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Case Name Lucas v. Kmart Corp. DR-CO-0005
Docket / Court 1:99-cv-01923 ( D. Colo. )
State/Territory Colorado
Case Type(s) Disability Rights-Pub. Accom.
Attorney Organization Civil Rights Education and Enforcement Center
Case Summary
On October 1, 1999 several disabled plaintiffs brought a national lass action in the United States District Court for the District of Colorado against Kmart for violating the Americans With Disabilities Act and the Colorado Anti-Discrimination Act.

Specifically, Plaintiffs alleged Kmart ... read more >
On October 1, 1999 several disabled plaintiffs brought a national lass action in the United States District Court for the District of Colorado against Kmart for violating the Americans With Disabilities Act and the Colorado Anti-Discrimination Act.

Specifically, Plaintiffs alleged Kmart provided "insufficient parking for persons with disabilities, has counters that are too high for persons who use wheelchairs, fails to provide accessible check-out aisles to persons who use wheelchairs, fails to provide accessible fitting rooms and blocks access to merchandise aisles for persons who use wheelchairs" all in violation of the Americans with Disabilities Act, 42 U.S.C. § 12182 et seq. (ADA) and the Colorado Anti-Discrimination Act, C.R.S. § 24-34-601 et seq. (CADA).

A Second Amended Complaint, filed on March 22, 2006, added additional individuals to represent a sub-class of persons similarly situated who resided in states with statutory damages statutes, adding claims for damamges under these state laws, the California Unruh Civil Rights Act and the California Disabled Persons Act, Cal. Civ. Code §§ 51(b) & 54.1, Hawaii's Chapter 489, Haw. Rev. Stat. § 489 et seq., the Texas Human Resource Code, Tex Hum. Res. Code Ann. § 121.001 et seq., the Massachusetts Anti-discrimination law, Mass. Gen. Laws ch. 272, §§ 98 and 92A, the New York Civil Rights Law, N.Y. Civ. Rights § 40 et seq., and N.Y. Exec § 296(2)(a), and the Oregon Unlawful Discrimination against Disabled People, Or. Rev. Stat. § 659A.142(3).

The plaintiffs requested declaratory and injunctive relief ordering Kmart to bring its stores into compliance with the ADA They also requested statutory damages under the state statutes and attorneys' fees and costs.

In January, 2002, Kmart sought bankruptcy protection in the United States Bankruptcy Court for the Northern District of Illinois, Chief Judge Susan Pierson Sonderby. Although this action temporarily halted the plaintiffs claim, the District of Colorado allowed the action to continue after Kmart emerged from Bankruptcy in May 2003.

On July 13, 2005, the court certified a settlement class consisting of "[a]ll persons who, at any time from May 6, 2003 through the Term of this Agreement, used, use or will use wheelchairs or scooters for mobility and who shopped or shop at any Kmart Store or any Closed Kmart Store or who allege they would shop or would have shopped at one or more Kmart Stores or Closed Kmart Stores but for allegedly being denied on the basis of disability the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of such Kmart Store(s) or Closed Kmart Store(s)."



On February 9, 2006, the parties reached a settlement that required Kmart to bring all its stores into compliance with Department of Justice standards for accessibility, increase aisle space, widen aisles, improve restrooms, and many other changes. Monitoring would be done by mystery shoppers, customer feedback, and comment forms. The settlement created a $13 million dollar damages pool ($5m in gift cards, $8m in cash) from which statutory damages would be deducted. Kmart was also obliged to pay $10,000 each to the original three plaintiffs and $1000 to the five additional plaintiffs who were added, as well as $3.25 million in attorney's fees and costs, and additional costs of administering the settlement.

On March 22, 2006, the Court certified a "Damages Settlement Sub-Class" consisting of the class members residing in states with damages statutes and who shopped or would have shopped but for lack of accommodations in Kmarts in California, Colorado, Hawaii, Massachusetts, New York, Oregon or Texas. The $13 million damages pool was to go to members of the sub class, who could recover for a maximum of two visits to Kmart, for amounts under state law.

On June 29, 2009, the Court granted a joint motion to amend the settlement. The parties amended the agreement to permit Kmart to reduce the number of stores to be retroffitted during the period between May 8, 2009 and May 8, 2010 from 215 to 150.

Eric Weiler - 05/26/2010


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Issues and Causes of Action
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Issues
Plaintiff Type
Private Plaintiff
Causes of Action Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111 et seq.
Defendant(s) Kmart Corporation
Plaintiff Description Disabled shoppers at Kmart stores.
Indexed Lawyer Organizations Civil Rights Education and Enforcement Center
Class action status sought Yes
Class action status granted Yes
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Damages
Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration not on record
Case Closing Year 2009
Case Ongoing No
Docket(s)
1:99−cv−01923 (D. Colo.) 09/06/2005
DR-CO-0005-9002.pdf | Detail
Westlaw
Ninth Circuit 05-1411 (U.S. Court of Appeals) 09/10/2007
DR-CO-0005-9001.pdf | Detail
Westlaw
1:99−cv−01923 (D. Colo.) 09/09/2009
DR-CO-0005-9000.pdf | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Amended Class Action Complaint 04/27/2000
DR-CO-0005-0001.pdf | Detail
Plaintiffs' Substituted Memorandum In Support Of Motion For Class Certification 07/13/2001
DR-CO-0005-0002.pdf | Detail
Plaintiffs' Reply Memorandum In Support Of Motion For Class Certification 12/03/2001
DR-CO-0005-0003.pdf | Detail
Plaintiffs' Supplemental Pleading Regarding Bankruptcy, Class Certification And Attorneys' Fees 07/14/2003
DR-CO-0005-0004.pdf | Detail
Order Granting Plaintiffs' Motion For Class Certification 07/13/2005 (2005 WL 1648182) (D. Colo.)
DR-CO-0005-0005.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Settlement Agreement 02/09/2006
DR-CO-0005-0011.pdf | Detail
Order Granting Plaintiffs' Unopposed Motion For Preliminary Certification of A Damages Subclass For Settlement Purposes Only 03/22/2006 (2006 WL 722163) (D. Colo.)
DR-CO-0005-0006.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Second Amended Class Action Complaint 03/22/2006
DR-CO-0005-0007.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order Granting Joint Motion for Preliminary Approval of Settlement Agreement 03/22/2006 (234 F.R.D. 688) (D. Colo.)
DR-CO-0005-0014.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Order Granting Class Counsel's Unopposed Petition For An Award Of Attorneys' Fees And Costs 07/27/2006 (2006 WL 2729260) (D. Colo.)
DR-CO-0005-0008.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order Certifying Class, Approving Settlement Agreement And Enjoining The Filing Or Pursuit Of Released Claims 07/27/2006 (D. Colo.)
DR-CO-0005-0009.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Final Judgment 08/09/2006 (D. Colo.)
DR-CO-0005-0010.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Joint Motion To Amend Settlement Agreement 06/29/2009
DR-CO-0005-0012.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order Granting Motion To Amend Settlement Agreement 06/29/2009 (D. Colo.)
DR-CO-0005-0013.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Judges Kane, John L. Jr. (D. Colo.)
DR-CO-0005-0005 | DR-CO-0005-0006 | DR-CO-0005-0008 | DR-CO-0005-0009 | DR-CO-0005-0010 | DR-CO-0005-0013 | DR-CO-0005-0014 | DR-CO-0005-9000
Shaffer, Craig B. (D. Colo.) [Magistrate]
DR-CO-0005-9000
Monitors/Masters None on record
Plaintiff's Lawyers Breeskin, Michael Wayne (Colorado)
DR-CO-0005-0001 | DR-CO-0005-0002 | DR-CO-0005-0003 | DR-CO-0005-9000 | DR-CO-0005-9002
Cavazos, L Javier (Texas)
DR-CO-0005-9000 | DR-CO-0005-9001 | DR-CO-0005-9002
East, Brian D. (Texas)
DR-CO-0005-0002 | DR-CO-0005-0003 | DR-CO-0005-0004 | DR-CO-0005-0007 | DR-CO-0005-9000 | DR-CO-0005-9002
Fox, Timothy Patrick (Colorado)
DR-CO-0005-0001 | DR-CO-0005-0002 | DR-CO-0005-0003 | DR-CO-0005-0004 | DR-CO-0005-0007 | DR-CO-0005-0012 | DR-CO-0005-9000 | DR-CO-0005-9001 | DR-CO-0005-9002
Greenberger, Steven R (Illinois)
DR-CO-0005-0002 | DR-CO-0005-0003 | DR-CO-0005-0004 | DR-CO-0005-0007 | DR-CO-0005-9000 | DR-CO-0005-9002
Lawson, Antonio (California)
DR-CO-0005-0007 | DR-CO-0005-9000 | DR-CO-0005-9001
LeCuyer, Stephen T. (New Mexico)
DR-CO-0005-0002 | DR-CO-0005-0003 | DR-CO-0005-0004 | DR-CO-0005-9000 | DR-CO-0005-9001 | DR-CO-0005-9002
Lee, Bill Lann (California)
DR-CO-0005-0007 | DR-CO-0005-9000 | DR-CO-0005-9001
Mayeda, Mari (California)
DR-CO-0005-0007 | DR-CO-0005-9000 | DR-CO-0005-9001
Mettler, Earl R. (New Mexico)
DR-CO-0005-0002 | DR-CO-0005-0003 | DR-CO-0005-0004 | DR-CO-0005-9000
Robertson, Amy Farr (Colorado)
DR-CO-0005-0001 | DR-CO-0005-0002 | DR-CO-0005-0003 | DR-CO-0005-0004 | DR-CO-0005-0007 | DR-CO-0005-0011 | DR-CO-0005-0012 | DR-CO-0005-9000 | DR-CO-0005-9001 | DR-CO-0005-9002
Teague, James Earl (Texas)
DR-CO-0005-0002 | DR-CO-0005-0003 | DR-CO-0005-0004 | DR-CO-0005-9000
Vaughn, Denette (Texas)
DR-CO-0005-0002 | DR-CO-0005-0003 | DR-CO-0005-0004 | DR-CO-0005-9000 | DR-CO-0005-9001 | DR-CO-0005-9002
Williams, Kevin William (Colorado)
DR-CO-0005-0001 | DR-CO-0005-0002 | DR-CO-0005-0003 | DR-CO-0005-0004 | DR-CO-0005-0007 | DR-CO-0005-9000 | DR-CO-0005-9001 | DR-CO-0005-9002
Defendant's Lawyers Connolly, Walter B. Jr. (Michigan)
DR-CO-0005-9000 | DR-CO-0005-9002
de Castro, Jose-Manuel A. (California)
DR-CO-0005-9000 | DR-CO-0005-9001 | DR-CO-0005-9002
Gutierrez, Steven M. (Colorado)
DR-CO-0005-9000 | DR-CO-0005-9002
Kaufmann, Steven M (Colorado)
DR-CO-0005-9000 | DR-CO-0005-9001 | DR-CO-0005-9002
Koplow, Meyer G. (New York)
DR-CO-0005-0011
McDowell, David F. (California)
DR-CO-0005-9000 | DR-CO-0005-9001 | DR-CO-0005-9002
Medina, Mark E. (Colorado)
DR-CO-0005-9001
Mill, John William (Colorado)
DR-CO-0005-9000 | DR-CO-0005-9001 | DR-CO-0005-9002
Miller, Lori K. (Illinois)
DR-CO-0005-0012 | DR-CO-0005-9000
Mintz, Shana T. (California)
DR-CO-0005-9000 | DR-CO-0005-9002
Naeve, Robert A (California)
DR-CO-0005-9000 | DR-CO-0005-9001 | DR-CO-0005-9002
Olsen, Theodore Alan (Colorado)
DR-CO-0005-9000 | DR-CO-0005-9002
Treece, Lawrence W. (Colorado)
DR-CO-0005-9000 | DR-CO-0005-9002
Other Lawyers Miller, Nancy J. (Minnesota)
DR-CO-0005-9000

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