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

3. The Release Provisions are Overbroad

The Agreements’ release provisions suffer from both overbreadth and ambiguity. The release provisions are ambiguous and it is difficult to determine, with any precision, what rights and claims the class members are waiving. The release provisions are overbroad in three significant respects, they: a) appear to waive access claims arising after the date of the settlement agreement; b) bar state and local law claims which may provide remedies not available under the ADA; and c) bar claims not addressed and/or remedied in the Agreements.

In the release provisions, Named Plaintiffs and all class members release and waive all "Released Claims" as defined in the Agreements. See Section IX.A(1). The definition of "Released Claims" includes accessibility claims based on the ADA as well as state and local disability-related statutes, rules and regulations. See Section IX.B. In the release, the

"Named Plaintiffs and all Class Members... fully and finally release and forever discharge the Settling Defendants . . . from any and all past and/or present claims, rights, demands, charges, complaints, actions, causes of action, obligations, or liabilities of every kind that were or could have been brought, known or unknown, for individual and/or class relief based on any and all claims arising under or related to Title III of the ADA or its implementing regulations [or under more stringent state or local statute, rules, or regulations, if applicable] concerning any of the Settling Defendant’s Facility (ies) that have been or could have been brought or asserted in this action, in any action in any court of competent jurisdiction, or in any arbitration of federal, state, or local agency administrative proceeding."

See Section IX.B(5). Indeed, when the release provisions are interpreted in light of the recital provisions and the summary notice, they plainly are so all encompassing that they should not be countenanced by this Court.⁸

⁸The summary notice explains that, the Agreements will "bar all class members from asserting any claims against the Medical Center concerning physical, communication, structural and program access barrier." (Docket ##132, 133, Exhibit B). The "Recital" language, Section I. H(6), expresses the parties intent to forever bar access claims and to:

"Bind Settling Defendant, Named Plaintiffs, and the Class, so that, inter alia, neither the Named Plaintiffs nor any Class member will hereafter assert or claim that Settling Defendant is required to make additional or different modifications ...or ... follow different standards for Future Construction or Renovation, beyond what is agreed to herein in order to comply with federal or applicable state laws regarding access for Persons with Disabilities, and no Class member will hereafter assert a legal claim against Settling defendant under the ADA...or any federal, state or local laws ....arising form or relating to a physical, communication, or operational access feature (or lack thereof) covered under this Agreement."

A. The Release Provisions Appear To Waive Access Claims Arising After The Date Of The Settlement Agreements

The Agreements purport to forever waive the rights of all class members to bring access claims, even egregious claims, that arise after the date of the Agreements. Courts have viewed prospective waivers of individuals’ civil rights – whether arising out of the ADA or other anti-discrimination statutes – with great disfavor. See, e.g., Alexander v. Gardner-Denver Co., 415 U.S. 36, 51-52 (1974) ("[There can be no prospective waiver of an [individual’s] rights under Title VII."); Adams v. Philip Morris, Inc., 67 F.3d 580, 584 (6th Cir. 1995) ("A[] [party] cannot purchase a license to discriminate"); Uherek v. Houston Light and Power Co., 997 F. Supp. 789, 792 (S.D. Tex. 1998) ("A party may validly waive [Title VII] claims that exist on the day she signs a release, but not future claims."); see also Rivera-Flores v. Bristol-Myers Squibb Caribbean, 112 F.3d 9, 10-12 (1st Cir. 1997) (holding past ADA claims subject to waiver so long as release was knowing, voluntary, and "given in exchange for additional benefit"). This Court should not issue Settling Defendants a license to discriminate by approving this Agreement. See, e.g., City of Alexandria, 614 F.2d at 1362 (noting judicial duty to ensure class action settlement Agreements are neither illegal nor contrary to public policy); Shurford, 897 F. Supp. at 1547 (same). In the interest of fairness and public policy, these Agreements must be rejected.

The prospective release is especially troubling because it will substantially compromise the Department of Justice’s ADA enforcement efforts to protect the rights of individuals with disabilities and the public interest. The Department of Justice is the federal agency with primary responsibility for enforcing Title III of the ADA and its implementing regulations against public accommodations. See 42 U.S.C. §§ 12181 - 12189; 28 C.F.R. pt. 36 (1994). In keeping with this responsibility, the Department has the statutory authority to conduct compliance reviews of entities covered by Title III, investigate alleged violations – sometimes based upon individual complaints -- and, when necessary and appropriate, commence a civil action in district court for equitable relief, civil penalties, and/or monetary damages for the aggrieved party or parties. 42 U.S.C. § 12188(b).

The Agreements prohibit class members from "ever asserting a Released Claim, and from commencing, joining in or voluntarily assisting in a lawsuit or adversary proceeding, against the Released Parties arising out of, regarding, or relating to the Released Claims ... ." against the Settling Defendants. Section IX.B(3) (emphasis added). This release provision may inhibit disabled persons from filing complaints with the Department of Justice or assisting the Department with an investigation of future ADA violations at Settling Defendants’ facilities. This provision could also deter individuals from recovering compensatory damages for future Title III violations pursuant to the Department’s enforcement activities. In sum, the prospective release provision is unfair, contrary to public policy, and would undermine the Department of Justice’s ADA enforcement efforts.

B. The Release Includes State and Local Law Claims Which Are Not Addressed By The Agreements

The Agreements are also overbroad in that they bar class members from bringing claims under state and local accessibility laws which may provide remedies not available under the ADA. Section IX.B; see also Section I.H(6); Exhibit B. For example, Florida law provides that disability discrimination by places of public accommodation gives rise to cause of action for "compensatory damages, including . . . mental anguish, loss of dignity, and any other intangible injuries, and punitive damages." Fla. Stat. Ann. §§ 413.08, 760.07, 760.11(5) (West 1998). The ADA does not provide for such a range of compensatory damages.

C. The Release Provisions Bar Claims Not Addressed And/Or Remedied In These Agreements

The release provisions are also overbroad because they bar litigation concerning access issues that the Agreements do not address and/or remedy. Furthermore, it is unclear whether these Agreements even address all of the ADA violations that were at issue in this case. Without reviewing and verifying a detailed expert report about access at each facility, and reviewing every written or unwritten hospital policy, a class member cannot, at this time determine, if the Agreements resolve (or even identify) all accessibility issues that may affect him.