About Me

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I am a consultant and general counsel to International Ride Training LLC as well as a practicing attorney in Avon, Connecticut. A particular focus of mine is the legal needs of the amusement and tourism industry. My focus on the amusement industry derives from my pre-law career as an operations manager with Cedar Fair Entertainment Company and Universal Orlando. Having started my career as a ride operator at Cedar Point in 1992, I progressed through the seasonal ranks and ultimately became the Manager of Ride Operations and Park Services at Worlds of Fun in Kansas City. I also worked in Universal's operations department during the construction and development of Islands of Adventure. Today, I am an active member of the New England Association of Amusement Parks & Attractions and the International Association of Amusement Parks & Attractions. I have been invited to speak at amusement industry meetings and seminars and have worked on a variety of matters relating to this industry.

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Saturday, July 9, 2011

Why Prove Your Case When You Don't Need To? How The Court In the Disney Class Action Was The Plaintiffs' Best Lawyer

Yesterday, I looked at a potentially huge (and overlooked) win for Disney in the recent California Class Action decision in Shields v. Walt Disney Parks &Resorts US, Inc.While a potential liability savings of $44 million or more is great, the rest of of the decision, in which the District Court certified a nationwide class consisting of, at least, 36,000 visually impaired guests of Disneyland and Disney World, is not the stuff of blue birds and sing-songs.  In fact, after spending some time looking at the decision and the judge's analysis, I have to conclude that the best lawyer that plaintiffs had working on their side in the courtroom was not the one they were paying, but the court itself.

To understand what I mean, you have to understand a little about class actions.  Don't worry, I won't turn this into an intolerable civil procedure lesson.  A class action is, in a nutshell, a way for a bunch of individuals who all have a similar claim to sue a defendant collectively.  In the typical monetary class action, none of the individual plaintiffs have a claim big enough to justify the expense of bringing a lawsuit, but multiplied by hundreds or thousands (sometimes millions) of plaintiffs that small claim becomes worth pursuing.  Class actions can also be used, as they are in the Disney case, to address violations of laws, such as the Americans With Disabilities Act, and force a defendant to change the way it does business to bring it into compliance.

A class action, however, is not filed by a full blown class.  Instead, one or more representatives of the class file the lawsuit and then, relatively soon thereafter, the Court must decide whether to certify that the class exists and allow the case to proceed on behalf of the entire class.  This is a very important point in most class action cases for an obvious reason:  If the representative plaintiff cannot show that the class should be certified, the defendant suddenly faces a claim from one (maybe a few more) instead of millions.  This significantly reduces liability exposure and will push the plaintiff toward a settlement favorable to the defense.  On the other hand, if a class is certified, the defendant's potential liability becomes more likely and far greater, and will push the defense toward a plaintiff-friendly settlement.  Thus, the class certification stage is where big fights tend to happen early on in class action litigation.

Now, one of the requirements that must be proven for the Court to certify any class action is that the potential class is so numerous that it would be impossible or impractical to bring everyone in as a named plaintiff.  There are other requirements too, but this is the one I want to concentrate on in the Disney case because it is here that the judge really did the plaintiffs some favors in the ruling.

The Plaintiffs tried two ways to prove that the proposed nationwide class was sufficiently numerous.  Without getting into the excruciating detail of the Plaintiffs mathematical calculation (which, trust me, is not fun to try to piece together), suffice it to say that both methods the Plaintiffs suggested depended upon assumptions that the disabled guest population at Disney World mirrored the percentage of disabled Americans in the population as a whole.  At the end of their "new math," the Plaintiffs estimated a nationwide class of visually impaired Disney guests of anywhere from 216,000 to 5.5 million.  Quite a range.

Now, to the judge's credit, she didn't buy what the Plaintiffs' were selling - at least not totally.  She correctly pointed out that the Plaintiffs' calculations relied on "doubtful" assumptions that “may not be true” and evidence supporting those assumptions whose “accuracy is questionable.”  Disney argued that the Plaintiffs' calculations could not represent reality given the few guest complaints filed with respect to the Plaintiff's claims.  The Court agreed that Disney's complaint data needed to be considered, and found that, while it was likely that not every visually impaired individual who had encountered a problem would actually file a complaint, that it "was impossible to pinpoint this percentage based on the current record."  So, after the Court found that Plaintiffs' evidence of numerosity was 1) based on unproven assumptions 2) based on inaccurate evidence and 3) that there was no evidence that would allow the Court to extrapolate numerosity based on guest complaints, the Court must have found that the Plaintiffs had failed to prove numerosity and that the class should not be certified, right?   


Like Prince Charming coming to rescue the fair princess from the hands of certain death, the Court rode in on its steed and did the Plaintiffs’ job for them. After finding, in effect, that Plaintiffs had failed to actually prove their case for class certification and that the evidence they relied upon was flawed and unreliable, the Court looked at that very same evidence and, using an unexplained calculation, inexplicably found that “at least 25,000 annual visitors to the Walt Disney World Resort and at least 11,000 visitors to the Disneyland Resort have visual disabilities” and therefore “that [the class] is far too numerous to practicably join all members.”  Wait…what? 

The entirety of the Court's analysis on this point is about 5 lines in a 45 page opinion.  I can only assume that the Court believed that, even though there was no actual proof of numerosity, common sense dictated that the class simply must be numerous enough.  There is really no better explanation that I've seen.  The problem here is that the law is not coextensive with common sense.  Is it probably common sense that there are thousands of visually impaired guests each year at Disney Parks?  Yes.But the judge must decide on proof.  Just last month, the U.S. Supreme Court, in the much ballyhooed Wal-Mart case forcefully reiterated that class certification decisions needed to be decided only after “a rigorous analysis” during which the plaintiffs “prove that there are in fact sufficiently numerous parties.”  In fact, elsewhere in the Disney Court’s opinion, it seems to recognize the magnitude of the task at hand, noting that “where evidence of numerosity is entirely lacking, the Court cannot substitute its imagination – no matter how commonsensical – in place of facts.”  Yet that it precisely what the Court seems to have done:  it found that the Plaintiffs relied on bad assumptions and inaccurate evidence, and yet still certified a nationwide class of thousands based on … what?  Other than common sense, I have no idea.

Several bloggers have pointed out, correctly, what this decision does not mean.  It does not mean that Disney necessarily did anything wrong.  It does not mean that  Disney is, in fact, liable to anyone.  But, while that's all true, as I mentioned at the beginning of this piece, the result on class certification typically has major ramifications on the case as a whole in terms of settlement.  Any wonder that right after this decision was released, Disney debuted a new and improved audio descriptive device for the visually disabled in its parks?  Maybe its a coincidence.  But maybe the Court's decision, based on unproven facts, has given Disney a big incentive to find a way to make this lawsuit go away soon before it gets out of control.

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