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Arguing that proposals to settle disability discrimination claims against two corporate giants were a “disservice” to millions of the disabled nationwide, the U.S. Justice Department and the Florida attorney general’s office have taken the unprecedented step of interceding in U.S. District Court in Miami to block the deals. Government lawyers, in amicus curiae filings, accuse the plaintiff, Miami Beach-based Access Now, of agreeing to settle class action lawsuits filed in federal court in Miami against Miami-based cruise ship operator Carnival Corp. and the St. Louis-based May Department Stores Co. on terms overly favorable to the companies. Co-defendant May Cos. is the parent of Lord & Taylor, Filene’s, Hecht’s and other chains, with about 400 stores around the United States. In fact, the government says, the deals are so one-sided that they “compromise the legal interests of both the greater disability community and the United States” by granting the companies a perpetual “license to discriminate against future disabled” passengers and shoppers. In the May case, those arguments prompted U.S. District Judge Federico Moreno in Miami to reject the proposed settlement in late August. Moreno, who’d been poised to approve that settlement, instead set trial for the two-week period starting Jan. 14. Moreno also presides in the Carnival case. A settlement hearing was held Sept. 25, but final arguments aren’t due until the end of this week. Moreno is expected to rule on what to do with the Carnival settlement on Oct. 19. Access Now disputes government assertions that the procedures and physical modifications agreed to in the class action settlements are deficient. Miami attorney Matthew Dietz, who represents Access Now in the Carnival case, says the Justice Department’s intervention is “a travesty” that threatens to scuttle an agreement in which Carnival has pledged to spend up to $7 million to retrofit 15 Carnival ships over the next two years. Other Carnival-owned lines, including Holland America, are not covered by the deal. “It should make the entire disabled community upset at the government,” says Dietz, a solo practitioner. Nonetheless, the Justice Department has allies. In both cases, the Florida attorney general’s office joined to object to the settlements as inadequate to protect the rights of the disabled and as an improper limitation of possible future state action on their behalf. In the May case, the Justice Department and the Florida AG were joined by the Arizona attorney general’s office, various private disability rights advocates and “protection and advocacy” agencies from 20 states and the District of Columbia. HOPING SETTLEMENT STANDS Thomas R. Julin, an attorney in the Miami office of Hunton & Williams who represents Carnival, is hopeful the settlement will stand despite Moreno’s decision in August in the May Department Stores case. “I thought the judge gave us a fairly warm reception and a fairly chilly reception to the Justice Department,” says Julin. “We had a courtroom filled with disabled people — people in wheelchairs, people with Seeing Eye dogs — applauding the arguments of the plaintiffs. I think that very much impressed Judge Moreno.” Dietz, Access Now’s lawyer in the Carnival case, says the Justice Department’s position in the Carnival case is curious because its lawyers were repeatedly invited to participate in negotiating the settlement, but they declined. “They came in at the last possible second,” Dietz says. “It seems like their only purpose was not to make Carnival’s ships accessible, but to scuttle the agreement between private partners.” Gretchen E. Jacobs, a trial attorney in the Justice Department’s disability rights section in Washington, D.C., referred calls for comment to her boss, John L. Wodatch. Wodatch referred the matter to the department’s public affairs office, which did not respond to requests for comment. Access Now and its president, retired Miami Beach lawyer Edward S. Resnick, sued both May and Carnival last year as part of a war of attrition via litigation targeting companies big and small for alleged discrimination in public accommodations. Resnick, a quadriplegic who’s been in a wheelchair since contracting polio in 1954, and/or his group have filed about 600 such cases in federal courts in Florida in the last four years. Resnick did not return a phone call seeking comment. The U.S. attorney general has a duty to enforce the Americans with Disabilities Act in the public interest. Title III of the ADA, however, also authorizes private citizens and groups to sue as a way of accelerating the remedy of violations. TIDAL WAVE OF ADA SUITS Since mid-1997, a tidal wave of private enforcement actions has swept through the United States’ federal courts. In South Florida, other plaintiffs have had names like Advocates for the Disabled, Access 4 All, Alliance for ADA Compliance, Access for the Disabled, Boca Access Group, and the Disability Advocacy and Access Network. Often, groups share the same officers and are represented by the same lawyers. Settlement is the ADA plaintiff’s strategy of choice, and cases rarely go to trial. Plaintiffs, like Resnick, are generally barred from collecting damages in ADA cases, but legal fees can be sought from violators. The Carnival settlement, for example, provides for plaintiff’s legal fees and costs of $166,000. But not all cases settle. Last month, U.S. District Judge K. Michael Moore in Miami summarily dismissed an Access Now discrimination lawsuit against Pro Player Stadium. In the May case, Access Now, Resnick and two other wheelchair users allege the company’s stores had inaccessible aisles, counters, bathrooms and fitting rooms. The government contended that the five substantive accessibility solutions presented in the settlement were both meager and inadequate. The complaint against Carnival alleges that the company’s ships violate the law by having multiple “barriers to accessibility.” The Carnival case began as an ADA suit against Cunard Line Ltd., a subsidiary. The accusations against Cunard were put on hold, however, while the parties sought to reach a larger deal focusing on ships under the Carnival Cruise Lines brand. “The expectation is that if the Carnival settlement is approved, that we would then proceed with trying to resolve the claims against Cunard,” says Julin. Access Now has also sued other Carnival lines, including Holland America, and those matters will also be addressed later, he says. UNPRECEDENTED OBJECTION The federal government’s decision to file amicus curiae pleadings in those cases is unique. “The Department of Justice has never before objected to a voluntary settlement of ADA claims between private litigants,” court papers say. Those lengthy pleadings about the settlements are largely identical. Both, for example, raise questions about the definition of the disabled classes, whether proper notification was made to class members, whether approved physical changes were adequate, and whether liability releases were so “broad” as to preclude or hamper possible future enforcement actions. “Judicial endorsement of the Carnival agreement would, moreover, compromise the Department of Justice’s ability to effectively regulate a large segment of the cruise ship industry,” the government’s pleading says. That’s true, Justice argues, even though the government is not bound by private ADA settlements. The reason: Class members would be precluded from bringing new complaints against Carnival, and the government “could be foreclosed from using or referencing individual class members’ complaints” to enforce as yet unwritten government standards for ship construction and renovation. Access Now attorney Dietz calls the government’s fears “misplaced.” “The Carnival settlement doesn’t affect their enforcement obligations under the ADA,” says Dietz. “The renovations to the 15 Carnival ships will be done within two years. I believe it’s better to get that than to wait until final regulations are promulgated sometime in the future.”

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