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

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.