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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