ACCESS NOW, INC. v. AMBULATORY SURGERY CENTER GROUP, LTD.

I. INTRODUCTION

In December 2001, plaintiffs Access Now, Inc. ("Access Now" or "Plaintiffs") filed a fourth amended class action complaint alleging violations of the Americans with Disabilities Act ("ADA") by Defendants. The fourth amended complaint alleges that Defendants, nationwide providers of health care services operating over 450 medical facilities throughout the United States, have denied the class the full and equal enjoyment of their goods, services, program, facilities, privileges, advantages, or accommodations, and full and equal access to their facilities in violation of the ADA.

The plaintiff class in this matter, which this Court conditionally certified on May 18, 2000, includes "[a]ll people in the United States with disabilities as that term has been defined by U.S.C. § 12102(2) [title III of the ADA] . . . ." As the Plaintiffs stated in their motion for class certification, the "proposed Class is gigantic in size" and "is as geographically diverse as the United States."¹

On January 2, 2002, Plaintiffs and Settling Defendants, Northwest Medical Center, Inc. and Largo Medical Center Inc. ("Northwest," "Largo," or "Settling Defendants"), filed partial class action settlement agreements (the "Agreements") that purport to settle all accessibility claims -- both ADA-based claims as well as claims arising under state and local accessibility laws -- on behalf of a nationwide class of persons with respect to Northwest and Largo.²  In the Agreements, the parties state their intent to forever resolve and bar all claims concerning physical, communication, or program access barriers arising under the ADA or relevant state law. Further indicia of the parties’ intent is the language of the public notice of settlement, which advises that:

"the general release in this action will be effective to forever discharge any claims relating to physical, communication, structural and program access barriers, if any, at the Medical Center by a class member whether known or unknown to the class member at the time of the settlement agreement."

(Docket ## 132, 133, Exhibit B) (emphasis added).

Where, as here, settlements of a private enforcement action purport to bind all individuals covered by title III of the ADA from hereafter asserting rights under those provisions, it is appropriate for the Attorney General to assist the Court in determining whether such agreements are, in reality, in the public interest. The instant Agreements simply are not. These settlements so favor the defendants – Northwest and Largo – and so limit future ADA enforcement actions on behalf of persons with disabilities, that the United States must object to their approval.

Amicus curiae United States of America urges the Court to reject these Agreements on numerous grounds. The Northwest and Largo Agreements are so procedurally flawed that their endorsement would compromise the legal interests of both the greater disability community and the United States. These flaws include (1) constitutionally defective class notice; (2) an overly broad release provision that waives claims that are not addressed and/or remedied by the Agreements; and (3) an onerous mechanism for resolving disputes about access or compliance with the terms of the Agreements that is heavily weighted in favor of Settling Defendants. While voluntary settlement of litigation is always a laudable goal, the procedural flaws of these Agreements require this court to reject these partial settlement Agreements.

¹See Plaintiff’s Motion for Class Certification and Memorandum of Law Thereof (filed January 14, 2000)(Docket # 41 p. 7-8).

²Settling Defendant Northwest is an owner of the following properties: (1) Northwest Medical Center, 2801 N. State Road, 7, Margate, Florida; and (2) Northwest Medical Plaza Condominium located at 5800 Colonial Drive, Margate, Florida. Northwest owns and operates healthcare provider services at Units 106, 107, 108, 200, 201, and 202 of the Northwest Medical Plaza Condominium. In addition, Northwest leases and operates healthcare provider services at the following properties: (1) the first floor of the Medical Office Building, West 2825 North State Road, Margate, Florida; (2) Suites 101, 103, 311 of the Medical Office Building, 5901 Colonial Drive, Margate, Florida.
Settling Defendant Largo is an owner of the following properties: (1) Largo Medical Center, 201 14th Street SW, Largo, Florida. In addition, Largo leases and operates healthcare provider services at the following properties: (1) Medical Arts Building, 1345 West Bay Avenue in Largo, Florida (Suites 204, 205, and 401); (2) Second floor of 1300 S. Fort Harrison Avenue, Clearwater, Florida.
Both Settling Defendants are affiliated with HCA - The Healthcare Co.