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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Friday, July 8, 2011

44 Million Ways Disney Won In The Recent California Class Action Ruling

On June 29, the US District Court for the Central District of California issued an important class certification decision in the case of Shields v. Wald Disney Parks and Resorts US, Inc..  The decision can be found here.  The decision can be seen as both a big win for Disney and as a disappointing loss based on some shaky legal analysis by the judge.  I'll be looking at the decision from both angles, but I'll start by looking at the positive end of the decision.   

By way of some brief background, in Shields, visually impaired Plaintiffs allege that Disney has violated the Americans With Disabilities Act and California's state law analogues,  in numerous ways, at both Disneyland and Disney World, generally relating to:
  • access for service animals, 
  • policies requiring companions of the visually impaired to pay full price admission, 
  • availability of braille and large print signs, maps, menus and brochures, 
  • use of touch screens for locker rentals, 
  • availability of preferential seating at Disney parades, and 
  • accessibility of Disney websites.  
 The Plaintiffs sought to represent a nationwide class (and numerous smaller sub-classes) of visually impaired guests and potential guests of the Disney parks affected by these policies.  At the end of the day, while the Court refused to certify all of the classes Plaintiffs wished to represent, it did certify five classes (those relating to signage, service animals, companion tickets, parades, and websites) for ADA violations.

In a decision that leaves a lot to be desired from a legal perspective (more on that in my next post), Disney did manage one mostly overlooked significant victory.  The headline grabber in this case is the Americans With Disabilities Act, but what should not be ignored is that the Plaintiffs also sought to certify a class under California's state civil rights laws as well, including a statute known as the Unruh Act.  California's Unruh Act, much like the ADA, requires (very generally speaking) equal access to public facilities to everyone, disabled or not.  However, unlike the ADA, the Unruh Act allows the court to award statutory damages of up to $4,000 per violation in addition to the other relief the plaintiffs seek.   What this means is that each time a plaintiff encounters an ADA violation, under California state law the Court can award $4,000 to that plaintiff.  The idea is to get the defendant's attention and force a fix - not to compensate the plaintiff for some injury or harm.

This is potentially a very big deal.  In its opinion, the Court found that the Plaintiff class conservatively consisted of 11,000 annual visitors to Disneyland. Even assuming that each one of these 11,000 class members encountered only one ADA violation (and they would almost certainly allege many more than that on average), Disney could have been potentially liable for $44,000,000 in statutory damages.  And this doesn't even include the possibility (albeit somewhat remote) that the court could have thrown in the 25,000 visually impaired annual visitors to Disney World that it also included in the nationwide class it certified under the ADA claims.  Add those plaintiffs to the mix, and Disney's potential statutory damages liability climbs to around $144,000,000.  Even if the court were to award something less than the $4,000 per violation maximum, we're not talking small change here - even for a company of Disney's size and scope.

The Court here, however, refused to certify any classes under the Unruh Act.  The Plaintiffs moved to certify only nationwide classes and the Court noted that it had "serious doubts whether Plaintiffs can enforce California statutes ... with respect Defendants' operations in Florida."  Since the Plaintiffs did not ask the Court to certify a smaller, statewide class under California law, the Court decided not to do the Plaintiffs' work for them.  The Court therefore only entertained certification of the nationwide class plaintiffs sought - thereby avoiding a potentially huge statutory damages award to the Plaintiffs.

This is also significant because under the ADA, the Court can award the Plaintiffs attorneys fees.  In other words, the Court can require Disney, if ADA violations are ultimately proven (they haven't been yet), to pay the Plaintiffs' attorneys fees.  Assuming the Plaintiffs' lawyers are working on a contingency fee arrangement, a third of $44 million is a little more than $14.5 million in attorneys fees that are now off the table.  Conservatively speaking, the Court's decision not to certify a class under California's Unruh Act effectively reduced Disney's potential liability by almost $60 million.  That is most definitely a shiny silver lining on an otherwise disappointing decision.

The Court did keep the door open so that the Plaintiffs could revisit this issue later "if it becomes apparent that the ADA cannot afford complete relief," but, even assuming the Court ultimately certified a smaller California class (which is not a sure thing by any means), that class would undoubtedly be significantly smaller and bring with it far less exposure to Disney.

So ... while Disney undoubtedly wishes the Court's decision on the ADA went another way, it should chalk up the Court's refusal to certify claims under California State law as a big win.

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