Civil rights attorney David Ferleger, an anti-war demonstrator in the Vietnam era, sees no irony in his representation of disabled military veterans seeking to overturn the Walt Disney Co.’s ban on their Segways in its theme parks. He sees only another important civil rights battle in his long war on disability discrimination.
The Philadelphia-area attorney has filed a petition for review in the U.S. Supreme Court in Disability Rights Advocates for Technology v. Walt Disney World Co., challenging a settlement in a settlement-only class action between Disney and three disabled individuals. The settlement class ultimately included all persons suffering from a mobility disability who rely upon a Segway or similar stand-up mobility device and who plan to visit Walt Disney World Resort or Disneyland Resort.
Disney prohibits the use of personal Segways on its properties. It allows the use of its own Segways in tours for a fee and by its own employees. Personal Segways are not allowed even if the Segway is used instead of a wheelchair, but wheelchairs are permitted. Disney has defended its ban on personal Segways as necessary for safety.
The settlement did four things, according to Ferleger’s petition: It awarded money damages to the three named plaintiffs as well as attorney fees and other benefits; made permanent Disney’s ban on Segways for people with disabilities; accepted Disney’s promise to make available its own device, an “electrically-powered, stand-up vehicle” (ESV), after April 1, 2009; and waived and released, for the entire national class, “any and all claims” under any “state or local law or similar disability rights statute or regulation.”
During a fairness hearing in federal district court in 2009, the United States, 23 state attorneys general, more than 100 individuals and a number of disability rights organizations objected to the settlement. The U.S. Court of Appeals for the Eleventh Circuit upheld the district court’s approval of the settlement.
“The settlement was very, very one-sided,” said Ferleger, who represents Disability Rights Advocates for Technology (DRAFT), a charitable organization that sponsors the Segs4Vets program. The program has awarded more than 1,000 Segways, two-wheeled personal transport devices, to military service members who were disabled in combat in Iraq and Afghanistan. Many of the vets are amputees who lost one or both legs in improvised explosive device (IED) blasts. Others sustained spinal cord injuries, soft tissue damage and other injuries that limit their ability to walk any distance without severe pain.
In his petition on behalf of DRAFT, which was not an original party to the settlement class action, Ferleger asks the justices three questions: whether due process requires notice to absentee class members in a Rule 23(b)(2) settlement in all cases, or at least when class rights are waived, a question that Ferleger said was left open in the justices’ decision in Wal-Mart v. Dukes; whether the class can be certified when the disabilities creating reliance on a mobility device vary so greatly among class members that no single injunction can resolve the claim; and whether the named plaintiffs have standing to impose a national waiver or to insert California relief into a settlement-only certification.
“I love that in civil rights class actions, you don’t have to give notice to the entire class,” said Ferleger. “The theory is the entire class is benefiting and no one could object to being a member of the class or reasonably opt out. For litigators who seek injunctions under that rule, it’s a great sort of boon to be able to proceed in a sort of magisterial way, to say, ‘I’m the lawyer for the class and can reach an agreement without telling anyone.’
“However, that rule doesn’t account for possible perversion,” he added. “There are instances where courts have to be sensitive to where the rule doesn’t work, where the class is for some reason not uniform enough or certifiable for other reasons. The Supreme Court has now given us guidance in what the considerations are under Rule 23 and is now much more sensitive to possible deficiencies in the class action world.
The problem with the class in this case, he explained, was that it was defined as people who “rely on” Segways for mobility. “That ‘rely on’ is so elastic that I think you can’t put all those people who say they rely on Segway into one class together. Reliance would mean you have to litigate each person’s situation.”
Another problem is that that the parties to the settlement went much further than they needed by including a national waiver of any claim under any state or local disabilities law, he added.
“The class members who signed off on this could not have had any idea what they were waiving,” said Ferleger. “They couldn’t realistically analyze all the state and local laws in the U.S. It is not a benefit to the class to waive everyone’s rights under all state and local laws. The failure to give notice really is such a serious omission and so monumentally unfair to, for example, the Segway user in Kansas who never heard of this case and goes to local court to say a civil rights law is being violated and is barred from doing that.”
The principle of a right to notice under (b)(2) and (b)(3) is not in Rule 23, he said, but is a judge-made rule, which “gives me hope for Supreme Court review.” If he does get review, it would not be Ferleger’s first appearance before the court. He argued and reargued in the landmark deinstitutionalization case, Pennhurst State School & Hosp. v. Halderman. He currently is serving as monitor of a Minnesota class action settlement on behalf of individuals put into restraints and seclusion at an institution for people with developmental disabilities who also were dangerous to public safety.
Since taking on DRAFT as a client, Ferleger has watched how the organization trains vets to use their Segways. “I met these young people, 18, 19, 21 years of age, who lost legs, arms, or have burns over significant parts of their bodies,” he recounted. “They were so inspiring to meet, not just seeing their courage in theface of all these challenges but their determination to stand up on the Segway and look and be dignified.”
Ferleger said he does not know how his colleagues in the civil rights arena will feel about his petition and his advocacy for a notice requirement in (b)(2) class actions, a very different rule from what his colleagues have operated under traditionally.
“The way in which class actions are now litigated and the risk of no notice is so great, I do think it should be changed,” he said. “I’m not doing it just because a client says this will benefit me. I don’t believe in mouthpiece lawyering. I represent people and issues I care about.”
Marcia Coyle can be contacted at email@example.com.