Perhaps only Disney could settle a class action lawsuit, have no class members object to the settlement, but have the settlement approval process take over nine months. I’ve previously written about the class action lawsuit by visually impaired guests in a July 2011 post (after the judge certified it as a class action). I wrote again, in April 2012, when the parties (including Disney, of course) asked the court to approve a settlement. But finally, in January 2013, the court approved the class settlement and dismissed the lawsuit.
The settlement requires Disney to make some changes (described in the April 2012 post) to the Theme Parks. As this recent photo confirms, Disney began making some of the changes even before the court formally approved it.
So why did approval take so long? Before a court approves a class settlement, it must give interested persons a chance to object. No class members objected but the National Federation for the Blind (NFB) did (as an association, NFB would not be a class member even though many of its members would be). NFB argued that the settlement terms were unfair because prohibited all future disability discrimination claims by visually impaired guests.
At an August 2012 hearing, the judge agreed with NFB on this point. But instead of rejecting the settlement, the judge told Disney and the plaintiffs to negotiate over changing the settlement terms to address the concerns.
At that point, something strange happened. Instead of working out a way to resolve NFB’s concerns, the plaintiffs decided to pull out of the settlement (or, at least, they tried to pull out). Disney, meanwhile, added two sentences to the 32 page settlement agreement and then asked the court, at an October hearing, to approve the settlement as modified even without agreement from the plaintiffs. The judge again sent the parties back to the table. Not long afterwards, Disney accused plaintiffs’ counsel of holding the settlement hostage in exchange for a “significant enhancement” in their fee.
Despite the NFB’s continued objections, the plaintiffs came around and, in late January 2013, the Judge approved the class settlement (with the two sentences added by Disney). (Again, the April 2012 post outlined the main terms of the settlement so I won’t repeat them here). The additional sentences create an exception that permits individuals to sue Disney for actual damages should Disney discriminate against a visually impaired guest in the future. The settlement bars any future class actions alleging Disney discriminated against the visually impaired. Future lawsuits seeking “statutory damages” (damages authorized by statute without requiring proof of harm) are barred. (California law, for example, permits a plaintiff to recover a $4,000 in statutory damages. Florida law does not authorize any statutory damages for disability claims.)
While the change satisfied the federal judge and Disney, NFB still thinks the settlement should not have barred future statutory damages claims. NFB’s objections go to the heart of the reason Disney agreed to settle the claims. The settlement terms require Disney to make changes to its website and Theme Parks to help the visually impaired. Disney doesn’t want to settle, make these changes, and have a steady stream of professional litigants repeatedly file lawsuits seeking statutory damages alleging the changes don’t satisfy federal or state law. In contrast, Disney appears to be willing to take the chance that individual damages suits are not very likely to occur and, even if one is filed, that the lawsuit would be unlikely to upset the changes mandated by the settlement.
Before and during the lawsuit, Disney had been modifying its Theme Parks to better accommodate the visually impaired. In June 2010, Disney introduced an Assistive Technology Device and in 2012 installed a stationary Braille map in Disneyland and, as shown above, at Hollywood Studios. (In fact, Disney’s website states it has installed stationary braille signs in all four of the Walt Disney World Theme Parks and Downtown Disney.) And in November 2012, Disney issued substantially revised guidebooks for guests with disabilities at all four Florida Theme Parks (links: Magic Kingdom, EPCOT, Hollywood Studios, and Animal Kingdom) .
It is no surprise that Disney pushed the court to approve the settlement. Disney is a publicity magnet. Litigation against Disney makes news when the same litigation against other companies doesn’t. I suspect that explains why this settlement drew objections from groups that could not be class members. It might also explain why the settlement agreement prohibited either party from issuing any press releases about the settlement.
Readers may see the amount Disney agreed to pay class counsel ($1,403,500 plus reimbursement of costs in amount of $146,500) and wonder it if is worth the cost. No doubt, this is a lot of money, but the settlement precludes future class action lawsuits against Disney which allege Disney discriminates against the visually impaired as a class. In today’s litigious climate, that peace is worth a good bit.