Eleventh Circuit Overrules Objections to Disney Segway Class Action Settlement

A few days ago, the United States Court of Appeals for the Eleventh Circuit issued an opinion in Ault v. Walt Disney World Co..  The case was brought as a class action to challenge Disney's refusal to permit Segways in its facilities.  After some back and forth, the district court certified a settlement-only class of everyone with a mobility impairment or disability who has brought, intends to bring, or may bring in the future a Segway into one of the Disney Resorts (including Disneyland, Disney World, and other Disney facilities).  And the district court approved a class settlement under which Disney would continue to refuse to permit Segways.  In that settlement, Disney agreed to "develop a four-wheeled, electric-stand up-vehicle ('the ESV') for those for whom a stand-up mobility device is a necessity and who are unable to utilize a mobility device that requires sitting, such as an electronic wheelchair or motorized scooter."  Notably, Disney committed only to provide 15 of these ESVs, and the terms of the settlement permitted Disney to charge patrons with disabilities for renting them.  The settlement also included "a nationwide waiver of declaratory or injunctive claims relating to Disney’s policy."  The case was certified as an injunctive class action under Federal Rule of Civil Procedure 23(b)(2); class members thus were not permitted to opt out of the class or the settlement.

A number of individuals with disabilities, organizations, state attorneys general, and the United States objected to the settlement.  (Disclosure: I supervised the relevant section of the Civil Rights Division at the Department of Justice during part of the time this litigation proceeded, and I had some involvement with the case in that capacity, though I was gone from the Department by the time the United States filed its brief on appeal.)  The district court overruled the objections and approved the settlement, and various objectors appealed.  In its opinion last week, the Eleventh Circuit affirmed.

In an opinion by Chief Judge Joel Dubina, the Eleventh Circuit first rejected the objectors' challenges to the class certification.  The objectors argued that the named plaintiffs' claims were not typical of those of the class, because the named plaintiffs only occasionally used Segways for mobility.  Myany absent members of the class, by contrast, rely on the Segway as their primary mobility aid.  The Eleventh Circuit waved this argument off:

Class members’ claims all stem from the same policy prohibiting the use of Segways® within Disney Resorts, and all claims require analysis of Title III to determine the outcome. While each class member may have a stronger or weaker claim depending upon his or her degree of reliance, we conclude that this alone does not make class representatives’ claims atypical of the class as a whole.

The Eleventh Circuit then turned to the question whether the district court abused its discretion in determining that the settlement was fair, adequate, and reasonable (the showing required for a settlement of a class action).  The appellate court found no abuse of discretion, because it concluded that the plaintiffs would have been unlikely to prevail if the case had been tried to a final judgment:

During an extensive fairness hearing before the district court, Hale [Disney's Chief Safety Officer] testified regarding the safety risks posed by the operation of Segways® in Disney Resorts. The very factors Hale considered before deciding that Segways® are too dangerous for operation in Disney Resorts are the very factors facilities are required to consider under the new regulation. See 28 C.F.R. 36.311(b)(2)(i)–(v) (requiring a public accommodation to consider the attributes of the device, the volume of foot traffic in the facility, the design and operational characteristics of the facility, whether safety restrictions on the use of the device can mitigate its danger, and whether operation of the device will harm the environment in determining if a specific device is allowable in the facility). The district court found that based upon this testimony Disney is likely to succeed at trial in showing that it has fulfilled its obligations under Title III. Objectors and the DOJ would like us to hold that this finding constitutes an abuse of discretion. We decline to do so. The issue before us is not who prevails over whom, but rather, the question is whether the district court abused its discretion in its finding regarding who was most likely to prevail at trial. We conclude from the record that there is no abuse of discretion.

The court also noted in a footnote that the Ninth Circuit had recently permitted an ADA challenge to Disney's exclusion of Segways to proceed.  (I blogged about that case here.)  But it distinguished that case on the ground that the Ninth Circuit hadn't reached the question whether there was a legitimate safety basis for Disney's policy.

A few quick points about this decision:

1.  The settlement here was extremely problematic on class action grounds.  The district court heard substantial testimony that the ESV -- the Disney-created alternative to the Segway -- just would not work for a number of the absent class members due to their height or the nature of their disabilities.  And many of the absent class members, unlike the named class members, use the Segway as their principal means of getting around.  Yet this class action settlement, brought by named plaintiffs whose disabilities were substantially different from the disabilities of that set of absent class members, forecloses those absent class members from challenging the no-Segway policy and provides them nothing.  That's a typicality/adequacy-of-representation problem if I ever heard one.

2.  In concluding that Disney would likely have prevailed on its safety defense if the case had gone to trial, the Eleventh Circuit completely failed to engage the analysis of the Department of Justice, which drafted and enforces the relevant ADA regulation:

The relevant question under the regulation is not whether “unrestricted” Segway use would raise safety concerns, see R.208 at 124, but “[w]hether legitimate safety requirements can be established to permit the safe operation of [Segways] in the specific facility.” 28 C.F.R. 36.311(b)(2)(iv). The regulation permits a public accommodation to impose reasonable time, place, or manner restrictions on the use of OPDMDs to ensure safe operation. See 28 C.F.R. 36.311(b)(2); 75 Fed. Reg. at 56,299. Specifically, the regulation prescribes several factors that a public accommodation must consider in determining whether permitting use of a particular class of OPDMDs is safe and reasonable. See 28 C.F.R. 36.311(b)(2). Among those factors are the vehicle’s speed, the design and operational characteristics of the facility, and the volume of pedestrian traffic, including variations in such volume during the day, week, month, or year. 28 C.F.R. 36.311(b)(2)(i), (ii), & (iii). In its commentary interpreting the regulation, the Department explained that “[o]f course, public accommodations may enforce legitimate safety rules established for the operation of [OPDMDs] (e.g., reasonable speed restrictions).” 75 Fed. Reg. at 56,299. The Department further emphasized that “public accommodations should not rely solely on a device’s top speed when assessing whether the device can be accommodated; instead, public accommodations should also consider the minimum speeds at which a device can be operated and whether the development of speed limit policies can be established to address concerns regarding the speed of the device.” Ibid.

Other safety-related restrictions may be permissible, depending on the circumstances and the particular facility. For example, Segway users may be required to use elevators, but not escalators, to move between floors, and they may be banned from using cell phones or headphones while operating Segways. See McElroy v. Simon Prop. Grp., Inc., No. 08-4041-RDR, 2008 WL 4277716, at *5, *7 (D. Kan. Sept. 15, 2008) (upholding such restrictions imposed by a shopping mall). It may also be reasonable in some facilities to temporarily suspend Segway use during periods of heavy crowds until the congestion clears. See ibid. And in some circumstances, a public accommodation might legitimately require an individual with a disability to perform a brief field test to show his ability to maneuver a Segway prior to using it in the public accommodation’s facility, particularly if the individual wishes to use the Segway when the facility is especially crowded.

Disney also failed to present a facility-specific analysis to establish the safety defense. As noted, the relevant inquiry is “[w]hether legitimate safety requirements can be established to permit the safe operation of the [OPDMDs] in the specific facility.” 28 C.F.R. 36.311(b)(2)(iv) (emphasis added); accord 75 Fed. Reg. at 56,299. “Facility” is broadly defined to include “any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.” 28 C.F.R. 36.104.

Even if legitimate safety concerns might justify a ban (or partial ban) on Segway use at one Disney facility, those concerns would not necessarily mean that Disney could establish a valid safety defense for other facilities that differ in size, configuration, or levels of pedestrian traffic. Disney’s Segway ban applies to a wide variety of facilities within its resorts, including six theme parks (and the multiple facilities found in each park), hotel complexes, restaurants, shopping districts, and individual stores. R.208 at 124-126. Disney’s evidence of Segways’ purported safety risk was limited the devices’ use at its theme parks. E.g., R.208 at 92, 94-95, 110-111; R.209 at 301-302. Disney’s general assertion that Segways, by design, pose a risk in a crowded venue is insufficient to establish that at every time of day, every day, all of Disney’s facilities have a crowd capacity that would preclude the safe operation of Segways. See R.208 at 77-78, 80-81, 88, 115-116. The district court thus erred in concluding that Disney’s evidence “likely” would establish this safety defense. R.252 at 8.

3.  Finally, even if this decision does not formally conflict with the Ninth Circuit's recent decision, the breadth of the class approved by the Eleventh Circuit, and of the release of claims in this settlement, creates a serious practical impediment to other cases challenging Disney's no-Segway policy.  I doubt this decision is the last word we'll hear on the matter.

Settlement Reached in Burger King Accessibility Class Action

Friend of the blog Amy Robertson passes along word that she and her cocounsel have reached a settlement in their class action challenging the inaccessibility of 86 California Burger King stores to people who use scooters or wheelchairs.  The settlement provides significant injunctive relief to ensure that the stores will be and remain accessible, as well as $19 million in monetary relief.  The notice to class members is here, and the settlement itself is here.  Looks like a really strong settlement.

Disney Class Action Settlement Proposed

Yesterday, the plaintiffs and defendants filed in the United States District Court for the Central District of California a proposed class action settlement in Shields v. Walt Disney Parks and Resorts US, Inc..  The case was brought by three individuals with visual disabilities, on behalf of a class of individuals who lacked full and equal access to Disney's theme parks because Disney failed to provide effective communication at its parks, imposed improper restrictions on service animals, and did not provide accessible websites.  The district court granted nationwide class certification for several proposed classes last year, but it also denied certification for others.  Yesterday's proposed settlement seeks certification of four settlement classes (encompassing some of the classes the district court certified last year and others it refused to certify) and seeks to resolve the dispute.  Given the importance of the matters in dispute, and the nationwide nature of the class, this proposed settlement deserves careful scrutiny by the disability community.

D. Colo. Certifies Class Action in Accessibility Suit v. Hollister

See this article, which begins:

A U.S. District Court of Colorado judge on Monday certified a nationwide class-action suit brought against a national clothing retailer by a Denver attorney. 

Judge Wiley Daniel had already ruled “the center front entrances [with steps] at the Hollister stores at Park Meadows mall and Orchard Town Center mall violate the Americans with Disabilities Act.” 

The ruling means the lawsuit now covers Hollister stores across the United States, not just those in Colorado.

N.D. Fla. Upholds Standing, Denies Class Certification in Olmstead Waiting List Case

Last week, in Dykes v. Dudek, 2011 WL 4904407 (N.D. Fla., Oct. 14, 2011), the court denied the plaintiffs' motion for class certification in a challenge, under the Supreme Court's decision in Olmstead v. L.C., to Florida's waiting lists for obtaining community-based developmental disability services.  The proposed class included all individuals in Florida who meet an ICF/DD level of care and are on a a waiting list to receive DD waiver services.  It embraced two subclasses:  (1) persons currently receiving services in institutions; and (2) persons currently residing in the community without receiving services.

The state had challenged the standing of the second subclass on the ground that, because they are not institutionalized, members of that subclass did not have a sufficient injury in fact.  The court rejected the standing challenge.  The court concluded that plaintiffs were alleging violations of federal statutes (including the ADA and the Medicaid Act) that give them the right to be free from state conduct that places them at undue risk of institutionalization, and that the denial of such statutory rights (which plaintiffs would have to prove at trial) was sufficient injury in fact.

But the court denied the motion for class certification on the ground that the proposed class failed to satisfy the commonality requirement of Fed. R. Civ. P. 23(a).  The court concluded that the two subclasses were too distinct in law and fact, and had interests that were too much in conflict, to be certified as part of the same class.  It explained that the currently institutionalized plaintiffs had a clear right under Olmstead to freedom from unnecessary institutionalization, but that, in its view, whether people currently residing in the community had an Olmstead right to receive community services was "unclear."  (This seems extremely weak to me; since the Tenth Circuit's leading decision in Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175 (10th Cir. 2003), courts have uniformly recognized that the failure to provide services to people with disabilities currently living in the community is actionable if it places them at sufficient risk of institutionalization.  Indeed, this very theory was the basis for the district court's standing holding here.)

The court also concluded that, under the challenged Florida practice, people in institutions might, simply because they are institutionalized, really never get priority on the wait list, while whether people currently in the community would get priority would depend on their individual situations; and that the injuries of people currently in institutions and people at risk of institutions are different.  And, the court believed, the different subclasses had different interests, because they were both competing for limited waiver resources.