D. Colo. Preliminarily Approves K-Mart Accessibility Settlement

In Lucas v. Kmart Corp., 2006 WL 722166 (D. Colo., Mar. 22, 2006), the district court granted preliminary approval to a settlement of a nationwide ADA Title III class action challenging the inaccessibility of Kmart stores. According to the district court, the settlement requires the following:

• Kmart will survey and, with few exceptions, bring all of its stores into compliance with the Department of Justice Standards for Accessible Design and all of its stores in California into compliance with Title 24 of the California Code of Regulations within approximately seven and a half years (Agreement ¶ 6);
• Kmart will ensure that all merchandise on “fixed displays”-including gondolas, perimeter walls, and “I” walls-as well as large appliances, drive aisle displays and sidewalk displays will be on an accessible route of at least 36 inches (Agreement ¶¶ 12 .6.1-.3, 12.6.8);
• Kmart will ensure that all accessible restrooms and fitting rooms will be on an accessible route and maintained free and clear of obstructions (Agreement ¶¶ 12.6.5-.6);
• Kmart will ensure that one accessible check-out lane is open at all times the store is open (Agreement ¶ 12.5);
• Kmart will, in all but 10% of its stores, provide a path of at least 32 inches to at least one side of moveable apparel displays in 80% of floor space occupied by moveable displays as well as a distance of 32 inches between certain types of moveable apparel displays when they are placed next to one another (Agreement ¶¶ 12.1-.2);
*3 • Kmart will implement a customer service system for access to moveable apparel displays and furniture displays under which customers with disabilities who use wheelchairs or scooters for mobility will have the option of requesting assistance or requesting that Kmart provide them with a two-way communications device so that they may summon assistance when they need it (Agreement ¶ 12.3);
• Kmart will amend its policy and training materials to implement these new policies (Agreement ¶ 13);
• Compliance will be monitored using “mystery shoppers,” as well as customer feedback through the Internet, a toll-free phone line, and in-store forms (Agreement ¶¶ 14.3-.4);
• The Nationwide Class will release claims for injunctive relief under Title III of the ADA, under state statutes that incorporate or are equivalent to Title III, and under California law through the end of the term of the settlement, which is expected to be approximately 2014 (Agreement ¶ 26.1);
• Kmart will establish a fund (the “Damages Sub-Class Fund”) in the amount of $13,000,000 (consisting of $8,000,000 in cash and $5,000,000 in gift cards redeemable at face value) from which members of a Damages Sub-Class that plaintiffs have requested the Court to preliminarily certify for settlement purposes concurrently with the requested preliminary approval of this settlement are eligible to recover (Agreement ¶ 15.1.1);
• The Damages Sub-Class Fund will be allocated among the Sub-Class States based on a formula, described in detail below, that reflects the number of Kmart Stores in each Sub-Class State, and the Statutory Minimum Damages recoverable in each Sub-Class State (Agreement ¶ 15.5.2);
• For each qualifying visit to a Kmart store, a member of the Sub-Class may recover up to the Statutory Minimum Damages recoverable in the Sub-Class State in which he or she shopped, and the maximum number of qualifying visits for which a Sub-Class member may recover is two (Agreement ¶ 15.5.3.3);
• Kmart will pay damages in the amount of $10,000 each to the three original named plaintiffs, and $1,000 each to the six named plaintiffs of the proposed damages subclass (Agreement ¶ 15.2);
• The majority of any funds remaining in the Damages Sub-Class Fund after the claims period will be given to specified non-profit entities that advocate for the rights of persons with disabilities (Agreement ¶ 15.6);
• Members of the Sub-Class have the right to opt out of the damages provisions of the Settlement Agreement, but members of the Class and Sub-Class cannot opt out of the injunctive provisions (Agreement ¶ 16);
• In addition to releasing claims for injunctive relief under Title III, equivalent state statutes, and California law, Sub-Class members will release claims for Statutory Minimum Damages under the laws of the seven Sub-Class States through the end of the term of the Agreement, but will not release claims for any other damages (Agreement ¶ 26.2);
*4 • No member of the Nationwide Class will release damages claims with respect to the laws of any state other than those of the Sub-Class States (Agreement ¶ 26.2);
• Notice will be provided to the class in the manner set forth below;
• Kmart will pay attorneys' fees up to the date of final approval in the amount of $3,250,000, subject to Court approval, and will pay class counsel additional reasonable fees in the future for work that they do during the term of the Agreement implementing and assuring compliance with the Agreement (Agreement ¶ 20.2); and
• This Court would retain continuing jurisdiction throughout the term of the Agreement to interpret and enforce the Agreement (Agreement ¶ 35).

A fairness hearing will be held on July 27, 2006.