Kmart versus the ADA Cops

Carrie Ann Lucas wasn’t looking to sue Kmart. She simply wanted to shop there but couldn’t do so without running into accessibility hassles such as blocked aisles, tightly spaced clothing racks, seldom opened accessible checkout aisles, inaccessible restrooms, fitting rooms and parking lots.

Lucas, a chair user due to congenital myopathy, spent years going to the store managers to point out the accessibility problems and how they violated the law. When she’d return to the same store a few weeks later, she’d find the same problems still there. She filed numerous letters with the Department of Justice, but Kmart repeatedly claimed all the problems had been fixed. She even requested mediation, but Kmart said no.

Most of us would have bailed at this point, perhaps not so silently kvetching that we’d take our business elsewhere. We’d feel like victims, businesses would continue to break the law and nothing would change. But Carrie Lucas isn’t most people, and rather than give up, she sought help and began a crusade. In the end, she prevailed and won a victory for all of us.

The settlement agreement, which United States District Judge John Kane termed the “gold standard” for disability access class actions, ensures sweeping accessibility improvements at more than 1,400 Kmart stores nationwide, along with damages totaling $13 million dollars, four times as much as the next largest disability access class action suit.

More important, the settlement provides a template for taking on an entire store chain, and a model of what compliance can and should look like — for the courts as well as other chains. If Kmart, one of the least prosperous outfits in the country  — and just emerging from bankruptcy – can find a way, surely more upscale and affluent retail chains can also be compelled to do so.

What began with one person’s struggle to improve wheelchair access in an inner-city discount department store turned into a seven-and-a-half year saga resulting in the largest and most far-reaching accessibility settlement ever. If you’ve seen some changes at your local Target, Sears or other chain outlet, just remember, one person — Carrie Lucas  got the ball rolling.

A ‘David vs. Goliath’ Story
This is a true David vs. Goliath story, the stuff of such films as A Civil Action, Erin Brockovitch and Philadelphia. It’s a typical script: The giant normally works to fend off what it considers frivolous or nuisance lawsuits through endless legal maneuvering, making the process excessively expensive and burdensome for small firms and low-budget nonprofits. Think of it as the big guy’s not-so-subtle way of asking, “Do you know who you’re dealing with?” The seven-year history of this case is also an example of just how slowly the wheels of justice move, especially when a defendant decides to dig in and fight tooth and nail.

The four principals in this case — Lucas and attorneys Amy Robertson, Tim Fox and Kevin Williams — knew the routine, remained unfazed and proceeded apace despite the expense, the high-powered opposition and a few unexpected challenges.

Most attorneys would have run from this case, seeing it as an unwinnable money pit. But these are not your typical lawyers. Fox, Lucas and Williams all have disabilities and use power chairs. Robertson and Fox are partners in both marriage and their law practice, which specializes in civil rights cases. They had both worked for large firms and knew what to expect. Williams had begun to build a strong resume of successful ADA litigation in Denver and throughout Colorado, and had repeatedly and successfully taken on the University of Denver while a law student. Lucas was battle-tested from years of successfully living with a disability and advocating for equality and accessibility. None of them knew the meaning of scared, and as Kmart would eventually come to realize, when they bit, they wouldn’t let go.

Robertson served as lead attorney, the big-picture person and general head honcho of the case; Fox was the detail guy, primary nit-picker and conciliator-in-chief; Williams was the ox, tenaciously laboring and putting in long hours doing whatever was needed; Lucas, busy finishing a master’s degree, earning a law degree and raising her daughters during the protracted litigation, was the perfect client and equal partner: totally involved each step of the way, collaborating on strategy and recounting detail and minutiae in Rainman fashion during a grueling three-day deposition.

Initially, Lucas did all the right things: she talked with Kmart managers, pointed out accessibility violations and requested — both verbally and in writing — remedies to the numerous problems. She kept copies of everything she sent.

“I guess I was naïve,” she says. “I knew what the ADA said, so I expected I could explain the law to them and they’d fix their problems. But even though they were in clear violation of the law, they wouldn’t do anything.

“My parents were in retail, so I know how things worked: You go to the manager, point things out and they get fixed,” Lucas says. “I was still driving then, and like most people, especially those with disabilities, I went to what was near me. That meant Kmart. First, there was no place to park my van, then the ‘junk-in-the-aisle’ problem, no accessible fitting rooms, and only rarely an open accessible checkout aisle. I hate to shop. I just wanted to go there, get in and out and be on my way. With Kmart, that wasn’t possible.”

Lucas took all her records and documents to Tim Fox and Amy Robertson, the civil rights attorneys, and Kevin Williams, legal director of the Colorado Cross Disability Coalition, a statewide advocacy organization for people with all types of disabilities.

“I had this big Lucas file,” recalls Williams. “The letters she’d sent went largely ignored, which is typical. Then, when we got more complaints from people all over Colorado and saw it was a statewide problem, we decided to file suit.”

The three attorneys helped Lucas do the filing, naming Julie Rieskin, CCDC’s executive director, and co-worker Debbie Lane, both of whom had experienced similar problems, as co-plaintiffs.

Fox and Robertson had worked and collaborated with Williams and CCDC successfully in the past and immediately saw the case’s potential to bring change. When they learned of similar violations in other states, they moved to amend the original complaint and request nationwide class action status. The court allowed that change, and in the summer of 2000, the plaintiff’s team began to gather the evidence necessary for class certification in the form of statements from chair users nationwide who had had difficulties with Kmart accessibility.

The Class Action Challenge
Class action status meant that three plaintiffs and three lawyers in Denver could potentially force Kmart to remove architectural barriers and change its policies nationwide. The initial filing sought only “injunctive relief” — an order requiring that Kmart make its stores physically accessible — under Title III of the Americans with Disabilities Act. Claims for damages, which meant money to plaintiffs, didn’t enter the picture until much later.

By the summer of ’01 Fox and Robertson had compiled 80 declarations from wheelers across the country who told of the hassles and discrimination they had experienced at Kmart stores. Those individual phone interviews were mostly done by attorney Mike Breeskin, with assistance from long-time disability journalist and advocate Laura Hershey. Breeskin would also be the major player and workhorse during the deposition phase.

In most circumstances, 80 declarations for class certification would be more than sufficient and would have been accepted without contest. But Kmart countered with a demand to depose (question under oath before a court reporter) each person who had made a declaration. Such a request is almost unheard of; usually people willing to file complaints are not likely to change their stories during a deposition, especially if their primary motivation is to gain accessibility rather than money. Kmart’s demand to depose the claimants appeared to be a combination of smokescreen and posturing, designed to make the suit go away by endlessly running up expenses for some two-lawyer, do-gooder firm in Colorado. Big mistake.

Instead of folding, the Lucas team said “Bring it on” and went forward, supporting the claimants in the deposition process. They traveled to some depositions, sat in by phone on others, found and affiliated with co-counsel located near other deponents to provide counsel in person, and sought advice and counsel from old mentors and bosses, all without charging their clients. Co-counsel included Brian East, an ADA guru with Advocacy, Inc. in Texas; Steve Greenberger, a DePaul law professor and disability rights clinic director; and Steve LeCuyer, a civil rights attorney from Albuquerque.

Still, Kmart’s maneuvering was exacting the intended toll. Expenses from travel, depositions, deposition transcripts, record reviews, drafting of briefs and lots of billable hours with no paying client mounted up quickly.

The Money Problem
Half of all the Fox and Robertson firm’s billable hours in 2001 went to the Kmart case, meaning the two had cut their income in half. Monetarily, things often looked bleak. In one of those darker hours, the Impact Fund, a California organization that supports high-impact civil rights litigation, provided some relief in the form of a $10,000 grant/loan. This past May the Impact Fund recognized Fox and Robertson with its annual award.

The team cut corners and saved money wherever they could. When Robertson traveled to Virginia for depositions, she stayed either with her mother in Northern Virginia or with the federal judge she’d clerked for in Richmond, borrowing her mother’s car to avoid rental fees. In an attempt to run interference and counter Kmart’s tactics, other co-counsel also attended depositions in person, traveling to areas where they could stay cheaply or for free and picking up all their own airfare and meal expenses. Steve Greenberger flew to New York for depositions, stayed with a friend, slept on his sofa and took the subway to depositions, only to see an entire team of Kmart lawyers emerging from a limo before entering the building. Fox and Williams did numerous depositions by phone. Fox traveled to California twice, staying with friends from law school. His parents helped out by taking class member statements in California.

Some depositions last only an hour or two and some are longer, but few exceed a full day. Lucas’s deposition was nearing the end of its third day when Kmart finally stopped asking questions.

Kmart’s first approach was to demand exactitude of detail from Lucas through precise personal history and every possible bit of information regarding alleged violations: Which date? Which store? What time? How can you be sure of that? Lucas responded with near total recall.

“I think they asked for every address I ever had, all my old phone numbers, what I had for dinner six years ago. Then we moved on to the claims, which I’d been documenting for years, so some of it was pretty easy. I associated claims with things like the birthday of one of my girls, going to a test or a meeting I attended. I knew what my schedule was, so remembering this stuff wasn’t all that hard. But it was three days of that.”

Her attorneys saw the performance differently.

“She’s really freakin’ smart!” says Robertson.

“Actually it was magic,” Williams offered with a smile. “They’d ask her all about the parking regulations and Carrie would recite the law.”

“They clearly tried to paint her as a bad person,” Robertson recalled, “tossing around labels like activist and advocate — proud words for us — and asking about all her protests and arrests. Then they went on to Carrie’s education: the BA, the MA. When Carrie mentioned her master’s in divinity, their team got so flustered, they just quit.”

Kmart’s brief opposing class certification clearly showed it had relied extensively on information withheld during the discovery process. Fox and Robertson’s subsequent motion required Kmart to come clean and gained them access to over 47,700 additional pages of information and a database of 68,301 records regarding access, including a set of ADA surveys and nationwide reports from Mystery Shoppers. Kmart had spent over $200,000 for a 50-store accessibility survey, but the experts conducting the study seemed to fail to crunch their own numbers. Once Fox, the data analyst extraordinaire, got done with it, he had established a clear and widespread pattern of ADA violations.

In an effort to demonstrate just how accessible their stores were, Kmart had also produced and submitted a videotape showing a woman pushing a hospital-style manual wheelchair with no foot rests around one of the facilities. Another mistake. If anything, the tape made Lucas’ case even stronger. After close review, Fox and Robertson submitted photos easily refuting Kmart’s video claims.

The Settlement: From Bankruptcy to Civility
Kmart continued to fight against class certification by filing numerous and repeated legal briefs. The case took an even further bizarre twist when Kmart filed for bankruptcy. Knowing little about bankruptcy, the plaintiffs’ team recruited Craig Goldblatt, a friend from the firm where Fox and Robertson had worked and met as associates, to help navigate the process. After filing the necessary motions, they were off to bankruptcy court in Chicago.

“It was the weirdest courtroom scene I’d ever been involved with,” recalls Robertson, “sort of like night court with suits. We sat in a packed courtroom from 9 in the morning until 2 in the afternoon with no idea when our case would be called. The judge sat behind the bench calling case after case, just like night court. When it was our turn, we made our claims.”

Then they waited … for 17 months … until Kmart emerged from bankruptcy in May of 2003.

Kmart then filed a motion asking the court to hold that all claims, attorney fees and expenses be discharged, due to its bankruptcy. In what many saw as a further effort to stall and run up the cost, Kmart also asked for a total do-over of discovery, declarations and depositions, saying their policies had changed and all the information on file was outdated. A favorable ruling for Kmart would have ended the case. The Lucas team maintained that nothing had changed, their claims were only for injunctive relief (fixing ADA violations) for an ongoing problem and not about money. The court sided with Lucas and the case moved forward without a pricey repeat of the previous two years.

Actually, the case just sort of sat again for another two years, and while they waited, Lucas’ team reached out to several class action attorneys from the Bay Area for help with class action litigation.

The July 2005 ruling that gave Lucas class action certification changed the case substantially and served to get Kmart’s attention. Until then the firm seemed to feel no pressure to do anything nationwide and had responded to every filing with more scorched earth litigation.

Kmart emerged from bankruptcy with new owners, a new legal team and, apparently, a new attitude. Following class certification, new counsel quickly initiated serious and good-faith settlement negotiations. The process wasn’t always gum drops and lollipops — even amicable negotiations experience disagreements and differences — but the atmosphere was now civil and professional.

“We’d spent years dealing with defense counsel who’d brought silly motions to generate fees, thrown temper tantrums on the phone or sent sarcastic letters or, even worse, filed sarcastic briefs,” Robertson says. “The new team acted like grown-ups; they always remained polite and good-humored, even while disagreeing with us and advocating effectively for their client. It was a very rewarding process.”

Fox agrees, calling the settlement process the most satisfying aspect of the case for him. “It was actually really cool,” he says with a smile. “Rather than adversarial, both sides worked well together to get it done. I think the results set an example of how class action can make changes while accommodating business. And the monetary settlement said that ADA is civil rights, not pity.”

By the time the case settled, Fox and Robertson had received and reviewed over 100,000 pages of documents from Kmart, much of it coming under the gun of last minute deadlines. Gaining class action certification alone involved a total of 16 briefs back and forth instead of the usual two or three, as well as a Kmart database with over 68,000 records.

The Winning Team: Like Family
“Lots of people have said, ‘Oh, you were so persistent,'” Robertson recalls. “But when were we supposed to stop? Once we established a pattern, we moved for class certification. When they said they wanted to depose all claimants, we said, ‘What the hell?’ When they filed for bankruptcy, we said, ‘OK, we’ll find bankruptcy lawyers.’ What else can you do?”

In total, the winning team’s case involved 12 plaintiff lawyers and their staffs and over 50 depositions (they eventually chose to use 50 of the original 80 claims), the transcripts of which alone normally run $600 or more. Many of those depositions pitted a single plaintiff attorney against several lawyers from one of Kmart’s six very large and well-known law firms. Some depositions dragged on for more than a day; many involved travel and overnight stays.

“There were times when Tim and I felt we were looking over the precipice, especially money-wise. What kept us going was this team of civil rights lawyers with disabilities we had. Not all civil rights lawyers understand disability; we all got it and were all equally passionate about it. We were always able to count on each other for validation and support.”

That validation and support was especially true for the four principals living and working in Denver. All were young and basically just starting out. Williams was fresh from law school and Fox and Robertson had only been on their own for a couple years. Lucas shared their passion and intellect, and was aiming to share their profession. They laughed together, drank together, shared gallows humor together and supported one another for three quarters of a decade.

The two sides reached and signed a settlement in February 2006 and obtained preliminary approval a month later. Claimants from the seven states that allowed for damages were able to submit claims for those damages even before the court granted final approval in late July.

Turning Enemies to Allies
Kmart began implementation of the settlement prior to final approval. The results are impressive, with the retailer displaying commitment and diligence both in execution and by keeping the plaintiffs’ legal team in the loop during the creation of a survey instrument and the review of Kmart’s policy and training documents. Together with Kmart personnel, Kmart lawyers and ADA experts, Fox and Robertson visited six Kmart stores in a pilot program to oversee how surveys were done and to iron out potential areas of disagreement.

“We’ve been in the loop throughout the compliance process and are incredibly impressed with their attitude,” Robertson reports.

Just how in the loop?

The team has reviewed all of Kmart’s policy changes, and Kmart has collaborated with CCDC to implement a store staff training program. Fox and Robertson collaborated with Kmart in designing the compliance form, a 50-100 page survey addressing any and all accessibility issues. The surveying will be done by Kmart employees trained by Evan Terry & Associates, experts in ADA compliance and surveying.

“We have a regularly scheduled weekly conference call with Kmart operational personnel and their counsel. Kmart has assigned an entire team to the survey and alteration process, and another team to the policy reform process.”

In addition, consumers can provide feedback to Kmart online, and plaintiff attorneys can monitor the progress of barrier removal through an online database which includes extensive photographs of barriers and solutions.

“What makes the settlement so extraordinary is that we can review all of the surveys online and inspect the changes after they’ve happened.”

Compliance monitoring also includes an extensive mystery shopper program, with mystery shoppers answering questions about issues covered in the settlement agreement. Ten percent of the mystery shoppers must be wheelchair users.

So far, Kmart has settled every compliance complaint reported through counsel since the settlement was implemented.

The Ripple Effect
Monetary damages exceeding $13 million to approximately 4,500 people and architectural changes to over 1,400 stores are just the beginning of this story. The effects are far-reaching, reminding retail chains throughout the nation: “Comply with the law or this could happen to you.”

“It’s a great precedent, a big step forward,” says Larry Paradis, wheelchair user and executive director of Disability Rights Advocates in Berkeley. “It put access front and center, making it hard for retailers to ignore. After some negative decisions over the years, Kmart is a major advance and the principals should be applauded for demonstrating the best in terms of enforcement of civil rights.”

Even if the chains can’t read the handwriting, their lawyers can. “Attorneys for a different chain in another suit thought it would be easier for their clients to comply if they reviewed the Kmart settlement and saw that they were not alone, that another chain was undergoing something similar,” Robertson boasts.

Fox adds: “This raises the bar and demonstrates that chains do have control over what individual store managers do.”

Does the Kmart decision ensure unfettered retail access?

“Other retailers know about this, they’re aware of the scope of the settlement and how hard and long Kmart fought,” Paradis observes. “Some learn from it and choose to fix the problems. We got Macy’s to make some improvements. But others ignore the ruling and continue to battle. In reality, shopping is still a nightmare for people with mobility problems. We need lots more Kmarts.”

Recently a friend of Robertson’s was shopping at Wal-Mart and noticed that accessibility was generally better and the clothing racks were spaced farther apart. She commented about it to an employee, who said, “Yeah, we don’t want to go through the same stupid crap Kmart went through.”

When Wal-Mart changes policies, you can bet every other retail chain in the country is watching. It’s a start.


The Team

Carrie Ann Lucas was awarded an Equal Justice Works fellowship to begin the Center for Rights of Parents with Disabilities, a Colorado Cross Disability Coalition program. Lucas serves as the center’s director. She also coordinates CCDC’s involvement with Not Dead Yet. She graduated from the University of Denver law school in 2005 and also holds a master of divinity degree and a bachelor’s in secondary education, history and sports medicine. Lucas taught in Saipan for a number of years before returning to Denver and teaching part-time while working on her master’s. She has three adopted daughters.
Tim Fox, a C4-5 quad from a rugby injury 20 years ago while a junior in college in Minnesota, finished his undergrad work in Denver. He attended law school at Stanford, where he was a member of the law review and president of his class. He met his wife Amy while working at a Washington, D.C. firm, where Robertson was a coworker. They later moved to Denver and founded Fox and Robertson (www.foxrob.com).

Amy Robertson has practiced law since graduating from Yale Law School in 1988, where she edited the Yale Journal of International Law. Following law school, she clerked for a U.S. District Court judge in Virginia before working in D.C. and Denver firms on securities, communications and complex commercial cases. Since founding Fox & Robertson, Amy and Tim have focused on civil rights cases, age and race discrimination, and ADA accessibility and enforcement issues.

Kevin Williams serves as director of the Colorado Cross Disability Coalition’s legal program, which he founded and built since graduating from law school in 1997. Williams, a C5 quad, was injured at 19 in a diving accident while attending college in South Carolina. He finished his undergrad work after moving to Denver in 1990 and now focuses on disability rights and accessibility issues. He’s successfully taken on Taco Bell, Wendy’s and the grocery chain King Soopers, all in statewide cases, in addition to successful cases against the city of Denver (twice), Denver’s public transportation district, Toys “R” Us and Conoco, forcing ADA accessibility compliance in each case. See www.ccdcoonline.org.

Case Chronology
October 1999 original suit filed, naming Lucas, Rieskin and Lane as claimants
Summer 2000 claim amended to request class action status
June 2000 – 2001 plaintiff attorneys gather declarations from 80 people nationwide
Spring 2001 Kmart demands depositions from all 80 original claimants
January 2002 Kmart files for bankruptcy
May 2003 Kmart emerges from bankruptcy, requests all claims be dismissed; when denied, requests discovery begin all over
July 2005 Class action status granted to plaintiffs; with new counsel, Kmart begins settlement negotiations
February 2006 Settlement reached and signed
July 2006 Court approves settlement, implementation begins
The Settlement
The Kmart settlement raises the accessibility bar, clearly stating that when the ADA is enforced, it has sharp teeth:

♦ Over a period of about seven and a half years, all Kmart stores across the country and U.S. territories will be surveyed and brought into substantial compliance with the Department of Justice standards to ensure accessibility for people who use wheelchairs.

♦ Kmart will make all fitting rooms, restrooms and service counters accessible and insure the same for all merchandise on fixed shelves. Whenever a Kmart store is open, it will operate an accessible checkout aisle.

♦ Accessibility of clothing areas will be significantly enhanced through rack spacing standards and through the use of two-way communication devices available to class members so they can request assistance when needed.

♦ The $13 million in damages distributed to class members in the seven states involved $8 million in cash and $5 million in gift certificates redeemable at face value. Class members released rights to claims for statutory damages, but not for other types of damages. Remaining funds will go to nonprofit disability rights advocacy organizations.

♦ $3.25 million in plaintiff attorney fees is awarded for work done up to the final approval, and reasonable fees for any work done after final approval.

♦ Compliance will be monitored through an interactive website; an extensive mystery shopper program, 10 percent of whom will be wheelchair-using class members; there will also be a toll-free telephone line and in-store customer forms.

The $3 million-plus in attorney fees went to over a dozen lawyers and their staffs to cover seven and a half years of protracted litigation and nation-wide travel, mostly due to Kmart’s costly and time-consuming maneuvering. Attorneys will also be monitoring implementation of the settlement until 2014. Nobody got rich. Lots of people got accessibility.

What Can One Person Do?
♦ Document the incident by writing a letter to the President or CEO of the company. In your letter, be very detailed: Include date, time, place, names, specific barrier. Tell the offender what it needs to do, and give a deadline for a response. Their websites are a wealth of information.

♦ Send a copy of your letter to your local disability rights organization or civil rights enforcement agency. Follow up with a phone call and get them involved.

♦ If a case develops, it could be years before a resolution is reached. Save all documentation.

♦ Surf the Web. Other groups or individuals may have similar complaints, or there may already be a lawsuit pending against the offender; if so, contact the attorneys involved.

♦ No harm in contacting the media or copying them on your letter. Public embarrassment works wonders to restore civil rights.

♦ You can file an administrative complaint with the Department of Justice, although that process has had limited success.

♦ When in doubt, e-mail CCDC at info@ccdconline.org. The group may take some time to respond, but its staff is loaded with experience and good ideas.

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