IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

F I LED
;NITEO STATES DISTRICTCOU~ DENV!=R COlORAno
AUG 222000
JAMES R. MANSPEAKEf.
CLERK

Civil Action No. 99-WM-2086

mUE FARRAR-KUHN and CARRIE ANN LUCAS, for themselves and all others similarly situated,

v.
CONOCO, INC.,

Plaintiffs, Defendant.

ORDER GRANTING JOINT MOTION FOR CLASS CERTIFICATION

Plainti ffs Julie Farrar-Kuhn and Came Ann Lucas, and Defendant Conoco, Inc., jointly moved to certify a class in this action involving alleged violations of the Americans with Disabilities Act ("ADA"), 42 U.S.c. §§ 12101-12213 (1998). After considering the parties' motion and brief, the Court will grant the motion to certify a class action under Rule 23(b)(2). I. FACTS
This action encompasses Conoco service stations and convenience stores that are owned by the defendant (collectively "Conoco Corporate Stations"). Currently there are approximately 200 such Stations in 11 states. The plaintiffs allege that Conoco Corporate Stations have various architectural barriers and policies that discriminate against persons who use wheelchairs or scooters for mohility in violation of the ADA.
According to census figures, there are more than 300,000 persons who use wheelchairs and/or scooters for mobility in the 11 states in which the relevant Conoco Corporate Stations are

located. In addition, Conoco Corporate Stations may be patronized by travelers with disabilities from other states. Plaintiffs Julie Farrar-Kuhn and Carrie Lucas are among those individuals who use wheelchairs who have encountered various accessibility problems while attempting to patronize certain Conoco Corporate Stations.
The class that the parties seek to be certified consists of: All persons Wit!1 disabilities who use wheelchairs or scooters for mobility who, within four years of the filing of the Complaint in this case, have been denied, or are currently being denied, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any service station or convenience store that is owned by Conoco, Inc. II. ANALYSIS OF CLASS CERTIFICATION PURSUANT TO RULE 23
A. Legal Standards Applicable to Class Certification To be certified pursuant to Rule 23, a class must meet the requirements of Rule 23(a), which states:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (l) the class is so numerous that joinder of all members is impracticable, (2) there are questions oflaw 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. In addition to the four prerequisites of Rule 23(a), the class must satisfy one of the three subsections of Rule 23(b). Even though the defendant does not contest class certification in this case, the proposed class must meet the requirements of Rule 23. See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620-21 (1997).
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B. The Four Prerequisites of Rule 23(a) 1. Numerosity.
Rule 23(a)(I) requires that a class be so numerous that joinder of all members is impracticable. There are a number of factors that are relevant to whether joinder is impracticable, including the class size, the geographic diversity of class members, the relative ease or difficulty in idel1tifying members of the class for joinder, the tlnancial resources of class members and the ability of class members to institute individual lawsuits. Colorado CrossDisability Coalition v. Taco Bell Com., 184 F.R.D. 354,357 (D. Colo. 1999); see also Anderson v. Department of Pub. Welfare, 1 F. Supp. 2d 456,461 (E.D. Pa. 1998); 1 Robert Newberg, Newberg on Class Actions, § 3.06 at 3-27 -35 (3d ed. 1992) (and cases cited therein) (hereinafter "Newberg"). Each ofthese factors show that joinder is impracticable in the case at hand.
Class size. The class alleged in this case is large. The defendant owns approximately 200 Conoco Corporate Stations in 11 states, and census figures demonstrate that in these 11 states, there are over 300,000 noninstitutionalized persons age 16 or older who use wheelchairs. In addition, it is likely that persons who use wheelchairs who reside outside of these 11 states have patronized Conoco Corporate Stations while traveling through these states, thereby increasing the size of the class.
Geographical diversity. "The fact that a class is dispcrsed over several counties weighs in favor ofa finding of numerosity." Taco Bell, 184 F.R.D. at 358 (citation omitted). In the case at hand, the proposed class covers at least eleven states and thus joinder would be difficult or impossible.
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Identity of class members. Joinder is impracticable where, as here, it is very difficult to

identify individual class members. See, e.g., id. at 358-59; Phillips v. Joint Legislative Comm.,

637 F.2d 1014,1022 (5th Cir. 1981), cert. denied, 456 U.S. 960 (1982) (joinder impracticable in

part because neither party could identify class members); 1 Newberg § 3.05 at 3-18 -19 & n.61

(and cases cited therein); Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439,448

(N.D. Cal.), modified, 158 F.R.D. 439,464 (1994) (finding that "'by the very nature" of the class

of persons with disabilities affected by the defendant's architectural barriers, its members were

"unknown" and could not be "readily identified" and thus joinder of class members was

impracticable ).

Difficulty of bringing individual suits. Finally, joinder is impracticable because it is

difficult or impossible for class members to bring individual suits. For example, according to

cenSllS information, 23.7(% of persons aged 15 to 64 years who use wheelchairs have household

incomes below the poverty level, a much higher percentage than the overall population. Thus

many class members cannot afford to bring individual actions. See Taco Bell, 184 F.R.D. at 359.

For these reasons, the Court finds that the class is so numerous that joinder is

impracticable and thus satisfies Rule 23(a)(1).

2.

Common questions oflaw ([lid fact.

Rule 23( a)(2) requires that there be questions of law or fact common to the class which

predominate over questions peculiar to individual members of the class. "Where a class of

persons sharing a common disability complain of the identical architectural barrier based on the

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same alleged violations of law, commonality is unquestionably established." Taco Bell, 184

F.R.D. at 359.

The Court finds that the members of the proposed class in this case share many issues of

fact and law, including: (1) the class members complain of the same architectural barriers and

policies; (2) the plaintiffs allege that by these architectural barriers and policies, the defendant

discriminated against all members of the class; and (3) the determination of whether these

barriers and policies violate the ADA is the same whether there is one plaintiff or a class of

plaintiffs. No individual issues of law or fact for a particular class member are asserted and

hence the common questions predominate. Thus the Court finds that the class meets the

requirements of Rule 23(a)(2).

3.

Typicality ofthe claims.

Rule 23(a)(3) requires that the claims asserted by the representative plaintiff be typical of

the claims of the class. In this case, both the representative plaintiffs and the members of the

class have disabilities that require the use of a wheelchair or scooter for mobility. Thus, the

effect of the disability is shared by all class members. Further, the representative plaintiffs

contest the legality of architectural barriers under the same statutes as the class. Therefore the

Court finds that the claims of the representative plaintiffs are typical of the class. See Taco Bell,

184 F.R.D. at 360; Arnold, 158 F.R.D. at 450 ("Indeed, in a public accommodations suit such as

this one where disabled persons challenge the legal permissibility of architectural design

features, the interests, injuries, and claims of the class members are, in truth, identical such that

any class member could satisfy the typicality requirement for class representation.").

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4. Adequacy ofProposed Representative Plaintiffs· The final requirement of Rule 23(a) is adequate representation. The Court finds that the representative plaintiffs have common interests with the class members and appear able to prosecute the interests of the class through qualified counsel. See Cook v. Rockwell Int'l Com., 151 F.R.D. 378, 386 (D. Colo. 1993); 2 Newberg § 7.24 at 7-80 - 7-81. For the reasons set forth above, the proposed class satisfies the four prerequisites of Rule 23(a). C. The Requirements of Rule 23(b)(2) A class is proper under Rule 23(b)(2) if the party opposing the class "acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole ..." and the representatives are seeking "final injunctive relief or corresponding declaratory relief." "A class action in which all members of the class complain ofthc identical architectural barrier necessarily involves acts that are generally applicable to the class." Taco Bell, 184 F.R.D. at 361 (citing Arnold, 158 F.R.D. at 452, and Civic Ass'n of the DeafofNew York City, Inc. v. Giuliani, 915 F. Supp. 622, 634 (S.D.N.Y. 1996». Indeed, the Advisory Committee Notes to the 1966 amendment to Rule 23 demonstrate that subdivision (b)(2) was intended to reach precisely the type of class proposed here: "Illustrative are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration."
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In the case at bar, the plaintiffs allege that the defendant's architectural barriers and policies discriminate against all persons who use wheelchairs and scooters and thus that the defendant has acted in a manner applicable to the entire class. Further, the members of the class are incapable of specific enumeration. Finally, the plaintiffs seek injunctive and declaratory relief -- but not monetary relief -- on behalf of the class. Therefore the Court finds that the class meets the requirements of Rule 23(b)(2).
Accordingly, I ORDER that: (1) the joint motion to certify an ADA class action is GRANTED; (2) plaintiffs Julie Farrar-Kuhn and Carrie Ann Lucas are hereby certified as representatives of the plaintiff class; (3) the ADA plaintiff class shall consist of:
All persons with disabilities who use wheelchairs or scooters for mobility who, within four years of the filing of the Complaint in this case, have been denied, or are currently being denied, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any service station or convenience store that is owned by Conoea, Inc.
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Zl Dated this

day of August, 2000.

WALKER D. MILLER United States District Judge

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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-WM-2086
JULIE FARRAR-KUHN and CARRIE ANN LUCAS, for themselves and all others similarly situated,

v. CONOCO, INC.,

Plaintiffs, Defendant.

MEMORANDUM IN SUPPORT OF JOINT MOTION FOR CLASS CERTIFICATION

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Plaintiffs Julie Farrar-Kuhn and Carrie Ann Lucas, and Defendant Conoco, Inc., hereby submit this memorandum in support of their Joint Motion for Class Certification. As demonstrated below, the class in this case should be certified because:
This is a civil rights case “seeking broad . . . injunctive relief for a numerous and . . . unascertainable . . . class of persons” for which Rule 23(b)(2) was “specifically” designed, 1 Robert Newberg, Newberg on Class Actions, § 4.11 at 4-39 (3d ed. 1992) (citing Fed. R. Civ. P. 23 advisory committee’s note); Defendant’s alleged violations affected and continue to affect a large number of people in a similar manner; and The factual and legal issues in the representative Plaintiffs’ case, including whether Defendant violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., are common to all members of the class.

Thus the proposed class in this action should be certified under Rule 23(b)(1) and/or Rule 23(b)(2).

BACKGROUND This action encompasses Conoco service stations and convenience stores that are owned by Defendant (collectively “Conoco Corporate Stations”). Currently there are approximately 200 such Stations in 11 states: Alabama, Colorado, Delaware, Georgia, Kansas, Missouri, Oklahoma, Tennessee, Texas, Utah and Virginia. See “Conoco Corporate Stores” (attached hereto as exhibit 1). Plaintiffs allege that Conoco Corporate Stations have various architectural barriers and policies that discriminate against persons who use wheelchairs or scooters for mobility in violation of the Americans with Disabilities Act (“ADA”). These alleged barriers include, without limitation, inaccessible “pay-at-the-pump” gas pumps, parking, tables, sidewalks, entrances, restrooms and aisles. Alleged discriminatory policies include, without limitation, failure to maintain access, failure to provide full-service at self-service prices to persons with disabilities who cannot operate gas pumps at Conoco Service Stations. There are more than 300,000 persons who use wheelchairs and/or scooters for mobility in the 11 states in which the relevant Conoco Corporate Stations are located.1 See Table 3, “Selected Population Characteristics for States and Counties Including Model-Based Estimates of the Prevalence of Specific Disabilities Among Persons 16 and Over,” Household Survey Data on Employment and Disability, June 26, 1996, United States Department of Commerce, Bureau of the Census at 3-4, 7, 10, 13, 16 (attached hereto as exhibit 2). Plaintiffs Julie Farrar-Kuhn and Carrie Lucas are among those individuals who use wheelchairs who have encountered various

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The breakdown by state is: Alabama (29,723 persons), Colorado (15,369 persons),

Delaware (3,541 persons), Georgia (37,464 persons), Kansas (14,226 persons), Missouri (34,380

persons), Oklahoma (20,048 persons), Tennessee (33,103 persons), Texas (83,638 persons), Utah

(6,908 persons) and Virginia (32,554 persons). See Ex. 2 at 3-4, 7, 10, 13, 16.

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accessibility problems while attempting to patronize certain Conoco Corporate Stations. FarrarKuhn Aff. at ¶¶ 1, 3 (attached hereto as exhibit 3); Lucas Aff. at ¶¶ 1, 3 (attached hereto as exhibit 4).
On October 27, 1999, Ms. Farrar-Kuhn and Ms. Lucas filed a complaint concerning wheelchair accessibility at Conoco Corporate Stations. On November 12, 1999, Plaintiffs, without objection, moved to amend the complaint to assert a nationwide class action under Rule 23(b)(1) and/or Rule 23(b)(2), and this motion was granted by order dated December 10, 1999. The class that the parties seek to be certified in this Joint Motion consists of:
All persons with disabilities who use wheelchairs or scooters for mobility who, within four years of the filing of the Complaint in this case, have been denied, or are currently being denied, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any service station or convenience store that is owned by Conoco, Inc. For the reasons set forth below, Plaintiffs and Defendant respectfully request that this class be certified.
ARGUMENT A class should be certified if it meets the numerosity, commonality, typicality and adequate representation requirements of Rule 23(a) and also falls within one of the three subdivisions of Rule 23(b). Courts in Colorado and elsewhere have found the Rule 23 requirements to be met and have certified classes virtually identical to the class proposed in the case at bar. Thus the class should be certified under Rule 23(b)(1) and/or Rule 23(b)(2). I. Decisions Certifying Classes in Actions Under the ADA. A number of courts have certified classes virtually identical to the proposed class in this case. For example, in Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354, 355 (D. Colo. 1999) (“Taco Bell”), a class action was brought against a fast-food chain alleging that the defendant’s Colorado restaurants had “queue lines” -- paths cordoned off with barriers causing patrons waiting to order to form a single line -- that were inaccessible to persons who
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used wheelchairs or scooters in violation of the ADA. This Court certified the following class which is virtually identical to the class sought to be certified in the case at bar:2
All Colorado residents with disabilities who use wheelchairs or electric scooters for mobility who, beginning on the date two years prior to the filing of the Class Action Complaint (October 1, 1997), were discriminated against on the basis of disability by Taco Bell's failure to have queue lines that comply with the Americans with Disabilities Act Accessibility Guidelines in Colorado Taco Bell restaurants that Defendant owns, operates, leases to or leases from others.
Id. at 363.
In Colorado Cross-Disability Coalition v. Fey Concert Co., Civ. No. 97-Z-1586 (D. Colo.
Sept. 16, 1998) (“Fey Concert Co.”) (transcript of hearing attached hereto as exhibit 5), a class
action was brought against the owners and operators of Fiddler’s Green Amphitheatre, a large
concert venue, on the grounds that the defendants had violated the ADA and state laws by,
among other things, failing to provide a sufficient number of dispersed wheelchair-accessible
spaces and by blocking those few wheelchair-accessible spaces that did exist with light and
sound equipment. After a settlement was reached, the individual plaintiffs in Fey Concert Co.
sought to certify the following subclass: All persons with permanent disabilities who use wheelchairs or electric carts for mobility who have been denied full and equal enjoyment of the services, facilities, privileges, advantages, and accommodations at Fiddler’s Green on the basis of disability.
The Court in Fey Concert Co. expressly recognized that, under Amchem Products, Inc. v.
Windsor, 117 S. Ct. 2231, 2248-49 (1997), a class that is sought to be certified for settlement
purposes must meet the same requirements under Fed. R. Civ. P. 23 that a litigated class must
meet -- indeed a hearing was held to determine whether the proposed class met the Rule 23

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The Taco Bell class was limited to Colorado while the proposed class in this case covers

at least 11 states. Because the proposed class here encompasses more people than the Taco Bell

class, certification is even more appropriate in this case. See Fed. R. Civ. P. 23(a)(1) (requiring

numerosity).

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requirements. Ex. 5 at 3-4. After considering the briefs and oral argument, the Court found that the Rule 23 requirements had been met: “I think the record is very clear that each of the Rule 23(a) factors is satisfied in this case. In addition, the 23(b) requirements, both under 23(b)(2) and 23(b)(3), are satisfied. . . . It sounds to me as though this is a very appropriate action for a class; and indeed, if for any reason the settlement falls through, I will be prepared to try this case.” Id. at 24-25. The Court then certified the class “for all purposes.” Id. at 25.
The holdings in Taco Bell and Fey Concert Co. are in accord with the decisions of numerous courts across the country that have certified classes under the ADA:
Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 460 (N.D. Cal.), modified, 158 F.R.D. 439, 464 (1994): Certifying a class of disabled persons who used wheelchairs or who walked using aids who sought removal of architectural barriers in theaters pursuant to the ADA and California state law. Leiken v. Squaw Valley Ski Corp., 3 AD Cas. 945, 954, 1994 U.S. Dist. LEXIS 21281 at *19 (E.D. Cal. June 28, 1994) (attached as exhibit 6): Certifying a class of physically disabled persons who were denied full and equal access to, or who were dissuaded from visiting, a recreational resort because of certain architectural barriers and because of the defendant’s policy of prohibiting persons who use wheelchairs from riding a cable car to one part of the resort. Civic Ass’n of the Deaf of New York City, Inc. v. Giuliani, 915 F. Supp. 622, 634 (S.D.N.Y. 1996): Certifying a class consisting of persons with disabilities who were deaf or hearing-impaired who brought suit under the ADA to prevent the defendants from replacing fire alarm boxes on New York City streets with notification alternatives that were not accessible to Deaf or hearing-impaired persons.
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Anderson v. Department of Pub. Welfare, 1 F. Supp. 2d 456, 462 (E.D. Pa. 1998): Certifying a class of individuals with impairments which substantially limited their mobility and/or vision who were participants in a managed health care program who brought suit under the ADA to obtain certain accessibility improvements in the program. Clark v. California, No. C96-1486 FMS, 1998 WL 242688 at *6 (N.D. Cal. May 11, 1998) (attached as exhibit 7): Refusing to decertify a class of developmentally disabled inmates seeking certain accessibility improvements in a prison system pursuant in part to the ADA. Kathleen S. v. Department of Pub. Welfare, No. Civ. A. 97-6610, 1998 WL 83973 at *3 (E.D. Pa. Feb. 25, 1998) (attached as exhibit 8): Certifying a class of persons institutionalized at a state hospital who brought suit under the ADA to force the defendant to provide services in the most integrated setting appropriate to the needs of the class members. Neff v. VIA Metro. Transit Auth., 179 F.R.D. 185, 196 (W.D. Tex. 1998): In an action against a metropolitan transit authority alleging failure to provide an appropriate, accessible public transportation system, certifying a class consisting of individuals with disabilities covered by the ADA and Rehabilitation Act eligible to use transportation services and facilities provided by the defendant. Thrope v. Ohio, 173 F.R.D. 483, 491 (S.D. Ohio 1997): Certifying a class consisting of Ohio residents who purchased handicap parking placards who were seeking, under the ADA, to force defendant to provide such placards without charge. Berlowitz v. Nob Hill Masonic Management, Inc., No. C-96-0141 MHP, 1996 WL 724776 at *5 (N.D. Cal. Dec. 6, 1996) (attached as exhibit 9): In an action
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seeking removal of architectural barriers under the ADA and state law, certifying a class consisting of all persons in California with physical disabilities who were denied the right to full and equal access to, and use and enjoyment of, a concert arena. Henrietta D. v. Giuliani, No. 95-CV-0641, 1996 WL 633382 at *16 (E.D.N.Y. Oct. 25, 1996) (attached as exhibit 10): In an action seeking, pursuant to the ADA, modifications to government benefits program for persons with HIV or AIDS, certifying a class of persons who were New York City residents, were Medicaid eligible and who met the medical condition of having either (1) CDC-defined AIDS, or (2) an HIV-related condition and a need for home care services. Deck v. City of Toledo, Case No. 3:98 CV 7451, 1999 U.S. Dist. LEXIS 17853 at *2 (N.D. Ohio Nov. 18, 1999) (attached as exhibit 11): In an action seeking to enforce compliance with the ADA standards for curb ramps, certifying a class of “all persons with disabilities who use ambulatory devices for mobility and who have used in the past or will use in the future intersections and sidewalks resurfaced in Toledo at any time after January 26, 1992.” Duprey v. Department of Motor Vehicles, 191 F.R.D. 329, 342 (D. Conn. 2000): In an action challenging imposition of a $ 5.00 fee for removable windshield placards that permit holders of the placards to use parking spaces reserved for persons with disabilities, certifying a class of “[a]ll purchasers of windshield placards . . . since August 29, 1993, and all persons who will in the future be required to pay money for windshield placards unless and until declaratory and injunctive relief protects against the requirement of payment as a condition of access to parking accommodations reserved for persons with disabilities.”
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Engle v. Gallas, Civil Action No. 93-3324, 1994 U.S. Dist. LEXIS 7935 at *18 (E.D. Pa. June 10, 1994) (attached as exhibit 12): In an action challenging the accessibility of a municipal court, certifying a class of persons with disabilities. Like the classes set forth above, the proposed class in the case at bar satisfies the requirements of Rule 23. II. The Proposed Class Meets the Requirements of Rule 23(a). 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. The proposed class in the case at bar meets these requirements.
A. The Proposed Class Is So Numerous That Joinder Is Impracticable. Rule 23(a)(1) requires that a class be so numerous that joinder of all members is impracticable. There are a number of factors that are relevant to whether joinder is impracticable, including the class size, the geographic diversity of class members, the relative ease or difficulty in identifying members of the class for joinder, the financial resources of class members and the ability of class members to institute individual lawsuits. Taco Bell, 184 F.R.D. at 357; see also Anderson, 1 F. Supp. 2d at 461; 1 Robert Newberg, Newberg on Class Actions, § 3.06 at 3-27 -35 (3d ed. 1992) (and cases cited therein) (hereinafter “Newberg”). Each of these factors show that joinder is impracticable in the case at hand. The class is large. In determining class size, the exact number of potential members need not be shown. See, e.g., Joseph v. General Motors Corp., 109 F.R.D. 635, 639 (D. Colo. 1986). Rather the court may make “common sense assumptions” to support a finding that joinder would
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be impracticable. Civic Ass’n of the Deaf, 915 F. Supp. at 632; see also Leiken, ex. 6 at 949; 1 Newberg § 3.03 at 3-17 & n.58 (and cases cited therein). “Census figures are frequently relied on by courts in determining the size of proposed classes.” Taco Bell, 184 F.R.D. at 358; see also Anderson, 1 F. Supp. 2d at 461 (holding in ADA class action that “statistics [from census] tending to show that joinder would be impracticable may be sufficient to satisfy Rule 23(a)(1)”); Berlowitz, ex. 9 at *3 (relying on statistical information concerning the number of people in California who use wheelchairs to find numerosity in ADA class action); Vergara v. Hampton, 581 F.2d 1281, 1284 (7th Cir. 1978) (finding that the numerosity requirement was satisfied in part by census information), cert. denied 441 U.S. 905 (1979).
Here, both parties agree that the class is large: Defendant owns approximately 200 Conoco Corporate Stations in 11 states. See ex. 1. Census figures demonstrate that in these 11 states, there are over 300,000 noninstitutionalized persons age 16 or older3 who use wheelchairs. Ex. 2 at 3. Thus if only one out of twenty persons who use wheelchairs in these states patronized a Conoco Corporate Station owned by Defendant, the class would consist of over 15,000 persons. In addition, it is likely that persons who use wheelchairs who reside outside of these 11 states have patronized Conoco Corporate Stations while traveling through these states, thereby increasing the size of the class.
The class is geographically diverse. “The fact that a class is dispersed over several counties weighs in favor of a finding of numerosity.” Taco Bell, 184 F.R.D. at 358 (citation

3

This number does not include institutionalized persons who use wheelchairs, persons

under the age of 16 who use wheelchairs, or persons who use scooters for mobility, all of whom

are potential members of the class.

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omitted). In the case at hand, the proposed class covers eleven states and thus joinder would be difficult or impossible.
The class members are difficult to identify. Of particular import where, as here, the class consists of persons with disabilities impacted by architectural barriers, joinder is impracticable where it is very difficult to identify individual class members. See, e.g., id. at 358-59; Phillips v. Joint Legislative Comm., 637 F.2d 1014, 1022 (5th Cir. 1981), cert. denied, 456 U.S. 960 (1982) (joinder impracticable in part because neither party could identify class members); 1 Newberg § 3.05 at 3-18 -19 & n.61 (and cases cited therein). In Arnold, for example, the court held that “by the very nature” of the class of persons with disabilities affected by the defendant’s architectural barriers, its members were “unknown” and could not be “readily identified” and thus joinder of class members was impracticable. Arnold, 158 F.R.D. at 448.
It is difficult for class members to bring individual suits. Finally, joinder is impracticable because it is difficult or impossible for class members to bring individual suits. For example, according to census information, 23.7% of persons aged 15 to 64 years who use wheelchairs have household incomes below the poverty level, a much higher percentage than the overall population. Table 9, “Low-Income Status of Persons 15 to 64 Years Old, By Type Of Disability: 1991-92,” Americans with Disabilities: 1991-92, Data From the Survey of Income and Program Participation, John McNeil, U.S. Department of Commerce, Bureau of the Census at 33 (attached hereto as exhibit 13). Thus many class members simply cannot afford to bring individual actions. See Taco Bell, 184 F.R.D. at 359.
For these reasons, the class is so numerous that joinder is impracticable and thus satisfies Rule 23(a)(1).
B. The Class Members Share Common Questions of Law and Fact. Rule 23(a)(2) requires that there be questions of law or fact common to the class which predominate over questions peculiar to individual members of the class. This does not mean that
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every issue must be common to the class so long as the claims of the plaintiffs and other class members are based on the same legal or remedial theory. Joseph v. General Motors Corp., 109 F.R.D. 635, 639-40 (D. Colo. 1986); Cook v. Rockwell Int’l Corp., 181 F.R.D. 473 , 480 (D. Colo. 1998) (holding that questions are common where they “arise from the same set of broad circumstances” and do not create conflicts among class members).
“Where a class of persons sharing a common disability complain of the identical architectural barrier based on the same alleged violations of law, commonality is unquestionably established.” Taco Bell, 184 F.R.D. at 359. As the court in Arnold stated:
Inadequate wheelchair accommodations at particular theaters are very likely to affect all wheelchair-users in the same way . . . Thus the state of such accommodations at defendant’s various theaters, and the legal adequacy of those accommodations, are issues of fact and law common to all those disabled persons affected by them.
Arnold, 158 F.R.D. at 449. And in Leiken, ex. 6 at 949 (citation omitted), the court stated that “[t]he application of the exclusionary policy and the existence of structural barriers comprise a ‘common nucleus of operative facts’ which supports certification.” Finally, in holding that the commonality requirement was met, the court in Civic Association of the Deaf, 915 F. Supp. at 632-33, stated: “The Plaintiffs describe a common course of conduct by the Defendants in removing the street alarm boxes and in failing to provide adequate notification alternatives.” See also Berlowitz, ex. 9 at *3 (in holding that the commonality requirement was met in architectural barrier case, the court stated that the primary legal and factual questions revolve around the acts and omissions of defendants).
Like the classes certified in Taco Bell, Arnold, Leiken and Civic Association of the Deaf, the proposed class in this case shares many issues of fact and law: (1) the class complains of the same architectural barriers and policies; (2) Plaintiffs allege that by these architectural barriers and policies, Defendant discriminated against all members of the class; and (3) the determination of whether these barriers and policies violate the ADA is the same whether there is one plaintiff
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or a class of plaintiffs. Nor are there individual questions of law or fact. Thus the class meets the requirements of Rule 23(a)(2).
C. The Claims of the Representative Plaintiffs Are Typical of the Claims of the Class.
Rule 23(a)(3) requires that the claims asserted by the representative plaintiff be typical of the claims of the class. According to the Tenth Circuit, “the typicality requirement is ordinarily not argued. . . . It is to be recognized that there may be varying fact situations among individual members of the class and this is all right so long as the claims of the plaintiffs and the other class members are based on the same legal or remedial theory.” Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1189 (10th Cir. 1975).
In this case, both the representative plaintiffs and the members of the class “suffer from disabilities which, although not identical, require the use of a wheelchair or scooter for mobility. Thus, the effect of the disability is shared by all class members. Further, the representative plaintiffs contest the legality of architectural barriers under the same statutes as the class. [T]herefore . . . the claims of the representative plaintiffs are typical of the class.” Taco Bell, 184 F.R.D. at 360; see also Arnold, 158 F.R.D. at 450 (“Indeed, in a public accommodations suit such as this one where disabled persons challenge the legal permissibility of architectural design features, the interests, injuries, and claims of the class members are, in truth, identical such that any class member could satisfy the typicality requirement for class representation.”); Leiken, ex. 6 at 949 (Finding typicality where the representative plaintiff’s “alleged injuries are the result of conduct common to the class, for which she seeks predominantly class-wide relief.”); Civic Ass’n of the Deaf, 915 F. Supp. at 633 (Finding typicality where the representative plaintiffs, “like every other member of the proposed Class, are or represent deaf or hearing-impaired individuals. As a result of removal of the street alarm boxes, the members of the Class have had or will have impaired their ability to report fires from City streets.”).
12

The representative Plaintiffs in the case at bar, like the members of the proposed class, use a wheelchair or scooter for mobility, they face the same form of discrimination as all class members, and they are bringing claims identical to those of the class. Therefore the proposed class meets the typicality requirement of Rule 23(a)(3).
D. The Representative Plaintiffs Will Fairly and Adequately Protect the Interests of the Class.
The final requirement of Rule 23(a), adequate representation, requires that the representative plaintiffs have common interests with the class members and that the representative plaintiffs will vigorously prosecute the interests of the class through qualified counsel. Cook v. Rockwell Int’l Corp., 151 F.R.D. 378, 386 (D. Colo. 1993). Adequate representation is usually presumed in the absence of contrary evidence. Id. (quoting 2 Newberg § 7.24 at 7-80 to -81).
The representative Plaintiffs in this case, like the members of the proposed class, seek redress for the architectural barriers and policies that discriminate against them and the class members. Thus the interests of the representative Plaintiffs do not conflict with those of the class.
In addition, the representative Plaintiffs and their counsel have prosecuted, and will continue to prosecute, the interests of the class vigorously. Plaintiffs’ counsel are qualified to represent the class and have the resources necessary to do so. Fox Aff. at ¶ 9 (attached hereto as exhibit 14). Amy Robertson, of the undersigned law firm of Fox & Robertson, graduated from Yale Law School where she was Executive Editor of the Yale Journal of International Law. Robertson Aff. at ¶¶ 2-3 (attached hereto as exhibit 15). After clerking for the Hon. Richard L. Williams of the United States District Court for the Eastern District of Virginia, Ms. Robertson worked in the litigation departments at the law firms of Dorsey & Whitney in Minneapolis, Wilmer, Cutler & Pickering in Washington, D.C., and Rothgerber, Appel, Powers & Johnson
13

LLP in Denver. Id. at ¶¶ 4-6. Ms. Robertson’s partner, Timothy Fox, graduated from Stanford Law School where he was a member of the Stanford Law Review and President of his class. Ex. 14 at ¶¶ 2-3. He has worked in the litigation departments at the law firms of Wilmer, Cutler & Pickering in Washington, D.C. and Davis, Graham & Stubbs LLP in Denver. Id. at ¶¶ 4-5. Kevin Williams, who is the general counsel of the Colorado Cross Disability Coalition, graduated third in his class from the University of Denver College of Law, has been published on the topic of the ADA, and is the current Co-Chair of the Colorado Bar Association Disability Law Forum Committee. Williams Aff. at ¶¶ 1-2 (attached hereto as exhibit 16). Together Ms. Robertson, Mr. Fox and Mr. Williams have provided representation in connection with numerous class action and ADA cases. Ex. 14 at ¶ 7; ex. 15 at ¶ 8; ex. 16 at ¶ 1. Mr. Fox and Mr. Williams are thoroughly familiar with issues concerning people with disabilities because both are tetraplegics and both have used electric wheelchairs for over 10 years. Ex. 14 at ¶ 10; ex. 16 at ¶ 3. Finally, in both Taco Bell and Fey Concert Co., Fox & Robertson, P.C. and Kevin Williams were found by the Court to be appropriate counsel for the class pursuant to Fed. R. Civ. P. 23(a). Taco Bell, 184 F.R.D. at 361; ex. 14 at ¶ 8; ex. 5 at 15.
For the reasons set forth above, the proposed class satisfies the requirements of Rule 23(a). III. The Proposed Class Is Proper Under Rule 23(b)(1).
Rule 23(b)(1) authorizes class actions where “the prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests.” Fed. R. Civ. P. 23(b)(1) (emphasis added). “[I]t is quite
14

common for suits brought under subdivision (b)(1) to meet both the test for clause (A) and for clause (B) of that provision. ” 7A C. Wright & A. Miller, Federal Practice & Procedure § 1772 (2d ed. 1990 and 1997 Supp.).
Both clauses of Rule 23(b)(1) are satisfied where, as in the case at bar, “some type of prohibitory or mandatory relief is being sought since a decree of this type easily could create potential conflicts for the opposing party if it were awarded or denied in individual actions. Its breadth also might affect the rights of all concerned class members, not simply those before the court in a particular action.” Id. Rule 23(b)(1) also “clearly embraces cases in which the party is obliged by law to treat the class members alike,” id. at § 1773, and thus applies here because Defendant is obligated by the ADA to treat all members of the class alike.
In Civic Ass’n of the Deaf, 915 F. Supp. at 625, the plaintiffs brought suit under the ADA to prevent the defendants from replacing fire alarm boxes on New York City streets with notification alternatives that were not accessible to Deaf or hearing-impaired persons. The plaintiffs sought certification under Rule 23(b)(1) of a class deaf or hearing-impaired persons who use a TDD to communicate via telephone and who reside, work, or are present in the City and use its sidewalks, streets, highways, or public places. In certifying the class under Rule 23(b)(1)(A), the court held:
Were all deaf or hearing-impaired individuals to sue on their own behalf, any judgment rendered against Defendants could be inconsistent, depending on the circumstances of the individual suing. Therefore, the risk set out in subparagraph (A) clearly applies.
Id. at 634. And in Engle v. Gallas, Civil Action No. 93-3324, 1994 U.S. Dist. LEXIS 7935 at *2-3
(E.D. Pa. June 10, 1994) (attached as exhibit 12), the plaintiffs challenged the accessibility of a municipal court under the ADA. The court certified a class under Rule 23(b)(1):
I find that the class meets condition 23(b)(1)(B), in that the prosecution of separate actions would create a risk that individual adjudications would be dispositive of interests or substantially impair the interests of class members not a party to the litigation. Engle
15

and Calder are not the only individuals in the Philadelphia area who would be affected by an injunction of the current Municipal Court policies pertaining to individuals who cannot physically access the court. Other members of the defined class should be given an opportunity to protect their interests. Id. at *18. In this case, like Civic Ass’n of the Deaf and Engle, if each class member brought suit on his or her own behalf, there would be a considerable risk of inconsistent judgments. Further, because Defendant has the same obligations under the ADA to every individual who uses a wheelchair for mobility, individual lawsuits by individuals who use wheelchairs would as a practical matter be dispositive of the interests of the other members not parties to the adjudications. For these reasons, the class should be certified under Rule 23(b)(1). IV. The Proposed Class Is Proper Under Rule 23(b)(2). A class is proper under Rule 23(b)(2) if the party opposing the class “acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole . . .” and the representatives are seeking “final injunctive relief or corresponding declaratory relief.” As demonstrated below, the proposed class in this case is a “paradigm of the type of action for which the (b)(2) form was created” and thus the class should be certified pursuant to Rule 23(b)(2). See Arnold, 158 F.R.D. at 452. “A class action in which all members of the class complain of the identical architectural barrier necessarily involves acts that are generally applicable to the class.” Taco Bell, 184 F.R.D. at 361 (citing Arnold, 158 F.R.D. at 452, and Civic Ass’n of the Deaf, 915 F. Supp. at 634). Indeed, the Advisory Committee Notes to the 1966 amendment to Rule 23 demonstrate that subdivision (b)(2) was intended to reach precisely the type of class proposed here: “Illustrative are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.”
16

In the case at bar, Plaintiffs allege that Defendant’s architectural barriers and policies discriminate against all persons who use wheelchairs and scooters and thus that Defendant has acted in a manner applicable to the entire class. Further, the members of the class are incapable of specific enumeration. Finally, Plaintiffs seek injunctive and declaratory relief -- but not monetary relief -- on behalf of the class. Therefore the class should be certified under Rule 23(b)(2).1

1

Because the parties seek certification under Rule 23(b)(1) and 23(b)(2), and because

Plaintiffs do not seek monetary relief for the class, the parties do not believe that notice to the

class is necessary at this time. See Vaszlavik v. Storage Technology Corp., 175 F.R.D. 672, 685

(D. Colo. 1997) (“Because plaintiffs seek only a Rule 23(b)(2) certification for the liability

phase, notice to class members is not necessary . . .”); Fed. R. Civ. P. 23(c)(2) (requiring notice

only for classes certified under Rule 23(b)(3)).

17

CONCLUSION For the reasons set forth above, Plaintiffs Julie Farrar-Kuhn and Carrie Ann Lucas and Defendant Conoco, Inc. respectfully request that their Motion for Class Certification be granted. Respectfully submitted,

FOX & ROBERTSON, P.C.

OTTEN, JOHNSON, ROBINSON NEFF & RAGONETTI, P.C.

Timothy P. Fox Amy F. Robertson Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700
Kevin W. Williams, General Counsel Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775
Attorneys for Plaintiffs Julie Farrar-Kuhn and Carrie Ann Lucas
Dated:

P. Kathleen Lower 950 - 17th Street, Suite 1600 Denver, CO 80202 303.825.8400
Tonya E. Chatton Counsel Conoco, Inc. 600 N. Dairy Ashford Suite ML-2110 Houston, TX 77079
Attorneys for Defendant Conoco, Inc.

18

 
 Case: 1:99-cv-02086-MSK-PAC As of: 05/23/2010 08:27 PM MDT 1 of 7
CLASAC, SuppressAnsRpt, TERMED
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:99−cv−02086−MSK−PAC

Farrar−Kuhn, et al v. Conoco, Inc. Assigned to: Judge Marcia S. Krieger Referred to: Magistrate Judge Patricia A. Coan Demand: $0 Cause: 42:12101 Americans With Disabilities Act (ADA)
Plaintiff

Date Filed: 10/27/1999 Date Terminated: 09/11/2002 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Julie Farrar−Kuhn

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

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

Plaintiff Carrie Ann Lucas

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

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

V. Defendant Conoco, Inc.

represented by Margret LaChapelle Sonnier Conoco, Inc. 600 North Dairy Ashford Street Room ML2110 Houston, TX 77079−1175 281−293−3461 Fax: 293−2127 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Kathleen Lower P. Kathleen Lower, Attorney at Law 14733 Williams Street

Case: 1:99-cv-02086-MSK-PAC

As of: 05/23/2010 08:27 PM MDT 2 of 7
Thornton, CO 80602 303−575−7532 Email: klower@ottenjohnson.com TERMINATED: 12/02/2008 LEAD ATTORNEY
Darin L. Mackender Fisher &Phillips, LLP−Denver 1999 Broadway #3300 Denver, CO 80202−5428 303−218−3650 Fax: 303−218−3651 Email: dmackender@laborlawyers.com ATTORNEY TO BE NOTICED

Date Filed 10/27/1999 10/27/1999 11/05/1999 11/10/1999 11/12/1999 11/12/1999 11/12/1999 11/12/1999
11/15/1999
12/06/1999
12/08/1999 12/09/1999
12/10/1999
12/10/1999

# Docket Text
1 COMPLAINT (Summons(es) issued); jury demand (former empl) (Entered: 10/27/1999)
FILING FEE PAID: on 10/27/99 in the amount of $ 150, receipt # 210617. (former empl) (Entered: 10/27/1999)
2 Unopposed MOTION by defendant to extend time to answer to 12/17/99 (former empl) (Entered: 11/09/1999)
3 RETURN OF SERVICE of Summons and Complaint upon defendant Conoco, Inc. on 10/28/99 upon Virginia Olmstead (former empl) (Entered: 11/12/1999)
4 Unopposed MOTION by plaintiff for leave to file amended class action cmp (gms) (Entered: 11/15/1999)
Tendered Amended Class Action Complaint submitted by plaintiffs re: motion for leave to file amended class action cmp [4−1] (gms) (Entered: 11/15/1999)
5 ORDER R16,stat,stlmt,pt,pto Case referred to Magistrate Judge Patricia A. Coan by Judge Walker D. Miller (cc: to counsel) (gms) (Entered: 11/15/1999)
6 MEMORANDUM by Judge Walker D. Miller referring to Magistrate Judge Patricia A. Coan the motion to extend time to answer to 12/17/99 [2−1] (gms) (Entered: 11/15/1999)
7 ORDER by Magistrate Judge Patricia A. Coan granting motion to extend time to answer to 12/17/99 [2−1] (cc: all counsel) ; entry date : 11/16/99 (former empl) (Entered: 11/16/1999)
8 MEMORANDUM by Judge Walker D. Miller referring to Magistrate Judge Patricia A. Coan the motion for leave to file amended class action cmp [4−1] (former empl) (Entered: 12/07/1999)
9 MOTION by defendant Conoco, Inc. to extend time to answer to 1/16/00 (former empl) (Entered: 12/10/1999)
10 MEMORANDUM by Judge Walker D. Miller referring to Magistrate Judge Patricia A. Coan the motion to extend time to answer to 1/16/00 [9−1] (former empl) (Entered: 12/13/1999)
11 ORDER by Magistrate Judge Patricia A. Coan ; rule 16 conference set for 8:00 1/26/00 (cc: all counsel) ; entry date : 12/13/99 (former empl) (Entered: 12/13/1999)
12 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting motion to extend time to answer to 1/16/00 [9−1], granting motion for leave to file amended class action cmp [4−1] and amd class acction cmp shall be date stamped and filed (cc: all counsel) ; entry date : 12/13/99 (former empl) (Entered: 12/13/1999)

Case: 1:99-cv-02086-MSK-PAC As of: 05/23/2010 08:27 PM MDT 3 of 7

12/10/1999 12/21/1999 12/22/1999 12/23/1999
01/06/2000 01/10/2000 01/11/2000 02/10/2000 03/10/2000 03/17/2000
03/24/2000 04/27/2000 04/28/2000 05/01/2000 05/11/2000 06/08/2000 06/09/2000 06/13/2000 06/30/2000 06/30/2000

13 AMENDED Class Action COMPLAINT [1−1] by plaintiff; jury demand (former empl) (Entered: 12/13/1999)
14 Joint MOTION by plaintiff, defendant to continue sched conf and related Rule 26 deadlines (former empl) (Entered: 12/22/1999)
15 ORDER FOR RULE 16 CONFERENCE by Magistrate Judge Patricia A. Coan ; Rule 16 conference set for 8:30 2/4/00 (cc: all counsel) (former empl) (Entered: 12/23/1999)
16 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting motion to continue sched conf and related Rule 26 deadlines [14−1] answer due 3/10/00 ; rule 16 conference set for 8:30 3/16/00 (cc: all counsel) ; entry date : 12/27/99 (former empl) (Entered: 12/27/1999)
17 Joint MOTION by parties to rescheduling of scheduling conf (former empl) (Entered: 01/07/2000)
18 MEMORANDUM by Judge Walker D. Miller referring to Magistrate Judge Patricia A. Coan the motion to rescheduling of scheduling conf [17−1] (former empl) (Entered: 01/11/2000)
19 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting motion to rescheduling of scheduling conf [17−1] ; rule 16 conference set for 9:30 3/17/00 (cc: all counsel) ; entry date : 1/13/00 (former empl) (Entered: 01/13/2000)
20 NOTICE of Change of Address of Fox &Robertson by plaintiff (former empl) (Entered: 02/14/2000)
21 ANSWER by defendant to complaint [13−1] (former empl) (Entered: 03/13/2000)
22 COURTROOM MINUTES by Magistrate Judge Patricia A. Coan ; rule 16 conf held on 3/17/00 ; discovery ddl set 1/1/01 ; disp mtn ddl set 2/1/01 ; settlement conf set for 10:00 6/16/00 ; pretrial conf set for 8:30 4/2/01 ; entry date : 3/22/00 Court Reporter: Tape 00−34 (former empl) (Entered: 03/22/2000)
23 SCHEDULING ORDER Magistrate Judge Patricia A. Coan ; Discovery cutoff 1/1/01 ;dispositive motions due 2/1/01 (cc: all counsel) (former empl) (Entered: 03/27/2000)
24 Unopposed MOTION by defendant to extend time to respond to plas discovery to 5/8/00 (former empl) (Entered: 04/28/2000)
25 MEMORANDUM by Judge Walker D. Miller referring to Magistrate Judge Patricia A. Coan the motion to extend time to respond to plas discovery to 5/8/00 [24−1] (former empl) (Entered: 05/01/2000)
26 ORDER by Magistrate Judge Patricia A. Coan granting motion to extend time to respond to plas discovery to 5/8/00 [24−1] (cc: all counsel) ; entry date : 5/2/00 (former empl) (Entered: 05/02/2000)
27 NOTICE of Change of Address of KEvin Williams by plaintiff (former empl) (Entered: 05/15/2000)
28 Joint MOTION by plaintiff, defendant to continue stlmt conf (former empl) (Entered: 06/09/2000)
29 MEMORANDUM by Judge Walker D. Miller referring to Magistrate Judge Patricia A. Coan the motion to continue stlmt conf [28−1] (former empl) (Entered: 06/12/2000)
30 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting motion to continue stlmt conf [28−1] ; settlement conf set for 1:30 8/30/00 (cc: all counsel) ; entry date : 6/14/00 (former empl) (Entered: 06/14/2000)
31 Joint MOTION by plaintiff, defendant to certify class action (former empl) (Entered: 07/05/2000)
34 Memorandum BRIEF by plaintiff, defendant in support of motion to certify class action [31−1] (former empl) (Entered: 07/13/2000)

Case: 1:99-cv-02086-MSK-PAC As of: 05/23/2010 08:27 PM MDT 4 of 7

07/03/2000 07/10/2000
08/02/2000 08/10/2000 08/14/2000 08/22/2000 08/31/2000 08/31/2000 09/08/2000 09/12/2000 09/15/2000
10/25/2000 10/26/2000 10/27/2000
11/09/2000
01/23/2001
01/23/2001 02/12/2001

32 MEMORANDUM by Judge Walker D. Miller referring to Magistrate Judge Patricia A. Coan the motion to certify class action [31−1] (former empl) (Entered: 07/05/2000)
33 MINUTE ORDER : by Judge Walker D. Miller regarding [31−1] motion to certify class action, parties to submit draft order with computer disk by 8/7/00 granting Rule 23(b)(2) class certification (cc: all counsel) ; entry date : 7/12/00 (former empl) (Entered: 07/12/2000)
35 Joint Submission (STATEMENT) by plaintiffs, defendant grnating jt motion to certify class action [31−1] (gms) (Entered: 08/03/2000)
36 Notice (MOTION) by defendant to substitute attorney Margret Sonnier for Tonya Chatton (former empl) (Entered: 08/10/2000)
37 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting motion to substitute attorney Margret Sonnier for Tonya Chatton [36−1] (cc: all counsel) ; entry date : 8/15/00 (gms) (Entered: 08/15/2000)
38 ORDER by Judge Walker D. Miller granting jt motion to certify class action [31−1]. Pltfs Farrar−Kahn &Lucas are certified as representatives of pla class. (cc: all counsel) ; entry date : 8/23/00 (gms) (Entered: 08/23/2000)
39 MINUTE ORDER : by Magistrate Judge Patricia A. Coan ; settlement conf set for 10:30 11/14/00 (cc: all counsel) ; entry date : 9/1/00 (gms) (Entered: 09/01/2000)
40 MEMORANDUM by Magistrate Judge Patricia A. Coan. Settlement conf held 8/30/00 (gms) (Entered: 09/01/2000)
41 Joint MOTION by plaintiffs, defendant to amend scheduling order [23−1] (gms) (Entered: 09/11/2000)
42 MEMORANDUM by Judge Walker D. Miller referring to Magistrate Judge Patricia A. Coan the motion to amend scheduling order [23−1] [41−1] (former empl) (Entered: 09/13/2000)
43 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting jt motion to amend scheduling order [23−1] [41−1] regarding [23−1] schedule order ; discovery ddl reset 7/2/01 ; disp mtn ddl reset 8/1/01 (cc: all counsel) ; entry date 9/18/00 (gms) (Entered: 09/18/2000)
44 Unopposed MOTION by plaintiffs to extend time to respond to dft's discovery requests (former empl) (Entered: 10/25/2000)
45 MEMORANDUM by Judge Walker D. Miller referring to Magistrate Judge Patricia A. Coan the motion to extend time to respond to dft's discovery requests [44−1] (former empl) (Entered: 10/26/2000)
46 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting dft's motion to extend time to respond to dft's discovery requests [44−1] pla shall respond to discovery request by 11/1/00 (cc: all counsel) ; entry date : 10/30/00 (former empl) (Entered: 10/30/2000)
47 MINUTE ORDER : by Magistrate Judge Patricia A. Coan regarding [23−1] schedule order ; settlement conf set for 11/14/00 is vacated and reset to 9:00 1/23/01 (cc: all counsel) ; entry date : 11/13/00 (former empl) (Entered: 11/13/2000)
48 MINUTE ORDER : by Magistrate Judge Patricia A. Coan, telephone conference call with attorneys and the court only regarding the status of settlement shall be held on 2/12/01 at 12:30 (cc: all counsel) ; entry date : 1/24/01 (former empl) (Entered: 01/24/2001)
49 MEMORANDUM by Magistrate Judge Patricia A. Coan ; second settlement conf held 1/23/01 (former empl) (Entered: 01/24/2001)
50 MINUTE ORDER : by Magistrate Judge Patricia A. Coan ; At the request of counsel, pretrial conf set for 4/2/01 is vacated, pretrial conf reset for 10:00 10/10/01 (cc: all counsel) ; entry date : 2/14/01 (former empl) (Entered: 02/14/2001)

Case: 1:99-cv-02086-MSK-PAC As of: 05/23/2010 08:27 PM MDT 5 of 7

02/20/2001 03/16/2001 03/19/2001 03/21/2001
04/16/2001 04/16/2001 04/18/2001 04/19/2001
04/19/2001 04/23/2001 04/24/2001
04/24/2001 05/08/2001 05/08/2001
05/08/2001

51 NOTICE of Change of Address of Carrie Ann Lucas by Csl for the Plaintiff (erv) (Entered: 02/23/2001)
52 Joint MOTION by plaintiffs and defendant to amend scheduling order to extend deadlines to designate experts and rebuttal experts, to complete discovery and to file dispositive motions (former empl) (Entered: 03/20/2001)
53 MEMORANDUM by Judge Walker D. Miller referring to Magistrate Judge Patricia A. Coan the motion to amend scheduling order to extend deadlines to designate experts and rebuttal experts, to complete discovery and to file dispositive motions [52−1] (former empl) (Entered: 03/22/2001)
54 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting joint motion to amend scheduling order to extend deadlines to designate experts and rebuttal experts, to complete discovery and to file dispositive motions [52−1] ; discovery ddl reset 7/31/01 ; disp mtn ddl reset 9/1/01, Rule 26(a)(2) info due 6/1/01, Rule 26(a)(2) rebuttal info due 7/2/01; pretrial conf reset for 8:30 10/29/01 , ; pto ddl set for 10/24/01 (cc: all counsel) ; entry date : 3/23/01 (former empl) (Entered: 03/23/2001)
55 Unopposed MOTION by plaintiffs for leave to file a second amended (to amend) complaint [13−1], complaint [1−1] (pap) (Entered: 04/17/2001)
Tendered Second Amended Class Action Complaint submitted by plaintiffs re: motion for leave to file a second amended (to amend) complaint [13−1], complaint [1−1] [55−1] (pap) (Entered: 04/17/2001)
56 MEMORANDUM by Judge Walker D. Miller referring to Magistrate Judge Patricia A. Coan the plas' motion for leave to file a second amended (to amend) complaint [13−1], complaint [1−1] [55−1] (pap) (Entered: 04/20/2001)
57 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting pla's motion for leave to file a second amended (to amend) complaint [13−1], complaint [1−1] [55−1], The Second Amended Complaint shall be date−stamped and filed with the Court this date(cc: all counsel) ; entry date : 4/23/01 (former empl) Modified on 04/27/2001 (Entered: 04/23/2001)
58 Second AMENDED Class Action COMPLAINT [13−1] by plaintiff; jury demand (former empl) (Entered: 04/23/2001)
59 MEMORANDUM by Judge Walker D. Miller referring to Magistrate Judge Patricia A. Coan the motion for leave to file a second amended (to amend) complaint [13−1], complaint [1−1] [55−1] (former empl) (Entered: 04/24/2001)
60 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting motion for leave to file a second amended (to amend) complaint [13−1], complaint [1−1] [55−1], The second amended class action complaint shall be date−stamped and filed with the Court this date (cc: all counsel) ; entry date : 4/25/01(former empl) Modified on 04/27/2001 (Entered: 04/25/2001)
61 Second AMENDED COMPLAINT by plaintiff Julie Farrar−Kuhn, plaintiff Carrie Ann Lucas; jury demand (former empl) Modified on 04/27/2001 (Entered: 04/25/2001)
62 ANSWER by defendant Conoco, Inc. to second amended complaint [61−1] (former empl) (Entered: 05/09/2001)
63 COURTROOM MINUTES by Magistrate Judge Patricia A. Coan ; Status Conference held 5/8/01, Discovery ddl reset 11/30/01 ; disp mtn ddl reset 1/2/02, Rule 26(a)(2) 10/1/01, Rebuttal 11/1/01 ; pretrial conf set for 10/29/01 is vacated and reset to 10:00 3/4/02. No further extensions of time will be allowed;, Confidential status reports will be delivered to the Magistrate Judge every 30 days, the first report is due 6/8/01 ; entry date : 5/9/01 Court Reporter: PAC Civil Tape No. 2001−52 (former empl) (Entered: 05/09/2001)
64 MINUTE ORDER : by Magistrate Judge Patricia A. Coan, Scheduling Order amended as follows: discovery ddl 11/30/01, Rule 26a2 10/1/01, rebuttal 11/1/01, dispositive motions ddl 1/2/02, no further extension of time will be allowed. Pretrial conf set for 10/29/01 at 8:30 is vacated and reset for 3/4/02 at 10:00,

Case: 1:99-cv-02086-MSK-PAC As of: 05/23/2010 08:27 PM MDT 6 of 7

02/13/2002 02/14/2002 02/14/2002 02/15/2002
03/29/2002 03/29/2002 04/01/2002 04/01/2002 04/08/2002 05/08/2002
05/17/2002 09/06/2002
09/11/2002
11/24/2008 11/24/2008 12/02/2008

confidential status reports will be delivered to the Magistrate Judge every 30 days. The first report is due 6/8/01 (cc: all counsel) ; entry date : 5/9/01 (former empl) (Entered: 05/09/2001)
65 Joint MOTION by plaintiff, defendant to amend schedule order [23−1] (dlb) (Entered: 02/14/2002)
66 MEMORANDUM by Judge Walker D. Miller referring to Magistrate Judge Patricia A. Coan the motion to amend schedule order [23−1] [65−1] (dlb) (Entered: 02/14/2002)
67 ORDER by Judge Walker D. Miller Case reassigned to Judge Marcia S. Krieger (cc: all counsel) ; entry date : 2/15/02 (bpm) (Entered: 02/15/2002)
68 ORDER by Magistrate Judge Patricia A. Coan, It is ORDERED ; pto ddl set for 3/29/02 ; pretrial conf set for 8:30 4/2/02 that the Joint motion to amend schedule order is GRANTED in part and DENIED in part [23−1] [65−1] (cc: all counsel) ; entry date : 2/19/02 (erv) (Entered: 02/19/2002)
69 Joint MOTION by Plas', defendant for Preliminary Approval of Consent Decree and for Fairness Hrg (erv) (Entered: 03/29/2002)
70 Joint MOTION by Plas', defendant to vacate the Pretrial Conf as Moot (erv) (Entered: 04/01/2002)
71 MINUTE ORDER : by Magistrate Judge Patricia A. Coan granting the Joint motion to vacate the Pretrial Conf as Moot [70−1] ; pretrial conf vacated 4/1/02 (cc: all counsel) ; entry date : 4/1/02 (erv) (Entered: 04/01/2002)
72 MEMORANDUM by Judge Marcia S. Krieger referring to Magistrate Judge Patricia A. Coan the Joint motion to vacate the Pretrial Conf as Moot [70−1] (erv) (Entered: 04/02/2002)
73 ORDER by Judge Marcia S. Krieger setting hearing on Law and Motion for Preliminary Approval of Consent Decree and for Fairness Hrg [69−1] 9:00 5/8/02 (cc: all counsel) ; entry date : 4/8/02 (erv) (Entered: 04/08/2002)
74 COURTROOM MINUTES of Law &Motions hrg by Judge Marcia S. Krieger; parties stipulated to changes to the Consent Decree paragraph 24: Objection due 6/23/02, Response due 7/22/02 Fairness hrg set for 9:00 9/6/02 ; date : 5/9/02 Court Reporter: Paul Zuckerman (erv) Modified on 08/01/2002 (Entered: 05/09/2002)
75 NOTICE by defendant Conoco, Inc. of filing of Consent Decree as Approved by the Ct on behalf of all parties re: minutes [74−2] for preliminary approval of the consent decree on 5/8/02 (erv) (Entered: 05/20/2002)
76 COURTROOM MINUTES of Fairness Hrg by Judge Marcia S. Krieger granting Joint motion for Preliminary Approval of Consent Decree and for Fairness Hrg [69−1] Oral Findings and conclusions of law are made of record and incorporated herein. The Consent Decree is Approved as being full and fair as to all parties in the litigation. Csl shall tender to the Court a proposed order that incorporates the Ct's findings and Oral order within 10 days ; entry date : 9/9/02 Court Reporter: Kara Spitler (erv) (Entered: 09/09/2002)
77 ORDER by Judge Marcia S. Krieger Pursuant to [76−1] minutes and the Ct having held a Final Hrg regarding the Fairness of the Parties Proposed Consent Decree, The Ct finds and Adjudges that the Consent Decree is Fair, reasonable and adequate terminating case (cc: all counsel) ; entry date : (erv) (Entered: 09/13/2002)
78 NOTICE of Entry of Appearance by Darin L. Mackender on behalf of Conoco, Inc. (Mackender, Darin) (Entered: 11/24/2008)
79 STIPULATION of Dismissal of Case With Prejudice by Defendant Conoco, Inc.. (Attachments: # 1 Proposed Order (PDF Only) Order of Dismissal With Prejudice)(Mackender, Darin) (Entered: 11/24/2008)
80 Docket Annotation re: 79 Stipulation of Dismissal of Case, 78 Notice of Entry of Appearance. The NEF's for these documents to P. Kathleen Lower were returned

Case: 1:99-cv-02086-MSK-PAC As of: 05/23/2010 08:27 PM MDT 7 of 7
as undeliverable. As the clerk's office has been unable to contact Ms. Lower, she is terminated as counsel for the defendant in this matter and her noticing is terminated, pursuant to the instruction of chambers. Text only entry − no document attached (gmssl, ) (Entered: 12/02/2008)

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-WM-2086
JULIE FARRAR-KUHN and CARRIE ANN LUCAS, for themselves and all others similarly situated,

v. CONOCO INC.,

Plaintiffs, Defendant.

SECOND AMENDED CLASS ACTION COMPLAINT

Plaintiffs Julie Farrar-Kuhn and Carrie Ann Lucas by and through their attorneys Fox & Robertson, P.C. and Kevin Williams, Esq., hereby submit this Second Amended Class Action Complaint against Conoco Inc. (“Conoco”) asserting a nationwide class action that challenges violations of the Americans with Disabilities Act (“ADA”) at service stations and convenience stores owned by Conoco as well as individual claims under the Colorado Anti-Discrimination Act (“CADA”).
INTRODUCTION 1. On July 26, 1990, President Bush signed the Americans with Disabilities Act, establishing the most important civil rights law for persons with disabilities in our country’s history. The ADA became effective as to Defendant on January 26, 1992. One of the principal goals of the ADA is the integration of people with disabilities into the country’s economic and social life.

2. Title III of the ADA prohibits public accommodations – including service stations and convenience stores – from discriminating on the basis of disability in the provision of their goods and services. 3. One of the primary ways in which many people with disabilities have gained independence and sought integration is through their ability to drive an adapted car or van. This permits the mobility necessary to commute to a job or perform personal errands without relying on public or private assistance. However, this independence is illusory if a disabled driver is unable to buy gas for his vehicle when and where it is needed. 4. Defendant Conoco’s convenient “pay-at-the-pump” service is configured so that it is not available to many customers who use wheelchairs. In addition, many service stations and convenience stores owned by Conoco have many other inaccessible features, including inadequate parking and blocked or narrow sidewalks and aisles. This places additional burdens on customer who use wheelchairs or makes it impossible for them to access Conoco’s goods and services.
JURISDICTION 1. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343 and pendant jurisdiction over Plaintiffs’ state claims. 2. Venue is proper within this District pursuant to 28 U.S.C. § 1391.
PARTIES 1. Plaintiff Julie Farrar-Kuhn is and was at all times material hereto a resident of Colorado. Ms. Farrar-Kuhn has sacral agenesis and is substantially impaired in several major life activities, including but not limited to the major life activity of walking. She uses a manual wheelchair for mobility. 2. Plaintiff Carrie Ann Lucas is and was at all times material hereto a resident of Colorado. As a result of a bone infection and bone tumor and related treatment, Ms. Lucas is substantially
2

impaired in several major life activities, including but not limited to the major life activity of

walking. She uses a power wheelchair for mobility.

3. Defendant Conoco Inc. (“Conoco”) is a corporation incorporated in the State of Texas

with its principal place of business at 600 North Dairy Ashford Street, Houston, TX 77079.

Conoco is registered to do business in the state of Colorado. Conoco owns service stations and

convenience stores in the state of Colorado. On information and belief, Conoco had net income

of more than $223 million in the third quarter of 1999.

4. Defendant Conoco owns approximately one hundred forty service stations and/or

convenience stores in approximately six states including but not limited to those at the following

locations in Colorado:

a.

785 Colorado Boulevard, Denver;

b.

1501 Colorado Boulevard, Denver;

c.

303 S. Colorado Boulevard, Denver;

d.

1696 S. Colorado Boulevard, Denver;

e.

3495 S. Monaco Parkway., Denver;

f.

7295 East Belleview Avenue, Englewood;

g.

1500 7th Street, Denver;

h.

290 S. Havana Street, Aurora;

i.

2100 S. Monaco Parkway, Denver;

j.

15351 E. Iliff Avenue, Aurora;

k.

11515 N. Highway 83, Parker; and

l.

1100 S. Havana Street, Aurora.

CLASS ACTION ALLEGATIONS

1. Plaintiffs Julie Farrar-Kuhn and Carrie Lucas seek to maintain this action as a class action

under Rule 23(b)(2) of the Federal Rules of Civil Procedure. The class consists of all persons

3

with disabilities who use wheelchairs or scooters for mobility who, within four years of the filing

of the Complaint in this case, have been denied, or are currently being denied, full and equal

enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any

service station or convenience store that is owned by Conoco Inc.

2. The class identified in Paragraph 11 is believed to consist of well over 10,000 members

and joinder of all of such members in this lawsuit is impracticable.

3. There are numerous questions of law and fact common to the class, including without

limitation, the following:

a.

Whether Conoco service stations and convenience stores

are “public accommodations” under the ADA;

b.

Whether Conoco service stations deny the full and equal

enjoyment of their goods, services, facilities, privileges, advantages, or

accommodations to people in wheelchairs in violation of the ADA; and

c.

What measures are legally required to bring Conoco service

stations and convenience stores into compliance with the ADA.

4. The claims of Ms. Farrar-Kuhn and Ms. Lucas are typical of the claims of the members

of the class. They – like all other members of the class – use wheelchairs for mobility and claim

Conoco has violated the ADA by failing to make its service stations and convenience stores

accessible to people in wheelchairs.

5. Ms. Farrar-Kuhn and Ms. Lucas will fairly and adequately protect the interests of the

class. They are both familiar with the requirements of the ADA and committed to ensuring

access for people who use wheelchairs though enforcement of its provisions. Neither Plaintiff

has any interests that conflict in any way with those of the class.

6. In addition, Plaintiffs have retained counsel with extensive experience in litigation,

including class action litigation. Plaintiffs’ counsel have been found by this Court on two

4

occasions to be qualified to represent a class in bringing claims under the ADA. Two of Plaintiffs’ counsel, Timothy Fox and Kevin Williams, are thoroughly familiar with issues concerning people who use wheelchairs because both are tetraplegics and both have used wheelchairs for over 10 years. 7. This action may be maintained as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) because Conoco’s violations of the ADA – including but not limited to controls and counters that are too high, and access to stores, merchandise and restrooms that is obstructed – are applicable to all members of the class. Therefore, an injunction requiring compliance with the ADA is appropriate. Declaratory and injunctive relief is the only relief sought on behalf of the class.
GENERAL ALLEGATIONS 1. Many Conoco service stations have gas pumps that permit customers to pay for their gas by swiping a credit card through a card reader on the pump itself. The customer then pumps the gas, receives a receipt and drives away, with no need to enter the store area, stand in line or wait for store personnel. This system of paying with a credit card at the gas pump is known as “payat-the-pump.” 2. In most of Conoco’s gas pumps that have the pay-at-the-pump feature, the credit card reader and other controls are too high to be used by customers who use wheelchairs. As a result, Conoco does not offer its convenient pay-at-the-pump service to those customers. 3. On information and belief, many Conoco gas pumps that have inaccessible pay-at-thepump controls were installed after January 26, 1992 and, as such, were required to be accessible.
4. On information and belief, pay-at-the-pump gas pumps are available that have accessible card readers and other controls. In addition, equipment is available that permits accessible card readers and other controls to be appended to and used with otherwise inaccessible pumps.
5

5. Many Conoco service stations and convenience stores also have other inaccessible features including but not limited to inaccessible parking, tables, sidewalks, entrances, restrooms and aisles. 6. Plaintiff Julie Farrar-Kuhn drives a minivan. Ms. Farrar-Kuhn has two young children and works as an Administrative Assistant at the Colorado Developmental Disabilities Planning Council. As such, she is very busy and often has to buy gas for her van quickly when she is between errands or on her way to or from work. She would like to be able to take advantage of the convenience of Conoco’s pay-at-the-pump system. 7. Ms. Farrar-Kuhn has patronized Conoco service stations in the past and would like to do so in the future. 8. In or about August 1998, Ms. Farrar-Kuhn went to the Conoco at 785 Colorado Boulevard in Denver (“785 Colorado Conoco”) to purchase gas. She was unable to use the credit card reader on the gas pump at the 785 Colorado Conoco because it was too high for her to reach. On information and belief, the card reader is higher than 54 inches. 9. Instead, Ms. Farrar-Kuhn wrote a check for the amount of gas she anticipated purchasing and tried to get into the store to give it to the cashier. Because a car was blocking the ramp and a newspaper stand was blocking the sidewalk, she was unable to get into the store. The only ramp to the store is incorporated into the only accessible parking space. As such, when a car parks in that space, the ramp is blocked. 10. Because she could not get in the store, Ms. Farrar-Kuhn honked her horn and waved her disabled parking placard trying to get the attention of the cashier to come out and get her check. The cashier looked and shrugged her shoulders. Ms. Farrar-Kuhn then asked another customer to explain the situation to the cashier and to ask her to come out and get the check. The customer apparently did so but the cashier continued to refuse to come out. There were no other customers at the store and the cashier did not appear to be busy.
6

11. An employee of the Conoco station then came out and got in the car that was in the accessible parking space blocking the access ramp – making clear that it was his car. This car did not have a disabled placard or license plate. Because of the newspaper rack in the sidewalk, Ms. Farrar-Kuhn still could not get to the store. Because the employee would not assist her, Ms. Farrar-Kuhn left and obtained gas elsewhere. 12. Ms. Farrar-Kuhn has patronized the 785 Colorado Conoco on at least ten occasions since October, 1997. On each occasion, she encountered discrimination on the basis of disability including but not limited to the inability to use the pay at the pump feature and inability to get into the store. 13. Ms. Farrar-Kuhn has patronized the Conoco at 290 S. Havana in Aurora, Colorado on at least two occasions since October, 1999. On each occasion, she encountered discrimination on the basis of disability including but not limited to the inability to use the pay at the pump feature.
14. Ms. Farrar-Kuhn has patronized the Conoco at 1501 Colorado Blvd. in Denver, Colorado (“1501 Colorado Conoco”) on at least twenty occasions since October, 1997. On each occasion, she encountered discrimination on the basis of disability including but not limited to the inability to use the pay at the pump feature, the inability to maneuver in the store and service counters that were too high. 15. Ms. Farrar-Kuhn has patronized the Conoco at 303 S. Colorado Blvd. in Denver, Colorado (“303 S. Colorado Conoco”) on at least five occasions since October, 1997. On each occasion, she encountered discrimination on the basis of disability including but not limited to the inability to use the pay at the pump feature, the inability to maneuver in the store, service counters that were too high, and the inability enter the store due to obstructions on the sidewalk. 16. Ms. Farrar-Kuhn has patronized the Conoco at 1696 S. Colorado Blvd. in Denver, Colorado (“1696 S. Colorado Conoco”) on at least two occasions since October, 1997. On each
7

occasion, she encountered discrimination on the basis of disability including but not limited to the inability to use the pay at the pump feature. 17. Ms. Farrar-Kuhn has patronized the Conoco at 2100 S. Monaco Parkway in Denver, Colorado (“2100 S. Monaco Conoco”) on at least two occasions since October, 1997. On each occasion, she encountered discrimination on the basis of disability including but not limited to the inability to use the pay at the pump feature. 18. Plaintiff Carrie Ann Lucas uses a power wheelchair and drives a lift-equipped van. Ms. Lucas is a graduate of the Iliff School of Theology and is approved for ordination as a minister in the United Church of Christ. She works at the Colorado Cross-Disability Coalition. Ms. Lucas has custody of her niece and is preparing to adopt her as her daughter. Ms. Lucas’s niece also has a mobility disability and also uses a wheelchair. As such, Ms. Lucas is often very busy and has to buy gas for her van quickly between meetings and errands. She would like to be able to take advantage of the convenience of Conoco’s pay-at-the-pump system. 19. Ms. Lucas travels a great deal for her various jobs and activities. She has patronized Conoco service stations throughout the state of Colorado in the past and will continue to do so in the future. 20. On or about August 6, 1999, Ms. Lucas went to the 785 Colorado Conoco to purchase gas for her van. After she got out of her van, she found that she was unable to reach the credit card reader on the pump. On information and belief, the card reader is higher than 54 inches. 21. Because she was unable to use the pay-at-the-pump system, she went into the store to pay. The sidewalk leading to the store was blocked by a garbage can and a bucket of salt, leaving very little room (less than 36 inches) for Ms. Lucas to pass and leaving her at risk to fall of the curb. In the store, she waited in line, waited for approval of her credit card, and signed the receipt. The counter was too high for her to sign the receipt comfortably. On information and belief, it is higher than 36 inches.
8

22. It took her longer to purchase gas than it would have if she were not disabled. 23. Ms. Lucas has patronized the 785 Colorado Conoco on at least one occasion since the events described in Paragraphs 37 through 39 above. On that occasion, she encountered discrimination on the basis of disability including but not limited to the inability to use the pay at the pump feature, service counters that were too high and difficulty parking and using the facility based on the need to put her lift down to get out of her van. 24. On information and belief, the 785 Colorado Conoco has the following features, among others, that violate the ADA and the CADA: credit card readers and other controls that are over 54 inches high; a service counter that is over 36 inches high; and insufficient, noncompliant and/or improperly marked accessible parking. 25. On or about August 6, 1999, Ms. Lucas went to the 303 S. Colorado Conoco to purchase gas. She pulled up to the most distant pump and discovered she was required to prepay or use the pay-at-the-pump system. Because Ms. Lucas was unable to use the card reader, she tried to use the help button. It was difficult to reach because it was too high, but using a pen she managed to push it. On information and belief, the card reader is higher than 54 inches. An employee came out to pump the gas. 26. Ms. Lucas then went inside to buy water and pay for the gas. The aisles were blocked making it impossible for her to access all of the merchandise in the store. None of the employees offered to move any of the boxes. She accidently knocked over a display of sunflower seeds trying to turn around at the check-out counter. The counter was too high for her to sign the credit card receipt. On information and belief, it is higher than 36 inches. 27. It took her longer to complete her transaction than it would have if she were not disabled.
9

28. Ms. Lucas went outside to use the restroom at the 303 S. Colorado Conoco. There were boxes blocking her path and she was unable to get the door open without falling off the curb. She was unable to use the restroom at the 303 S. Colorado Conoco. 29. Ms. Lucas also patronized the 303 S. Colorado Conoco in at least February and March of 2000. On both occasions, she encountered discrimination on the basis of disability including but not limited to the inability to use the pay at the pump feature and service counters that were too high. 30. On information and belief, the 303 S. Colorado Conoco has the following features, among others, that violate the ADA and the CADA: credit card readers and other controls that are over 54 inches high; a service counter that is over 36 inches high; no accessible parking; and an inaccessible path to the restrooms. 31. On or about August 6, 1999, Ms. Lucas went to the 1501 Colorado Conoco to get gas. She pulled up to the most distant pump so it would be safe to put her lift down. This pump required her to prepay or use the pay-at-the-pump system. The card reader was too high for her to use. On information and belief, it is higher than 54 inches. 32. Because the credit card reader was too high, Ms. Lucas went inside to pay. When she complained about the situation, an employee came out and pumped the gas. It took her longer to buy gas than it would have if she had been able to use the card reader and pay at the pump. 33. Ms. Lucas has patronized the 1501 Colorado Conoco on December 24, 1999 and on at least three other occasions since the events described in Paragraph 48 and 49 above. On each occasion, she encountered discrimination on the basis of disability including but not limited to the inability to use the pay at the pump feature and service counters that were too high. 34. On information and belief, the 1501 Colorado Conoco has the following features, among others, that violate the ADA and the CADA: credit card readers and other controls that are over
10

54 inches high; a service counter that is over 36 inches high; insufficient, noncompliant and/or improperly marked accessible parking; and an inaccessible path to the restrooms. 35. On or about August 14, 1999, Ms. Lucas went to the Conoco at 3495 S. Monaco (“3495 S. Monaco Conoco”) to buy gas. She pulled up and noticed an employee assisting a customer with her car. Ms. Lucas deployed her lift to get out of her van. She attempted to use the card reader but it was too high. On information and belief, it is higher than 54 inches. 36. The employee saw her try to reach the card reader, but did not offer assistance. Because she was unable to use the card reader, Ms. Lucas pumped gas into her van and was prepared to pay inside the store. 37. When Ms. Lucas attempted to go into the store to pay for her gas and buy a bottle of water, she found that she was unable to open the door because a trash can and cooler blocked her way. To get the attention of an employee, she pounded on the window for a minute. An employee finally came out to ask what the problem was. Ms. Lucas told him that she was unable to get in the door. 38. The employee stared blankly and held the door open. Ms. Lucas requested that he move the trash can that was blocking her access. He finally begrudgingly did so. Even after moving the trash can, the path of travel was very tight and Ms. Lucas was fearful of falling off the curb. 39. After Ms. Lucas got in, she found a bottle of water and paid for both her water and gas. Again, the counter was too high to sign the receipt. On information and belief, it is higher than 36 inches. 40. Ms. Lucas then attempted to use the restroom. The path to the restroom was blocked by merchandise. She had to find the employee again and request that he move the merchandise that blocked her way. The same employee begrudgingly moved the merchandise. 41. It took Ms. Lucas longer to buy gas, buy water and use the restroom that it would have if she were not disabled.
11

42. On or about August 16, 1999, Ms. Lucas went to the 3495 S. Monaco Conoco to buy water and chewing gum and to use the restroom. When she pulled into the service station, she saw that the garbage can was placed in front of the door again. She left without making her purchases or using the restroom. 43. On information and belief, the 3495 S. Monaco Conoco has the following features, among others, that violate the ADA and the CADA: credit card readers and other controls that are over 54 inches high; a service counter that is over 36 inches high; insufficient, noncompliant and/or improperly marked accessible parking and an inaccessible path to the store and to its restrooms. 44. On or about September 11, 1999, Ms. Lucas went to the 1696 S. Colorado Conoco to buy gas. After she had pumped gas into her van, she attempted to enter the store to purchase a snack and pay for her gas. She was unable to get into the store, however, because the sidewalk between the ramp and the door was blocked by a soda cooler and boxes of windshield washer fluid. On information and belief, there was approximately 22 inches of space between these various obstacles and the edge of the sidewalk. 45. Ms. Lucas got the attention of two employees who were working near the gas pumps. One of them (whose first name was Maria) came up and started attempting to push Ms. Lucas’s wheelchair past the obstacles, a very dangerous thing to do. Ms. Lucas requested that she not push the wheelchair but rather move the obstacles from the sidewalk. Maria and her colleague (whose first name was Telia) went into the store and another woman came out to speak with Ms. Lucas. 46. This new employee initially stated that a vendor had placed the cooler there and that it was too full to be moved. When she looked in the cooler, however, it turned out to be empty. The three Conoco employees moved the cooler and the other merchandise and, 20 minutes after
12

she arrived, Ms. Lucas was able to get in the store, buy her snack and pay for her gas. This delay caused her to be late for a meeting in Colorado Springs. 47. Ms. Lucas has patronized the 1696 S. Colorado Conoco on at least two occasions since the events described in Paragraphs 61 through 63 above. On each occasion, she encountered discrimination on the basis of disability including but not limited to the inability to use the pay at the pump feature and difficulty parking and using the facility based on the need to put her lift down to get out of her van. 48. On information and belief, the 1696 S. Colorado Conoco has the following features, among others, that violate the ADA and the CADA: credit card readers and other controls that are over 54 inches high; insufficient, noncompliant and/or improperly marked accessible parking and an inaccessible path to the store. 49. Ms. Lucas patronized the Conoco at 15351 E. Iliff Avenue in Aurora, Colorado in December 1997. On that occasion, she encountered discrimination on the basis of disability including but not limited to the inability to use the pay at the pump feature. 50. Ms. Lucas patronized the Conoco at 11515 N. Highway 83 in Parker, Colorado in August, 1998. On that occasion, she encountered discrimination on the basis of disability including but not limited to the inability to use the pay at the pump feature. 51. Ms. Lucas patronized the Conoco at 1100 S. Havana Street in Aurora, Colorado in early 1999. On that occasion, she encountered discrimination on the basis of disability including but not limited to the inability to use the pay at the pump feature and service counters that were too high. 52. Ms. Lucas patronized the 2100 S. Monaco Conoco approximately three times per month during the following months: November 1997, January through May 1998 and September through November 1998. On each occasion, she encountered discrimination on the basis of
13

disability including but not limited to the inability to use the pay at the pump feature and, at times, the refusal of Conoco employees to assist her with refueling. 53. Ms. Lucas patronized the Conoco at 1500 S. Broadway in Edmond, Oklahoma on or about November 22, 2000. On that occasion, she encountered discrimination on the basis of disability including but not limited to the lack of accessible parking, the obstruction of the route to the women’s restroom, and the inability to use the pay at the pump feature. 54. Ms. Lucas patronized the Conoco at 33rd and Blvd. Street in Edmond, Oklahoma on or about November 22, 2000. On that occasion, she encountered discrimination on the basis of disability including but not limited to the lack of accessible parking, the obstruction of the women’s restroom, and the inability to use the pay at the pump feature. 55. Ms. Lucas patronized the Conoco at 3300 Main Street in Norman, Oklahoma on or about November 25, 2000. On that occasion, she encountered discrimination on the basis of disability including but not limited to the lack of accessible parking, the obstruction of the women’s restroom, and the inability to use the pay at the pump feature. 56. On information and belief, Conoco owns other service stations and/or convenience stores around the country – some of which were designed and constructed for first occupancy after January 26, 1993 – that have pay-at-the-pump facilities, counters, tables, aisles, restrooms, parking areas and other facilities that are in violation of the Americans with Disabilities Act.
FIRST CLAIM FOR RELIEF (On behalf of Plaintiffs and all others similarly situated
for violation of the Americans with Disabilities Act)
1. Plaintiffs reallege and incorporate by reference the allegations set forth in paragraphs 1 73 above as if fully set forth herein. 2. Title III of the ADA prohibits discrimination by public accommodations on the basis of disability. 42 U.S.C. §12182.
14

3. Conoco service stations and convenience stores are public accommodations covered by Title III of the ADA. 42 U.S.C. § 12187(7)(E) & (F). 4. With respect to facilities already in existence on or before the effective date of the ADA, discrimination under § 12182 includes the failure to remove architectural barriers where it would be readily achievable to do so. 42 U.S.C. § 12182(b)(2)(A)(iv). 5. With respect to facilities constructed after January 26, 1993, discrimination under § 12182 includes the failure to design and construct such facilities so that they are readily accessible to and usable by individuals with disabilities. 42 U.S.C. § 12183(a)(1). 6. With respect to facilities that are altered after the effective date of the ADA, discrimination under § 12182 includes the failure to make the alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities. 42 U.S.C. § 12183(a)(2). 7. The actions and barriers described above discriminated and continue to discriminate against Plaintiffs and others similarly situated in violation of Title III of the ADA and its implementing regulations. 8. Plaintiffs and others similarly situated have been damaged and will continue to be damaged by this discrimination as more fully set forth above.
SECOND CLAIM FOR RELIEF (On behalf of Plaintiffs for violation of C.R.S. § 24-34-601) 1. Plaintiffs reallege and incorporate by reference the allegations set forth in paragraphs 1 81 above as if fully set forth herein. 2. C.R.S. § 24-34-601(1) defines a “place of public accommodation” to include “any place of business engaged in any sales to the public.”
15

3. Conoco service stations and convenience stores in Colorado are places of business

engaged in sales to the public, selling gasoline and/or grocery and other sundry products and

therefore are places of public accommodation.

4. C.R.S. § 24-34-601(2) provides in relevant part that “[i]t is a discriminatory practice and

unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or

a group, because of disability . . . the full and equal enjoyment of the goods, services, facilities,

privileges, advantages, or accommodations of a place of public accommodation . . .”

5. By, among other things, placing credit card readers and other controls out of reach,

failing to designate appropriate accessible parking, failing to provide wheelchair accessible

seating, failing to maintain aisles of 36 inches, and failing to lower counter heights, the

Defendant has discriminated against the Plaintiffs by denying them the full and equal enjoyment

of the goods, services, facilities, privileges, advantages, or accommodations of Conocos in

Colorado in violation of C.R.S. § 24-34-601.

6. Plaintiffs have been damaged and will continue to be damaged by this discrimination as

more fully set forth above.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully pray:

1. That this Court assume jurisdiction;

2. That this Court certify the class described in Paragraph 11 pursuant to Rule 23 of the

Federal Rules of Civil Procedure and certify Plaintiffs as representatives of that class;

3. That this Court declare Conoco to be in violation of the Americans with Disabilities Act

and the Colorado Anti-Discrimination Act;

4. That this Court issue an injunction ordering Conoco

a.

to bring all service stations and convenience stores in the

United States that it owns and that were designed and constructed for first

16

occupancy after January 26, 1993, into full compliance with the

Americans with Disabilities Act;

b.

to bring all gas pumps that were installed after January 26,

1992, at service stations and convenience stores in the United States that

Conoco owns into full compliance with the ADA; and

c.

to institute a program to review all other facilities at all

other service stations and convenience stores in the United States that

Conoco owns to ensure that they are in full compliance with the ADA

including but not limited to ensuring that, where alterations were made,

they comply with the ADA and that where no alterations have been made,

any architectural barriers at such service stations and convenience stores

are removed where it is readily achievable to do so or as it becomes

readily achievable to do so.

5. That this court award statutory damages of $500 for each instance of discrimination

experienced by Plaintiffs pursuant to C.R.S. §§ 24-34-601 & 24-34-602.

6. That this Court award reasonable attorneys’ fees and costs; and

7. That this Court award such additional or alternative relief as may be just, proper and

equitable.

8. JURY DEMAND: Plaintiffs demand a jury on all issues that can be heard by a jury. Respectfully submitted,

FOX & ROBERTSON, P.C.

Amy F. Robertson Timothy P. Fox 910 - 16th Street Suite 610 Denver, CO 80202

17

Dated: April 16, 2001

303-595-9700
COLORADO CROSS-DISABILITY COALITION Kevin W. Williams General Counsel 655 Broadway Suite 775 Denver, CO 80203 303-839-1775
Attorneys for Plaintiffs

Address of Plaintiff Julie Farrar-Kuhn:
2925 Dexter Street Denver, CO 80207
Address of Plaintiff Carrie Ann Lucas:
1350 Grant Street Apt. 608 Denver, CO 80203

18

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-MK-2086
JULIE FARRAR-KUHN and CARRIE ANN LUCAS, for themselves and all others similarly situated,
Plaintiffs,
v.
CONOCO INC.,
Defendant.
CONSENT DECREE
1. DEFINITIONS
In addition to terms defined elsewhere in the Consent Decree, the following terms shall have the meanings set forth below.
1.1 Accessibility Enhancements. Means the modifications to Elements set forth on Exhibit 3 of this Consent Decree required by Paragraphs 8 and 9 hereof. Accessibility Enhancements are distinguished from Alterations.
1.2 ADA. Refers to the Americans with Disabilities Act, 42 U. S. C. § 12101 et seq.
1.3 Alteration. Has the meaning ascribed in 28 C.F.R. § 36.402, subject also to the provisions of 28 C.F.R. § 36.403. Accessibility Enhancements are specifically excepted from and do not constitute Alterations.
1.4 Alternative Methods. Refers to Readily Achievable methods other than barrier removal by which a public accommodation can make its goods, services, facilities, privileges, advantages, or accommodations available to persons with Mobility Disabilities, subject to the terms set out in 28 C.F.R. § 36.305.
1.5 Breakplace Store. Means a Corporate Store operated using the breakplace logo.
1.6 CADA. Refers to the public accommodations provisions of the Colorado Anti-Discrimination Act, C.R.S. §§ 24-34-601 et seq.

1.7 Class Counsel. Means Amy F. Robertson and Timothy P. Fox of the law firm of Fox & Robertson, P.C. and Kevin Williams of the Colorado Cross-Disability Coalition, and any attorneys practicing with those attorneys, or any attorney who may be substituted for one of these attorneys upon motion to the Court.
1.8 Class Member. Means a member of the Settlement Class.
1.9 Conditioned Permit. Means a permit required to complete an Accessibility Enhancement that contains extraordinary, unusual or unexpected conditions.
1.10 Conoco. Means Conoco Inc., the defendant herein.
1.11 Consent Decree. Means this document and the exhibits attached to this document.
1.12 Corporate Store. Means a gas station/convenience store, including Breakplace Stores, owned by Conoco anywhere in the United States of America or the District of Columbia. The term includes the site, all buildings on the site, and all Elements on the site.
1.13 CRIND. Means a self-service credit card reader in a fuel dispenser.
1.14 Defense. Means any of the reasons set forth in Paragraphs 8.2, 8.3, 8.4, 8.5, 8.6, 9.2, 9.3, 9.4, 9.5 and 9.6 for which Conoco is permitted not to undertake an Accessibility Enhancement that would otherwise be called for by this Consent Decree.
1.15 Dispute Resolution. Means the process described in Paragraph 21 hereof.
1.16 Element. Means an architectural or mechanical component of a building, facility, space, or site, e.g., telephone, curb ramp, door, drinking fountain, seating, or water closet. Element as used herein includes those items listed in Exhibit 3. Inclusion of an Element in this Consent Decree or any of its exhibits does not constitute an admission by Conoco that the Element is an ”accessible element” as that term is defined in Standards § 3.5. Conoco expressly does not waive the position that only elements specified in Standards §§ 4.1.2 or 4.1.3 are “accessible elements.”
1.17 Enhancement Report. Means the report to be created for each Corporate Store following the survey procedure described in Exhibit 5 using the proprietary software of the Independent Expert, describing the Accessibility Enhancements required by this Consent Decree as a result of a survey of the Corporate Store pursuant to Paragraphs 7.2, 8.1 or 9.1. The Enhancement Report prepared as a result of the survey will state the Accessibility Enhancements Conoco plans to perform, the Accessibility Enhancements as to which Conoco asserts a Defense,
2

and, as to the last category, the Alternative Methods that Conoco plans to undertake.
1.18 Existing Corporate Store. Means any Corporate Store that was designed and constructed for first occupancy prior to January 26, 1993.
1.19 Final Approval. Means approval of this Consent Decree by a United States District Judge. If any objectors appeal the district judge’s approval, “Final Approval” means that date that all possible appeals have been dismissed and the time for any further appeal has expired.
1.20 Independent Expert. Means William E. Endelman of Endelman & Associates, or if he becomes unavailable, a substitute expert agreed upon by the Parties.
1.21 Mobility Disability. Means a disability, as that term is defined in 42 U.S.C. § 12102, that necessitates the use of a wheelchair or scooter for mobility.
1.22 Monitoring. Means the activities undertaken by the Independent Expert following Final Approval of this Consent Decree pursuant to Paragraph 13 hereof.
1.23 Named Plaintiffs. Refers to Julie Farrar-Kuhn (“Farrar-Kuhn”) and Carrie Ann Lucas (“Lucas”).
1.24 New Corporate Store. Means a Corporate Store designed and constructed for first occupancy on or after January 26, 1993.
1.25 Notice. Means the notice attached as Exhibit 13 hereto.
1.26 Party or Parties. Means Named Plaintiffs and/or Conoco.
1.27 Pilot Program. Means the program described in Paragraph 7.
1.28 Preliminary Approval. Means the initial approval by a United States District Judge of the terms of this Consent Decree, which shall occur prior to any Notice being provided in accordance with Paragraph 25 of this Consent Decree.
1.29 Readily Achievable. Means “easily accomplishable and able to be carried out without much difficulty or expense.” [Reference: 28 C.F.R. § 36.104].
1.30 Settlement Class. Means the class of all persons with disabilities who use wheelchairs or scooters for mobility who, within four years of the filing of the Complaint in the Lawsuit have been denied, or are currently being denied, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any Corporate Store.
3

1.31 Significant Loss Of Selling Or Serving Space. Means rearrangement or relocation of equipment or display racks resulting in the loss of the applicable percentage shown below of the space on the sales floor devoted to the display of merchandise, including cooler shelving, non-perishable shelving or hot-to-go counter or cabinet space, as follows:
Corporate Stores under 2000 total square feet: 1% Corporate Stores of 2000-3000 total square feet: 3% Corporate Stores of over 3000 total square feet: 5%
provided that this Defense does not apply until Conoco has exhausted all good faith efforts to achieve the Accessibility Enhancement in question by displaying merchandise in alternative fashions. [Reference: 28 C.F.R. § 36.304(f)].
1.32 Significant Risk. Means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services. [Reference: 42 U.S.C. § 12182(B)(3)].
1.33 Standards. Refers to the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A, July 1, 1994 version.
1.34 Structurally Impracticable or Structural Impracticability. An Accessibility Enhancement will be considered structurally impracticable in those rare circumstances where full compliance has little likelihood of being accomplished because the unique characteristics of terrain prevent the incorporation of an accessibility feature. [Reference: 28 C.F.R. § 36.401(c)].
1.35 Subsequently Acquired Corporate Store. Means a Corporate Store that Conoco acquires after Final Approval of this Consent Decree. Any store that is owned by the corporate entity surviving after the merger of Conoco and Phillips Petroleum Company only by reason of such merger shall not be considered a Subsequently Acquired Corporate Store.
1.36 Subsequently Relinquished Corporate Store. Means a Corporate Store that ceases to be a Corporate Store after Final Approval of this Consent Decree. Any Corporate Store presently owned by Conoco which, as a result of the pending merger between Conoco and Phillips Petroleum Company, is owned by the corporate entity surviving after that merger is subject to the terms of this Consent Decree and is not a Subsequently Relinquished Corporate Store by virtue of the merger.
1.37 Technically Infeasible or Technical Infeasibility. With respect to an Alteration, means something that has little likelihood of being accomplished because existing structural conditions would require removing or altering a load-bearing member which is an essential part of the structural frame; or because other existing
4

physical or site constraints prohibit modification or addition of elements, spaces, or features which are in full and strict compliance with the minimum requirements for Alterations or new construction and which are necessary to provide accessibility. [Reference: Standards § 4.1.6(1)(j)].
1.38 To The Maximum Extent Feasible. Means that (a) where an Accessibility Enhancement is Virtually Impossible, Conoco shall carry out the Enhancement “to the maximum extent feasible,” giving that phrase the meaning set forth in 28 C.F.R. § 36.402(c); or (b) where an Alteration is planned, has the meaning set forth in 28 C.F.R. § 36.402(c).
1.39 Virtually Impossible or Virtual Impossibility. Has the meaning ascribed in 28 C.F.R. § 36.402(c).
2. INTRODUCTION
2.1 Parties to this Consent Decree. This Consent Decree is entered into by and between Conoco and the Named Plaintiffs, on behalf of themselves individually and the Settlement Class.
2.2 Number of Corporate Stores. Conoco owns 124 Corporate Stores.
2.3 Disability. Farrar-Kuhn and Lucas each uses a wheelchair for mobility and each is a person with a Mobility Disability. Farrar-Kuhn and Lucas each owns an automobile and each has frequented a number of Corporate Stores within the four years prior to the filing of this lawsuit, up to and including the present date.
2.4 The Lawsuit. The Named Plaintiffs have brought suit in the United States District Court for the District of Colorado, Civil Action No. 99-MK-2086 (the “Lawsuit”), in which they allege that Conoco violated Title III of the ADA at all of its Corporate Stores, and the public accommodations provisions of the CADA at its Corporate Stores in Colorado. Conoco answered the second amended complaint and denied that it had violated the ADA or the CADA. In February 2000, Conoco and Named Plaintiffs and their respective counsel began negotiations regarding accessibility at Corporate Stores. The Parties and their counsel have negotiated in good faith concerning accessibility issues, and their negotiations have resulted in this Consent Decree. Conoco has denied and continues to deny liability for all claims, as further described in Paragraph 3. The Parties and their counsel have agreed to this Consent Decree to avoid the uncertainties and costs of further or future litigation.
2.5 Class Certification. On August 22, 2000, the Court certified the Lawsuit as a class action and approved the Named Plaintiffs to represent a class of “[a]ll persons with disabilities who use wheelchairs or scooters for mobility who, within four years of the filing of the Complaint in this case, have been denied, or are
5

currently being denied, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any service station or convenience store that is owned by Conoco Inc.”
2.6 Intent of the Parties. The Parties now wish to effect a complete resolution and settlement of all claims, disputes and controversies relating to the allegations made by Named Plaintiffs and to resolve their differences and disputes by settling the Lawsuit.
2.7 No Third Party Beneficiaries. Individual members of the Settlement Class are not third party beneficiaries of this Consent Decree, and they shall have no right to bring any action for any alleged violation of this Consent Decree. Only Class Counsel shall have the authority to enforce this Consent Decree.
2.8 Incorporation of Exhibits. The terms of all Exhibits attached hereto are fully incorporated into this Consent Decree and are an integral part thereof. The terms of this Consent Decree, where applicable, are fully incorporated into all Exhibits and are, where applicable, an integral part thereof.
2.9 Force Majeure. Failure of Conoco to perform any action required by this Consent Decree will not subject it to any liability or remedy for damages or otherwise if such failure is caused in whole or in part by acts of God, fires, accidents, earthquakes, explosions, floods, wars, labor disputes or shortages, riots, sabotage, or any similar circumstances beyond Conoco’s reasonable control.
2.10 Successors and Assigns. This Consent Decree and all Exhibits are binding on all successors and assigns of Named Plaintiffs, the Settlement Class members, Conoco and Class Counsel.
3. NO ADMISSION OF LIABILITY
By agreeing to and voluntarily entering in to this Consent Decree, there is no admission or concession by Conoco, express or implied, that Conoco has in any way violated the ADA or the CADA, or any other federal, state, or local law, regulation, order, or rule. Conoco denies and continues to deny that it has violated any such laws pertaining to access for persons with Mobility Disabilities at any Corporate Store or otherwise. Conoco denies and continues to deny any and all liability to Named Plaintiffs or the Settlement Class for any such claims and for claims for monetary damages. This Consent Decree, any statements or negotiations made in connection with the Consent Decree, and any actions taken by any Party under this Decree, may not be offered or be admissible in evidence or in any other manner against that Party in any action or proceeding for any purpose, except in any action or proceeding brought to enforce the terms of this Consent Decree by or against Named Plaintiffs, the Settlement Class, or Conoco, or by Conoco in defense of any claims brought by Named Plaintiffs or the Settlement Class.
6

4. CONDITIONS PRECEDENT
This Consent Decree shall be conditioned upon and shall be effective only upon, the occurrence of all of the following events:
4.1 Preliminary Approval. Class Counsel and Conoco move jointly by stipulation for an Order Granting Preliminary Approval of this Consent Decree and Issuance of Notice in accordance with Paragraph 24 of this Consent Decree and such motion is granted by the Court.
4.2 Notice. Notice is provided to the Settlement Class in accordance with Paragraph 25 of this Consent Decree.
4.3 Fairness Hearing. A Fairness Hearing is held in accordance with Paragraph 24.3 of this Consent Decree.
4.4 Jurisdiction. A determination is made by the Court that it has personal jurisdiction and subject matter jurisdiction over the Parties and the claims raised in the Second Amended Class Action Complaint and that venue is proper in the United States District Court for the District of Colorado.
4.5 Final Approval. The Court grants Final Approval of this Consent Decree and enters Judgment in accordance with the terms set forth herein after a Fairness Hearing has been conducted. The Judgment shall finally resolve all issues raised in this proceeding.
5. TERM OF CONSENT DECREE
Except as otherwise set forth in this Consent Decree, the term of this Consent Decree shall be five (5) years from the date of Final Approval of the Consent Decree.
6. LISTS OF CORPORATE STORES
6.1 Existing Corporate Stores. A current list of Existing Corporate Stores is attached as Exhibit 1. An updated list will be provided annually to Class Counsel in accordance with the terms of this Consent Decree.
6.2 New Corporate Stores. A current list of New Corporate Stores is attached as Exhibit 2. An updated list will be provided annually to Class Counsel in accordance with the terms of this Consent Decree.
6.3 Altered Corporate Stores. Once a year Conoco will supply a list of Corporate Stores to which Alterations in excess of $200,000 per Store are made after Final Approval of this Consent Decree.
7

7. SURVEY/DISPOSITION/ACCESSIBILITY ENHANCEMENT INITIATION PROCESS (PILOT PROGRAM)
7.1 Selection of Stores. Within one month after Final Approval of this Consent Decree, the Parties will select and confirm in writing a sampling of up to six Corporate Stores in the Denver Metropolitan Area (City and County of Denver and Arapahoe, Boulder, Douglas and Jefferson Counties) for inclusion in a Pilot Program to demonstrate the intent of the Consent Decree. The six Corporate Stores will be selected from both New and Existing Corporate Stores and will reflect the variety of types of Corporate Stores to be affected by the Consent Decree. Class Counsel will select the first three and Conoco will select the second three. Conoco and Class Counsel may agree to adjust the selections as may be necessary to create appropriate sampling.
7.2 Survey by Independent Expert. Within two months of Final Approval, the Independent Expert will survey the Pilot Program Corporate Stores utilizing the procedure described in Exhibit 5. The Independent Expert will provide to Conoco and Class Counsel copies of the completed Enhancement Reports for those Corporate Stores. The Parties agree to instruct the Independent Expert to evaluate compliance at New Corporate Stores in light of the provision of Standards § 3.2 and at Existing Corporate Stores in light of the acceptable measurements on Exhibit 4.
7.3 Alternative Methods. Where the Independent Expert determines that a Defense applies and Conoco is not required to complete an Accessibility Enhancement that, but for the Defense, would be required, Conoco shall state the Alternative Method that it proposes to use, pursuant to Paragraph 8.7 or 9.7, as applicable, to provide access for Class Members. Conoco will comply with this Paragraph by supplying the Alternative Methods called for by each Enhancement Report created by the Independent Expert pursuant to Paragraph 7.2 and providing such information to Class Counsel within one month of receipt of the materials specified in Paragraph 7.2.
7.4 Joint Survey by Class Counsel and Conoco and Meet and Confer. Within two months of receipt by Conoco and Class Counsel of the materials specified in Paragraph 7.2, Class Counsel, Conoco and the Independent Expert shall jointly survey the Pilot Program Stores and the Parties shall discuss the findings and recommended Accessibility Enhancements and Defenses of the Independent Expert and agree upon the recommendations to enable Conoco to go forward with appropriate Accessibility Enhancements at the remaining Corporate Stores. Either Party shall have the right to suggest modifications or amendments to the findings and recommendations of the Independent Expert. If the Parties agree to a modification or amendment of a finding or recommendation of the Independent Expert, the Parties’ agreed modification or amendment shall be substituted for the finding or recommendation of the Independent Expert. In the absence of
8

agreement by both Parties to a substitution, the finding or recommendation of the Independent Expert shall control.
7.5 Completion of Accessibility Enhancements. Within three months of the Parties’ agreement on the specifics of the Accessibility Enhancements to be carried forward from the Pilot Program as provided in Paragraph 7.4, Conoco will complete the Accessibility Enhancements at the six Pilot Program Corporate Stores identified as necessary by the Pilot Program and as agreed to by the Parties, and will notify the Independent Expert and Class Counsel of completion using the Notification Form in Exhibit 6.
7.6 Inspection of Completed Accessibility Enhancements. Within two months of the Independent Expert’s and Class Counsel’s receipt of notification as provided in Paragraph 7.5, the Independent Expert shall inspect the six Pilot Program Corporate Stores. Within one month of completion of these inspections, the Independent Expert shall provide both Conoco and Class Counsel with specific written comments for any inspected Corporate Store he deems not to meet the Pilot Program findings and recommendations. For those Corporate Stores deemed to meet the Pilot Program findings and recommendations, the Independent Expert will report in writing within the same time frame using the Certification Form in Exhibit 7.
7.7 Joint Inspection by Class Counsel and Conoco and Meet and Confer. Within two months of receipt by Conoco and Class Counsel of the materials specified in Paragraph 7.6, Class Counsel, Conoco and the Independent Expert shall jointly inspect the Pilot Program Corporate Stores and, if either Party disagrees with the conclusions of the Independent Expert, the Parties shall meet and confer in an effort to resolve their disagreement. Every effort shall be made by both Parties to conduct the “meet and confer” session at the same time as the Parties’ joint survey of the Pilot Program Corporate Stores. Either Party shall have the right to suggest modifications or amendments to the conclusions of the Independent Expert. If the Parties agree to a modification or amendment of a conclusion of the Independent Expert, the Parties’ agreed modification or amendment shall be substituted for the conclusion of the Independent Expert. In the absence of agreement by both Parties to a substitution, the conclusion of the Independent Expert shall control.
7.8 Response to Comments and Reinspection. Within two months of completion of the joint inspection of the Pilot Program Corporate Stores or the completion of any meet and confer, whichever is later, that results in a finding that an Accessibility Enhancement was not completed in accordance with the Pilot Program findings and recommendations, Conoco shall modify or redo the Accessibility Enhancement to bring it into accord. Conoco will notify the Independent Expert and Class Counsel of completion of the modified or redone Accessibility Enhancement within fourteen (14) days of completion. Within one month of notification the Independent Expert shall reinspect the modified or
9

redone Accessibility Enhancement and shall provide Conoco and Class Counsel with written certification of acceptance. Should the Accessibility Enhancement still be out of accord, the Independent Expert shall so notify Conoco. The provisions of this paragraph shall apply to such modification.
7.9 Acceptable Guidelines. Conoco and the Named Plaintiffs agree that the results of this process will represent acceptable guidelines by which to evaluate the completion of Enhancement Reports and Accessibility Enhancements for the remaining Corporate Stores covered by this Consent Decree.
8. ACCESSIBILITY ENHANCEMENTS AT NEW CORPORATE STORES
8.1 Accessibility Enhancements. Except as provided in Paragraphs 8.2, 8.3, 8.4, 8.5, and 8.6, Conoco shall undertake Accessibility Enhancements at New Corporate Stores to Elements listed on Exhibit 3 within the time frames specified in Paragraph 10. The Parties agree that any Element not listed on Exhibit 3 is not a barrier to accessibility for persons with Mobility Disabilities at Conoco Corporate Stores. Prior to commencing any Accessibility Enhancements, Conoco shall survey each Corporate Store using the procedure described in Exhibit 5 using the proprietary software of the Independent Expert and shall prepare a Enhancement Report for each Corporate Store.
8.2 Dimensional Tolerances. This Consent Decree does not require Conoco to undertake an Accessibility Enhancement described in Exhibit 3 at a New Corporate Store if the existing conditions comply with the Standards subject to conventional building industry tolerances for field conditions.
8.3 Legitimate Threat to Human Safety or the Environment. This Consent Decree does not require Conoco to undertake any Accessibility Enhancement described in Exhibit 3 at a New Corporate Store that it believes constitutes a legitimate threat to human safety or the environment. Threats to safety and the environment must be based on actual risks and not on mere speculation, stereotypes, or generalizations. [Reference: 28 C.F.R. § 36.301].
8.4 Structurally Impracticable. Conoco shall not be required to undertake any Accessibility Enhancement at New Corporate Stores if the Accessibility Enhancement is Structurally Impracticable.
8.5 Concrete. Conoco shall not be required to regrade existing concrete area slopes or surfaces (not including curb ramps, ramps and sidewalks that are adjacent to accessible entryways to stores, as described in Exhibit 3). If a vertical level change of greater than one inch develops in the surface of any accessible or vanaccessible parking space access aisle at a New or Existing Corporate Store, Conoco must repair or relocate the parking space access aisle, at its option.
10

8.6 Elements Not Controlled By Conoco. This Consent Decree does not require Conoco to initiate any Accessibility Enhancement to any Element at any New Corporate Store where the Element is not within the direct control of Conoco.
8.7 Alternative Methods. Whenever Conoco determines that it cannot complete one or more Accessibility Enhancements, for whatever reason, Conoco will undertake Alternative Methods to provide accessibility to and usability of the Element affected.
8.8 Effect of Amendments to the Standards. Should the Standards be amended at any time after Final Approval of this Consent Decree, if such amendment results in an accessibility standard that is less than provided in this Consent Decree, from the effective date of the amendment forward, Conoco shall be required only to meet the lesser of the requirements of this Consent Decree or the Standards as amended. If such amendment results in an accessibility standard that is greater than provided in this Consent Decree, Conoco shall be required only to meet the requirements of this Consent Decree for any Corporate Store in existence as of the effective date of the amendment, and agrees to meet the Standards as amended for any Corporate Store designed and constructed for first occupancy after the effective date of the amendment, and to comply with the Standards as amended for all Alterations. Nothing in this Consent Decree shall limit the right of Conoco to undertake Accessibility Enhancements, or to build or Alter Corporate Stores exceeding the requirements of this Consent Decree.
9. ACCESSIBILITY ENHANCEMENTS AT EXISTING CORPORATE STORES
9.1 Accessibility Enhancements. Except as provided in Paragraphs 9.2, 9.3, 9.4, 9.5, and 9.6, Conoco shall undertake Accessibility Enhancements at Existing Corporate Stores to Elements listed on Exhibit 3 within the time frames specified in Paragraph 11. The Parties agree that any Element not listed on Exhibit 3 is not a barrier to accessibility for persons with Mobility Disabilities at Conoco Corporate Stores. Prior to commencing any Accessibility Enhancements, Conoco shall survey each Corporate Store using the procedure described in Exhibit 5 using the proprietary software of the Independent Expert and shall prepare an Enhancement Report for each Corporate Store.
9.2 Acceptable Measurements. This Consent Decree does not require Conoco to undertake any Accessibility Enhancement described in Exhibit 3 at an Existing Corporate Store if the existing conditions comply with the measurements set forth in Exhibit 4.
9.3 Technically Infeasible, To The Maximum Extent Feasible, Significant Risk, and Significant Loss of Selling or Serving Space. In Existing Corporate Stores, Conoco shall not be required to undertake any Accessibility Enhancement even if the existing Element falls outside the acceptable measurement for that Element
11

shown on Exhibit 4 if the Accessibility Enhancement is Technically Infeasible; or if the enhancement is Virtually Impossible, then only To The Maximum Extent Feasible; or if completion would involve a Significant Risk or a Significant Loss of Selling or Serving Space.

9.4 Legitimate Threat to Human Safety or the Environment. This Consent Decree does not require Conoco to undertake any Accessibility Enhancement described in Exhibit 3 at an Existing Corporate Store that it believes constitutes a legitimate threat to human safety or the environment. Threats to safety and the environment must be based on actual risks and not on mere speculation, stereotypes, or generalizations. [Reference: 28 C.F.R. § 36.301].

9.5 Measures That Are Not Readily Achievable. The Parties agree that the following measures, if required to complete an Accessibility Enhancement called for pursuant to Paragraph 10.1, will render such Accessibility Enhancement under the circumstances of this case, not Readily Achievable. As such, any Accessibility Enhancement that requires any one of such measures shall be excepted from Paragraph 11.1:

9.5.1

Structural. Modifying an essential element of the structural frame of a building, including the foundation; load-bearing or shear walls; plumbing chase walls; partition walls if embedded therein are mechanical, electrical (other than simple outlets or switches), or plumbing fixtures; column steel, concrete or heavy timber beams; or trusses;

9.5.2 Electrical. Relocating primary electrical service, for example, a meter, transformer or main breaker panel;

9.5.3 Seismic. Modification of seismic bracing elements;

9.5.4 Fuel Supply. Relocating fuel supply, storage or distribution piping;

9.5.5 Security Areas. Removing or relocating any part of raised flooring areas and/or relocating security shield partitions;

9.5.6 Coolers. Modifying or relocating built-in coolers and freezers; or

9.5.7

Concrete. Regrading existing concrete area slopes or surfaces (not including curb ramps, ramps and sidewalks adjacent to accessible entryways to stores, as described in Exhibit 3). If a vertical level change of greater than one inch develops in the surface of any accessible or vanaccessible parking space access aisle at a New or Existing Corporate Store, Conoco must repair or relocate the parking space access aisle, at its option.

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9.6 Elements Not Controlled By Conoco. This Consent Decree does not require Conoco to initiate any Accessibility Enhancement to any Element at any Corporate Store not within the direct control of Conoco.
9.7 Alternative Methods. Whenever Conoco determines that it cannot complete one or more Accessibility Enhancements, for whatever reason, Conoco will undertake Alternative Methods to provide accessibility to and usability of the Element affected.
9.8 Effect of Amendments to the Standards. Should the Standards be amended at any time after Final Approval of this Consent Decree, if such amendment results in an accessibility standard that is less than provided in this Consent Decree, from the effective date of the amendment forward, Conoco shall be required only to meet the lesser of the requirements of this Consent Decree or the Standards as amended. If such amendment results in an accessibility standard that is greater than provided in this Consent Decree, Conoco shall be required only to meet the requirements of this Consent Decree for any Corporate Store in existence as of the effective date of the amendment, and agrees to meet the Standards as amended for any Corporate Store designed and constructed for first occupancy after the effective date of the amendment, and to comply with the Standards as amended for all Alterations. Nothing in this Consent Decree shall limit the right of Conoco to undertake Accessibility Enhancements, or to build or alter Corporate Stores exceeding the requirements of this Consent Decree.
10. SCHEDULE FOR ACCESSIBILITY ENHANCEMENTS AT REMAINING NEW CORPORATE STORES AFTER COMPLETION OF PILOT PROGRAM
Conoco will divide the remaining New Corporate Stores into four approximately equal groups and will complete any Accessibility Enhancements identified as necessary by the Pilot Program for the first fourth within nine (9) months after completion of the Pilot Program; for the second fourth within eighteen (18) months after completion of the Pilot Program; for the third fourth, within twenty-seven (27) months after completion of the Pilot Program; and for the fourth fourth, within thirty-six (36) months after completion of the Pilot Program.
11. SCHEDULE FOR ACCESSIBILITY ENHANCEMENTS AT REMAINING EXISTING CORPORATE STORES AFTER COMPLETION OF PILOT PROGRAM
Conoco will divide the remaining Existing Corporate Stores into four approximately equal groups and will complete any Accessibility Enhancements identified as necessary by the Pilot Program for the first fourth within nine (9) months after completion of the Pilot Program; for the second fourth within eighteen (18) months after completion of the Pilot Program; for the third fourth, within twenty-seven (27) months after completion of the Pilot Program; and for the fourth fourth, within thirty-six (36) months after completion of the Pilot Program.
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12. PERMITS
12.1 Permit Requirement. Conoco may be required to obtain building or other permits for some of the Accessibility Enhancements at both New and Existing Corporate Stores. Conoco will use its best efforts to obtain such permits, including drafting permit applications in good faith to enhance the possibility of approval.
12.2 Conditioned Permit or Permit Denial. If a Conditioned Permit is issued or a permit is denied outright, Conoco will notify Class Counsel of the conditions or denial so that Class Counsel may consider attempting to have the conditions modified or overturn the denial on behalf of the Class. Class Counsel shall initiate any action – including, but not limited to, consultation with building officials, administrative remedies, or court action -- to have the conditions modified or to overturn the denial within two months of receipt of notification by Conoco. Conoco will evaluate in good faith on a case-by-case basis what position it will take regarding Class Counsel’s pursuit of a permit, that is, whether to support, oppose, or remain neutral on the issue. Conoco will only oppose such permit if it can demonstrate that the action for which a permit is sought is a legitimate threat to human safety or the environment based on actual risks and not on mere speculation, stereotypes, or generalizations. Regardless of the position it takes, Conoco will not be responsible for Class Counsel’s fees in pursuing the permitting agency. If Class Counsel or any other individual succeeds in modifying a Conditioned Permit or in overturning the denial of a permit, Conoco will undertake the Accessibility Enhancement at issue within four months after receipt of the permit, subject to any remaining conditions in the permit as approved.
13. VERIFICATION AND MONITORING BY INDEPENDENT EXPERT AT REMAINING CORPORATE STORES OF COMPLIANCE WITH THIS CONSENT DECREE INCLUDING PILOT PROGRAM FINDINGS
13.1 Random Sample. The Independent Expert may inspect a random sample of the remaining Corporate Stores covered by this Consent Decree as follows, to determine compliance with the findings of the Pilot Program.
13.1.1 Notification. Within one month of completion of Accessibility Enhancements at each one-fourth of the remaining New and Existing Corporate Stores as provided in Paragraphs 8 and 9, Conoco will notify the Independent Expert and Class Counsel in writing of the Corporate Stores at which Enhancements have been completed.
13.1.2 Provision of Data. At the time of the notification referred to in Paragraph 13.1.1, Conoco will provide the Independent Expert and Class
14

Counsel with a copy of the Enhancement Report and any other supporting documentation for all Corporate Stores included in the notification.
13.1.3 Selection of Stores. The Independent Expert may select a random sample of up to ten percent (10%) of the Corporate Stores in each group, but in any event no less than two stores in each group, for inspection. In calculating the number of stores in each group to be inspected, any fractions will be rounded up to the next highest number.
13.1.4 Additional Inspections. If the Independent Expert should determine at any Corporate Store inspected pursuant to this Paragraph that 10% or more of the Major Accessibility Enhancements, or 25% or more of the Minor Accessibility Enhancements, required at that Store as a result of the Pilot Program either have not been done or have been done out of compliance with the Pilot Program (hereafter referred to as “Failed”), the Independent Expert will be allowed to inspect another five percent (5%), but no less than one, of the Corporate Stores in the group containing the Corporate Store that Failed.
13.1.5 Inspection of Subsequently Acquired Corporate Stores. In the remaining years of this Consent Decree, Conoco will provide a list once a year to the Independent Expert and to Class Counsel of all Subsequently Acquired Corporate Stores for which the deadline provided in Paragraph 19 for completing Accessibility Enhancements has fallen during that year. The list will be provided within two months of the close of Conoco’s fiscal year. The Independent Expert may inspect a random sample of up to 2% but not less than one of the Subsequently Acquired Corporate Stores on each annual list.
13.2 Inspection Procedures. The Independent Expert shall follow the procedures set out in this paragraph 13.2 and subparts in conducting inspections.
13.2.1 Date of Inspection. At least fourteen (14) days prior to initiation of inspections of the Corporate Stores in each group and on any list of Subsequently Acquired Corporate Stores, the Independent Expert shall provide Conoco with a list of the specific Corporate Stores to be inspected and the date on which each inspection will occur.
13.2.2 Timing of Inspections. The Independent Expert will complete all inspections for each group within six (6) months of receipt of the materials specified in Paragraph 13.1.2, and for Subsequently Acquired Corporate Stores, within six (6) months of receipt of the annual list of Subsequently Acquired Corporate Stores. Failure to inspect a selected Corporate Store within the time frame provided herein will constitute full acceptance of
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that Corporate Store by the Named Plaintiffs, the Settlement Class, and Class Counsel.
13.2.3 Instructions to Independent Expert. The Parties agree to instruct the Independent Expert to evaluate compliance at New Corporate Stores in light of the provision of Standards § 3.2 and at Existing Corporate Stores in light of the acceptable measurements on Exhibit 4.
13.2.4 Inspection Findings. Within two months of expiration of the inspection time periods in Paragraph 13.2.2, the Independent Expert shall provide both Conoco and Class Counsel with specific written comments for any inspected Corporate Store where he deems one or more Accessibility Enhancements not to be in accord with the findings and recommendations of the Pilot Program. For those Corporate Stores deemed to be in accord, the Independent Expert will certify his conclusion in writing within the same time frame.
13.2.5 Response. Within three months after receipt of the Independent Expert inspection comments for each Survey Group, Conoco will respond in writing to the Independent Expert and to Class Counsel as to its position on each comment.
13.2.6 Disputes. Disputes concerning the reports of the Independent Expert or steps Conoco must take in response thereto will be subject to the Dispute Resolution Procedure set forth in Paragraph 21.
13.2.7 Opportunity to Reinspect. If any Accessibility Enhancement required by the Pilot Program to be made at the remaining Corporate Stores is found upon inspection by the Independent Expert not to have been done at a particular store, or to have been done out of compliance with the Pilot Program, and Conoco either agrees voluntarily to do or redo the Accessibility Enhancement or is ordered as a result of the Dispute Resolution process to do or redo the Accessibility Enhancement, the Independent Expert may reinspect the corrected work. Any reinspection will be conducted pursuant to this Paragraph 13.
13.3 Costs for Inspections By Independent Expert. Conoco agrees to pay the reasonable fees and expenses of the Independent Expert as follows:
13.3.1 The Independent Expert will be reimbursed a flat fee of $1,000 per Corporate Store for each visit to the store required under this Consent Decree, including visits associated with the Pilot Program described in Paragraph 7 and visits associated with monitoring pursuant to Paragraph 13. For purposes of this subparagraph, “visit” shall encompass all work to be completed associated with that visit, including but not limited to time
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spent traveling to and from the Independent Expert’s home base in Seattle, Washington (or such other place as may be established during the term of this Consent Decree) and the location of the Corporate Store; all time spent surveying the Corporate Store; all time spent inspecting Accessibility Enhancements completed at the Corporate Store; and all time spent preparing and distributing reports for that Corporate Store).
13.3.2 The Independent Expert will be reimbursed for time spent speaking with Class Counsel and Conoco other than during his visits to Corporate Stores at his ordinary hourly rate.
13.3.3 The Independent Expert will be reimbursed for reasonable, documented expenses of travel, lodging and meals related to site surveys, inspections, and meet and confer sessions.
13.3.4 There shall not be any ex parte communication between the Independent Expert and any Party or counsel to any Party.
14. CONOCO’S SELF-VERIFICATION AND MONITORING OF COMPLIANCE
14.1 Accessibility Maintenance Checklist. Within three months of Final Approval, Conoco will develop a Periodic Accessibility Maintenance Checklist for use by store and quality assurance personnel at Corporate Stores to help assure compliance with the Consent Decree. Conoco will begin using the Periodic Accessibility Maintenance Checklist within one month after it is developed. Quality assurance personnel will use the Periodic Accessibility Maintenance Checklist during regular quality assurance inspections The Periodic Accessibility Maintenance Checklist will also be included in appropriate Health, Safety and Environmental Manuals. The Periodic Accessibility Maintenance Checklist will include at least the items listed in Exhibit 8 hereto. Conoco will send a copy of the Periodic Accessibility Maintenance Checklist to Class Counsel within one month after it is developed and, if it is amended within the term of this Consent Decree, will send such amendments to Class Counsel within thirty (30) of the time they are made.
14.2 Daily Checklist. Within three months of Final Approval, Conoco will develop a Daily Accessibility Maintenance Checklist for use by store personnel at Corporate Stores to help assure maintenance of accessibility in terms of access into the store and access within the store. The Daily Accessibility Maintenance Checklist will include at least the items listed in Exhibit 9 hereto. Conoco will send a copy of the Daily Accessibility Maintenance Checklist to Class Counsel within one month after it is developed and, if it is amended within the term of this Consent Decree, will send such amendments to Class Counsel within one month of the time they are made.
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14.3 Mystery Shopper. Within three (3) months of Final Approval, Conoco will include on the form used in its “Mystery Shopper” program (“Mystery Shopper Form”) items relating to accessibility that will be checked on each Mystery Shopper visit. The portion of the form relating to accessibility items will be provided to the Class Representatives to allow the Parties to evaluate trends and identify possible areas of concern for discussion.
14.3.1 Included Items. The portion of the Mystery Shopper Form relating to accessibility will address at least the items listed in Exhibit 10 hereto.
14.3.2 Submission of Form to Class Counsel. Conoco will send a copy of the Mystery Shopper Form to Class Counsel within one month after the accessibility items are added and, if it is amended within the term of this Consent Decree, will send such amendments to Class Counsel within one month of the time they are made.
14.3.3 Third Party Services. Conoco will encourage every third party service with which it contracts to provide Mystery Shopper services to use individuals with Mobility Disabilities who use wheelchairs or scooters for mobility as mystery shoppers, but Conoco shall not be responsible for ensuring that such individuals are used.
14.3.4 Change of Method. Should Conoco change the method by which it evaluates customer satisfaction, it will ensure that any such method addresses the items listed in Exhibit 10.
14.3.5 Provision of Data. Every six months during the term of this Consent Decree, Conoco will send to Class Counsel the results of its Mystery Shopper program that relate to accessibility items for the prior six months, including but not limited to copies of Mystery Shopper Forms completed during that period.
14.3.6 Response to Data. Every six months during the term of this Consent Decree, Conoco will send to Class Counsel the results of its Mystery Shopper program that relate to the items listed on Exhibit 10 hereto. If the Mystery Shopper forms for any six month period reflect accessibility concerns for persons with Mobility Disabilities that reflect noncompliance with a specific term of this Consent Decree, arising from similar circumstances at the same Corporate Store on three or more visits during that six month period, Class Counsel may notify Conoco in writing of any concerns within two months of receipt of the Forms. Conoco shall undertake whatever corrective action it deems reasonably appropriate in response to Class Counsel’s stated concerns. Conoco shall notify Class Counsel of the corrective action taken but Conoco shall not be required to reveal the name or other personal identifying information of any person or
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persons involved in corrective action. If after corrective action by Conoco two or more subsequent Mystery Shopper Forms completed during the next six month period following corrective action, reflect accessibility concerns for persons with Mobility Disabilities of the same sort at the same location, where such concerns reflect non-compliance with a specific term of this Consent Decree, the matter may be submitted to Dispute Resolution as provided in Paragraph 21.
15. CUSTOMER COMMENT LINE AND COMMENT CARDS
15.1 Post Sign. Within three months of Final Approval of this Consent Decree, Conoco shall post at each Corporate Store, both inside and outside the store, a readily observable sign containing a toll free or local telephone number where customers may call to comment upon the accessibility features or services provided to persons with Mobility Disabilities at Corporate Stores. The sign shall be substantially in the form attached as Exhibit 11 to this Consent Decree and shall include reference to the availability of a Customer Comment Card.
15.2 Customer Comment Card. Within three months of Final Approval of this Consent Decree, Conoco shall send to all Corporate Stores Customer Comment Cards in substantially the form of Exhibit 12 hereto. Customer Comment Cards shall contain, on one-third of the reverse side, the address of the Conoco office or employee responsible for logging customer comments and shall be postageprepaid for mailing to that address within the United States.
15.2.1 Card to Customer. All Corporate Stores shall provide a Comment Card to any customer who requests one. Conoco personnel shall provide assistance in filling out a Comment Card to any customer who requests it.
15.2.2 Cards to Conoco Personnel. Whenever Conoco receives a Customer Comment Card regarding accessibility features or service to persons with Mobility Disabilities at Corporate Stores, Conoco shall deliver the Comment Card to the appropriate Conoco personnel.
15.3 Compliance Investigation. Whenever Conoco receives a call on its toll-free Customer Comment Line or receives a Customer Comment Card regarding accessibility features or service to persons with Mobility Disabilities at Corporate Stores, it shall investigate the matter within one month of receipt of the call or the Comment Card. If Conoco’s investigation indicates that the Corporate Store is out of compliance with this Consent Decree, Conoco will take such steps as are necessary to bring the Corporate Store into compliance with this Consent Decree within three months of determination of non-compliance. During the term of this Consent Decree, Conoco will record the nature and disposition of each call on its toll-free Customer Comment Line and Customer Comment Card regarding
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accessibility features or service to persons with Mobility Disabilities at Corporate Stores.
15.4 Customer Comment Information to Class Counsel. Once every six months during the term of this Consent Decree, Conoco will provide to Class Counsel the records required by Paragraph 15.3. Personal identifying information of the customer making the call or filling out the card will be redacted from the records before production to Class Counsel (including name, address, telephone number, credit card number, and any other information from which the identify of the customer can be determined). If the customer comment information for any six month period reflect accessibility concerns for persons with Mobility Disabilities that reflect non-compliance with a specific term of this Consent Decree, arising from similar circumstances at the same Corporate Store on three or more occasions during that six month period, Class Counsel may notify Conoco in writing of any concerns within two months of receipt of the Forms. Conoco shall undertake whatever corrective action it deems reasonably appropriate in response to Class Counsel’s stated concerns. Conoco shall notify Class Counsel of the corrective action taken in general terms (for example, Conoco shall not reveal the name or other personal identifying information of any person or persons involved in corrective action). If after corrective action by Conoco customer comment information during the next six month period following corrective action, reflects accessibility concerns for persons with Mobility Disabilities of the same sort at the same location, where such concerns reflect non-compliance with a specific term of this Consent Decree, the matter may be submitted to Dispute Resolution as provided in Paragraph 21.
16. POLICIES AND TRAINING
16.1 Policies. Within six months following Final Approval of this Consent Decree, Conoco will promulgate written policies regarding the provisions of Title III of the ADA and customer services at all Corporate Stores.
16.2 Personnel. Conoco shall train all personnel who work in or have managerial responsibility for a Corporate Store to follow the requirements of this Consent Decree and to treat customers with disabilities with respect and courtesy. The Class Representatives will receive information on the training such as the amount of training and how often it is provided. If Conoco engages an outside contractor to provide training such as contemplated in this paragraph, Conoco shall provide the name of the outside contractor to Class Counsel within one month of engagement. The Class Representatives will also be given an opportunity to review the training and provide feedback before it is initially implemented. Conoco will use its best efforts to incorporate the use of video materials in the training.
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16.3 Materials. Conoco shall add to or amend any training materials, manual or publication in any medium to reflect the policies and training required by this Paragraph 16.
16.4 Posted Signs. Conoco will post a sign at each Corporate Store in the cage area encouraging continuing awareness by employees of accessibility issues.
17. MAINTENANCE OF ACCESS
Conoco shall maintain access to those Elements of New and Existing Corporate Stores that are covered by this Consent Decree and its Exhibits in accordance with 28 C.F.R. § 36.211(a) and subject to 28 C.F.R. § 36.211(b) and associated Commentary. 28 C.F.R. pt. 36, app. B.
18. NEW CONSTRUCTION AND ALTERATIONS
18.1 New Construction. Any Corporate Store that is built after Final Approval of this Consent Decree shall be built and maintained in compliance with 28 C.F.R. Part 36, including Appendix A, subject to conventional building industry tolerances for field conditions.
18.2 Alterations. All Alterations performed at Corporate Stores after the date of Final Approval of this Consent Decree shall comply with 28 C.F.R. §§ 36.402 and 403, subject to conventional building industry tolerances for field conditions and subject to the defense of Technical Infeasibility and any other defenses applicable to Alterations.
18.2.1 The Parties agree that any Alteration activity that would void the official certification of any prefabricated or modular building shall be considered Technically Infeasible, unless Conoco knowingly elects to make modifications that would void the certification.
19. SUBSEQUENTLY ACQUIRED STORES
19.1 Post-January 1993 Stores. Any Corporate Store acquired by Conoco after Final Approval of this Consent Decree that was designed and constructed for first occupancy on or after January 26, 1993 shall be in compliance with this Consent Decree within six (6) months of acquisition; provided, however, that if Conoco should acquire more than three stores in any one month period, the time period for bringing the acquired stores into compliance shall be extended by one month for every store in excess of three that is acquired.
19.2 Pre-January 1993 Stores. Any Corporate Store acquired by Conoco after Final Approval of this Consent Decree that was designed and constructed for first occupancy before January 26, 1993 shall be subject to the provisions of this Consent Decree that apply to Existing Corporate Stores and shall be in
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compliance with this Consent Decree within twelve (12) months of acquisition; provided, however, that if Conoco should acquire more than three stores in any one month period, the time period for bringing the acquired stores into compliance shall be extended by one month for every store in excess of three that is acquired.
20. SUBSEQUENTLY RELINQUISHED STORES
Any Corporate Store that is sold or closed prior to the end of the term of this Consent Decree shall cease to be subject to the terms of this Consent Decree as of the date it becomes a Subsequently Relinquished Store. Nothing herein will prohibit Conoco from selling, closing or otherwise terminating operations at any location. Once a Corporate Store becomes a Subsequently Relinquished Store, the Releases contained in Paragraph 27 no longer apply to that Store, except to the extent that the Corporate Store has been brought into compliance with the Consent Decree prior to the date of relinquishment and is maintained in compliance by the subsequent owner therewith after the date of relinquishment. The Named Plaintiffs and the Settlement Class specifically agree that Conoco shall have no responsibility whatsoever for achieving or maintaining compliance at a Relinquished Store after the date of relinquishment.
21. DISPUTE RESOLUTION
Any dispute between the Named Plaintiffs or Class Counsel and Conoco that is subject to dispute resolution pursuant to the terms of this Consent Decree will be addressed as follows:
21.1 Notice. If Class Counsel or Conoco have reason to believe that a dispute exists, prompt written notice will be provided to the other Party.
21.2 Confer. Within one month after receipt of the notice, Class Counsel and Conoco will confer by telephone or in person and attempt to resolve the dispute.
21.3 Mediation. If the confer process does not occur or does not resolve the dispute, the matter may be referred by either Class Counsel or Conoco to mediation before a neutral third party mutually agreed to by Class Counsel and Conoco.
21.4 Court. If mediation does not occur or does not resolve the dispute, the matter may be submitted by either Class Counsel or Conoco to the U.S. District Court.
22. PAYMENT TO NAMED PLAINTIFFS
22.1 Farrar-Kuhn. In settlement of Farrar-Kuhn’s claims under the CADA and in recognition of the contributions of Farrar-Kuhn toward compromise in this case, Conoco shall deliver to Class Counsel within five (5) business days after Final Approval of this Consent Decree a check in the amount of Eight Thousand Dollars and No Cents ($8,000.00) made out to Julie Farrar-Kuhn. By making this payment Conoco does not waive its position that Farrar-Kuhn is entitled to no more than $500 under the CADA.
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22.2 Lucas. In settlement of Lucas’s claims under the CADA and in recognition of the contributions of Lucas toward compromise in this case, Conoco shall deliver to Class Counsel within five (5) business days after Final Approval of this Consent Decree a check in the amount of Eight Thousand Dollars and No Cents ($8,000.00) made out to Carrie Ann Lucas. By making this payment Conoco does not waive its position that Lucas is entitled to no more than $500 under the CADA.
23. ATTORNEYS’ FEES AND COSTS, OTHER THAN COSTS OF THE INDEPENDENT EXPERT
23.1 Lump Sum. Conoco shall pay Class Counsel One Hundred Fifty Thousand Dollars and No Cents ($150,000.00) on or before two months after Final Approval of the Consent Decree.
23.2 Full Satisfaction. Such payment will be in full and complete satisfaction of any and all claims for attorneys’ fees, litigation expenses, including expert fees, and costs under federal or state law that the Named Plaintiffs, the Settlement Class, or Class Counsel have against Conoco in connection with this matter, with the exception of fees and costs described in Paragraph 23.3 below.
23.3 Attorneys’ Fees for Work Performed After Final Approval. Subject to the Exceptions set forth in the subparagraphs below, Conoco will pay Class Counsel their reasonable attorneys, fees, litigation expenses and costs (including expert costs) incurred during the Dispute Resolution process set forth in Paragraph 21 of this Consent Decree. Conoco will be responsible for payment for the services of any third party mediator used under Paragraph 21.3.
23.3.1 First Exception. Conoco shall not be responsible for any of Class Counsel’s attorneys’ fees or costs in connection with any Dispute Resolution effort that proceeds to Step 3 (Court) and the Court rules in favor of Conoco on the dispute.
23.3.2 Second Exception. Named Plaintiffs and Class Counsel shall be jointly responsible for Conoco’s attorneys’ fees and costs in connection with any Dispute Resolution effort that proceeds to Step 3 (Court) and it is determined by the court upon motion by Conoco that Named Plaintiffs’ position on the matter was frivolous, using the standard for frivolous claims found in Christianburg Garment Co. v. EEOC, 434 U .S. 412, 42122 (1978).
23.4 Payment of Fees Pursuant to Paragraph 23.3. Conoco shall pay any fees due pursuant to Paragraph 23.3 within three months of receipt from Class Counsel of an invoice therefor, subject to Conoco’s right to challenge in good faith, through Dispute Resolution, the reasonableness of the fees reflected on any invoice.
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Conoco shall notify Class Counsel of any dispute it may have as to the reasonableness of fees claimed within one month of receipt of an invoice to enhance the likelihood that any dispute may be resolved within three months of initial receipt of the invoice.
23.5 Full Satisfaction. The payment described in Paragraph 23.3 shall be in satisfaction of any and all work of any nature performed by Class Counsel, and any and all costs incurred after Final Approval of this Consent Decree, other than expenses of the Independent Expert pursuant to Paragraphs 7 and 13.
23.6 No Further Obligation. Except as provided in this Paragraph 23, Conoco will not be responsible for any attorneys’ fees, litigation expenses (including expert fees), and costs incurred by Class Counsel.
24. PRELIMINARY APPROVAL, OBJECTIONS AND FAIRNESS HEARING.
24.1 Preliminary Fairness Hearing. Within ten (10) days of execution of this Consent Decree, the Parties shall jointly request a Preliminary Fairness Hearing and shall jointly move for an order granting preliminary approval to this Consent Decree.
24.2 Objections. Any member of the Settlement Class may object to the proposed Consent Decree by filing, within two months after publication of the Notice, written objections with the Clerk of the Court. Only such objecting Class Members shall have the right, if they seek it in their objection, to present objections orally at the Fairness Hearing. Responses by Conoco and Class Counsel to any timely-filed objections shall be made within seventy-five (75) days after Preliminary Approval.
24.3 Fairness Hearing. Class Counsel and Conoco shall request that a Fairness Hearing take place three months after publication of the Notice, or as soon thereafter as the Court may set the hearing.
25. NOTICE TO THE CLASS OF THE PROPOSED CONSENT DECREE
25.1 Post Notice. Conoco shall post the Notice attached as Exhibit 13, at its own expense, at each of the following locations at each Corporate Store that has such a location within one month after Preliminary Approval of this Consent Decree, such notice to remain posted until the date of the Fairness Hearing.
25.1.1 Interior Cash Counter. As close as possible to an interior cash counter, facing toward the customer;
25.1.2 Exterior Cash Counter. As close as possible to an exterior cash counter, facing toward the customer;
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25.1.3 Restroom. In a place visible to customers entering either the men’s or the women’s restroom, or the unisex restroom if only one restroom is provided.
25.1.4 Fuel Dispenser Island. On each fuel dispenser island in a place visible to individuals using fuel dispensers.
25.2 Publish Notice. Conoco shall place the Notice, at its own expense, in the following newspapers: the Houston Chronicle, the Kansas City Star, the Deseret News (Salt Lake City), Daily Oklahoman, and the Denver Post. Said notice shall be published once in each newspaper and shall be at least one-eighth of a page in size. The notice shall appear within fifteen (15) days after Preliminary Approval of the Consent Decree. Conoco shall notify Class Counsel of the day on which the Notice shall appear pursuant to this Paragraph and will send to Class Counsel a copy of the Notice as published.
25.3 Mail Notice. Within fifteen (15) days of Preliminary Approval, Class Counsel shall, at Conoco’s expense, mail the Notice to the organizations listed in Exhibit 14.
26. JUDGMENT, FINAL APPROVAL AND DISMISSAL
26.1 Request for Final Judgment and Final Approval. At the time of the Fairness Hearing, Conoco and Class Counsel shall jointly request that the Court enter a Final Judgment and Order granting Final Approval of this Consent Decree.
26.2 Dismissal with Prejudice. This action shall be dismissed with prejudice pursuant to Rule 41 of the Federal Rules of Civil Procedure, no later than one month following the expiration of the Term of this Consent Decree.
27. RELEASES
27.1 Release of Federal Claims. Effective on the date of Final Approval, Named Plaintiffs, on behalf of themselves and all members of the Settlement Class and their executors, successors, heirs, assigns, agents and representatives, in consideration of the relief set forth herein, the sufficiency of which is expressly acknowledged, unconditionally and forever do fully and finally release, acquit and discharge Conoco and its parent and subsidiary corporations and each of their present, former or future officers, directors, and shareholders and successors and assigns from the Released Federal Claims as defined in Paragraph 27.2 below.
27.2 Released Federal Claims. The “Released Federal Claims” are any and all past or present claims, rights, demands, charges, complaints, actions, causes of action, and liabilities of any kind, except as expressly excluded pursuant to Paragraph 29 hereof, by Named Plaintiffs or the members of the Settlement Class, including any and all such past or present claims for injunctive relief, declaratory relief, fees
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or damages that are based upon the ADA that specifically relate to the accessibility for persons with Mobility Disabilities at Conoco Corporate Stores:
27.3 Release of Colorado Claims. Effective on the date of Final Approval, Named Plaintiffs, on behalf of themselves and their executors, successors, heirs, assigns, agents and representatives, in consideration of the relief set forth herein, the sufficiency of which is expressly acknowledged, unconditionally and forever do fully and finally release, acquit and discharge Conoco and its parent and subsidiary corporations and each of their present, former or future officers, directors, and shareholders and successors and assigns from the Released Colorado Claims as defined in Paragraph 27.4 below.
27.4 Released Colorado Claims. The “Released Colorado Claims” are any and all past or present claims, rights, demands, charges, complaints, actions, causes of action, and liabilities of any kind except as expressly excluded pursuant to Paragraph 28 hereof, by Named Plaintiffs including any and all such past or present claims for injunctive relief, declaratory relief, fees or damages that are based upon the public accommodations provisions of the CADA that specifically relate to the accessibility for persons with Mobility Disabilities at Conoco Corporate Stores:
28. CLAIMS NOT RELEASED
28.1 Claims Not Released. The Released Federal Claims and Released Colorado Claims as set forth in Paragraph 27 of this Consent Decree do not include any past or present claims of any type or nature under the ADA or the CADA against Conoco relating to Marketer Stores and/or against Marketers or any entity that owns, operates, leases or leases to a Marketer Store.
28.2 Exclusions. The Released Federal Claims and Released Colorado Claims as set forth in Paragraph 27 of this Consent Decree do not include or extend to any claims under the ADA or the CADA relating to access for or usability by persons with disabilities other than Mobility Disabilities.
28.3 Future Claims. The Released Federal Claims and Released Colorado Claims as set forth in Paragraph 27 of this Consent Decree do not include or extend to any future claims that arise from incidents and/or conduct that occurs after Final Approval of the Consent Decree. Subject to the foregoing, no Settlement Class member may bring a future claim under the ADA for acts or omissions or physical conditions that are required by or consistent with the terms of this Consent Decree.
28.4 Subsequently Relinquished Stores. The Released Federal Claims and Released Colorado Claims as set forth in Paragraph 27 of this Consent Decree do not include or extend to any Subsequently Relinquished Store after such time as it
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ceases to be a Corporate Store to the extent that the Subsequently Relinquished Corporate Store has not complied with this Consent Decree as of the date of relinquishment.
28.5 Settlement Class CADA Claims. With the exception of the Named Plaintiffs themselves, the Settlement Class does not release any claims under the CADA or any other state law relating to discrimination on the basis of disability.
28.6 Effect of Merger. The Named Plaintiffs and the Settlement Class specifically do not release any claims regarding those stores identified in Paragraph 1.36 that are subject to any merger between Conoco and Phillips Petroleum Company.
29. COMMUNICATIONS TO CONOCO AND CLASS COUNSEL
All notices or communications required by this Consent Decree shall be in writing by facsimile and U.S. Mail or overnight delivery service addressed as follows:
29.1 To Counsel for Named Plaintiff and the Settlement Class.
Amy F. Robertson, Esq. Fox & Robertson, P.C. 910 - 16th Street Suite 610 Denver, CO 80202
with a copy to:
Kevin W. Williams, Esq. General Counsel Colorado Cross Disability Coalition 655 Broadway Suite 775 Denver, CO 80203
29.2 To Conoco.
P. Kathleen Lower, Esq. Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 - 17th Street Suite 1600 Denver, CO 80202
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with a copy to:
Margret L. Sonnier, Esq. Counsel Conoco Inc. 600 N. Dairy Ashford Suite ML-2110 P.O. Box 4783 Houston, TX 77079
30. MODIFICATION
No modification of this Consent Decree shall be effective unless it is pursuant to Court Order.
31. SEVERABILITY
If any such provision or any part of this Consent Decree thereof shall at any time be held unlawful, or inconsistent with applicable law, in whole or in part, under any federal, state, county, municipal or other law, ruling or regulation, then the remaining provisions of this Consent Decree shall remain effective and enforceable.
32. EXECUTION IN COUNTERPARTS
This Consent Decree may be signed in counterpart and shall be binding and effective immediately upon the execution by all Parties of one or more counterparts. All Parties and their counsel shall sign three copies of this document and each such copy shall be considered an original.
33. DUTY TO SUPPORT AND DEFEND DECREE
Named Plaintiffs, Class Counsel and Conoco each agree to abide by all of the terms of this Decree in good faith and to support it fully, and shall use their best efforts to defend this Decree from any legal challenge, whether by appeal or collateral attack.
34. ENTIRE AGREEMENT
This Consent Decree contains all the agreements, conditions, promises and covenants among Conoco, Named Plaintiffs, Class Counsel and the Settlement Class regarding matters set forth in it and supersedes all prior or contemporaneous agreements, drafts, representations or understandings, either written or oral, with respect to the subject matter of the present Consent Decree.
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Respectfully submitted,

Julie Farrar-Kuhn
___________________________________ Date:_______________________________
Carrie Ann Lucas ___________________________________ Date:_______________________________
APPROVED AS TO FORM: FOX & ROBERTSON, P.C.
_______________________________ Amy F. Robertson

CONOCO INC.
By:___________________________________ Its: Manager of Branded Marketing Date:_________________________________
APPROVED AS TO FORM: OTTEN, JOHNSON, ROBINSON
NEFF & RAGONETTI, P.C. __________________________________ P. Kathleen Lower

COLORADO CROSS-DISABILITY COALITION
_______________________________ Kevin W. Williams
Counsel for Named Plaintiffs and the Settlement Class

CONOCO INC.
__________________________________ Margret L. Sonnier Counsel for Conoco Inc.