheelchair or some other “traditional” device – amounts to something that is essential, it remains a near physiological certainty that most people, regardless of disability, can sit from time to time. The named Plaintiffs and objectors who flew or drove to Orlando for the fairness hearing, or who actually visited Disney World while seated in a
19A party must also show, of course, that the requested modification is “reasonable.”
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wheelchair or scooter, are no different from most of humanity in this regard. With respect to the named Plaintiffs, in particular, there is simply no evidence that their use of a Segway is arguably essential to accessing Disney’s Parks. Thus, on the record before it, the Court concludes that the named Plaintiffs’ claims fall outside the zone of interests protected by Section 12182(b)(2)(A)(ii).
D Human beings are not defined by physiology alone. As the fairness hearing ultimately made clear to the Court, this case is not about necessary accommodation. The real question, it seems, is the extent to which the ADA can (or should) promote equal treatment and human dignity by requiring acceptance of new technologies. As Major Gade and others testified, the Segway is quickly changing the way disabled Americans are perceived and treated in our society. The importance of this interest simply cannot be overlooked. While on the facts of this case equal treatment and human dignity may not be protected under Section 12182(b)(2)(A)(ii), those interests may still be protected by other provisions of the ADA or state law. As the Supreme Court has recognized, the purpose of the ADA is to eliminate the “physical and social structures” that have impeded the disabled. Tennessee v. Lane, 541 U.S. 509, 535-36 (2004) (Ginsburg, J., Souter, J., and Breyer, J., concurring) (holding that Congress had abrogated the States’ sovereign immunity under Title II of the ADA for the purpose of ensuring equal access to courts) (emphasis added). In this regard, the ADA concerned itself with much more than just eliminating physical barriers to access, but with advancing the “stature” of persons with disabilities, protecting against the “stigma” that is often associated with being disabled and
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promoting respect for “the dignity of individuals with disabilities.” Id. at 536-37 (citations omitted).20
Whether another provision of the ADA or state law can provide the relief that the named Plaintiffs seek is unclear. Apart from the courts, it may be the case that another branch has the initial responsibility to ensure that individuals with disabilities can take advantage of Segways to serve the broader goals of Title III. As to these named Plaintiffs, however, these are questions best left for another day.
IV For the foregoing reasons, it is ORDERED that the Court’s prior Order (Doc. 83), conditionally certifying this case as a class action and giving preliminary approval to the parties’ settlement agreement, is hereby VACATED. It is FURTHER ORDERED that Plaintiffs’ Second Amended Complaint (Doc. 81-2) is DISMISSED without prejudice. The Clerk of the Court is directed to terminate all pending motions. DONE and ORDERED in Chambers, Orlando, Florida on October 6, 2009.
Copies furnished to:
Counsel of Record Unrepresented Party
20See, e.g., 42 U.S.C. § 12182(b)(2)(A)(iii) (making “a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the abse nce of auxiliary aids and services,” actionable discrimination under Title III of the ADA) (emphasis added).
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 Case 6:07-cv-01785-GAP-KRS Document 252 Filed 04/04/11 Page 1 of 10 PageID 4422

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MAHALA AULT, STACIE RHEA and DAN WALLACE,
Plaintiff,

-vs-

Case No. 6:07-cv-1785-Orl-31KRS

WALT DISNEY WORLD CO., Defendant.
_____________________________________/
ORDER APPROVING CLASS ACTION SETTLEMENT
I. Introduction1 On November 9, 2007, Plaintiffs brought thisclass action alleging that Defendant’s, Walt
Disney World Company (“Disney”), policy against Segways violates Title III of the Americans with Disabilities Act.2 On December 5, 2008, the named parties submitted a proposed settlement to the Court. (Doc. 79.) On January 5, 2009, the Court conditionally certified a settlement-only class pursuant to FED. R. CIV. P. 23(b)(2) a nd granted preliminary approval to the settlement subject to objections and a fairness hearing. (Doc. 83.)

1 The Court’s Orders of January 5, 2009, and October 6, 2009, set out in detail the facts underlying this dispute. (See Docs. 83 and 228.)
2 See generally42 U.S.C. §§ 12181 to 12189 (the “ADA”).Specifically, Plaintiffs alleged that Defendant’s policy violates 42 U.S.C. § 12182(b)(2)(A)(ii).

Case 6:07-cv-01785-GAP-KRS Document 252 Filed 04/04/11 Page 2 of 10 PageID 4423
The Court conducted an extensive two-day fairness hearing beginning on June 3, 2009. (Docs. 208 and 209.) Subsequent to the fairneshs earing, the Court permitted the parties, objectors and amici to file post-hearing briefs. (See Docs. 217 – 221 and 227.)
After reviewing and considering the relevantsubmissions, considering the objections, and hearing arguments of counsel atthe fairness hearing, this Court concluded that the named Plaintiffs lacked prudential standing and dism issed the Second Amended Complaint without prejudice. (Doc. 228.) On appeal, the Eleventh Circuit determined that the district court erred in concluding that the named plaintiffs lacked prudential standing. (Doc. 247.) The Eleventh Circuit remanded for this Court to consider, inter alia, “whether the claims of the named [P]laintiffs are typical of the claims of the class and whether they are adequate representatives of the class.” (Id. at 3.)
Following remand, the Court held a status conference. (Doc. 244.) Subsequent to the status conference, the Court permitted the objectors and amici to file post-remand supplemental briefs, and the parties were permitted to file responsive memoranda. (See Docs. 241, 246, 248 and 249.)3
The Court must now consider (1) whether to grant final class certification and (2) whether to grant f inal approval to the parties’ settlem ent. For the reasons set forth below, the Court answers each question in the affirmative.
3 Two post-remand briefs have been submitted by objector Disability Rights Advocates for Technology (“DRAFT”) and amicus curiae the U.S. Department of Justice (the “DOJ”).
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II. Analysis A. Class Certification
This Court has pr eviously had one occasion to address in depth the propriety of class certification. Specifically, in its preliminary approval order, the Court determined that the putative class satisfied the num erosity, commonality, typicality, and adequac y of representation requirements of Rule 23(a). (Doc. 83 at 5-9.) Additionally, the Court found that Plaintiffs satisfied the requirements of Rule 23(b)(2). (Id. at 9.)
Having fully considered the arguments raised by the DOJ and DRAFT in their respective post-remand briefs, the Court sees no reason to depart from its prior rulings regarding class certification. Both the DOJ and DRAFT argue thatthe Plaintiffs’ claims lack typicality under Rule 23(a) because they rely on Segways to a differentextent then other class members. However, any differences in the class m embers’ degree of reliance has little or no relevance to the claim s presented by the named Plaintiffs, which are identical to the claims of every class member. See Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279 n.14 (11th Cir. 2000). “Every class member – whether absent from the proceedings or acting as a class representative – is asserting that Disney’s prohibition on Segways precludes th em from the full use and enjoym ent of the Parks.” (Doc. 83 at 8.) Such similarity of legal theories shared by the Plaintiffs and the class at large dictates a determination that the named Plaintiffs’ claims are typical of those of the members of the putati ve class. For the sam e reasons, th e differences in the class m embers’ degree of reliance on the Segway does not affect the Court’s prior conclusion that Plaintiffs will fairly and adequately protect the interests of the class.
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In addition, the Court rejects DRAFT’s argument that the numerosity requirement has not been met in this case. Although m ere allegations are insuffici ent to m eet the num erosity prerequisite for class certification, it is well established that a plaintiff need not be able to prove the exact number of members or identify each class member. See Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1267 (11th Cir. 2009);Evans v. U.S. Pipe & Foundry Co,.696 F.2d 925, 930 (11th Cir. 1983). As noted in the prelim inary approval order, Plaintiffs have been able to specific ally identify twenty-five actual class members. (See Doc. 66-2.) Since that time, DRAFT itself has identified “nearly 100 individuals” as class members who object to the proposed settlement. (Doc. 241 at 1.) Based on these figure,sthe Court reaffirms its prior ruling that there are enough persons (25+) to satisfy the impracticality of joinder requirement of Rule 23(a).
Since the settlement class satisfies both Rule 23(a) and 23(b)(2), the Court will grant ifnal class action certification.4 B. Fairness of the Settlement Agreement
In addition, the Court reaffirms its prior findings regarding the substantive fairness of the settlement agreement. (See Doc. 83 at 9-12.) Notably, in its analysis of the rel evant factors
4 The Court also rejects DRAFT’s argument that Plaintiffs lack Article III standing due to their “once-in-a-while Segway use.” (Doc. 241 at 3); ( see also Doc. 217 at 18). This case is distinguishable from Access for the Disabled, Inc. v. Osceola Enterprises of Kissimmee, Inc., No. 6:09-cv-1805-Orl-31GJK, 2010 WL 2889823 (M.D. Fla. July 22, 1010), on which DRAFT relies. In that case, this Court denied plaintiffs’ motion for default judgment on their ADA complaint due to their failure to adequately allege that there were disabled and that the architectural barriers they challenged reasonably related to their disability. H ere, in contrast, Plaintiffs have standing to challenge Disney’s policy prohibiting Segways as such policy specifically relates to their mobility disability.
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delineated in Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984), the Court found that Plaintiffs’ likelihood of success at trial is questionable given the fact that “the Court could easily conclude that Plaintiffs simply prefer the Segway to other types ofmobility devices and that such a preference, as a matter of law, need not be accommodated under the ADA.” (Doc. 83 at 10.)
In its post-remand brief, the DOJ argues thatthe Court should reconsider its prior findings regarding Plaintiffs’ likelihood of success at trial in light of (1) the DOJ’s recently revised Title III regulations addressing mobility devices; and (2) a broader reading of the term “necessary” in 42 U.S.C. § 12182(b)(2)(A)(ii)’s reasonable modification requirement. The Court addresses each argument in turn.
Title 28, Code of Federal Regulations, Section 36.311(b)(1), provides in full: A public accommodation shall make reasonable modifications in its policies, practices, or procedures to perm it the use of other power-driven m obility devices [(“OPDMD”)]5 by individuals with mobility disabilities, unless the public accommodation can demonstrate that the class of other power-driven mobility devices cannot be operated in a ccordance with legitimate safety requirements that the public accom modation has adopted pursuant to § 36.301(b).
5 An OPDMD is defined as: any mobility device powered by batteries, fuel, or other engines – whether or not designed primarily for use by individuals with mobility disabilities – that is used by individuals with m obility disabilities f or the purpose of locomotion, including golf cars, electronic personal assistance m obility devices (EPAMDs), such as the Segw ay . . . , or any m obility device designed to operate in areas without defni ed pedestrian routes, but that is not a wheelchair within the meaning of this section.
28 C.F.R. § 36.104.
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28 C.F.R. § 36.311(b)(1). In determ ining whether an OPDMD should be allowed in a specific facility as a reasonable m odification under (b)(1), a public accom modation shall consider the following factors:
(i) The type, size, weight, dimensions, and speed of the device; (ii) The facility’s volume of pedestrian traffic (which may vary at different times of the day, week, month, or year); (iii) The facility’s design and oper ational characteristics (e.g., whether its business is conducted indoors, its squarefootage, the density and placement of stationary devices, and the availabili ty of storage for the device, if requested by the user); (iv) Whether legitimate safety requirements can be established to permit the safe operation of the other power-driven m obility device in the specif ic facility; and (v) Whether the use of the other power-driven m obility device creates a substantial risk of serious harm to the immediate environment or natural or cultural resources, or poses a conflict with Federal land m anagement laws and regulations. 28 C.F.R. § 36.311(b)( 2). As explained in the preamble, “the focus of the analysis [under § 36.311(b)(2)] must be on the appropriateness ofthe use of the device at a specific facilityr,ather than whether it is necessaryfor an individual to use a particular device.” 75 Fed. Reg. at 56, 236 (emphasis added). According to the DOJ, these new regulations are a “ga me changer” as § 36.311(b) expressly provides legal recognition of , and protection for, use of Segways and other mobility devices at public accommodations subject to legitimate safety concerns. (Doc. 246 at 10.) The DOJ claims that the revised regulations “significantly enhance” the class emmbers’ Title III claims
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and “strongly counsel against final judicial appor val of the proposed class settlement agreement.” (Id. at 11.)
In response, Disney argues that the DOJ’s re vised regulation is contrary to the plain language of Title III and, therefore, not entitled to any deference. This Court agrees. As Disney correctly notes, under Chevron, U.S.A., Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 837, 844 (1984), an agency’s construction of a statuet controls unless the construction is arbitrary, capricious, or manifestly contrary to the statute. Here, the DOJ’s revised regulations conflict with the plain language of Title III, whi ch requires that a requested modification be necessary for a disabled individual to be a fforded goods or services. See 42 U.S.C. § 12182(b)(2)(A)(ii). 6 Therefore, to the extent the revised regulation is icnonsistent with the statutory text ofTitle III, the Court declines to accept it. See McComb v. Wambaugh, 934 F.2d 474, 481 (3d Cir. 1991) (“[I]n any conflict between a statute and a regulation puprorting to implement the statutes provision, the regulation must, of course, give way.”).

6

Title III, 42 U.S.C. § 12182(b)(2)(A)(ii) (emphasis added)

Revised Regulation, 28 C.F.R. § 36.311(b)(1)

“[D]iscrimination includes . . . a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.”

“A public accommodation shall make reasonable modifications in its policies, practices, or procedures to permit the use of other power-driven mobility devices by individuals with mobility disabilities, unless the public accommodation can demonstrate that the class of other power-driven mobility devices cannot be operated in accordance with legitimate safety requirements that the public accommodation has adopted pursuant to § 36.301(b).”

-7-

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Even if the Court were to accord Chevron deference to the revised regulation, Disne y

would likely be able to maintain its ban on Segways in light of its legitimate safety concerns.

Specifically, the evidence at the f airness hearing supports D isney’s position that unrestricted

Segway use poses significant safety risks becauseSegways cannot be operated in accordance with

Disney’s legitimate safety requirements. See 28 C.F.R. § 36.301(b)7. Disney’s position, therefore,

presents a significant hurdle to any potential recovery by the Plaintiffs.

The DOJ argues that under its interpretation of the term

“necessary” in

§ 12182(b)(2)(A)(ii), which it claim s is entitled to de ference from this Court, a plaintiff m ust

“demonstrate only that they ‘need’ a particular mobility device (such as a Segway) to aid themin

relation to, or help ameliorate the effects of, their mobility impairment.” (Doc. 246 at 5.) The

DOJ, however, cites no case law directly on point fo r this broad interpreta tion of the s tatute.

Further, this interpretation ignores both the plainlanguage of the statute and federal case law.See

Baughman v. W alt Disney World Co. , 691 F. Supp. 2d 1092, 1095 (C.D. Cal. 2010) (“For a

requested modification to be necessary, a plain tiff must show tha t she would be effectively

excluded from the public modification without the modification.”) (citing Lentini v. California

Center for the Arts, Escondido, 370 F.3d 837, 845 (9th Cir. 2004)).8 The DOJ’s interpretation of

7 At the fairness hearing a nd in his deposition, Greg Hale, Disney’s Chief Safety Officer, testified in detail about his thorough review and assessment of whether the Segway could be used by guests at Disney’s theme parks and his conclusion that the safety risks posed to other guests in the unique environment of the parks were simply too great. (See Hale Dep. Doc. 249-1 at 170-175.)
8 Further, in PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001), it was undisputed that provision of a golf cart was “reasonable” and was “necessary” toafford the disabled plaintiff – who was unable to walk a golf course – access to defen dant’s golf tournaments. Id. at 682. This is different, the Supreme Court explained, froma claim“that might be asserted by players with less serious afflictions that make walking the course uncomfortable or difficult, but not beyond their capacity. In such cases, an accommodation might be reasonable but not necessary.” Id.
-8-

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the term “necessary” in § 12182(b)(2)(A)(ii) is unreasonable and, therefore, not entitled to deference by this Court.
Having considered the arguments raised by DRAFT and the DOJ, the Court finds that the first Bennett factor still weighs strongly in favor of final approval of the settlement.
It does not appear that either the DOJ or DARFT object to the Court’s prior conclusion that each of the five rem aining Bennett factors also weigh in f avor of approving the Settlem ent Agreement. In any event, the Court has reviewedthose factors again and adopts its prior analysis. The Court reiterates its previous f inding that the Settlem ent Agreement is fair, adequate, and reasonable, and is not the product of collusion between the parties. III. Conclusion
In light of the foregoing analysis, and for the reasons set forth in the preliminary approval order, it is hereby ORDERED that:
1. The Court GRANTS final class certification and fi nal approval of the proposed Settlement;
2. All objections to the Settlement are OVERRULED; 3. Pursuant to Paragraph 18 of the proposeSdettlement, the parties shall submit a proposed Final Judgment consistent with this Order on or before Friday, April 22, 2011. After reviewing the proposed Final Judgment, the Court will enter an Order setting a date sixty (60) days thereafter for a hearing on any unresolved attorneys’ fees issues. DONE and ORDERED in Chambers, in Orlando, Florida on April 4, 2011.
-9-

Case 6:07-cv-01785-GAP-KRS Document 252 Filed 04/04/11 Page 10 of 10 PageID 4431 Copies furnished to: Counsel of Record Unrepresented Party
-10-

 
 Case 6:07-cv-01785-GAP-KRS Document 254 Filed 04/25/11 Page 1 of 3 PageID 4435

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MAHALA AULT, STACIE RHEA and DAN WALLACE,
Plaintiffs,

-vs-

Case No. 6:07-cv-1785-Orl-31KRS

WALT DISNEY WORLD CO., Defendant.
_____________________________________/
FINAL JUDGMENT
This cause having come before the undersigned United States District Judge, and upon the consent of Plaintiffs Mahala Ault, Stacie Rhea1 and Dan Wallace, individually and on behalf of all others similarly situated, and defendant Walt Disney Parks and Resorts U.S., Inc. (“Worldco”), formerly known as Walt Disney World Co.,2 (collectively, the “parties”), the Court enters final judgment as follows:
1. On December 26, 2008, the parties executed and filed the Joint Stipulation of Settlement and Release (“Settlem ent Agreement”) which sets f orth the terms of the parties’ agreement. (See Doc. 82, Ex. 1.) Pursuant to paragraph 18 of the Settlem ent Agreement, the parties agreed to submit a proposed final order in connection with final approval of the settleemnt.

1 Plaintiffs’ counsel, Jason Medley, advised the Court that Stacie Rhea had passed away in October of 2010. (Doc. 245.)
2 After the settlement agreement was executed, Walt Disney World Co. changed its name to Walt Disney Parks and Resorts U.S., Inc.

Case 6:07-cv-01785-GAP-KRS Document 254 Filed 04/25/11 Page 2 of 3 PageID 4436
2. On April 4, 2011, this Court granted final class certification and final approval of the settlement. (Doc. 252, Order Approving Class Action Settlement.)
3. After reviewing and considering the relevant submissions, considering all objections, and hearing arguments of counsel at anextensive two-day fairness hearing, this Court found the Settlement Agreement to be “fair, adequate, and reasonable, and is not the product of collusion between the parties.” (Id. at 9.)
4. This Final Judgment enjoins and prohibits any Settlement Class Member (as defined in paragraph 5 of the Settlement Agreement) from prosecuting against Worldco or its present or f ormer parent com panies, subsidiaries, affiliates, shareholders, of ficers, directors, employees, partners, agents, r epresentatives, attorneys, insurers, and any other successors and assigns, any individual or class claim s which were or could be asserted in this case, including without limitation any claims for declaratory or injunctive relief arising out of the acts, facts, transactions, occurrences, representations, or omissions set forth in the complaint and subsequent amended complaints.
5. Consistent with the terms of the Settlement Agreement, this Court hereby awards fifty-five thousand dollars ($55,000.00) to the firm of Baker, Baker & Krajewski, LLC and fifteen thousand dollars ($15,000.00) to the firm of O’Donnell, Ferebee, Medley & Keiser, P.C. in full payment of their attorneys’ fees and costs in this case. Such amounts shall be paid within fourteen (14) days of the Effective Date of the Settlement Agreement, which is defined therein as the date upon which judgment of approval of the settlement has been entered by this Court, any and all appeals fromthat judgment have been exhausted, and the judgment is affirmed, or becomes final and non-appealable.
-2-

Case 6:07-cv-01785-GAP-KRS Document 254 Filed 04/25/11 Page 3 of 3 PageID 4437
6. Consistent with the term s of the Settlement Agreement, this Court also awards four thousand dol lars ($4,000.00) to each Mahala Ault, Stacie Rhea and Dan W allace, which shall be paid within fourteen (14) days of the Effective Date of the Settlement Agreement.
7. The law firm of Dem psey and Associates, P.A. ha s not reached an agreement with Worldco regarding attorneys’ fees and costs, and therefore this Court will set a hearing to resolve this issue.
8. This case is hereby dismissed on the merits and with prejudice. 9. The parties are ordered to com ply with the term s and provisions of t he Settlement Agreement and this Final Judgment. The Court will retain jurisdiction with respect to implementation and enforcement of the terms of the Settlement Agreement. All signatories to the Settlement Agreement hereby submit to the continuing jurisdiction of the Court for purposes of implementing and enforcing this Final Judgment and the terms of the Settlement Agreement, and resolving Dempsey & Associates, P.A.’s request for attorneys’ fees and costs. DONE and ORDERED in Chambers, in Orlando, Florida on April 25, 2011.
Copies furnished to: Counsel of Record Unrepresented Party
-3-

 
 Case 6:07-cv-01785-GAP-KRS Document 274 Filed 05/02/13 Page 1 of 2 PageID 4495

Ca:~=:s1u1p-r1e2m01e3 CoDautertFiolefd:tQh4e/15U12n0il3tedP:.a=gseta: 1teosf 1 Office of the Clerk
Washington, DC 20543-0001

April 15, 2013

William K. Suter Clerk ofthe Court (202) 479·3011

Clerk United States Court of Appeals for the Eleventh Circuit 56 Forsyth Street, N.W. Atlanta, GA 30303

Re: Jerry Miller, et al. v. Walt Disney World Co., et a1. No. 12-851 (Your No. 11-12013)

Dear Clerk: The Court today entered the following order in the above-entitled case: The petition for a writ of certiorari is denied.

Sincerely,
fj)~f.~
William K. Suter, Clerk

Case 6:07-cv-01785-GAP-KRS Document 274 Filed 05/02/13 Page 2 of 2 PageID 4496 Case: 11-12013 Date Filed: 04/15/2013 Page: 1 of 1

John Ley Cleric ofCourt

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CmCUIT
ELBERT PARR TImLE COURT OF APPEALS BUILDING S6 Forsyth Street, N. W. Atlanta, Georgia 30303
May 02, 2013

Sheryl L. Loesch U.S. District Court 401 W CENTRAL BLVD ORLANDO, FL 32801
Appeal Number: 11-12013-BB Case Style: Jerry Miller, et al v. Walt Disney World Co., et al District Court Docket No: 6:07-cv-01785-GAP-KRS

For rules and fonDS visit www.call.uscollrts goy

The Supreme Court has denied certiorari. The court's mandate having previously issued, no further action will be taken by this court.
Sincerely,
JOHN LEY, Clerk of Court
Reply to: Carol R. Lewis, BB Phone #: (404) 335-6179

MDT-4 Notice of Certiorari Denial to DC

 
 Case 6:07-cv-01785-GAP-KRS Document 82-3 Filed 12/26/08 Page 1 of 4 PageID 858

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MAHALA AULT, STACIE RHEA and )

DAN WALLACE,

)

)

Plaintiffs,

)

)

v.

)

)

WALT DISNEY WORLD CO.,

)

)

Defendant.

)

Case No.: 6:07-CV-1785-GAP-KRS

NOTICE OF CLASS ACTION SETTLEMENT AND HEARING TO: THOSE INDIVIDUALS WHO: (1) SUFFER FROM A MOBILITY
DISABILITY; (2) RELY UPON A SEGWAY OR SUBSTANTIALLY SIMILAR STAND-UP MOBILITY DEVICE FOR ASSISTANCE WITH THEIR MOBILITY; AND (3) INTEND TO VISIT THE WALT DISNEY WORLD RESORT OR THE DISNEYLAND RESORT
This notice is given pursuant to Federal Rule of Civil Procedure 23(e). A hearing
on the matters set forth herein is scheduled before The Honorable Gregory A. Presnell, United
States District Judge, on the ____ day of _________________, 2009, at ________ in Courtroom
#5A, George C. Young United States Courthouse and Federal Building, 401 W. Central
Boulevard, Orlando, Florida 32801-0120.
This notice is to inform you of a settlement of all claims in a nationwide class
action captioned Mahala Ault, et al. v. Walt Disney World Co., Case No. 6:07-CV-1785-GAP.
Plaintiffs Mahala Ault, Stacie Rhea and Dan Wallace, who have mobility impairments, filed this
lawsuit in November 2007 alleging that Walt Disney World Co. (“Worldco”) prohibits all guests
from using Segways in its theme parks and transportation systems in violation of Title III of the
Americans With Disabilities Act (“ADA”). Worldco has denied these allegations and denied any
fault or wrongdoing whatsoever.

Case 6:07-cv-01785-GAP-KRS Document 82-3 Filed 12/26/08 Page 2 of 4 PageID 859
The parties have negotiated a settlement and the Court has certified a settlement class consisting of “those individuals who: (1) suffer from a mobility disability; (2) rely upon a Segway or substantially similar stand-up mobility device for assistance with their mobility; and (3) intend to visit the Walt Disney World Resort or the Disneyland Resort.” No monetary relief of any type was sought or is available in this case. The Court has given preliminary approval of the settlement. Because this is a class action for injunctive and declaratory relief only, you may not opt-out of this settlement.
The parties have agreed to the terms of the settlement, which are set forth in a Joint Stipulation of Settlement and Release (“Stipulation of Settlement”), to avoid the expense and uncertainty of continued litigation. By entering into this settlement, Worldco does not admit any fault or wrongdoing. Under the terms of the Stipulation of Settlement, Worldco is developing its own four-wheeled electrically-powered vehicle designed for operation while standing (“ESV”). This unique and innovative device is intended to replicate in dimension, purpose and operation a common wheelchair or motorized scooter while allowing individuals with a mobility impairment or disability to stand upright instead of sitting down. The ESVs will be permitted within the Disney Resorts (composed of the Walt Disney World Resort in Florida and the Disneyland Resort in California) and will be available to qualified guests on the same rental terms as sit-down electric vehicles. Delivery of the devices to Worldco is expected to begin on April 1, 2009, with use beginning reasonably soon thereafter.
Under the terms of the Stipulation of Settlement, plaintiffs have agreed that the new ESVs satisfy their claims to the benefits which a Segway allegedly provides, while meeting Worldco’s concern for the safety of all its guests. Plaintiffs have also agreed that Worldco may
2

Case 6:07-cv-01785-GAP-KRS Document 82-3 Filed 12/26/08 Page 3 of 4 PageID 860

continue to prohibit all guests from using two-wheeled vehicles including Segways at the Disney

Resorts.

All the parties believe that the settlement is fair, reasonable and adequate and the

Court has given preliminary approval of the settlement. If the Court grants final approval of the

settlement, you will be barred from ever contesting the fairness, reasonableness or adequacy of

the settlement, or from pursuing any claims against Worldco related to the use of Segways or

other two-wheeled vehicles at the Disney Resorts. If you believe that the Court should not

approve the settlement, you may object to it by appearing in person at the hearing. Within 30

days prior to the hearing, or no later than _______________, 2009, you must mail to the Court

and serve upon all counsel listed below (a) a written notice of your intention to appear; (b) a

written statement of your objection; and (c) the reasons for your desire to appear and be heard,

including any briefs or other documents that you wish the Court to consider.

The Court’s address is Clerk’s Office, United States District Court for the Middle

District of Florida, George C. Young United States Courthouse and Federal Building, 401 W.

Central Boulevard, Suite 1200, Orlando, Florida 32801-0120. The counsel to be served are:

John
415 Springfield, Attorney

A. Baker Baker, Baker & Krajewski, LLC
South Seventh Street Illinois 62701
for Plaintiff Dan Wallace

J. Baker, 415 Springfield, Attorney

Phillip Krajewski Baker & Krajewski, LLC
South Seventh Street Illinois 62701
for Plaintiff Dan Wallace

Bernard De
W

H. Dempsey, Jr. mpsey & Associates, P.A. 1560 Orange Avenue, Suite 200 inter Park, Florida 32789

3

Case 6:07-cv-01785-GAP-KRS Document 82-3 Filed 12/26/08 Page 4 of 4 PageID 861

Attorney

for Plaintiff Mahala Ault

Jason O’Donnell, 450 Houston, Attorney

M. Medley Ferebee, Medley & Keiser, P.C.
Gears Road, 8th Floor Texas 77067 for Plaintiff Stacie Rhea

Kerry Kaye 901 Washington,

Alan Scanlon Scholer LLP 15th Street, NW
DC 20005 Attorney for Defendant Walt Disney World Co.

Any person who fails to object in the manner prescribed above shall be deemed to have waived

such objection, and will be barred from ever raising such objection in this action. IF YOU DO

NOT OPPOSE THIS SETTLEMENT, YOU DO NOT NEED TO APPEAR AT THE

HEARING, OR FILE ANYTHING IN WRITING.

The pleadings and other records in the litigation, including a complete copy of the

Stipulation of Settlement, may be inspected and copied during regular office hours at the Clerk’s

Office, United States District Court for the Middle District of Florida, George C. Young United

States Courthouse and Federal Building, 401 W. Central Boulevard, Suite 1200, Orlando, Florida

32801-0120.

DONE and ORDERED in Chambers, Orlando, Florida on __________________.

Gregory A. Presnell United States District Judge

13130165.DOC

4

 
 Case 6:07-cv-01785-GAP-KRS Document 82-2 Filed 12/26/08 Page 1 of 11 PageID 847

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MAHALA AULT, STACIE RHEA and )

DAN WALLACE,

)

)

Plaintiffs,

)

)

v.

)

)

WALT DISNEY WORLD CO.,

)

)

Defendant.

)

Case No.: 6:07-CV-1785-GAP-KRS

JOINT STIPULATION OF SETTLEMENT AND RELEASE This Joint Stipulation of Settlement and Release (“Stipulation of Settlement”) is made and entered into by and between plaintiffs Mahala Ault, Stacie Rhea and Dan Wallace, individually and on behalf of all others similarly situated (“Plaintiffs”), and defendant Walt Disney World Co. (“Worldco”), and their respective counsel of record, subject to the terms and conditions hereof and the Court’s approval. 1. Plaintiffs and the Settlement Class (as defined below) and Worldco are collectively referred to as “the Parties.” 2. “Class Counsel” includes John A. Baker and J. Phillip Krajewski of the firm of Baker, Baker & Krajewski, LLC, Jason M. Medley of the firm of O’Donnell, Ferebee, Medley & Keiser, P.C., and Bernard H. Dempsey, Jr. of the firm of Dempsey & Associates, P.A. The “Named Plaintiffs” are Mahala Ault, Stacie Rhea and Dan Wallace. 3. On November 9, 2007, the Named Plaintiffs, residents of Illinois and Iowa who have mobility impairments, filed a putative class action Complaint in the United States District Court for the Middle District of Florida. On April 1, 2008, a First Amended Complaint

Case 6:07-cv-01785-GAP-KRS Document 82-2 Filed 12/26/08 Page 2 of 11 PageID 848
was filed, alleging that Worldco prohibits all guests at the Walt Disney World Resort (“WDW”) from using Segways in its theme parks and transportation systems in violation of Title III of the Americans With Disabilities Act (“ADA”). The First Amended Complaint sought an injunction directing Worldco to modify that practice. Worldco denied the allegations of the initial complaint and the first amended complaint. The parties have stipulated to allow Plaintiffs to file a Second Amended Complaint, so as to clearly include all of Worldco’s facilities at both the Walt Disney World Resort in Florida and the Disneyland Resort (“Disneyland”) in California (together, the “Disney Resorts”), and Worldco denies the material allegations therein as well.
4. Segways are two-wheeled, gyroscopically-balanced transportation devices. Worldco prohibits guest use of two-wheeled vehicles no matter the type or usage, and therefore guests are prohibited from using Segways within Worldco’s properties. There is one limited circumstance that is in the nature of a theme park attraction or service rather than mobility aid. As part of its display of innovative products at Epcot, Worldco offers a limited number of guests the opportunity to experience riding a Segway in the form of a strictly supervised closed course in the early morning before most guests have arrived in the park. Each person on the tour must first complete an instruction and training course on the Segway. Worldco maintains these Segways, which have a special speed limiting device.
5. The “Settlement Class” consists of all persons, including the Named Plaintiffs, who: (1) suffer from a mobility disability; (2) rely upon a Segway or substantially similar stand-up mobility device for assistance with their mobility; and (3) intend to visit the Walt Disney World Resort or the Disneyland Resort. Individual members of the Settlement Class are referred to herein as a “Settlement Class Member” or “Settlement Class Members.”
2

Case 6:07-cv-01785-GAP-KRS Document 82-2 Filed 12/26/08 Page 3 of 11 PageID 849
6. Worldco denies any liability or wrongdoing of any kind associated with the claims alleged in this case, and further denies that this case is appropriate for class treatment for any purpose other than this settlement. Worldco contends, among other things, that it has complied at all times with the ADA and that it provides a high level of access to all persons with mobility impairments or disabilities. The Named Plaintiffs believe that they have filed a meritorious action and that class certification is appropriate.
7. Worldco’s position is that if this case were to be litigated, class certification would be inappropriate because individual issues predominate. For settlement purposes only, Worldco will stipulate that the class described herein may be certified. The Parties agree that certification for settlement purposes under the more lenient standard courts have applied to settlements is in no way an admission that class certification is proper under the more stringent standard applied for litigation purposes. The Parties further agree that evidence of this limited stipulation for settlement purposes only will not be deemed admissible in this or any other proceeding and that it would be unsupportable to contend otherwise.
8. In order to achieve a full and complete release of Worldco, the Parties desire to fully, finally, and forever settle, compromise, and discharge any and all disputes and claims arising from or related to any and all claims for injunctive or declaratory relief under federal, state and local disability rights laws, which release includes in its effect all present and former parent companies, subsidiaries, affiliates, shareholders, officers, directors, employees, partners, agents, representatives, attorneys, insurers and successors and assigns of Worldco (“Released Parties”).
9. The release of claims includes claims which a Settlement Class Member does not know or suspect to exist in his or her favor against the Released Parties as of the date of
3

Case 6:07-cv-01785-GAP-KRS Document 82-2 Filed 12/26/08 Page 4 of 11 PageID 850
final court approval of this settlement. The Settlement Class, and each member thereof, and the Named Plaintiffs each waives all rights and benefits afforded by any statutory law as to unknown claims, and does so understanding the significance of that waiver.
10. Class Counsel has conducted a thorough investigation into the facts of this case, including formal discovery and exchange of information. Class Counsel is both knowledgeable about and has done extensive research with respect to the applicable law and potential defenses to the claims of the Settlement Class. Class Counsel has diligently pursued an investigation of the claims against Worldco. Based on the foregoing data and on its own independent investigation and evaluation, Class Counsel is of the opinion that the settlement with Worldco for the consideration and on the terms set forth in this Stipulation of Settlement is fair, reasonable, and adequate and is in the best interest of the Settlement Class Members in light of all known facts and circumstances, including the risk of significant delay and uncertainty associated with litigation, various defenses asserted by Worldco, and numerous potential appellate issues. Worldco and Worldco’s counsel also agree that the settlement is fair and in the best interest of the Settlement Class Members.
11. The Parties agree to cooperate and take all steps necessary and appropriate to dismiss the action as amended through and including the Second Amended Complaint, with prejudice upon final approval of the settlement.
TERMS OF SETTLEMENT 12. The terms of the settlement are as follows:
(a) Worldco agrees to develop its own four-wheeled electricallypowered vehicle designed for operation while standing (“ESV”) for use by guests who claim to have a mobility impairment or disability and need to use a stand-up mobility device. Worldco agrees to provide no less than fifteen (15) of these devices at the Disney Resorts. The ESVs will
4

Case 6:07-cv-01785-GAP-KRS Document 82-2 Filed 12/26/08 Page 5 of 11 PageID 851
be permitted within the Disney Resorts and will be available to qualified guests on the same rental terms as sit-down electric vehicles. Delivery of the devices to Worldco is expected to begin on April 1, 2009, with use beginning at a reasonably proximate date following delivery.
(b) Worldco agrees (i) to pay each Named Plaintiff the sum of four thousand dollars ($4,000.00), which may be applied by them toward a one-week stay for a family of four at a Worldco hotel at WDW, and (ii) to provide each Named Plaintiff complimentary use of the new ESV during their next visit to WDW following deployment of the ESVs. The amount to be paid under subparagraph 12(b)(i) shall be paid within fourteen (14) days of the Effective Date of this settlement, which is defined as the date upon which judgment of approval of the settlement has been entered by the United States District Court for the Middle District of Florida, any and all appeals from that judgment have been exhausted, and the judgment is affirmed, or becomes final and non-appealable.
(c) The Parties agree that the firm of Baker, Baker & Krajewski, LLC, on behalf of plaintiff Dan Wallace, may request the Court to award up to the sum of fifty-five thousand dollars ($55,000.00) in full payment of its attorneys’ fees and costs in this case, including any attorneys’ fees and costs incurred after the date of this Stipulation of Settlement. The Parties further agree that the firm of O’Donnell, Ferebee, Medley & Keiser, P.C., on behalf of plaintiff Stacie Rhea, may request total fees and costs of up to fifteen thousand dollars ($15,000.00) in full payment of its attorneys’ fees and costs in this case, including any attorneys’ fees and costs incurred after the date of this Stipulation of Settlement. Worldco has agreed that it will not oppose a request from Mr. Baker’s firm or from Mr. Medley’s firm for attorneys’ fees and costs of up to $55,000 and $15,000, respectively. These attorneys’ fees and costs shall be paid within fourteen (14) days of the Effective Date of this settlement. Class Counsel will not be
5

Case 6:07-cv-01785-GAP-KRS Document 82-2 Filed 12/26/08 Page 6 of 11 PageID 852
entitled to and will not seek any additional payment for attorneys’ fees or expenses with respect to plaintiffs Dan Wallace and Stacie Rhea and the law firms representing them.
(d) Counsel for Mahala Ault has not reached an agreement with Worldco and therefore may petition the Court for an award of attorneys’ fees and costs. Worldco shall have ample time to file an opposition to any such request and plaintiffs agree to consent to any motion for an extension of two weeks beyond the normal time for responding to such motion. If the Court determines that Mahala Ault is entitled to a reasonable amount of attorneys’ fees and costs, such amount shall be paid to Mahala Ault within fourteen (14) days of the Effective Date of the settlement.
(e) The Settlement Class agrees that the ESV satisfies their claims to the benefits which a Segway allegedly provides, while meeting Worldco’s concern for the safety of all its guests.
(f) The Settlement Class agrees and understands that Worldco may continue to prohibit all guests from using two-wheeled vehicles including Segways at the Disney Resorts.
(g) The Parties and their counsel agree that they will not issue any press releases, initiate any contact with the media, respond to any media inquiry or have any communications with the media about this case and/or the fact, amount or terms of the settlement. Any communication about the settlement to Settlement Class Members prior to the issuance of the Court-approved notice will be limited to a statement that a settlement has been reached and that the details will be communicated in a forthcoming Court-approved notice.
(h) The Parties agree that the agreement is fair and reasonable and will so represent to the Court.
6

Case 6:07-cv-01785-GAP-KRS Document 82-2 Filed 12/26/08 Page 7 of 11 PageID 853
RELEASE BY THE CLASS 13. Upon the final approval by the Court of this Stipulation of Settlement, and except as to such rights or claims as may be created by this Stipulation of Settlement, the Settlement Class and each member of the Settlement Class fully release and discharge Worldco, and any of its former and present parent companies, subsidiaries, affiliates, shareholders, officers, directors, employees, partners, agents, representatives, attorneys, insurers, and any other successors and assigns (“Released Parties”), from any and all past, present, and future claims, counter-claims, liabilities, obligations, demands, and actions of any and every kind or nature whatsoever that have arisen or might have arisen at any time up to and including the Effective Date of this Stipulation of Settlement (whether known or unknown, accrued or contingent, liquidated or unliquidated, and whether arising under common law, statutory law, or other source of law) that they now have, claim to have, or had against Worldco for injunctive or declaratory relief that relate to any issue ever raised in this case, including, without any limitation on the general nature of the foregoing release, any federal, state or local accessibility or disability rights claims for injunctive or declaratory relief with respect to Worldco prohibiting all guests from using Segways or other two-wheeled vehicles in the Disney Resorts; and any and all claims and causes of action arising out of or predicated upon allegations that Worldco’s actions or decisions relating to the use of Segways or other two-wheeled devices at the Disney Resorts do not comply with the ADA or any other federal, state or local law or similar disability rights statute or regulation (collectively, the “Released Claims”). 14. This release is intended to bind all Settlement Class Members and to preclude such members from asserting or initiating future claims for injunctive or declaratory relief, with respect to the issues in this case and/or the subject matter of this Stipulation of Settlement.
7

Case 6:07-cv-01785-GAP-KRS Document 82-2 Filed 12/26/08 Page 8 of 11 PageID 854
NOTICE OF SETTLEMENT AND HEARING 15. The Parties agree to propose to the Court that appropriate notice under Fed. R. Civ. P. 23(e) be given by emailing or sending a copy of the Notice of Class Action Settlement and Hearing attached hereto as Exhibit A (“Notice”) to each person known to counsel for any Party in this case who claims to have a mobility impairment or disability and expressed an interest in bringing a Segway into the Disney Resorts. The Parties will also provide the same notice to at least two organizations which have promoted the use of Segways as mobility aids by individuals with disabilities and which have urged the elimination or modification of rules prohibiting the use of Segways in various places and facilities around the nation. 16. Once the Court grants preliminary approval of class settlement, the Notice will proceed in accordance with paragraph 15, and the Parties will recommend to the Court that a final hearing be held for any objections to the settlement. 17. The failure of any Settlement Class Member to receive Notice shall not be a basis for invalidating this Stipulation of Settlement or any order entered pursuant thereto, and the settlement shall nevertheless be binding upon all Settlement Class Members. 18. In connection with the hearing on final approval of the settlement provided for in this Stipulation of Settlement, the Parties will submit a proposed final order:
(a) approving the settlement, adjudging the terms thereof to be fair, reasonable and adequate, and directing consummation of its terms and provisions;
(b) approving the two agreed amounts of attorneys’ fees and costs, and determining any unresolved fees issues; and
(c) dismissing this case on the merits and with prejudice and permanently barring all Settlement Class Members from prosecuting against Worldco or its present or former parent companies, subsidiaries, affiliates, shareholders, officers, directors,
8

Case 6:07-cv-01785-GAP-KRS Document 82-2 Filed 12/26/08 Page 9 of 11 PageID 855
employees, partners, agents, representatives, attorneys, insurers, and any other successors and assigns, any individual or class claims which were or could be asserted in this case, including without limitation any claims for declaratory or injunctive relief arising out of the acts, facts, transactions, occurrences, representation, or omissions set forth in the Complaint and subsequent amended complaints.
VOIDING THE AGREEMENT 19. Each party shall have the right to unilaterally render the entire Stipulation of Settlement voidable and unenforceable if the Court denies conditional class certification, does not approve the Stipulation of Settlement, or orders any material alteration of the terms of this Stipulation of Settlement. Such right to void this settlement shall permanently expire and be deemed waived unless the Party exercises its option by giving written notice to the Court and counsel for the opposing party within fifteen (15) calendar days of such order of the Court. If any Party timely voids this Stipulation of Settlement, then any certification of the Settlement Class shall be of no force or effect, and the Parties’ rights and defenses shall be restored without prejudice as if this Stipulation of Settlement had never been executed. 20. In addition to the rights under paragraph 19, Worldco shall also have the right to unilaterally render the entire Stipulation of Settlement voidable and unenforceable if any federal, state or local regulatory or self-regulatory organization, other administrative body or government official objects to the terms of this Stipulation of Settlement, threatens to take any regulatory or legal action against Worldco based on the allegations in this case, or requires any material modification to this Stipulation of Settlement.
ADDITIONAL PROVISIONS 21. Nothing contained herein, nor the consummation of this Stipulation of Settlement, is to be construed or deemed an admission of liability, culpability, negligence, or
9

Case 6:07-cv-01785-GAP-KRS Document 82-2 Filed 12/26/08 Page 10 of 11 PageID 856
wrongdoing on the part of Worldco or any of the Released Parties. Each of the Parties hereto has entered into this Stipulation of Settlement with the intention of avoiding further disputes and litigation with the attendant inconvenience and expenses. This Stipulation of Settlement is a settlement document and shall, pursuant to Federal Rule of Evidence 408 and/or any other similar law, be inadmissible in evidence in any proceeding, except an action or proceeding to approve, interpret, or enforce this Stipulation of Settlement.
22. This Stipulation of Settlement may not be changed, altered, or modified, except in writing and signed by the Parties hereto, and approved by the Court. This Stipulation of Settlement may not be discharged except by performance in accordance with its terms or by a writing signed by all of the Parties hereto.
23. This Stipulation of Settlement contains the entire agreement between the Parties relating to the settlement and transaction contemplated hereby, and all prior or contemporaneous agreements, understandings, representations, and statements, whether oral or written and whether by a Party or such Party’s legal counsel, are merged herein. No rights hereunder may be waived except in writing.
24. This Stipulation of Settlement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, trustees, executors, administrators, successors and assigns.
25. This Stipulation of Settlement may be executed in counterparts, and when each Party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and, when taken together with other signed counterparts, shall constitute one fully-signed Stipulation of Settlement, which shall be binding upon and effective as to all Parties.
10

Case 6:07-cv-01785-GAP-KRS Document 82-2 Filed 12/26/08 Page 11 of 11 PageID 857

DATED: December 26, 2008

BAKER, BAKER & KRAJEWSKI, LLC

Attorney DATED: December 26, 2008
Attorney DATED: December 26, 2008
Attorney DATED: December 26, 2008
Attorney DATED: December 26, 2008
Attorney

By:

/s/ John A. Baker

for Plaintiff Dan Wallace

BAKER, BAKER & KRAJEWSKI, LLC

By:

/s/ J. Phillip Krajewski

for Plaintiff Dan Wallace

O’DONNELL, FEREBEE, MEDLEY & KEISER, P.C.

By:

/s/ Jason M. Medley

for Plaintiff Stacie Rhea

DEMPSEY & ASSOCIATES, P.A.

By:

/s/ Bernard H. Dempsey, Jr.

for Plaintiff Mahala Ault

KAYE SCHOLER LLP

By:

/s/ Kerry Alan Scanlon

for Defendant Walt Disney World Co.

11
13130125.DOC

 
 Case 6:07-cv-01785-GAP-KRS Document 85-2 Filed 01/21/2009 Page 1 of 5

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MAHALA AULT, STACIE RHEA and DAN WALLACE,

Plaintiffs,

-vs-

Case No. 6:07-cv-1785-Orl-31KRS

WALT DISNEY WORLD CO.,

Defendant. ______________________________________

NOTICE OF CLASS ACTION SETTLEMENT AND FAIRNESS HEARING

TO: THOSE INDIVIDUALS WHO: (1) SUFFER FROM A MOBILITY DISABILITY; (2); RELY UPON A SEGWAY OR SUBSTANTIALLY SIMILAR STAND-UP MOBILITY DEVICE FOR ASSISTANCE WITH THEIR MOBILITY; AND (3) INTEND TO VISIT THE WALT DISNEY WORLD OR WALT DISNEYLAND RESORTS

A hearing on the matters discussed in this notice is scheduled before the United States

District Court, Judge Gregory A. Presnell, United States District Judge in and for the Middle

District of Florida, on Tuesday, March 31, 2009 at 9:00 a.m. in Courtroom #5A, George C.

Young United States Courthouse and Federal Building, 401 W. Central Boulevard, Orlando,

Florida 32801-0120.

This notice is to inform you of a potential settlement of all claims raised in a nationwide

class action captioned Mahala Ault, et. al. v. Walt Disney World Co., Case No.: 06:07-CV-1785-

ORL. The Plaintiffs filed this lawsuit against Walt Disney World Co. (“Disney”) in November

Case 6:07-cv-01785-GAP-KRS Document 85-2 Filed 01/21/2009 Page 2 of 5
2007. Plaintiffs have alleged that Disney illegally prohibits its guests from using Segways in its theme parks. More specifically, Plaintiffs contend that Disney’s prohibition on using Segways in its parks violates Title III of the Americans with Disabilities Act (commonly referred to as the “ADA”). Disney denies the Plaintiffs’ allegations and denies any fault or wrongdoing whatsoever.
The parties have reached a settlement and the Court has granted preliminarily approval to the settlement pending the above-scheduled hearing. Anyone who meets the following criteria could be affected by the settlement: those who (1) suffer from a mobility disability; (2) rely upon a Segway or substantially similar stand-up mobility device for assistance with their mobility; and (3) intend to visit the Walt Disney World or Disneyland Resorts. The Plaintiffs have not sought, nor are they entitled to, any monetary relief in this case. Because this class action is for injunctive and declaratory relief only, you may not opt-out of this settlement. Therefore, if the Court gives final approval to the settlement after the fairness hearing, you will be forever bound by the terms of the settlement.
Under the terms of the parties’ settlement, Disney has agreed to develop its own four-wheel electrically-powered stand-up vehicle (“ESV”). This unique and innovative device is intended to replicate in dimension, purpose and operation a common wheelchair or motorized scooter while allowing individuals with a mobility disability to stand upright instead of sit down. Disney’s ESVs will be permitted within the Walt Disney World and Disneyland Resorts and will be made available to qualified guests on the same rental terms as sit-down electric vehicles. Disney expects to start making the ESVs available to its guests sometime after April 1, 2009.
-2-

Case 6:07-cv-01785-GAP-KRS Document 85-2 Filed 01/21/2009 Page 3 of 5
Plaintiffs have agreed that Disney’s new ESVs satisfy their claims to the benefits which a Segway allegedly provides, while meeting Disney’s concerns for the safety of all its guests. Plaintiffs have also agreed that Disney may continue to prohibit all guests from using two-wheeled vehicles, including Segways, at its resorts. Although Plaintiffs are not entitled to any monetary relief for damages in this case, Disney has agreed to pay the named Plaintiffs the sum of four thousand dollars ($4,000.00), which may be applied toward a one-week stay for a family of four at one of Disney’s hotels at the Walt Disney World Resort. Disney has also agreed to provide the named Plaintiffs complimentary use of its new ESVs during their next visit to the Walt Disney World Resort. As a potential class member receiving this notice, you are not one of the named Plaintiffs in this case. Accordingly, under the terms of the settlement, you will not receive the sum of four thousand dollars ($4,000.00) or the complimentary use of Disney’s new ESVs during your next visit to the Walt Disney World Resort.
The Court and the parties believe that the settlement is fair, reasonable and adequate. If the Court grants final approval to the settlement, you will be barred from ever contesting the fairness, reasonableness or adequacy of the settlement, or from pursuing any claims against Disney related to the use of Segways or other substantially similar two-wheeled vehicles at the Disney Resorts. If you believe that the Court should not approve the settlement, you may object to the settlement by appearing in person, or by hiring a lawyer to appear on your behalf, at the above-scheduled hearing. Within twenty (20) days prior to the hearing, or by no later than Thursday, March 12, 2009, you or your lawyer must mail to the Court and all counsel listed below: (1) a written notice of your intention to appear; (2) a written statement of your objection which
-3-

Case 6:07-cv-01785-GAP-KRS Document 85-2 Filed 01/21/2009 Page 4 of 5
includes the reasons for your desire to appear and be heard, including any briefs or other documents that you or your lawyer wish the Court to consider.
The Court’s address is Clerk’s Office, United States District Court for the Middle District of Florida, George C. Young United States Courthouse and Federal Building, 401 W. Central Boulevard, Suite 1200, Orlando, Florida 32801-0120. In addition to the Court, the counsel to whom you should mail your written objection are:
John A. Baker and J. Phillip Krajewski Baker, Baker & Krajewski, LLC 415 South Seventh Street Springfield, Illinois 62701 Attorney for Plaintiff Dan Wallace Bernard H. Dempsey, Jr. Dempsey & Associates, P.A. 1560 Orange Avenue, Suite 200 Winter Park, Florida 32789 Attorney for Plaintiff Mahala Ault Jason M. Medley O’Donnell, Ferebee, Medley & Keiser, P.C. 450 Gears Road, 8th Floor Houston, Texas 77067 Attorney for Plaintiff Stacie Rhea Kerry Alan Scanlon Kaye Scholer LLP 901 15th Street, N.W. Washington, D.C. 2005 Attorney for Defendant Walt Disney World Co.
-4-

Case 6:07-cv-01785-GAP-KRS Document 85-2 Filed 01/21/2009 Page 5 of 5
Any person who fails to object in the manner outlined above shall be deemed to have waived their objection and will be barred from ever raising such objection in this action. IF YOU DO NOT OPPOSE THIS SETTLEMENT, YOU DO NOT NEED TO APPEAR AT THE HEARING, YOU DO NOT NEED TO FILE ANYTHING IN WRITING, AND YOU DO NOT NEED TO HIRE A LAWYER.
The pleadings and other records in this case, including a complete copy of the proposed settlement agreement, may be inspected and copied during regular office hours at the Clerk’s Office, United States District Court for the Middle District of Florida, George C. Young United States Courthouse and Federal Building, 401 W. Central Boulevard, Suite 1200, Orlando, Florida 32801-0120. For a fee, you may also access all records in this case online by utilizing the Public Access to Court Electronic Records (PACER) service at http://pacer.psc.uscourts.gov.
DONE and ORDERED in Chambers, Orlando, Florida on January 21, 2009. Copies furnished to: Counsel of Record Unrepresented Party
-5-

 
 Case 6:07-cv-01785-GAP-KRS Document 247 Filed 01/27/11 Page 1 of 5 PageID 4278

United States Court of Appe~~NF2ILED

For the Eleventh Circuit

7 AH 9: 42

~1U~gslD;lSc;PTIRSICTTR,ffURT ,

FILED ···,;u tLOR1{{L

No. 09-15668

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

District Court Docket No. 07-0 178S-CV-ORL-3l-KRS

Dec 14,2010
JOHN LEY CLERK

MAHALA AULT, STACIE RHEA,
DAN WALLACE, on their own behalfand on behalf of all
other similarly situated,

Plaintiffs-Appellants,

JERRY MILLER, DISABILITY RIGHTS ADVOCATES FOR TECHNOLOGY, JERRY KERRY, et aI.,

Intervenor-Plaintiffs-Appellees,

versus

WALT DISNEY WORLD CO.,

Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida

JUDGMENT

It is hereby ordered, adjudged, and decreed that the attached opinion included herein by reference, is entered as the judgment of this Court.

JAN 24 2011

Entered: December 14, 2010 For the Court: John Ley, Clerk
By: Gilman, Nancy

Case 6:07-cv-01785-GAP-KRS Document 247 Filed 01/27/11 Page 2 of 5 PageID 4279

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCH~IT------F- IL- ED------~
U.S. COURT OF APPEALS
- - - - - - - - - - + - ELEVENTH CIRCUIT

No. 09-15668

DEC 14,2010 JOHN LEY
CLERK

D. C. Docket No. 07-01785 CV-ORL-31-KRS

MAHALA AULT, STACIE RHEA, DAN WALLACE, on their own behalf and on behalf of all other similarly situated,

Plaintiffs-Appellants

JERRY MILLER, DISABILITY RIGHTS ADVOCATES FOR TECHNOLOGY, JERRY KERRY, et al

Intervenor-Plaintiffs-Appellees,

versus

WALT DISNEY WORLD CO.,

Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida
(December 14,2010) Before WILSON, PRYOR and ANDERSON, Circuit Judges. PER CURIAM:

Case 6:07-cv-01785-GAP-KRS Document 247 Filed 01/27/11 Page 3 of 5 PageID 4280
After oral argument and careful consideration, we conclude for the reasons fully discussed at oral argument that the district court erred in concluding that the named plaintiffs lacked prudential standing. The interests sought to be protected by the named plaintiffs are arguably within the zone of interest protected by 42 U.S.C. § 12182.
Accordingly, we vacate the judgment of the district court and remand for further proceedings, including inter alia a determination as to whether the claims of the named plaintiffs are typical of the claims of the class and whether they are adequate representatives of the class.
VACATED and REMANDED.
2

· . Case 6:07-cv-01785-GAP-KRS Document 247 Filed 01/27/11 Page 4 of 5 PageID 4281 -=---==:~=~itle------ --.

UNITED STATES COURT OF APPEALS FOR Til DILL OF COSTS

U.S. COURT OF APPEALS ElEVENTH Clkf:UIT
Tlt"eIl~e{:J-I!r-
DEC 2 7 2010

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Appellant

JCHtJ LEY

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Appeal No. ~t!.~~~~==t=.==d

d II party that the party Is entitled 10 costs. Fed.R.App.P. 39 IIIId lltb Clr. R.
8 the 8111 of Costr. A motioD ror leave to file out oftime is required for II
~
INSTRU IONS

DOCUMENT
Appellant's .Brief Record· Excerpts Appellee's Brief Reply Brief

Repro. Method (Mark One)
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REQUESTED /I. ALLOWED

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°Note: Ir reproduction was done eommereillUy. reeelpl(s) must be allllched.

TOTAl.

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REQUESTED

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ALLOWED

I hereby swellr or affirm thaI the COSII claimed were aerually aod necessarily ioeurred or performed in this appeal and that I have served this Bill of COlts 00 counseVpartics ofrecord.
C~n Signature:

A uorney for: M-h:e.-l- A-v I t t.t. -J, Allorney Name: 6 .....", ,...l- ~ A. (1_ (...JL..o

(Type or print name of clienl) ,

(Typo or print your Dllme)

FOR COURT USE ONLY Costs arc hereby taxed in the amount of S _:r--'-"""",.4-~r--_ _ agaiD5t ---I4f:!4a:~~~-~~~~fr-+i-.;;.,~ lind arc payable directly 10 -----.£:Ii~~~.ut..L../..J....---.....;.-------------_I___1~~W_J~m

JAN 2 4 2011
Issued on: _ _ _ _ _ _ _ _ _ _ _ _ __

JobD Ley. ~ourt
By: fIw; t2~ Deputy Clerk

MlSC-ll S/4/10

Case 6:07-cv-01785-GAP-KRS Document 247 Filed 01/27/11 Page 5 of 5 PageID 4282 '-
United States Court of Appeals
Eleventh Circuit
S6 Forsyth Street, N.W. Atlanta, Oeorgia 30303 John Ley Clerk ofthe Court

Sheryl L. Loesch Clerk, U.S. District Court

January 24, 2011

-r

401 W CENTRAL BLVD STE 1-200 Orlando FL 32801·0120

rn
CJ

Appeal Number: 09-1S668-FF
Case Style: Mahala Ault v. Walt Disney World Co.
District Court Number: 07-01785 CV-ORL-31-KRS

The enclosed certified copy of the judgment and a copy of this court's opinion are hereby issued as the mandate ofthis court.
Also enclosed are the following:
Bill ofCosts Original Exhibits, consisting of: five folders Original record on appeal or review, consisting of: twelve volumes
The clerk oftbe court or agency shown above is requested to aclcnowledge receipt on the copy ofthis letter enclosed to the clerk.
A copy of this letter, and tbejudgment form ifnoted above, but not a copy of the court's decision, is also being mailed to counsel and pro se parties. A copy of the court's decision was previously mailed to counsel and pro se parties on the date it was issued.

Sincerely, John Ley, Clerk of Court Reply To: James O. Delaney (404) 335-6113

Encl.

MDT-1 (06/2006)

 
 Case 6:07-cv-01785-GAP-KRS Document 251 Filed 03/23/11 Page 1 of 2 PageID 4420

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MAHALA AULT, STACIE RHEA and DAN WALLACE,
Plaintiff,

-vs-

Case No. 6:07-cv-1785-Orl-31KRS

WALT DISNEY WORLD CO., Defendant.
_____________________________________/
ORDER
Pursuant to the December 14, 2010 decision of the United States Court of Appeals for the Eleventh Circuit, it is hereby ORDERED as follows:
1. The Court’s prior March 22, 2011 Order dir ecting Clerk to reopen the parties’ Joint Motion for Conditiona l Class Certification and Preliminary Approval of Joint Stipulation of Settlement and Release (Doc. 250) is VACATED.
2. The Court’s prior October 6, 2009 OrderVacating Court’s Prior Order at Doc. 83 and Dismissing Plaintiffs’ Second Amended Complaint (Doc. 228) is VACATED.
3. The Clerk is directed toREINSTATE the Court’s prior January 5, 2009 Order granting the parties’ Joint Motion for Conditional Class Certi fication and Preliminary Approval of Joint Stipulation of Settlement and Release (Doc. 83).
DONE and ORDERED in Chambers, in Orlando, Florida on March 23, 2011.

Case 6:07-cv-01785-GAP-KRS Document 251 Filed 03/23/11 Page 2 of 2 PageID 4421 Copies furnished to: Counsel of Record Unrepresented Party
-2-

 
 Case 6:07-cv-01785-GAP-KRS Document 262 Filed 05/23/11 Page 1 of 1 PageID 4468

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MAHALA AULT, STACIE RHEA and DAN WALLACE,

Plaintiff,

-vs-

Case No. 6:07-cv-1785-Orl-31KRS

WALT DISNEY WORLD CO.,

Defendant. _____________________________________/

ORDER

Upon consideration of Plaintiff Mahala Ault’s Unopposed Petition for Attorneys’ Fees and

Costs (Doc. 261) it is

ORDERED that the Motion is GRANTED. Counsel for Plaintiff, Mahala Ault, Dempsy

& Associates, PA, is hereby awarded fees and costs in the amount of $40,000.00, which shall be

paid by Defendant, Walt Disney World Co. in accordance with the Joint Stipulation (Doc. 260).

DONE and ORDERED in Chambers, Orlando, Florida on May 23, 2011.

Copies furnished to:
Counsel of Record Unrepresented Party

 
 Case: 11-12013 Date Filed: 08/30/2012 Page: 1 of 12
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 11-12013
D. C. Docket No. 6:07-cv-01785-GAP-KRS
MAHALA AULT, on her own behalf and on behalf of all others similarly situated, STACIE RHEA, on her own behalf and on behalf of all others similarly situated, DAN WALLACE, on his own behalf and on behalf of all others similarly situated,
Plaintiffs-Appellees,
JERRY MILLER, DISABILITY RIGHTS ADVOCATES FOR TECHNOLOGY, DANIEL M. GADE, ALAN A. MACCINI, JAMES F. OVERBY,
Intervenor Plaintiffs-Appellants,
JERRY KERR,
Interested Party-Appellant,
versus
WALT DISNEY WORLD CO.,
Defendant–Appellee.

Case: 11-12013 Date Filed: 08/30/2012 Page: 2 of 12
Appeal from the United States District Court for the Middle District of Florida (August 30, 2012)
Before DUBINA, Chief Judge, JORDAN and ALARCON,* Circuit Judges DUBINA, Chief Judge:
This appeal is brought by objectors to the district court’s approval of a class action settlement. The underlying case involves allegations that Appellee Walt Disney World Company (“Disney”) is violating Title III of the Americans with Disabilities Act, 42 U.S.C. § 12182, et seq. (“Title III”), by implementing a policy that bans the use of two-wheeled vehicles, including Segways®, by customers within its parks and hotels, without exception. The district court certified a settlement-only class and found that the settlement reached between the class representatives and Disney was fair. Objectors appeal both of these orders, arguing that (1) class certification is inappropriate under Federal Rule of Civil Procedure 23; and (2) the district court abused its discretion by approving the settlement agreement after an extensive fairness hearing. We conclude that there was no abuse of discretion and affirm the district court’s orders.
* Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth Circuit Court of Appeals, sitting by designation.
2

Case: 11-12013 Date Filed: 08/30/2012 Page: 3 of 12
I. Disney has a policy that bans the use of all two-wheeled vehicles in all of the parks and hotels within its Walt Disney World Resort and Disneyland Resort (collectively “Disney Resorts”). The ban effectively prohibits the use of Segways®1 and has no exceptions, even for those with disabilities. On November 9, 2007, Mahala Ault, Stacie Rhea, and Dan Wallace (collectively “class representatives”) brought a class action suit against Disney on behalf of past and future Disney customers who have a mobility disability and rely upon a Segway® for mobility assistance. The class action suit alleges that Disney’s policy violates Title III and seeks an injunction directing Disney to permit the use of Segways® within Disney Resorts. A year later, the parties entered into a class-wide settlement agreement. According to the terms of the settlement, Disney will maintain its ban on Segways® and, in return, will develop a four-wheeled, electric-stand up-vehicle (“the ESV”) for those for whom a stand-up mobility device is a necessity and who are unable to utilize a mobility device that requires sitting, such as an electronic wheelchair or motorized scooter. The settlement agreement also includes a
1 Because the only two-wheeled vehicle mentioned in this case is the Segway®, we refer to Disney’s policy as a ban on Segways®.
3

Case: 11-12013 Date Filed: 08/30/2012 Page: 4 of 12
nationwide waiver of declaratory or injunctive claims relating to Disney’s policy. Upon review of the settlement, the district court granted conditional class certification and preliminarily approved the settlement.
Following the district court’s approval of the settlement and dispersal of the required class notice to individual class members and to members of organizations that support people with mobility disabilities, several parties filed objections to the settlement. The objectors include Appellant Disability Rights Advocates for Technology (“DRAFT”), the United States Department of Justice (DOJ), which filed an amicus curiae brief in this appeal, 23 State Attorneys General, and others (collectively “objectors”).
After receipt of the objections, the district court conducted a fairness hearing to hear the objectors’ challenges. At the hearing, Disney’s Chief Safety Officer, Greg Hale, presented evidence that allowing customers to bring Segways® into the Disney Resorts would pose a significant safety risk to other guests. Disney also presented evidence that the ESV was a beneficial substitute. In rebuttal, the objectors presented testimony of people with severe mobility disabilities—from amputations to neurological disorders—for whom, objectors insist, using a Segway® is necessary and operating the ESV is impossible.
After conducting the fairness hearing, the district court vacated its prior
4

Case: 11-12013 Date Filed: 08/30/2012 Page: 5 of 12
order conditionally certifying the class and dismissed the case for lack of prudential standing, finding that because all of the named plaintiffs and objectors were able to use wheelchairs or motorized scooters, none had been denied access to Disney’s parks. Class representatives appealed to a panel of this court, which held that the class representatives’ interests “are arguably within the zone of interest protected by [Title III]” and remanded the case to the district court for “a determination as to whether the claims of the named plaintiffs are typical of the claims of the class and whether they are adequate representatives of the class.” Ault v. Walt Disney World Co., 405 Fed. App’x. 401, 401 (11th Cir. 2010) (per curiam).
Between the district court’s dismissal for lack of prudential standing and this court’s decision, the DOJ issued a new Title III regulation, 28 C.F.R. § 36.311. This regulation requires a public accommodation, such as Disney Resorts, to “make reasonable modifications in its policies . . . to permit the use of other power-driven mobility devices” unless Disney can demonstrate that the device “cannot be operated in accordance with legitimate safety requirements.” Id. at 36.311(b)(1).
After this court’s remand, the district court granted final class certification based upon its prior findings, approved the settlement as fair and reasonable based
5

Case: 11-12013 Date Filed: 08/30/2012 Page: 6 of 12
upon the factors set forth in Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984), and overruled all objections. In determining that the class representatives were unlikely to prevail at trial, one of the Bennett factors, the district court made two findings. First, the district court afforded the new DOJ regulation no deference under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S. Ct. 2778, 2782 (1984) because the court found that “the revised regulations conflict with the plain language of Title III.” [R. 252 at 7.] Second, the district court found that even if the new DOJ regulation is afforded deference, class representatives are still likely to fail in their claim because of Disney’s legitimate safety concerns. The objectors then perfected this appeal.
II. The district court’s certification of a class pursuant to Rule 23 is reviewed for abuse of discretion. Heffner v. Blue Cross & Blue Shield of Ala., Inc., 443 F.3d 1330, 1337 (11th Cir. 2006). We also review the district court’s approval of a class action settlement agreement for abuse of discretion. Faught v. Am. Home Shield Corp., 668 F.3d 1233, 1239 (11th Cir. 2011). “The proponents of class actions settlements bear the burden of . . . demonstrating that the settlement distribution is fair, reasonable, and adequate.” Id. (internal quotation marks
6

Case: 11-12013 Date Filed: 08/30/2012 Page: 7 of 12
omitted). III.
Objectors first argue that the class does not satisfy the prerequisites to class certification set forth in Rule 23(a), insisting that “the claims or defenses of the representative parties are [not] typical of the claims or defenses of the class[.]” FED. R. CIV. P. 23(a)(3).2 Objectors argue that the class representatives’ claims lack the required typicality because the class representatives do not rely upon their Segways® for mobility to the same extent as other class members. For example, Wallace only uses his Segway® once or twice a week, while Ault uses a cane or scooter for help with mobility and infrequently uses her Segway®. In contrast, according to the objectors, a Segway® for several class members is an absolute necessity for mobility, which makes the claims of these class members sufficiently different from those of the class representatives to defeat class certification.
In the first order granting preliminary class certification, the district court found that the claims of the class representatives are typical because all class members assert that Disney’s Segway® ban violates Title III and precludes them
2 Objectors also argue that class representatives are not adequate representatives of the class, FED. R. CIV. P. 23(a)(4), and that the district court improperly certified the class pursuant to Rule 23(b)(2). We have considered these arguments and find them unpersuasive. Therefore, we summarily reject them.
7

Case: 11-12013 Date Filed: 08/30/2012 Page: 8 of 12
from using and enjoying Disney’s parks to the fullest. Following this court’s remand, the district court found no reason to disturb this previous finding, and we agree. Class members’ claims all stem from the same policy prohibiting the use of Segways® within Disney Resorts, and all claims require analysis of Title III to determine the outcome. While each class member may have a stronger or weaker claim depending upon his or her degree of reliance, we conclude that this alone does not make class representatives’ claims atypical of the class as a whole. Class members’ claims need not be identical to satisfy the typicality requirement; rather, there need only exist “a sufficient nexus . . . between the legal claims of the named class representatives and those of individual class members to warrant class certification.” Prado-Steiman v. Bush, 221 F.3d 1266, 1278–79 (11th Cir. 2000). This nexus exists “if the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory.” Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984). All claims in this class action arise from the same policy—Disney’s ban on Segways®—and are all based upon liability pursuant to Title III. Thus, we conclude that the district court clearly did not abuse its discretion by finding that the claims of the class representatives and class members are typical and warrant class certification.
8

Case: 11-12013 Date Filed: 08/30/2012 Page: 9 of 12
IV. Class actions can only be settled with the approval of the court. FED. R. CIV. P. 23(e). In approving the settlement, the district court must conduct “a hearing and . . . [find] that it is fair, reasonable, and adequate.” Id. at 23(e)(2). The district court must also find that the settlement “is not the product of collusion between the parties.” Bennett, 737 F.2d at 986 (internal quotation marks). When the district court initially approved the settlement in the present case, the district court considered the six factors espoused by this court in Bennett and found that the class was unlikely to succeed at trial. See id. Based upon this finding, the district court looked at the other Bennett factors and determined that the settlement agreement afforded at least some relief that was fair and reasonable. See id. The district court’s initial determination regarding the class’s likelihood of success at trial occurred before the DOJ issued the new regulation that requires a public accommodation to modify its policies to permit mobility assistance devices such as Segways® unless the public accommodation determines that such devices cannot be operated safely. 28 C.F.R. § 36.311(b)(1), 36.104. Before the district court and this court, in its amicus brief, the DOJ argues that the regulation alters the landscape of Title III jurisprudence in such a way as to make it likely the class would succeed at trial if allowed to proceed. However, after this court’s remand,
9

Case: 11-12013 Date Filed: 08/30/2012 Page: 10 of 12
the district court disagreed with the DOJ and found that even if the new DOJ regulation is afforded deference,3 Disney’s legitimate safety concerns present a significant hurdle to the class’s ability to succeed at trial.
The first Bennett factor is “the likelihood of success at trial[.]” 737 F.2d at 986. During an extensive fairness hearing before the district court, Hale testified regarding the safety risks posed by the operation of Segways® in Disney Resorts. The very factors Hale considered before deciding that Segways® are too dangerous for operation in Disney Resorts are the very factors facilities are required to consider under the new regulation. See 28 C.F.R. 36.311(b)(2)(i)–(v) (requiring a public accommodation to consider the attributes of the device, the volume of foot traffic in the facility, the design and operational characteristics of the facility, whether safety restrictions on the use of the device can mitigate its danger, and whether operation of the device will harm the environment in determining if a specific device is allowable in the facility). The district court found that based upon this testimony Disney is likely to succeed at trial in
3 We acknowledge that the district court also found that the DOJ regulation should be given no deference, finding it to be contrary to Title III. See Chevron, 467 U.S. at 843–44, 104 S. Ct. at 2782. However, because we affirm the case on other grounds, we defer answering this question and leave it for another day.
10

Case: 11-12013 Date Filed: 08/30/2012 Page: 11 of 12
showing that it has fulfilled its obligations under Title III.4 Objectors and the DOJ
would like us to hold that this finding constitutes an abuse of discretion. We
decline to do so. The issue before us is not who prevails over whom, but rather,
the question is whether the district court abused its discretion in its finding
regarding who was most likely to prevail at trial. We conclude from the record
that there is no abuse of discretion.
The second Bennett factor that must be considered is “the range of possible
recovery[.]” 737 F.2d at 986. Class representatives in this class only seek
injunctive or declaratory relief; therefore, the class receives either nothing or an
injunction requiring Disney to permit Segways® at Disney Resorts. Because the
district court found that class representatives were unlikely to prevail at trial, the
district court found that Disney’s agreement to produce and make available the
ESVs is a beneficial remedy for the class. This finding does not constitute an
4 Following oral argument, this court was made aware of the recent decision of Baughman v. Walt Disney World Co., No. 10-55792, __ F.3d __ (9th Cir. July 18, 2012), where the Ninth Circuit ruled that Disney was not entitled to summary judgment in a case filed by an individual challenging its Segway® ban because genuine issues of material fact existed. The Ninth Circuit did not hold that Title III requires Disney to permit Segways® in Disney Resorts, and in fact explicitly stated that Segways® can be excluded if Disney determines that the safety factors listed in 28 C.F.R. § 36.311(b)(2) warrant exclusion. Baughman, __ F.3d at __. In the present case, the district court found that if this action went to trial, Disney was likely to prevail because of its reliance upon those exact safety factors. Therefore, Baughman is factually and procedurally different from the case at bar and does not transform the district court’s well reasoned analysis into an abuse of discretion.
11

Case: 11-12013 Date Filed: 08/30/2012 Page: 12 of 12
abuse of discretion. If Disney prevails at trial, the class will be left with no remedy at all. This settlement precludes such a Draconian result and ensures that a stand-up mobility device is available at Disney Resorts that conforms to its unique safety requirements. Therefore, we conclude that the district court’s finding that the settlement results in a “fair, adequate, and reasonable” remedy within the range of possible recoveries is also not an abuse of discretion. See Bennett, 737 F.2d at 986.5
V. After a careful review of the record and with the benefit of oral argument, we conclude that the district court did not abuse its discretion in certifying the class and in approving the settlement. Accordingly, we affirm its orders. AFFIRMED.
5 We also summarily reject objectors’ arguments regarding the nationwide waiver of claims included in the settlement agreement.
12

 
 Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 1 of 25
CLASS ACTION, CLOSED, SL DOC
U.S. District Court Middle District of Florida (Orlando) CIVIL DOCKET FOR CASE #: 6:07−cv−01785−GAP−KRS

Ault et al v. Walt Disney World Co. Assigned to: Judge Gregory A. Presnell Referred to: Magistrate Judge Karla R. Spaulding Case in other court: USCA, 08−14480−F
USCA, 09−12196−A
USCA, 09−15668−AA
USCA, 11−12013−B Cause: Americans with Disabilities Act
Plaintiff

Date Filed: 11/09/2007 Date Terminated: 07/25/2011 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Mahala Ault on her own behalf and on behalf of all others similarly situated

represented by Bernard H. Dempsey , Jr. Dempsey &Associates, PA Suite 200 1560 Orange Ave Winter Park, FL 32789−5544 407/422−5166 Fax: 407/422−8556 Email: bhd@dempsey−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John A. Baker Baker, Baker &Krajewski, LLC 415 S 7th St Springfield, IL 62701 217/522−3445 Fax: 217/522−8234 Email: johnbakerlaw@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy A. Johnson McGuire Woods, LLP Suite 3300 50 N Laura St Jacksonville, FL 32202 904−798−3234 Fax: 904−798−3266 Email: njohnson@mcguirewoods.com TERMINATED: 04/15/2009

Plaintiff
Stacie Rhea on her own behalf and on behalf of all others similarly situated

represented by Bernard H. Dempsey , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason M. Medley O'Donnell, Ferebee, Medley &Keiser, PC Suite 800 450 Gears Rd Houston, TX 77067 281/875−8200 Fax: 281/875−4962 Email: jmedley@ofmklaw.com LEAD ATTORNEY PRO HAC VICE

Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 2 of 25

ATTORNEY TO BE NOTICED

John A. Baker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy A. Johnson (See above for address) TERMINATED: 04/15/2009

Plaintiff
Dan Wallace on his own behalf and on behalf of all others similarly situated

represented by Bernard H. Dempsey , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Phillip Krajewski Baker, Baker &Krajewski, LLC 415 S 7th St Springfield, IL 62701 217/522−3445 Fax: 217/522−8234 Email: jpklaw@sbcglobal.net LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John A. Baker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nancy A. Johnson (See above for address) TERMINATED: 04/15/2009

V. Intervenor Plaintiff Jerry Miller

represented by Aaron C. Bates The Maher Law Firm, PA Suite 200 631 W Morse Blvd Winter Park, FL 32789 407/839−0866 Fax: 407/425−7958 Email: acbates@MaherLawFirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Ferleger David Ferleger Suite 203 413 Johnson St Jenkintown, PA 19046 610/668−2221 Fax: 610/672−9680 Email: david@ferleger.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 3 of 25

Intervenor Plaintiff Disability Rights Advocates for Technology
Intervenor Plaintiff Daniel M. Gade
Intervenor Plaintiff Alan A Maccini
Intervenor Plaintiff James F. Overby

represented by Aaron C. Bates (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Ferleger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aaron C. Bates (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Ferleger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aaron C. Bates (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Ferleger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aaron C. Bates (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Ferleger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Walt Disney World Co.

represented by Jeremy M. White Kaye Scholer, LLP Suite 1100 901 15th St NW Washington, DC 20005 202/682−3500 Fax: 202/682−3580 Email: jewhite@kayescholer.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kerry Alan Scanlon Kaye Scholer, LLP

Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 4 of 25

Suite 1100 901 15th St NW Washington, DC 20005 202/682−3500 Fax: 202/682−3580 Email: kscanlon@kayescholer.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Manuel Kushner Kaye Scholer, LLP Suite 900 W 777 S Flagler Dr West Palm Beach, FL 33401 561/802−3230 Fax: 561/802−3217 Email: mkushner@kayescholer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Florida Attorney General

represented by Russell S. Kent Office of the Attorney General* PL−01, The Capitol Tallahassee, FL 32399−1050 850/414−3854 Fax: 850/488−9134 Email: russell_kent@oag.state.fl.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Office of the Illinois Attorney General

represented by Jeffrey M. Feltman Office of the Attorney General 1001 E Main St Carbondale, IL 62901 618−529−6418 Fax: 619−529−6416 Email: jfeltman@atg.state.il.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Office of the Tennessee Attorney General

represented by Brant Harrell Office of the Attorney General 425 5th Ave N PO Box 20207 Nashville, TN 37202−0207 615−741−3549 Fax: 615−532−2910 Email: brant.harrell@ag.tn.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Interested Party Ron Lachman

represented by Ron Lachman 3140 Whisperwoods Ct. Northbrook, IL 60062 PRO SE

Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 5 of 25

Interested Party Tina Baughman
Interested Party Jerry Kerr
Interested Party Disability Rights Advocates for Technology
Interested Party Advocacy Center for Persons with Disabilities, Inc.

David Ferleger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aaron C. Bates (See above for address) TERMINATED: 07/20/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Ferleger (See above for address) TERMINATED: 07/20/2009
David G. Geffen David Geffen Law Firm Suite 205 530 Wilshire Blvd Santa Monica, CA 90401 310/434−1111 Fax: 310/434−1115 Email: smgeffenlaw@aol.com ATTORNEY TO BE NOTICED
represented by Aaron C. Bates (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Ferleger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David G. Geffen (See above for address) TERMINATED: 07/10/2009
represented by Aaron C. Bates (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Ferleger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David G. Geffen (See above for address) TERMINATED: 07/10/2009
represented by Christopher T. White Disability Rights Florida, Inc. Suite 640 1000 N Ashley Dr

Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 6 of 25

Tampa, FL 33602 580−488−9071 ext. 9768 Fax: 850−488−8640 Email: christopherw@disabilityrightsflorida.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party Disability Rights California

represented by Disability Rights California Bay Area Regional Office 1330 Broadway, Suite 500 Oakland, CA 94612 PRO SE

Interested Party Advocacy, Inc.

represented by Advocacy, Inc. Central Office−Legal Services Unit 7800 Shoal Creek Blvd., Suite 171−E Austin, TX 78757 PRO SE

Interested Party
Department of Fair Employment &Housing

represented by Department of Fair Employment &Housing 1350 Front Street Suite 1063 San Diego, CA 92101−3610 PRO SE

Interested Party M.D. Patrick McNamara

represented by Patrick McNamara 2908 Orchard Tree Lane Toledo, OH 43617 PRO SE

Interested Party Georgia Advocacy Office

represented by Georgia Advocacy Office 150 East Ponce De Leon Avenue Suite 430 Decatur, GA 30030 PRO SE

Interested Party
National Council on Independent Living

represented by National Council on Independent Living Burton Blatt Institute 1667 K St. NW, Suite 640 Washington, DC 20006 PRO SE

Interested Party Paralyzed Veterans of America

represented by Paralyzed Veterans of America Burton Blatt Institute 1667 K St. NW, Suite 640 Washington, DC 20006 PRO SE

Date Filed

# Docket Text

Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 7 of 25

11/09/2007 11/14/2007
11/14/2007 11/21/2007 11/21/2007 11/21/2007 11/23/2007 11/29/2007 11/29/2007 11/29/2007 12/05/2007 12/26/2007 12/27/2007 01/02/2008 01/03/2008 01/03/2008 01/14/2008 01/14/2008

1 COMPLAINT against Walt Disney World Co. filed pursuant to the Americans with Disabilities Act; jury demand (Filing fee $350 − receipt number 26063) (RDO) (Entered: 11/09/2007)
2 RELATED CASE ORDER AND NOTICE of designation under Local Rule 3.05 − track 2. Notice of pendency of other actions due by 11/26/2007 Signed by Judge Gregory A. Presnell on 11/14/2007. (copies mailed/emailed)(AKJ) (Entered: 11/14/2007)
3 INTERESTED PERSONS ORDER for Plaintiffs. Certificate of interested persons and corporate disclosure statement due by 11/26/2007 Signed by Judge Gregory A. Presnell on 11/14/2007. (counsel emailed)(AKJ) (Entered: 11/14/2007)
4 CERTIFICATE of interested persons and corporate disclosure statement re 3 Interested persons order by Mahala Ault, Stacie Rhea, Dan Wallace. (Dempsey, Bernard) (Entered: 11/21/2007)
5 NOTICE of pendency of related cases re 2 order of compliance to Local Rule by Mahala Ault, Stacie Rhea, Dan Wallace. Related case(s): y (Dempsey, Bernard) (Entered: 11/21/2007)
6 MOTION for Permission to Begin the Discovery Process Prior to Case Management Meeting by Mahala Ault, Stacie Rhea, Dan Wallace. (Dempsey, Bernard) (Entered: 11/21/2007)
7 ORDER denying 6 Motion to begin discovery before case management conference. Signed by Magistrate Judge Karla R. Spaulding on 11/23/2007. (Spaulding, Karla) (Entered: 11/23/2007)
8 MOTION for John A. Baker to appear pro hac vice by Dan Wallace. (RDO) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 11/29/2007)
9 MOTION for J. Phillip Krajewski to appear pro hac vice by Dan Wallace. (RDO) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 11/29/2007)
10 ORDER granting 8 motion to appear pro hac vice; granting 9 motion to appear pro hac vice. Signed by Magistrate Judge Karla R. Spaulding on 11/29/2007. (JL) (Entered: 11/29/2007)
11 WAIVER OF SERVICE returned executed by Mahala Ault. Waiver of Service sent on 11/14/07 as to Walt Disney World Co.. (Dempsey, Bernard) (Entered: 12/05/2007)
12 MOTION for Jason M. Medley to appear pro hac vice by Stacie Rhea. (RDO) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 12/26/2007)
13 ORDER granting 12 motion to appear pro hac vice. Signed by Magistrate Judge Karla R. Spaulding on 12/27/2007. (JL) (Entered: 12/27/2007)
14 MOTION for extension of time to file answer or otherwise plead re 1 Complaint by Walt Disney World Co.. (Kushner, Manuel) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 01/02/2008)
15 ENDORSED ORDER granting 14 Motion for extension of time to answer or respond. Walt Disney World Co. answer due 1/22/2008. Signed by Judge Gregory A. Presnell on 1/3/2008. (AEB) (Entered: 01/03/2008)
16 INTERESTED PERSONS ORDER for Defendant. Certificate of interested persons and corporate disclosure statement due by 1/14/2008 Signed by Judge Gregory A. Presnell on 1/3/2008. (copies mailed/emailed)(AKJ) (Entered: 01/03/2008)
17 CERTIFICATE of interested persons and corporate disclosure statement re 16 Interested persons order by Walt Disney World Co.. (Kushner, Manuel) (Entered: 01/14/2008)
18 MOTION for Jeremy White to appear pro hac vice by Walt Disney World Co.. (RDO) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 01/15/2008)

Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 8 of 25

01/15/2008 01/22/2008 01/22/2008 01/23/2008 02/01/2008
02/01/2008 02/05/2008
02/05/2008
02/06/2008
02/06/2008 02/06/2008
02/06/2008 02/06/2008 02/07/2008
02/07/2008 02/07/2008
02/07/2008

19 ORDER denying without prejudice 18 motion to appear pro hac vice. Signed by Magistrate Judge Karla R. Spaulding on 1/15/2008. (BJP) (Entered: 01/15/2008)
20 MOTION to dismiss and Memorandum of Law in Support Thereof by Walt Disney World Co.. (Kushner, Manuel) (Entered: 01/22/2008)
21 Unopposed MOTION to Appear Telephonically for Case Management Conference by Mahala Ault, Stacie Rhea, Dan Wallace. (Johnson, Nancy) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 01/22/2008)
22 ORDER granting 21 Motion to Appear Telephonically at Case Management Conference. Signed by Magistrate Judge Karla R. Spaulding on 1/23/2008. (BJP) (Entered: 01/23/2008)
23 MOTION for Jeremy White to appear pro hac vice by Walt Disney World Co. (Kushner, Manuel) Motions referred to Magistrate Judge Karla R. Spaulding. **SPECIAL ADMISSIONS FORM SUBMITTED &FEE PAID ON 1/14/08** (IGC). (Entered: 02/01/2008)
24 ORDER denying without prejudice 23 motion to appear pro hac vice. Signed by Magistrate Judge Karla R. Spaulding on 2/1/2008. (BJP) (Entered: 02/01/2008)
25 MOTION for Kerry Scanlon to appear pro hac vice by Walt Disney World Co.. (Kushner, Manuel) Motions referred to Magistrate Judge Karla R. Spaulding. (Additional attachment(s) added on 2/5/2008: # 1 APPEARANCE of non−resident counsel and designation of local counsel) (IGC). (Entered: 02/05/2008)
26 Unopposed MOTION for Extension of Time to File Response/Reply as to 20 MOTION to dismiss and Memorandum of Law in Support Thereof by Mahala Ault, Stacie Rhea, Dan Wallace. (Johnson, Nancy) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 02/05/2008)
27 ENDORSED ORDER granting 26 Motion for Extension of Time to File Response/Reply re 20 MOTION to dismiss and Memorandum of Law in Support Thereof. Because Feb. 18th is a Federal holiday, the response will be due by 2/19/2008. Signed by Judge Gregory A. Presnell on 2/6/2008. (AEB) (Entered: 02/06/2008)
28 ORDER granting 25 motion to appear pro hac vice. Signed by Magistrate Judge Karla R. Spaulding on 2/6/2008. (BJP) (Entered: 02/06/2008)
29 Amended MOTION for Jeremy White to appear pro hac vice by Walt Disney World Co. (Kushner, Manuel) Motions referred to Magistrate Judge Karla R. Spaulding. **SPECIAL ADMISSIONS FORM SUBMITTED &FEE PAID ON 1/14/08** (IGC). (Entered: 02/06/2008)
30 MOTION to Redesignate as a Track Three Case by Mahala Ault, Stacie Rhea, Dan Wallace. (Johnson, Nancy) (Entered: 02/06/2008)
31 Emergency MOTION to extend time to File Class Certification Motion by Mahala Ault, Stacie Rhea, Dan Wallace. (Johnson, Nancy) (Entered: 02/06/2008)
32 NOTICE of Hearing on Motion 31 Emergency MOTION to extend time to File Class Certification Motion, 30 MOTION to Redesignate as a Track Three Case : Motion Hearing set for 2/7/2008 at 02:30 PM in Courtroom 5 A before Judge Gregory A. Presnell. (AEB) (Entered: 02/07/2008)
33 MOTION to Appear Telephonically for Hearing Scheduled today, February 7, 2008 at 2:30pm by Dan Wallace. (Baker, John) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 02/07/2008)
34 ORDER granting 33 Motion to Appear Telephonically. Signed by Judge Gregory A. Presnell on 2/7/2008. All parties wishing to appear by phone shall gather on a conference call and make a single phone call to 407−835−3832 at least 5 minutes prior to the time of the hearing. (AEB) (Entered: 02/07/2008)
35 ORDER granting 29 motion to appear pro hac vice. Signed by Magistrate Judge Karla R. Spaulding on 2/7/2008. (BJP) (Entered: 02/07/2008)

Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 9 of 25

02/07/2008 02/07/2008
02/08/2008 02/08/2008
02/19/2008
02/20/2008 03/03/2008 03/04/2008 03/05/2008 03/11/2008 03/12/2008
03/24/2008 03/25/2008
04/01/2008 05/01/2008 05/12/2008 05/13/2008

36 MEMORANDUM in opposition re 31 Motion to extend time to file Their Motion for Class Certification filed by Walt Disney World Co.. (Kushner, Manuel) (Entered: 02/07/2008)
37 Minute Entry. Proceedings held before Judge Gregory A. Presnell: Motion Hearing held on 2/7/2008 re 31 Emergency MOTION to extend time to File Class Certification Motion filed by Mahala Ault, Dan Wallace, Stacie Rhea, 30 MOTION to Redesignate as a Track Three Case filed by Mahala Ault, Dan Wallace, Stacie Rhea. Court denies motion to redesignate and grants motion to extend time as stated in open court. Written order to follow. Court Reporter: Diane Peede (AKJ) (Entered: 02/07/2008)
38 ENDORSED ORDER denying without prejudice 30 Motion for re−designation. Signed by Judge Gregory A. Presnell on 2/8/2008. (AEB) (Entered: 02/08/2008)
39 ORDER granting 31 Motion to extend time. Signed by Judge Gregory A. Presnell on 2/8/2008. Plaintiffs' Motion for Class Certification is due on May 30, 2008. Parties may begin discovery related to class certification on Monday February 11, 2008. Defendant's response to the Motion for Class Certification will be due thirty days after the motion is filed. (AEB) (Entered: 02/08/2008)
40 MEMORANDUM in opposition re 20 Motion to dismiss filed by Mahala Ault, Stacie Rhea, Dan Wallace. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Baker, John) (Entered: 02/19/2008)
41 ORDER granting 20 Motion to dismiss. Signed by Judge Gregory A. Presnell on 2/20/2008. Plaintiffs shall have leave to file an amended complaint within 10 days of this Order. (AEB) (Entered: 02/20/2008)
42 CASE MANAGEMENT REPORT. (Johnson, Nancy) (Entered: 03/03/2008)
43 CASE MANAGEMENT AND SCHEDULING ORDER. Signed by Judge Gregory A. Presnell on 3/4/2008. (TKW) (Entered: 03/04/2008)
44 MOTION TO ADD SUPPLEMENTAL FACTS TO THEIR AMENDED COMPLAINT PURSUANT TO RULE 15(d) by Mahala Ault, Stacie Rhea, Dan Wallace. (Attachments: # 1 Exhibit A)(Johnson, Nancy) (Entered: 03/05/2008)
45 AGREED MOTION to stay discovery pending decision on preliminary motions by Mahala Ault. (Johnson, Nancy) Motions referred to Magistrate Judge Karla R. Spaulding. (Text modified on 3/12/2008) (RDO). (Entered: 03/11/2008)
46 ORDER granting 45 Motion to stay discovery. Signed by Judge Gregory A. Presnell on 3/12/2008. Class−related discovery shall be STAYED for 30 days. Plaintiffs' Motion for Class Certification shall be due on June 30, 2008 and Defendant's response will be due 30 days after the motion is filed. (AEB) (Entered: 03/12/2008)
47 MEMORANDUM in opposition re 44 Motion for miscellaneous relief filed by Walt Disney World Co.. (White, Jeremy) (Entered: 03/24/2008)
48 ORDER granting 44 Motion to file a supplemental pleading. Signed by Judge Gregory A. Presnell on 3/25/2008. Plaintiffs shall file the Supplemental Pleading within 5 days of this Order and Defendant shall respond to that complaint within 30 days of it being filed. (AEB) (Entered: 03/25/2008)
49 AMENDED COMPLAINT against Walt Disney World Co. filed by Mahala Ault, Stacie Rhea, Dan Wallace.(Dempsey, Bernard) (Entered: 04/01/2008)
50 MOTION to dismiss First Amended Complaint and Memorandum of Law in Support Thereof by Walt Disney World Co.. (White, Jeremy) (Entered: 05/01/2008)
51 MEMORANDUM in opposition re 50 Motion to dismiss filed by Mahala Ault, Stacie Rhea, Dan Wallace. (Baker, John) (Entered: 05/12/2008)
52 ORDER denying 50 Motion to dismiss. Signed by Judge Gregory A. Presnell on 5/13/2008. (AEB) (Entered: 05/13/2008)

Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 10 of 25

05/28/2008 06/16/2008
06/17/2008
06/30/2008 06/30/2008
07/03/2008 07/03/2008 07/07/2008 07/08/2008
07/09/2008
08/01/2008 08/04/2008 08/13/2008 08/28/2008 08/29/2008 08/29/2008
08/29/2008 08/29/2008

53 ANSWER and affirmative defenses to 49 Amended complaint by Walt Disney World Co..(White, Jeremy) (Entered: 05/28/2008)
54 Unopposed MOTION TO POSTPONE FOR ONE WEEK THE FILING OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND WORLDCO'S RESPONSE THERETO by all plaintiffs. (Dempsey, Bernard) (Entered: 06/16/2008)
55 ENDORSED ORDER granting 54 Motion for extension of time. Signed by Judge Gregory A. Presnell on 6/17/2008. Plaintiffs' Motion for Class Certification is due on July 7, 2008 and Defendant's Response thereto is due on August 7, 2008. (AEB) (Entered: 06/17/2008)
56 MOTION to Intervene/for Recusal/for Preliminary Injunction/for Temorary Restraining Order by Jonathan Lee Riches. (RDO) (Entered: 06/30/2008)
57 ENDORSED ORDER denying as frivolous 56 Motion to intervene/Motion for Preliminary Injunction/Motion for Temporary Restraining Order/Motion for Recusal. Signed by Judge Gregory A. Presnell on 6/30/2008. (AEB) (Entered: 06/30/2008)
58 MOTION for Extension of Time to File Plaintiffs' Motion for Class Certification by Dan Wallace. (Baker, John) (Entered: 07/03/2008)
59 ENDORSED ORDER granting 58 Motion for Extension of Time to File. Signed by Judge Gregory A. Presnell on 7/3/2008. (ED) (Entered: 07/03/2008)
60 MOTION for Extension of Time to File Motion for Class Certification and Worldco's Opposition Thereto by all parties. (Baker, John) (Entered: 07/07/2008)
61 ENDORSED ORDER granting 60 Motion for Extension of Time to File. Motion for class certification due August 29, 2008; opposition to that motion due September 30, 2008. No further extensions of these deadlines will be granted. Signed by Judge Gregory A. Presnell on 7/8/2008. (ED) (Entered: 07/08/2008)
62 ORDER TO SHOW CAUSE as to Jonathan Lee Riches why sanctions should not be imposed for filing of frivolous motions to intervene. Show Cause Response due by 8/11/2008 Signed by Judge Gregory A. Presnell on 7/9/2008. (ED) (Entered: 07/09/2008)
63 NOTICE OF APPEAL by Jonathan Lee Riches as to 57 Order to Intervene. Filing fee not paid. (VEF) Modified on 8/4/2008 (VEF). (Entered: 08/04/2008)
TRANSMITTAL of initial appeal package to USCA consisting of certified copies of notice of appeal, docket sheet, order/judgment being appealed, and motion, if applicable to USCA re 63 Notice of appeal. (VEF) (Entered: 08/04/2008)
ACKNOWLEDGMENT by USCA of receiving initial appeal package on 8/8/08 re 63 Notice of appeal. USCA number: 08−14480−F. (VEF) (Entered: 08/14/2008)
64 MOTION for Extension of Time to File Class Certification Motion by all parties. (Baker, John) (Entered: 08/28/2008)
65 ORDER denying 64 Motion for Extension of Time to File. Signed by Judge Gregory A. Presnell on 8/29/2008. (AEB) (Entered: 08/29/2008)
66 MOTION to certify class by all plaintiffs. (Attachments: # 1 Exhibit 1a, # 2 Exhibit 1b, # 3 Exhibit 1c, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9)(Baker, John) (Entered: 08/29/2008)
67 NOTICE by Mahala Ault of Filing Affidavit of Bernard H. Dempsey, Jr., Esquire (Attachments: # 1 Affidavit of Bernard H. Dempsey, Jr.)(Dempsey, Bernard) Text modified on 9/2/2008 (RDO). (Entered: 08/29/2008)
68 NOTICE by Mahala Ault of Filing Affidavit (Attachments: # 1 Affidavit of Dan Ault)(Dempsey, Bernard) Text modified on 9/2/2008 (RDO). (Entered: 08/29/2008)

Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 11 of 25

09/17/2008 09/19/2008 09/30/2008 09/30/2008
10/10/2008 10/22/2008 10/28/2008 10/28/2008 12/05/2008 12/05/2008
12/05/2008
12/12/2008 12/26/2008 12/26/2008
01/05/2009

69 ORDER of USCA, Remanding the appeal back to the District Court for determination of when the notice of appeal was delivered to prison officials for forwarding to the D.C. as to 63 Notice of appeal. EOD: 9/12/08; USCA number: 08−14480−F. (VEF) (Entered: 09/17/2008)
70 NOTICE OF FINDINGS. Clerk directed to return record, as supplemented, to Court of Appeals. Signed by Judge Gregory A. Presnell on 9/19/2008. (ED) (Entered: 09/19/2008)
71 MOTION Seeking Oral Argument in Support of Plaintiff's Motion for Class Certification by Mahala Ault, Stacie Rhea, Dan Wallace. (Baker, John) (Entered: 09/30/2008)
72 MEMORANDUM in opposition re 66 Motion to certify class filed by Walt Disney World Co.. (Attachments: # 1 Exhibit Excerpts from Wallace Deposition, # 2 Exhibit Excerpts from Hale Deposition, # 3 Exhibit Cardinali Declaration, # 4 Exhibit Getting Started Manual, # 5 Exhibit Segway HT Riders' Guide, # 6 Exhibit Excerpts from Ault Deposition, # 7 Exhibit Excerpts from Rhea Deposition)(White, Jeremy) (Entered: 09/30/2008)
73 ORDER granting 71 Motion for Oral Argument on Class Certification Motion. A hearing has been set for Tuesday, October 28, 2008, at 9:00 a.m. in Courtroom 5A. Signed by Judge Gregory A. Presnell on 10/10/2008. (TFF) (Entered: 10/10/2008)
74 ORDER of USCA, dismissing the appeal for want of prosecution as to 63 Notice of appeal. EOD: 10/20/08; USCA number: 08−14480−F. Issued as mandate. (VEF) (Entered: 10/23/2008)
75 Minute Entry. Proceedings held before Judge Gregory A. Presnell: Motion Hearing held on 10/28/2008 re 66 MOTION to certify class filed by Mahala Ault, Dan Wallace, Stacie Rhea. Court Reporter: Diane Peede (AKJ) (Entered: 10/28/2008)
76 ORDER abating consideration of 66 Plaintiffs' Motion for Class Certification until FRIDAY, DECEMBER 5, 2008. Signed by Judge Gregory A. Presnell on 10/28/2008. (TFF) (Entered: 10/28/2008)
77 AGREED MOTION for leave to file to Amend Plaintiffs' Frist Amended Complaint to Add Class Allegations by all parties. (Attachments: # 1 Exhibit A)(Baker, John) Text modified on 12/8/2008 (RDO). (Entered: 12/05/2008)
78 Joint MOTION to certify class for Conditional Class Certification and Preliminary Approval of Joint Stipulation of Settlement and Release by all parties. (Attachments: # 1 Exhibit 1)(Baker, John) (TERMINATED ON 12/8/2008. WRONG EXHIBITS ATTACHED BUT RE−FILED AT 79 ) (RDO). (Entered: 12/05/2008)
79 Joint MOTION to certify class for Conditional Class Certification and Preliminary Approval of Joint Stipulation of Settlement and Release by all parties. (Attachments: # 1 Exhibit 1 − Joint Stipulation of Settlement and Release, # 2 Exhibit A to Joint Stipulation of Settlement and Release)(White, Jeremy) (Entered: 12/05/2008)
80 ORDER denying without prejudice 77 Agreed Motion for Leave to Amend Plaintiffs' Amended Complaint. Signed by Judge Gregory A. Presnell on 12/12/2008. (TFF) (Entered: 12/12/2008)
81 MOTION to amend/correct 49 Amended Complaint to add Class Allegations by all plaintiffs. (Attachments: # 1 Exhibit 1: proposed Second Amended Complaint)(Baker, John) Modified on 12/29/2008 (JET). (Entered: 12/26/2008)
82 Joint MOTION for Conditional Class Certification and Preliminary Approval of Joint Stipulation of Settlement and Release by all parties. (Attachments: # 1 Exhibit 1: Joint Stipulation of Settlement and Release, # 2 Exhibit A to Stipulation: Notice of Class Action Settlement and Hearing)(White, Jeremy) Modified on 12/29/2008 (JET). (Entered: 12/26/2008)
83 Vacated by 228 Order; 228 Order vacated and this Order reinstated by 251 Order − ORDER denying as moot 66 Motion to certify class; denying as moot 79 Motion to certify class; granting 81 motion to amend/correct; granting 82 Motion

Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 12 of 25

01/16/2009 01/21/2009 01/28/2009 01/29/2009 02/04/2009 02/05/2009 02/06/2009 02/13/2009 02/13/2009 02/27/2009 03/02/2009
03/02/2009
03/12/2009 03/12/2009
03/12/2009 03/12/2009 03/12/2009

to certify class. The parties are further directed to file a joint supplemental brief addressing, in futher detail, the best manner practicable to provide notice to the class. The supplemental brief will be due by Friday, January 16, 2009. Signed by Judge Gregory A. Presnell on 1/5/2009. (TFF) *Modified text on 3/23/2011 (MAA). (Entered: 01/05/2009)
84 JOINT SUPPLEMENTAL BRIEF Regarding Notice of Settlement by Walt Disney World Co., Mahala Ault, Stacie Rhea, Dan Wallace. (White, Jeremy) Text modified on 1/20/2009 (RDO). (Entered: 01/16/2009)
85 ORDER directing class counsel to provide notice to the class. Signed by Judge Gregory A. Presnell on 1/21/2009. (Attachments: # 1 Class Action Settlement Notice)(TFF) (Entered: 01/21/2009)
86 Joint MOTION to amend/correct Method of Notice to the 63 Individual Settlement Class Members by all parties. (White, Jeremy) (Entered: 01/28/2009)
87 ORDER granting 86 joint motion to amend method of notice. Signed by Judge Gregory A. Presnell on 1/29/2009. (TFF) (Entered: 01/29/2009)
88 MOTION for Extension of Time to File Attorney Fees Petitions by all plaintiffs. (Baker, John) (Entered: 02/04/2009)
89 ORDER granting in part 88 Motion for Extension of Time to File Fee Applications. Signed by Judge Gregory A. Presnell on 2/5/2009. (TFF) (Entered: 02/05/2009)
90 NOTICE of Compliance by Mahala Ault, Stacie Rhea and Dan Wallace re 85 Order and 87 Order on motion to amend/correct (Baker, John) Text modified on 2/9/2009 (RDO). (Entered: 02/06/2009)
91 Unopposed MOTION for attorney fees by Stacie Rhea. (Attachments: # 1 Exhibit 1)(Baker, John) (Entered: 02/13/2009)
92 Unopposed MOTION for attorney fees by Dan Wallace. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Baker, John) (Entered: 02/13/2009)
93 MOTION for attorney fees and costs by Mahala Ault. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Dempsey, Bernard) (Entered: 02/27/2009)
94 NOTICE of Hearing on 91 Unopposed MOTION for attorney fees, 92 Unopposed MOTION for attorney fees, 93 MOTION for attorney fees and costs : Motion Hearing set for 3/31/2009 at 09:00 AM in Courtroom 6 before Judge Gregory A. Presnell. (TKW) (Entered: 03/02/2009)
95 NOTICE by Mahala Ault of filing Substituted Affidavit re 93 MOTION for attorney fees and costs (Attachments: # 1 Exhibit A − Substituted Affidavit of Nancy A. Johnson)(Dempsey, Bernard) Text modified on 3/3/2009 (RDO). (Entered: 03/02/2009)
96 RESPONSE/OBJECTION re 85 Order filed by Ron Lachman. (RDO) (Entered: 03/12/2009)
97 OBJECTION re 85 Order in Opposition to Approval of the Settlement and to Class Certification. (Attachments: # 1 Exhibit A − Declaration of David Geffen, # 2 Exhibit B − Declaration of Jerry Kerr, # 3 Exhibit − Declaration of Tina Baughman, # 4 Exhibit D − Declarations of DRAFT members)(Bates, Aaron) Text modified on 3/13/2009 (RDO). Modified on 3/13/2009 (LAM). (Entered: 03/12/2009)
98 NOTICE by Disability Rights Advocates for Technology re 85 Order, 97 Objection of Intention to Appear at Fairness Hearing (Bates, Aaron) (Entered: 03/12/2009)
99 NOTICE of Appearance by Aaron C. Bates on behalf of Tina Baughman, Jerry Kerr, Disability Rights Advocates for Technology (Bates, Aaron) (Entered: 03/12/2009)
100 MOTION to file amicus brief by US Dept of Justice. (Attachments: # 1 Main Document DOJ Disney Class Action Settlement Objections, # 2 Exhibit A − DOJ

Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 13 of 25

03/12/2009 03/13/2009 03/16/2009 03/18/2009 03/19/2009 03/20/2009 03/23/2009 03/24/2009
03/24/2009
03/25/2009 03/25/2009 03/25/2009 03/25/2009
03/26/2009
03/26/2009

May Class Action Settlement Objections, # 3 Exhibit B − May Class Action Order, # 4 Exhibit C − Title III NPRM Excerpts)(Jacobs, Gretchen) (Entered: 03/12/2009)
102 DECLARATION of Christopher White re 97 Objection by Advocacy Center for Persons with Disabilities, Inc. (CD) (Entered: 03/13/2009)
101 NOTICE by Mahala Ault of Filing (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Dempsey, Bernard) (Entered: 03/13/2009)
103 NOTICE OF OBJECTION in opposition to approval of the settlement, re 85 Order by Advocacy Center for Persons with Disabilities, Inc. (AG) (Entered: 03/17/2009)
104 Unopposed MOTION for David Geffen and David Ferleger to appear pro hac vice by Tina Baughman, Jerry Kerr, Disability Rights Advocates for Technology. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Bates, Aaron) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 03/18/2009)
105 ORDER granting 104 motion to appear pro hac vice. Signed by Magistrate Judge Karla R. Spaulding on 3/19/2009. (CHM) (Entered: 03/19/2009)
106 CERTIFICATE of Counsel re 100 MOTION to file amicus brief of Consent per LR 3.01(g) to United States' Participation as Amicus Curiae by Gretchen Elizabeth Jacobs on behalf of US Dept of Justice (Jacobs, Gretchen) (Entered: 03/20/2009)
107 CERTIFICATE of Counsel re 100 MOTION to file amicus brief − Second Notice of Parties' Consent Per LR 3.01(g) by Gretchen Elizabeth Jacobs on behalf of US Dept of Justice (Jacobs, Gretchen) (Entered: 03/23/2009)
108 ORDER granting 100 Motion to file amicus brief. The Department of Justices amicus curiae brief shall be limited to no more than twenty−five (25) pages in length and shall be filed by no later than 5:00 p.m. tomorrow, Wednesday, March 25, 2009.Named Plaintiffs and Defendant may file replies, limited to no more than ten (10) pages in length, by no later than 4:00 p.m. on Monday, March 30, 2009. Signed by Judge Gregory A. Presnell on 3/24/2009. (TFF) (Entered: 03/24/2009)
109 OBJECTION re 85 Order by Amicus Curiae US in Opposition to Approval of Propsed Class Action Settlement Agreement by US Dept of Justice. (Attachments: # 1 Exhibit A − DOJ May Class Settlement Objections, # 2 Exhibit B − May Class Action Order, # 3 Exhibit C − DOJ Title III NPRM Excerpts)(Jacobs, Gretchen) (Entered: 03/24/2009)
110 Joint MOTION for miscellaneous relief, specifically for Telephone Conference with Court Prior to Fairness Hearing by Walt Disney World Co., Mahala Ault, US Dept of Justice, Tina Baughman, Jerry Kerr, Disability Rights Advocates for Technology, Stacie Rhea. (Bates, Aaron) (Entered: 03/25/2009)
111 NOTICE by Walt Disney World Co. Regarding Error in Joint Motion for Telephone Conference prior to Fairness Hearing (White, Jeremy) (Entered: 03/25/2009)
112 MOTION to amend/correct 97 Objection Exhibit D by Tina Baughman, Jerry Kerr, Disability Rights Advocates for Technology. (Attachments: # 1 Exhibit A−1, # 2 Exhibit A−2)(Bates, Aaron) (Entered: 03/25/2009)
113 RESPONSE re 111 Notice (Other) Regarding Error in Joint Motion for Telephonic Conference Prior to Fairness Hearing filed by Tina Baughman, Jerry Kerr, Disability Rights Advocates for Technology. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Bates, Aaron) Text modified on 3/26/2009 (RDO). (Entered: 03/25/2009)
114 MOTION to compel Defendant Walt Disney World Co. to Produce a Sample Four−Wheeled ESV and memorandum of law in support filed by Tina Baughman, Jerry Kerr, Disability Rights Advocates for Technology. (Bates, Aaron) Motion referred to Magistrate Judge Karla R. Spaulding. Text modified on 3/26/2009 (RDO). Modified on 4/1/2009 (MAA). (Entered: 03/26/2009)
115 MOTION for miscellaneous relief, specifically to Shorten Defendants Time to Respond to Motion for Leave to File Amended and Corrected Exhibit D of the Objection and to Motion to Compel Defendant to Produce a Sample Four−Wheeled

Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 14 of 25

03/26/2009
03/27/2009 03/27/2009
03/27/2009 03/30/2009 03/31/2009 03/31/2009
04/01/2009 04/02/2009 04/02/2009 04/02/2009 04/02/2009 04/02/2009 04/02/2009 04/03/2009 04/03/2009

ESV filed by Tina Baughman, Jerry Kerr, Disability Rights Advocates for Technology. (Bates, Aaron) Text modified on 3/26/2009 (RDO). (Entered: 03/26/2009)
116 ORDER Postponing Fairness Hearing. The fairness hearing currently scheduled for Tuesday, March 31, 2009 is postponed. The Court will enter a separate Order establishing a new date and time for the hearing and will soon schedule a status conference to discuss same. Defendant is ordered to file its response to the Motion to Compel 114 by no later than Friday, April 3, 2009. Signed by Judge Gregory A. Presnell on 3/26/2009. (TFF) (Entered: 03/26/2009)
117 MOTION for miscellaneous relief, specifically Motion to Extend the Deadline for Filing a Reply to the Department of Justice's Amicus Curiae Brief by Walt Disney World Co.. (White, Jeremy) (Entered: 03/27/2009)
118 ENDORSED ORDER granting 117 Defendant's Motion to Extend Deadline to File Response to Amicus Curiae brief. Defendant shall file its response by no later than Friday, April 3, 2009. Signed by Judge Gregory A. Presnell on 3/27/2009. (TFF) (Entered: 03/27/2009)
119 MEMORANDUM in opposition re 93 Motion for attorney fees and costs filed by Walt Disney World Co.. (White, Jeremy) (Entered: 03/27/2009)
120 MOTION for Extension of Time to File Response/Reply as to 109 Objection by all plaintiffs. (Baker, John) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 03/30/2009)
121 ORDER granting 120 Motion for Extension of Time to File Response/Reply. Signed by Judge Gregory A. Presnell on 3/31/2009. (TFF) (Entered: 03/31/2009)
122 NOTICE of Status Conference: Status Conference set for 4/9/2009 at 03:00 PM in Orlando Courtroom 5 A; (Out−of−town counsel may appear by telephone. If they wish to do so, however, they must set up their own telephone conference call with all parties on the line before placing the call into the courtroom at (407) 835−3832 by 2:55 p.m. ) before Judge Gregory A. Presnell (TKW) Modified on 4/1/2009 (RDO). (Entered: 03/31/2009)
123 MOTION to continue Status Conference by Amicus US Agreed to By All Parties Except Defendant Disney by US Dept of Justice. (Jacobs, Gretchen) (Entered: 04/01/2009)
124 RESPONSE to motion re 123 MOTION to continue Status Conference by Amicus US Agreed to By All Parties Except Defendant Disney filed by Walt Disney World Co.. (White, Jeremy) (Entered: 04/02/2009)
125 ENDORSED ORDER denying 123 Motion to continue. Signed by Judge Gregory A. Presnell on 4/2/2009. (Presnell, Gregory) (Entered: 04/02/2009)
126 ENDORSED ORDER denying as moot 115 Motion to shorten time. Signed by Judge Gregory A. Presnell on 4/2/2009. (Presnell, Gregory) (Entered: 04/02/2009)
127 ENDORSED ORDER denying as moot 110 Motion for telephone hearing. A status conference has been scheduled. Signed by Judge Gregory A. Presnell on 4/2/2009. (Presnell, Gregory) (Entered: 04/02/2009)
128 MOTION to intervene by Jerry Miller, Disability Rights Advocates for Technology, Daniel M. Gade, Alan A Maccini, James F. Overby. (Attachments: # 1 Exhibit A)(Bates, Aaron) (Entered: 04/02/2009)
129 REQUEST for oral argument re 128 MOTION to intervene by Jerry Miller, Disability Rights Advocates for Technology, Daniel M. Gade, Alan A Maccini, James F. Overby. (Bates, Aaron) (Entered: 04/02/2009)
130 Joint Stipulation re 114 Motion to Compel and response to 116 ORDER by Walt Disney World Co., Tina Baughman, Jerry Kerr, Disability Rights Advocates for Technology. (White, Jeremy) Modified on 4/6/2009 (LAB). (Entered: 04/03/2009)
131 RESPONSE re 109 Objection − Walt Disney World Co.'s Reply to the Objections of Amicus Curiae United States filed by Walt Disney World Co.. (White, Jeremy)

Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 15 of 25

04/03/2009 04/06/2009 04/07/2009 04/09/2009 04/09/2009
04/10/2009 04/13/2009 04/14/2009 04/14/2009
04/14/2009
04/15/2009
04/16/2009 04/21/2009 04/23/2009

(Entered: 04/03/2009)
132 RESPONSE re 109 Objection Amicus Brief of the United States Department of Justice filed by Mahala Ault, Stacie Rhea, Dan Wallace. (Attachments: # 1 Exhibit 1)(Baker, John) (Entered: 04/03/2009)
133 ORDER denying as moot 114 Motion to compel in light of parties' Joint Stipulation 130 . Signed by Judge Gregory A. Presnell on 4/6/2009. (TFF) (Entered: 04/06/2009)
134 NOTICE of Appearance by David Micah Booth on behalf of US Dept of Justice (Booth, David) (Entered: 04/07/2009)
135 ENDORSED ORDER granting 112 motion to amend/correct. Signed by Judge Gregory A. Presnell on 4/9/2009. (Presnell, Gregory) (Entered: 04/09/2009)
136 Minute Entry. Proceedings held before Judge Gregory A. Presnell: Status Conference held on 4/9/2009. Counsel to provide court with date in June by early next week. The court will issue a scheduling order, setting deadlines, setting hearing date as stated in open court. Court Reporter: Diane Peede (AKJ) (Additional attachment(s) added on 4/10/2009: # 1 amended) (AKJ). (Entered: 04/09/2009)
137 ORDER regarding Objections to the Settlement. Signed by Judge Gregory A. Presnell on 4/10/2009. (Attachments: # 1 Exhibits)(RDO) (Entered: 04/10/2009)
138 Unopposed MOTION for Nancy A. Johnson to withdraw as attorney for Plaintiffs by Mahala Ault. (Johnson, Nancy) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 04/13/2009)
139 ORDER granting 138 Unopposed Motion for Leave to Withdraw as Counsel. Signed by Magistrate Judge Karla R. Spaulding on 4/14/2009. (CHM) (Entered: 04/14/2009)
140 RESPONSE re 136 Status Conference − Consolidated Response on Date for the Fairness Hearing and Response of the Parties on Date for the Attorneys' Fees Motions filed by Walt Disney World Co., Mahala Ault, US Dept of Justice, Tina Baughman, Jerry Kerr, Disability Rights Advocates for Technology, Stacie Rhea, Dan Wallace. (White, Jeremy) (Entered: 04/14/2009)
141 AMENDED DOCUMENT by Tina Baughman, Jerry Kerr, Disability Rights Advocates for Technology. Amendment to 97 Objection OF DRAFT AND INDIVIDUAL OBJECTORS IN OPPOSITION TO APPROVAL OF THE SETTLEMENT AND TO CLASS CERTIFICATION. (Attachments: # 1 Main Document Exhibit D − Part 2)(Bates, Aaron) Modified on 4/15/2009: Attorney notified this document is not in proper filing format. (LAB). (Entered: 04/14/2009)
142 NOTICE by Tina Baughman, Jerry Kerr, Disability Rights Advocates for Technology re 141 Amended document OF FILING AMENDED AND CORRECTED EXHIBIT D OF THE OBJECTIONS OF DRAFT AND INDIVIDUAL OBJECTORS IN OPPOSITION TO APPROVAL OF THE SETTLEMENT AND TO CLASS CERTIFICATION (Bates, Aaron) (Entered: 04/15/2009)
143 ORDER rescheduling fairness hearing, establishing limited briefing schedule, and directing counsel to provide notice to the class. Signed by Judge Gregory A. Presnell on 4/16/2009. (Attachments: # 1 Second Notice of Class Action Settlement)(TFF) (Entered: 04/16/2009)
144 NOTICE by US Dept of Justice of Newly−Discovered Statutory Class Action Authority (Attachments: # 1 Exhibit A − CAFA Statute)(Jacobs, Gretchen) (Entered: 04/21/2009)
145 MOTION for leave to file Complaint against Defendant Walt Disney World Co. and Incorporated Memorandum of Law in Support by Tina Baughman, Jerry Kerr, Disability Rights Advocates for Technology. (Bates, Aaron) (Entered: 04/23/2009)

Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 16 of 25

04/23/2009 04/23/2009 04/24/2009 04/27/2009 04/27/2009 04/28/2009
04/28/2009 04/28/2009 04/29/2009
05/01/2009 05/01/2009 05/01/2009 05/01/2009 05/05/2009 05/05/2009 05/13/2009

146 NOTICE by Walt Disney World Co. − Notice of Proposed Class Action Settlement Sent to State and Federal Officials (White, Jeremy) (Entered: 04/23/2009)
147 RESPONSE in opposition re 128 MOTION to intervene filed by Walt Disney World Co.. (White, Jeremy) (Entered: 04/23/2009)
148 ORDER denying 128 Motion to intervene as untimely and unwarranted. Signed by Judge Gregory A. Presnell on 4/24/2009. (TKW) (Entered: 04/24/2009)
149 ORDER denying 145 Motion for leave to file Complaint and ordering Defendant Walt Disney World Co. to file Notice of Compliance with 28 U.S.C. 1715(b) by no later than Friday, May 15, 2009. Signed by Judge Gregory A. Presnell on 4/27/2009. (TFF) (Entered: 04/27/2009)
150 MOTION for miscellaneous relief, specifically Leave to File Consolidated Reply to Response Memoranda of Named Plaintiffs and Defendant Disney to Amicus United States' Written Objections to Proposed Class Action Settlement by US Dept of Justice. (Jacobs, Gretchen) (Entered: 04/27/2009)
151 RESPONSE in opposition re 150 MOTION for miscellaneous relief, specifically Leave to File Consolidated Reply to Response Memoranda of Named Plaintiffs and Defendant Disney to Amicus United States' Written Objections to Proposed Class Action Settlement filed by Walt Disney World Co.. (White, Jeremy) (Entered: 04/28/2009)
152 NOTICE OF APPEAL as to 148 Order on motion to intervene by Jerry Miller, Disability Rights Advocates for Technology, Daniel M. Gade, Alan A Maccini, James F. Overby. (Filing fee not paid) (Bates, Aaron) (Entered: 04/28/2009)
153 ENDORSED ORDER denying 150 Motion for Leave to File Reply. Signed by Judge Gregory A. Presnell on 4/28/2009. (TFF) (Entered: 04/28/2009)
TRANSMITTAL of initial appeal package to USCA consisting of certified copies of notice of appeal, docket sheet, order/judgment being appealed, and motion, if applicable to USCA re 152 Notice of appeal. Eleventh Circuit Transcript information form forwarded to pro se litigants and available to counsel at www.flmd.uscourts.gov under Forms and Publications/General. (VEF) (Entered: 04/29/2009)
154 Unopposed MOTION for Extension of Time to File Response/Reply to the Objections by Walt Disney World Co.. (White, Jeremy) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 05/01/2009)
155 ENDORSED ORDER granting 154 Motion for Extension of Time to File Response/Reply. Signed by Judge Gregory A. Presnell on 5/1/2009. (TFF) (Entered: 05/01/2009)
156 NOTICE to the Courts to take judicial notice regarding pleading filed by amicus curiae United States in another federal case by US Dept of Justice. (Attachments: # 1 Exhibit 1 − Notice of US' Withdrawal of Carnival Class Settlement Objections)(Jacobs, Gretchen) (Entered: 05/01/2009)
157 MEMORANDUM OF LAW in opposition to 97 Objection filed by Dan Wallace. (Attachments: # 1 Exhibit 1)(Baker, John) Text modified on 5/4/2009 (RDO). (Entered: 05/01/2009)
USCA appeal fees received $ 455 receipt number 31091 re 152 Notice of appeal filed by Alan A Maccini, Disability Rights Advocates for Technology, Daniel M. Gade, Jerry Miller, James F. Overby (copy to USCA) (VEF) (Entered: 05/05/2009)
158 RESPONSE re 101 Notice (Other), 96 Response, 97 Objection, 102 Declaration − Walt Disney World Co.'s Consolidated Response to Objections filed by Walt Disney World Co.. (White, Jeremy) (Entered: 05/05/2009)
159 USCA Order, denying Walt Disney Worlds Co's Motion to extend the deadline to 5/18/09 is denied but is granted to noon on 5/15/09.USCA 09−12196−A (VEF) (Entered: 05/14/2009)

Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 17 of 25

05/15/2009 05/15/2009 05/15/2009 05/17/2009 05/17/2009 05/17/2009 05/17/2009 05/18/2009 05/18/2009 05/18/2009
05/19/2009
05/20/2009 05/22/2009 05/22/2009 05/22/2009 05/26/2009

160 MOTION to stay pending interlocutory appeal (originally filed as NOTICE/Suggestion to the Court Regarding Jurisdiction) by Disability Rights Advocates for Technology (Ferleger, David) Construed as a motion per Order 170 . Modified on 5/20/2009 (JET). (Entered: 05/15/2009)
161 NOTICE by Dan Wallace Regarding Witnesses and Exhibits for Fairness Hearing (Baker, John) (Entered: 05/15/2009)
162 NOTICE by Tina Baughman, Jerry Kerr, Disability Rights Advocates for Technology re 143 Order REGARDING INTENT TO OFFER WITNESSES AND TANGIBLE EVIDENCE AT FAIRNESS HEARING (Bates, Aaron) (Entered: 05/15/2009)
163 MOTION to compel DEPOSITION OF CLASS ATTORNEY JOHN BAKER AND MOTION TO SHORTEN TIME FOR RESPONSE by Tina Baughman, Jerry Kerr, Disability Rights Advocates for Technology. (Bates, Aaron) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 05/17/2009)
164 NOTICE by Walt Disney World Co. − Disclosing Evidence and Testimony for Presentation at the Fairness Hearing (White, Jeremy) (Entered: 05/17/2009)
165 NOTICE of compliance with 28 U.S.C. § 1715(b) by Walt Disney World Co. (White, Jeremy) (Entered: 05/17/2009)
166 NOTICE by Walt Disney World Co. − Notice of Filing Opposition to Motion for Summary Remand in the Eleventh Circuit (White, Jeremy) (Entered: 05/17/2009)
167 TRANSCRIPT information form filed by Jerry Miller, Disability Rights Advocates for Technology, Daniel M. Gade, Alan A Maccini, James F. Overby re 152 Notice of appeal. USCA number: 09−12196−A. (Bates, Aaron) (Entered: 05/18/2009)
168 ORDER that a response to the motion to compel deposition of class attorney 163 shall be filed on or before May 22, 2009. Signed by Magistrate Judge Karla R. Spaulding on 5/18/2009. (Spaulding, Karla) (Entered: 05/18/2009)
169 MOTION to Compel Walt Disney World Co. to Produce previously produced paper discovery and a sample four−wheeled ESV and ECV and memorandum of law in support and MOTION to Shorten Time for Response by Tina Baughman, Jerry Kerr, Disability Rights Advocates for Technology. (Attachments: # 1 Exhibit A)(Bates, Aaron) Motion referred to Magistrate Judge Karla R. Spaulding. Text modified on 5/19/2009 (RDO). (Entered: 05/18/2009)
170 ORDER construing 160 as a motion to stay, establishing deadlines for parties to respond to pending motions 160 163 169 , and notifying the parties, objectors and absent class members that, in the event these proceedings are not stayed, the fairness hearing in this matter will begin as scheduled at 9:00 a.m. on Wednesday, June 3, 2009, and will now continue, if necessary, through Friday, June 5, 2009. Signed by Judge Gregory A. Presnell on 5/19/2009. (TFF) (Entered: 05/19/2009)
171 Supplemental NOTICE regarding Evidence to be Submitted at the Fairness Hearing by Dan Wallace (Baker, John) Modified on 5/21/2009 (JET). (Entered: 05/20/2009)
172 RESPONSE to motion re 163 MOTION to compel DEPOSITION OF CLASS ATTORNEY JOHN BAKER AND MOTION TO SHORTEN TIME FOR RESPONSE filed by Dan Wallace. (Attachments: # 1 Exhibit 1)(Baker, John) (Entered: 05/22/2009)
173 RESPONSE to motion re 163 MOTION to compel DEPOSITION OF CLASS ATTORNEY JOHN BAKER AND MOTION TO SHORTEN TIME FOR RESPONSE filed by Mahala Ault. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Dempsey, Bernard) (Entered: 05/22/2009)
174 RESPONSE to motion re 163 MOTION to compel DEPOSITION OF CLASS ATTORNEY JOHN BAKER AND MOTION TO SHORTEN TIME FOR RESPONSE filed by Walt Disney World Co.. (White, Jeremy) (Entered: 05/22/2009)
175 ENDORSED ORDER denying 163 Motion to compel. Signed by Judge Gregory A. Presnell on 5/26/2009. (Presnell, Gregory) (Entered: 05/26/2009)

Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 18 of 25

05/26/2009 05/26/2009
05/26/2009 05/26/2009
05/26/2009 05/27/2009 05/27/2009
05/27/2009 05/27/2009
05/27/2009
05/27/2009 05/27/2009 05/28/2009 05/29/2009

176 RESPONSE to motion re 160 MOTION to stay pending interlocutory appeal (originally filed as a NOTICE)MOTION to stay pending interlocutory appeal (originally filed as a NOTICE) filed by Mahala Ault. (Dempsey, Bernard) (Entered: 05/26/2009)
177 NOTICE by Jerry Miller, Disability Rights Advocates for Technology, Daniel M. Gade, Alan A Maccini, James F. Overby TO THE COURT OF JUSTICE DEPARTMENT ACTION ON PENDING RULES AND OF FLORIDA STATUTE REGARDING PERSONAL ELECTRIC VEHICLES (Bates, Aaron) (Entered: 05/26/2009)
178 RESPONSE in opposition re 160 MOTION to stay pending interlocutory appeal (originally filed as a NOTICE)MOTION to stay pending interlocutory appeal (originally filed as a NOTICE) filed by Walt Disney World Co.. (White, Jeremy) (Entered: 05/26/2009)
179 RESPONSE in opposition re 169 MOTION to compel Walt Disney World Co. to Produce previously produced paper discovery and a sample four−wheeled ESV and ECV and MOTION to Shorten Time for Response filed by Walt Disney World Co.. (Attachments: # 1 Declaration of Jeremy M. White)(White, Jeremy) (Entered: 05/26/2009)
180 RESPONSE to motion re 160 MOTION to stay pending interlocutory appeal (originally filed as a NOTICE)MOTION to stay pending interlocutory appeal (originally filed as a NOTICE) filed by Dan Wallace. (Baker, John) (Entered: 05/26/2009)
181 MOTION for leave to file REPLY TO DEFENDANTS RESPONSE TO OBJECTORS MOTION TO COMPEL by Tina Baughman, Jerry Kerr, Disability Rights Advocates for Technology. (Bates, Aaron) (Entered: 05/27/2009)
182 CERTIFICATE of compliance re 181 MOTION for leave to file REPLY TO DEFENDANTS RESPONSE TO OBJECTORS MOTION TO COMPEL by Filing of Supplemental and Corrective Local Rule 3.01(g) Certification by Tina Baughman, Jerry Kerr, Disability Rights Advocates for Technology. (Bates, Aaron) (Entered: 05/27/2009)
183 ORDER denying 169 Motion to compel; denying as moot 181 Motion for leave to file. Signed by Judge Gregory A. Presnell on 5/27/2009. (TFF) (Entered: 05/27/2009)
184 MOTION to strike 177 Notice (Other)Notice (Other) − Walt Disney World Co.'s Motion to Strike Disability Rights Advocates for Technology, et al.'s Notice to the Court of Justice Department Action on Pending Rules and Florida Statute regarding Personal Electric Vehicles by Walt Disney World Co.. (White, Jeremy) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 05/27/2009)
185 ORDER denying 160 Motion to stay and ORDERING certain Objectors to SHOW CAUSE, by no later than June 10, 2009, why they and their counsel should not be subject to sanctions pursuant to 28 U.S.C. § 1927 and Federal Rule of Civil Procedure 11. Signed by Judge Gregory A. Presnell on 5/27/2009. (TFF) (Entered: 05/27/2009)
186 ENDORSED ORDER denying as moot 184 Motion to strike in light of 185 . Signed by Judge Gregory A. Presnell on 5/27/2009. (TFF) (Entered: 05/27/2009)
187 MOTION for leave to file Objections to the Proposed Settlement by National Council on Independent Living, Paralyzed Veterans of America. (RDO) (Entered: 05/28/2009)
188 ENDORSED ORDER granting 187 Motion for leave to file objections. The objections of the National Council on Independent Living and Paralyzed Veterans of America, as stated in Exhibit A (Doc. 187 at 8−9), are so noted. Signed by Judge Gregory A. Presnell on 5/28/2009. (TFF) (Entered: 05/28/2009)
189 Joint MOTION to amend/correct the Joint Stipulation of Settlement and Release to Remove Restriction on Communications with the Media by Walt Disney World Co., Mahala Ault, Stacie Rhea, Dan Wallace. (White, Jeremy) (Entered:

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05/29/2009 05/29/2009
05/29/2009 05/29/2009 05/29/2009 06/01/2009 06/01/2009
06/01/2009 06/01/2009 06/02/2009 06/02/2009 06/03/2009 06/03/2009

05/29/2009)
190 Joint MOTION to allow electronic equipment, specifically laptops and cellular telephones to be brought into the Courthouse for the Fairness Hearing by counsel, by Walt Disney World Co., Mahala Ault, US Dept of Justice, Tina Baughman, Jerry Kerr, Disability Rights Advocates for Technology, Stacie Rhea, Dan Wallace. (Bates, Aaron) (Entered: 05/29/2009)
191 ORDER allowing Jay Cardinali, representative for the Defendant Disney in this case, permission to bring one Electronic Standard Vehicle (ESV), one Electronic Convenience Vehicle (ECV), one manual wheelchair, and two Segways; Jerry and Rene Fabrick, representatives for the Objector group DRAFT permission to bring one Segway for use at the evidentiary hearing on June 3−5, 2009 in Courtroom 3A before Judge Presnell Signed by Judge Gregory A. Presnell on 5/29/2009. (Hard copy given to court security − parties MUST have a copy of this order on them when entering the federal courthouse with equipment)(AKJ) (Additional attachment(s) added on 5/29/2009: # 1 corrected) (AKJ). (Entered: 05/29/2009)
192 NOTICE by Walt Disney World Co. of Eleventh Circuit Ruling (Attachments: # 1 Exhibit 1 − Eleventh Circuit Order)(White, Jeremy) (Entered: 05/29/2009)
193 MOTION to Appear Telephonically [Time−Sensitive Motion for Permission to Participate by Telephone Conferencing in the Fairness Hearing Which is Scheduled for June 3−5,2009] by Mahala Ault. (Dempsey, Bernard) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 05/29/2009)
194 Unopposed MOTION to file amicus brief by Florida Attorney General. (Attachments: # 1 Main Document Proposed Amicus Brief, # 2 Affidavit)(Kent, Russell) (Entered: 05/29/2009)
195 ENDORSED ORDER granting 189 Motion to Amend Joint Stipulation. Signed by Judge Gregory A. Presnell on 6/1/2009. (TFF) (Entered: 06/01/2009)
196 ORDER granting 190 Motion to allow electronic equipment. Bernard Dempsey, Jason Medley, John Baker, J. Phillip Krajewski, Kerry Scanlon, Jeremy White, Gretchen Jacobs, Aaron C. Bates, Matthew Mokwa, David Geffen and David Ferleger each have permission to bring one cellular telephone and one laptop computer for use at the hearing on June 3−5, 2009. Counsel must have a copy of the order with them each time entering the federal courthouse with equipment signed by Judge Gregory A. Presnell on 6/1/2009. (Hard copy given to Court security)(AKJ) (Entered: 06/01/2009)
197 ORDER granting 193 Motion to Appear Telephonically. Plaintiff Mahala Ault may appear by telephone. Counsel shall provide her telephone number to the courtroom deputy clerk at the outset of the hearing beginning on June 3, 2009 Signed by Judge Gregory A. Presnell on 6/1/2009. (Counsel emailed/copies mailed) (AKJ) (Entered: 06/01/2009)
198 ENDORSED ORDER granting 194 Motion to file amicus brief. The amicus curiae brief of the Attorneys General of certain States is accepted as filed and docketed at [194−2]. Signed by Judge Gregory A. Presnell on 6/1/2009. (TFF) (Entered: 06/01/2009)
199 NOTICE of Filing by Florida Attorney General (Attachments: # 1 Exhibit)(Kent, Russell) Text modified on 6/3/2009 (RDO). (Entered: 06/02/2009)
200 Unopposed MOTION for Brant Harrell &Jeff Feltman to appear pro hac vice by Florida Attorney General. (Kent, Russell) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 06/02/2009)
201 ENDORSED ORDER granting 200 motion to appear pro hac vice. Attorneys Brant Harrell and Jeffrey Feltman are hereby admitted to appear in an amicus curiae capacity of behalf of the State of Tennessee and the State of Illinois, respectively. Signed by Judge Gregory A. Presnell on 6/3/2009. (TFF) (Entered: 06/03/2009)
202 ORDER of USCA as to 152 Notice of appeal filed by Alan A Maccini, Disability Rights Advocates for Technology, Daniel M. Gade, Jerry Miller, James F. Overby. EOD: 5/28/09; USCA number: 09−12196−A. (VEF) (Entered: 06/03/2009)

Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 20 of 25

06/03/2009 06/05/2009 06/05/2009 06/05/2009 06/08/2009 06/11/2009
06/11/2009
06/11/2009
06/11/2009 06/18/2009

203 Minute Entry. Proceedings held before Judge Gregory A. Presnell: Evidentiary Hearing DAY 1 held on 6/3/2009. Evidence/witnesses entered and presented. Continued until 6/4/09 at 8:30 a.m. Court Reporter: Diane Peede (AKJ) (Entered: 06/03/2009)
204 Minute Entry. Proceedings held before Judge Gregory A. Presnell: Evidentiary Hearing DAY 2 held on 6/4/2009. Evidence/witnesses presented and submitted. Objector's exhibit 11 is placed UNDER SEAL. State of Florida, Department of Justice, Objectors and Defendant Walt Disney will each pay 25% towards the cost of the transcript and briefs will be 30 days from the date the transcript is filed. Court takes the matter UNDER ADVISEMENT. Court Reporter: Diane Peede (AKJ) (Entered: 06/05/2009)
205 EXHIBIT LIST by Walt Disney World Co. from June 3−4, 2009 evidentiary fairness hearing (Attachments: # 1 Exhibit 1, # 2 Errata 2 − dvd not scanned, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6 − blow up not scanned, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9 − part 1, # 10 Exhibit 9 − part 2, # 11 Exhibit 9 − part 3, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13 − part 1, # 16 Exhibit 13 − part 2, # 17 Exhibit 13 − part 3, # 18 Exhibit 13 − part 4, # 19 Exhibit 13 − part 5)(AKJ) (Entered: 06/05/2009)
206 EXHIBIT LIST by OBJECTOR'S Disability Rights Advocates for Technology. (Attachments: # 1 Exhibit 6 − part 1, # 2 Exhibit 6 − part 2, # 3 Exhibit 7 − dvd not scanned, # 4 Exhibit 8, # 5 Exhibit 9, # 6 Exhibit 11 − UNDER SEAL − NOT SCANNED, # 7 Exhibit 14 − dvd not scanned, # 8 Exhibit 20)(AKJ) (Entered: 06/05/2009)
207 RESPONSE TO ORDER TO SHOW CAUSE re 185 Order on motion to stay filed by Tina Baughman, Jerry Kerr, Disability Rights Advocates for Technology. (Bates, Aaron) (Entered: 06/08/2009)
208 TRANSCRIPT of fairness hearing (day one) held on June 3, 2009, before Judge Gregory A. Presnell. Court Reporter/Transcriber Diane Peede,Telephone number (407) 615−0305. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court Reporter. Redaction Request due 7/2/2009, Redacted Transcript Deadline set for 7/13/2009, Release of Transcript Restriction set for 9/9/2009. (DP) (Entered: 06/11/2009)
209 TRANSCRIPT of fairness hearing (day two) held on June 4, 2009, before Judge Gregory A. Presnell. Court Reporter/Transcriber Diane Peede,Telephone number (407) 615−0305. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court Reporter. Redaction Request due 7/2/2009, Redacted Transcript Deadline set for 7/13/2009, Release of Transcript Restriction set for 9/9/2009. (DP) (Entered: 06/11/2009)
210 NOTICE to counsel of filing of OFFICIAL TRANSCRIPT (doc. nos. 208−209). The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal. Court Reporter: Diane Peede (DP) (Entered: 06/11/2009)
211 NOTICE by Walt Disney World Co. Concerning Service under the Class Action Fairness Act (Attachments: # 1 Exhibit 1 − CAFA Notices and Corresponding Return Receipt Reports, # 2 Exhibit 2 − Declaration of Amelia Alison Schmidt, # 3 Exhibit 3 − May 19, 2009 Email from Kerry Scanlon to Ashley Davis)(White, Jeremy) (Entered: 06/11/2009)
212 ORDER that in light of the pending settlement, this case is removed from the October 2009 trial docket, and the pretrial conference scheduled for September 15, 2009 is cancelled. Signed by Judge Gregory A. Presnell on 6/18/2009. (TKW)

Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 21 of 25

07/03/2009 07/07/2009
07/08/2009 07/09/2009 07/13/2009 07/13/2009 07/13/2009
07/13/2009
07/13/2009
07/15/2009 07/20/2009 07/22/2009 07/23/2009 07/23/2009

(Entered: 06/18/2009)
213 MOTION for David Geffen to withdraw as attorney by Jerry Kerr, Disability Rights Advocates for Technology, Jerry Miller, Daniel M. Gade, Alan A Maccini, James F. Overby. (Bates, Aaron) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 07/03/2009)
214 MOTION for David Geffen to withdraw as attorney by Ron Lachman, Jerry Kerr, Disability Rights Advocates for Technology, Jerry Miller, Daniel M. Gade, Alan A Maccini, James F. Overby. (Ferleger, David) Motions referred to Magistrate Judge Karla R. Spaulding. (TERMINATED ON 7/8/2009. DOC. NOT SIGNED. ATTORNEY CALLED AND WILL REFILE) (RDO). (Entered: 07/07/2009)
215 MOTION for David Geffen to withdraw as attorney by Ron Lachman, Jerry Kerr, Disability Rights Advocates for Technology, Jerry Miller, Daniel M. Gade, Alan A Maccini, James F. Overby. (Ferleger, David) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 07/08/2009)
216 ORDER granting 215 Motion to withdraw as attorney, provided, however, that Mr. Geffen agrees not to file a separate brief in this Court on behalf of Ms. Baughman.. Signed by Judge Gregory A. Presnell on 7/9/2009. (TKW) (Entered: 07/09/2009)
217 POST−HEARING BRIEF BY OBJECTORS filed by Ron Lachman, Tina Baughman, Jerry Kerr, Disability Rights Advocates for Technology, Jerry Miller, Daniel M. Gade, Alan A Maccini, James F. Overby. (Ferleger, David) Modified on 7/14/2009 (RDO). (Entered: 07/13/2009)
218 PLAINTIFF'S BRIEF re 128 MOTION to intervene filed by Dan Wallace. (Baker, John) (Entered: 07/13/2009)
219 AMICUS CURIAE POST−HEARING BRIEF in opposition re 82 Joint MOTION for Conditional Class Certification and Preliminary Approval of Joint Stipulation of Settlement and Release by Florida Attorney General, Office of the Illinois Attorney General, Office of the Tennessee Attorney General. (Attachments: # 1 Affidavit)(Kent, Russell) Modified on 7/14/2009 (RDO). (Entered: 07/13/2009)
220 POST−HEARING BRIEF re 82 Motion to certify class filed by Walt Disney World Co.. (Attachments: # 1 Exhibit 1 − Sharkey Article, # 2 Exhibit 2 − Excerpts of Plaintiffs' Deposition Testimony, # 3 Exhibit 3 − DOJ Settlements, # 4 Exhibit 4 − Long v. Howard Univ., # 5 Exhibit 5 − Florida Environmental Policy)(White, Jeremy) Modified on 7/14/2009 (RDO). (Entered: 07/13/2009)
221 POST−FAIRNESS HEARING BRIEF OF AMICUS CURIAE re 82 Motion to certify class in further support of Objections to Proposed Class Settlement filed by US Dept of Justice. (Attachments: # 1 Exhibit 1 − Declaration of Joseph E. Gerstell IV, # 2 Exhibit 2− Declaration of Ovie Carroll)(Jacobs, Gretchen) Modified on 7/14/2009 (RDO). (Entered: 07/13/2009)
222 Unopposed MOTION for Aaron C. Bates and David Ferleger to withdraw as attorney by Tina Baughman. (Bates, Aaron) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 07/15/2009)
223 ORDER granting 222 Motion to withdraw. Signed by Judge Gregory A. Presnell on 7/20/2009. (TFF) (Entered: 07/20/2009)
224 MOTION for leave to file A FIVE−PAGE MEMORANDUM OF THE PLAINTIFF MAHALA AULT RELATING TO THE FAIRNESS OF THE CERTIFICATION AND APPROVAL OF THE SETTLEMENT AGREEMENT OUT OF TIME by Mahala Ault. (Dempsey, Bernard) (Entered: 07/22/2009)
225 ENDORSED ORDER granting 224 Motion for leave to file memo by Aug 5th. Signed by Judge Gregory A. Presnell on 7/23/2009. (Presnell, Gregory) (Entered: 07/23/2009)
226 NOTICE by Mahala Ault OF ERRONEOUS FILING (Attachments: # 1 Exhibit A − July 20 e−mail)(Dempsey, Bernard) (Entered: 07/23/2009)

Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 22 of 25

08/05/2009 10/06/2009
10/16/2009 10/16/2009
10/20/2009 10/21/2009 10/23/2009 10/30/2009
11/03/2009 11/05/2009 11/05/2009 11/05/2009 11/06/2009 11/09/2009 11/16/2009 02/17/2010
02/17/2010

227 POST HEARING MEMORANDUM in support re 82 Motion to certify class filed by Mahala Ault. (Dempsey, Bernard) Text modified on 8/6/2009 (RDO). (Entered: 08/05/2009)
228 Vacated by 251 − MEMORANDUM OPINION AND ORDER VACATING COURT'S PRIOR ORDER AT DOC. 83 AND DISMISSING PLAINTIFFS' SECOND AMENDED COMPLAINT. The Clerk of the Court is directed to terminate all pending motions. Signed by Judge Gregory A. Presnell on 10/6/2009. (TFF) *Modified text on 3/23/2011 (MAA). (Entered: 10/06/2009)
229 CERTIFICATE of readiness sent to USCA re: 152 Notice of appeal. ROA consists of: volume of pleadings: 10 volume of transcripts: 2 volume of exhibits: 4 Folder &1 Sealed envelope. (VEF) Modified on 10/16/2009 (VEF). (Entered: 10/16/2009)
RECORD on appeal sent to USCA re 152 Notice of appeal. Transmittal includes certified copy of docket sheet, volume of pleadings: 10, volume of transcripts: 2, volume of exhibits: 4 Folders &1 Sealed Envelope. USCA number 09−12196−AA (VEF) Modified on 10/16/2009 (VEF). (Entered: 10/16/2009)
230 MOTION for reconsideration by Mahala Ault, Stacie Rhea, Dan Wallace. (Baker, John) (Entered: 10/20/2009)
231 RESPONSE re 230 MOTION for reconsideration filed by Jerry Kerr, Disability Rights Advocates for Technology, Jerry Miller, Daniel M. Gade, Alan A Maccini, James F. Overby. (Ferleger, David) (Entered: 10/21/2009)
ACKNOWLEDGMENT by USCA of receiving COR &ROA on 10/21/09 re 152 Notice of appeal. USCA number: 09−12196−AA. (VEF) (Entered: 10/23/2009)
232 MOTION for issuance of Order Discharging Order to Show Cause by Tina Baughman, Jerry Kerr, Jerry Miller, Disability Rights Advocates for Technology, Daniel M. Gade, Alan A Maccini, James F. Overby. (Ferleger, David) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 10/30/2009)
233 RESPONSE to motion re 230 MOTION for reconsideration filed by Walt Disney World Co.. (White, Jeremy) (Entered: 11/03/2009)
234 ORDER denying 230 Motion for reconsideration. Signed by Judge Gregory A. Presnell on 11/5/2009. (TFF) (Entered: 11/05/2009)
235 ORDER granting 232 Motion to Discharge Order to Show Cause. Signed by Judge Gregory A. Presnell on 11/5/2009. (TFF) (Entered: 11/05/2009)
236 NOTICE OF APPEAL as to 228 Memorandum &opinion, 234 Order on motion for reconsideration by Mahala Ault, Stacie Rhea, Dan Wallace. (Filing fee not paid) (Baker, John) (Entered: 11/05/2009)
TRANSMITTAL of initial appeal package to USCA consisting of certified copies of notice of appeal, docket sheet, order/judgment being appealed, and motion, if applicable to USCA re 236 Notice of appeal. (RDO) (Entered: 11/06/2009)
USCA appeal fees received $ 455 receipt number 032813 re 236 Notice of appeal filed by Mahala Ault, Dan Wallace, Stacie Rhea (copy to USCA) (VEF) (Entered: 11/09/2009)
237 ORDER directing the Clerk of the Court to administratively close the file. Signed by Judge Gregory A. Presnell on 11/16/2009. (TFF) (Entered: 11/16/2009)
238 CERTIFICATE of readiness sent to USCA re: 236 Notice of appeal. ROA consists of: volume of pleadings: 10 volume of transcripts: 2 volume of exhibits: 5 Folders. USCA number: 09−15668−AA (VEF) Modified on 2/17/2010 (VEF). (ROA previously sent and retained with USCA has 1 sealed volume of exhibits) (VEF). (Entered: 02/17/2010)
RECORD on appeal sent to USCA re 236 Notice of appeal. Transmittal includes certified copy of docket sheet, volume of pleadings: 10, volume of transcripts: 2, volume of exhibits: 5. USCA number 09−15668−AA (VEF) Modified on 2/17/2010 (VEF). (Entered: 02/17/2010)

Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 23 of 25

02/25/2010 03/25/2010
12/16/2010 01/14/2011 01/14/2011 01/14/2011 01/14/2011 01/21/2011 01/25/2011
01/27/2011
02/04/2011 02/04/2011 03/22/2011
03/23/2011 04/04/2011

ACKNOWLEDGMENT by USCA of receiving COR &ROA on 2/19/10 re 236 Notice of appeal. USCA number: 09−15668−AA. (VEF) (Entered: 02/25/2010)
239 ORDER of USCA, dismissing this appeal since the matter is moot as to 152 Notice of appeal filed by Alan A Maccini, Disability Rights Advocates for Technology, Daniel M. Gade, Jerry Miller, James F. Overby. EOD: 3/17/10; Issued as mandate. ROA returned and consists of: volume of pleadings: 11 &1 sealed, volume of transcripts: 2 volume of exhibits: 4 folders USCA number: 09−12196. (VEF) (Entered: 03/25/2010)
240 NOTICE of Hearing: Status Conference set for 1/14/2011 at 01:00 PM in Orlando Courtroom 5 A before Judge Gregory A. Presnell (TKW) (Entered: 12/16/2010)
241 MEMORANDUM re 242 ORDER by Disability Rights Advocates for Technology, Daniel M. Gade, Alan A Maccini, Jerry Miller, James F. Overby. (Ferleger, David) Modified text on 1/18/2011 (DDK). (Entered: 01/14/2011)
242 ORDER. Objectors and Amici may file supplemental briefs on or before January 25, 2011. The parties may then file responsive memoranda within ten days after the supplemental briefs are filed. Signed by Judge Gregory A. Presnell on 1/14/2011. (LLP) (Entered: 01/14/2011)
243 ENDORSED ORDER. In light of the Eleventh Circuit's opinion on remand, the Clerk is directed to reopen this case. Signed by Judge Gregory A. Presnell on 1/14/2011. (LLP) (Entered: 01/14/2011)
244 Minute Entry for status conference proceedings held before Judge Gregory A. Presnell on 1/14/2011. Court Reporter: Diane Peede. (LAM) (Entered: 01/14/2011)
245 SUGGESTION of Death byStacie Rhea. (Baker, John) (Entered: 01/21/2011)
246 POST−REMAND BRIEF OF AMICUS CURIAE in further support of objections to proposed class settlement re 242 Order filed by US Dept of Justice. (Attachments: # 1 Exhibit A − Appellants' Brief in Ault v. Walt Disney World Co (11th Cir.), # 2 Exhibit B − Excerpted Copy of DOJ Revised Title III Regulations (Sept. 15, 2010))(Jacobs, Gretchen) Modified text on 1/26/2011 (DDK). (Entered: 01/25/2011)
247 USCA judgment VACATING and REMANDING the decision of the US District Court as to 236 Notice of appeal filed by Mahala Ault, Dan Wallace, Stacie Rhea. Entered on docket 12/14/10. Issued as Mandate on: 1/24/11. ROA returned and consists of: 10 volumes of pleadings: 2 volumes of transcripts: 5 volumes of exhibits. USCA number: 09−15668. (RDO) (Entered: 01/27/2011)
248 RESPONSE re 241 Memorandum, 246 Response − Walt Disney World Co.'s Response to the Supplemental Briefs of the DRAFT objectors and Amicus Curiae United States filed by Walt Disney World Co.. (Attachments: # 1 Exhibits 1−3)(White, Jeremy) Modified on 2/7/2011 (IGC). (Entered: 02/04/2011)
249 MEMORANDUM in support re 242 Order Post Remand Memorandum of Law in Support of Granting Class Certification and approval of Settlement filed by Mahala Ault, Stacie Rhea, Dan Wallace. (Attachments: # 1 Exhibit 1)(Baker, John) (Entered: 02/04/2011)
250 VACATED by 251 − ENDORSED ORDER directing Clerk to reopen 82 Joint MOTION for Conditional Class Certification and Preliminary Approval of Joint Stipulation of Settlement and Release filed by Mahala Ault, Dan Wallace, Stacie Rhea, Walt Disney World Co., pursuant to the December 14, 2010 decision of the United States Court of Appeals for the Eleventh Circuit. Signed by Judge Gregory A. Presnell on 3/22/2011. (LLP) *Modified text on 3/23/2011 (MAA). (Entered: 03/22/2011)
251 ORDER vacating Court's March 22, 2011 and October 6, 2009 Orders; and directing Clerk to reinstate Court's January 5, 2009 Order. Signed by Judge Gregory A. Presnell on 3/23/2011. (LLP) (Entered: 03/23/2011)
252 ORDER APPROVING CLASS ACTION SETTLEMENT. The parties shall submit a proposed Final Judgment consistent with this Order on or before Friday, April 22, 2011. Signed by Judge Gregory A. Presnell on 4/4/2011. (LLP) (Entered:

Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 24 of 25

04/22/2011 04/25/2011 04/26/2011 04/26/2011 04/29/2011
05/02/2011
05/02/2011
05/10/2011 05/17/2011 05/17/2011 05/20/2011 05/20/2011 05/23/2011
05/27/2011 05/31/2011 06/06/2011
06/07/2011

04/04/2011)
253 PROPOSED CONSENT JUDGMENT − [Proposed] Final Judgment by Mahala Ault, Stacie Rhea, Dan Wallace, Walt Disney World Co.. (White, Jeremy) (Entered: 04/22/2011)
254 FINAL JUDGMENT. Signed by Judge Gregory A. Presnell on 4/25/2011. (LLP) (Entered: 04/25/2011)
255 NOTICE of Hearing: Miscellaneous Hearing (on attorney's fees) set for 7/15/2011 at 01:30 PM in Orlando Courtroom 5 A before Judge Gregory A. Presnell. (TKW) (Entered: 04/26/2011)
256 ORDER setting out briefing schedule for attorney's fees petition. Signed by Judge Gregory A. Presnell on 4/26/2011. (TKW) (Entered: 04/26/2011)
257 NOTICE OF INTERLOCUTORY APPEAL as to 252 Order, 254 Order by Disability Rights Advocates for Technology, Daniel M. Gade, Jerry Kerr, Alan A Maccini, Jerry Miller, James F. Overby. (Filing fee not paid) (Ferleger, David) Modified on 5/2/2011 (IGC). (Entered: 04/29/2011)
TRANSMITTAL of initial appeal package to USCA consisting of certified copies of notice of appeal, docket sheet, order/judgment being appealed, and motion, if applicable to USCA re 257 Notice of appeal. Eleventh Circuit Transcript information form forwarded to pro se litigants and available to counsel at www.flmd.uscourts.gov under Forms and Publications/General. (IGC) (Entered: 05/02/2011)
USCA appeal fees received $455 − receipt number ORL006924, re 257 Notice of appeal filed by Alan A Maccini, Disability Rights Advocates for Technology, Daniel M. Gade, Jerry Kerr, Jerry Miller and James F. Overby. (RDO) (Entered: 05/02/2011)
TRANSMITTAL to USCA forwarding updated docket sheet notifying USCA that appeal has been paid re 257 Notice of appeal (IGC) (Entered: 05/10/2011)
258 Joint MOTION to stay Deadlines Regarding Plaintiff Mahala Ault's Petition for Attorneys' Fees by Mahala Ault, Walt Disney World Co.. (White, Jeremy) (Entered: 05/17/2011)
259 ORDER denying 258 Motion to stay. Signed by Judge Gregory A. Presnell on 5/17/2011. (LLP) (Entered: 05/17/2011)
260 STIPULATION − Joint Stipulation by Mahala Ault, Walt Disney World Co.. (White, Jeremy) (Entered: 05/20/2011)
261 Unopposed MOTION for attorney fees by Mahala Ault. (Attachments: # 1 Exhibit Affidavit in Support)(Dempsey, Bernard) (Entered: 05/20/2011)
262 ORDER granting 261 Motion for attorney fees; counsel for Plaintiff, Mahala Ault, Dempsy &Associates, PA, is hereby awarded fees and costs in the amount of $40,000.00, which shall be paid by Defendant, Walt Disney World Co. in accordance with the Joint Stipulation (Doc. 260 ). Signed by Judge Gregory A. Presnell on 5/23/2011. (TKW) (Entered: 05/23/2011)
ACKNOWLEDGMENT by USCA of receiving updated docket sheet on 5/13/11 re 257 Notice of appeal. (RDO) (Entered: 05/27/2011)
Mail returned as Undeliverable re: 259 Order on motion to stay. Mail resent to Department of Fair Employment &Housing with new Suite number. (MAL) (Entered: 06/01/2011)
263 TRANSCRIPT information form filed by Disability Rights Advocates for Technology, Daniel M. Gade, Jerry Kerr, Alan A Maccini, Jerry Miller, James F. Overby re 257 Notice of appeal. USCA number: 11−12013−B. (Ferleger, David) (Entered: 06/06/2011)
264 TRANSCRIPT information form filed by Disability Rights Advocates for Technology, Daniel M. Gade, Jerry Kerr, Alan A Maccini, Jerry Miller, James F.

Case: 6:07-cv-01785-GAP-KRS As of: 05/24/2013 09:54 AM EDT 25 of 25

06/08/2011 06/09/2011 07/25/2011 09/23/2011
09/26/2011 11/29/2011 12/07/2011 10/05/2012 10/05/2012 01/10/2013
05/02/2013

Overby re 257 Notice of appeal. USCA number: 11−12013−B. (Attachments: # 1 corrected by addition of certificate of service)(Ferleger, David) (Entered: 06/07/2011)
265 ORDER of USCA DISMISSING the 257 Notice of appeal filed by Alan A Maccini, Disability Rights Advocates for Technology, Daniel M. Gade, Jerry Kerr, Jerry Miller, James F. Overby. EOD: 6/6/11; Issued as mandate. USCA number: 11−12013−B. (RDO) (Entered: 06/08/2011)
266 NOTICE canceling hearing on attorney fees scheduled for 7/15/2011. (LAM) Copies mailed. Modified on 6/9/2011 (LAM). (Entered: 06/09/2011)
267 ORDER directing the Clerk to close the case. Signed by Judge Gregory A. Presnell on 7/25/2011. Copies mailed.(LAM) (Entered: 07/25/2011)
268 CLERK'S NOTICE TO THE PARTIES REGARDING EXHIBIT DISPOSAL (30 day notice) of exhibits and/or exhibit substitutes submitted by parties at the fairness hearing ending 6/4/09. (LAM) ***Informed by attorney for Objectors 9/23/11 that appeal has been reinstated by the US Court of Appeals. Confirmed with USCA that appeal has been reinstated. Exhibits will be not be destroyed or returned.*** Modified on 9/23/2011 (LAM). Modified on 9/26/2011 (LAM). (Entered: 09/23/2011)
269 NOTICE of case pending in the Eleventh Circuit by Disability Rights Advocates for Technology, Daniel M. Gade, Jerry Kerr, Ron Lachman, Alan A Maccini, Jerry Miller, James F. Overby, Dan Wallace (Ferleger, David) Modified text on 9/27/2011 (MAL). (Entered: 09/26/2011)
270 CERTIFICATE OF READINESS/RECORD ON APPEAL sent to USCA re: 257 Notice of appeal. ROA consists of: 11 volumes of pleadings, 2 volumes of transcripts and 4 volumes of exhibits. USCA number: 11−12013−BB (RDO) (Entered: 11/29/2011)
ACKNOWLEDGMENT by USCA of receiving COR/ROA on 12/1/11 re 257 Notice of appeal. USCA number: 11−12013−BB. (RDO) (Entered: 12/08/2011)
271 OPINION/ORDER of USCA Affirming District Court as to 257 Notice of appeal filed by Alan A Maccini, Disability Rights Advocates for Technology, Daniel M. Gade, Jerry Kerr, Jerry Miller, James F. Overby. EOD: 8/30/12; Mandate to issue at a later date. USCA number: 11−12013. (CH) Modified on 10/5/2012 (CH). (Entered: 10/05/2012)
272 USCA judgment Affirming District Court as to 257 Notice of appeal filed by Alan A Maccini, Disability Rights Advocates for Technology, Daniel M. Gade, Jerry Kerr, Jerry Miller, James F. Overby Entered on docket 8/30/12. Issued as Mandate on: 10/2/12 USCA number: 11−12013. (CH) (Entered: 10/05/2012)
273 CLERK'S THIRTY DAY NOTICE of destruction of exhibits and/or exhibit substitutes submitted by the parties at the 6/4/09 fairness hearing (Doc. Nos. 205 and 206 ). (LAM) Copies mailed. Modified on 1/10/2013 (LAM). ***Received telephone call from Dempsey and Associates that Defendants have filed a Petition for Writ of Certiorari with the Supreme Court of the United States. Exhibits will not be destroyed until further notice.*** Modified on 1/15/2013 (LAM). (Entered: 01/10/2013)
274 Notification from the U.S. Court of Appeals, 11th Circuit, that WRIT OF CERTIORARI has been denied by the U.S. Supreme Court Issued on 4/15/13. The court's mandate having previously issued, no further action will be taken by this court. (JET) (Entered: 05/03/2013)