COOK COUNTY RECORD

Retailer Kohl’s has won the chance to demonstrate why a group which advocates for the rights of those with disabilities should not be allowed to turn a lawsuit over disability access at its stores into a class action with potential plaintiffs numbering in the thousands.

The Equal Rights Center and six individual plaintiffs are suing Kohl’s Corporation, alleging the retailer has violated the Americans with Disabilities Act and the New York Human Rights Law by designing their stores in ways that ”prevent individuals with disabilities from navigating their stores with the same ease and dignity as customers without disabilities,” according to the original complaint.

In federal court in Chicago, Judge Ronald A. Guzman on June 3 rejected in large measure Kohl’s attempts to strike class allegations and dismiss the suit.

Guzman however, did grant Kohl’s the chance to argue the plaintiffs may fail to demonstrate a legally allowable class of plaintiffs exists. He gave Kohl’s three weeks to file an amended complaint satisfying that so-called “ascertainability” requirement.

The Equal Rights Center filed its complaint against Kohl’s in October 2014, asserting, among other allegations, side aisles in the retail chain’s 1,100 U.S. stores were too narrow, its counters too high and its merchandise displays too difficult for those who need wheelchairs or suffer from other disabilities to browse through with ease.

The ERC said it wished to press the action on behalf of a class of people “with mobility disabilities who use wheelchairs or are otherwise disabled due to mobility-related issues” and struggled to shop at Kohl’s stores. They estimated that class to be in “the thousands.”

Kohl’s, however, has opposed the certification of a class in the litigation.

Among other arguments, Kohl’s asserted the plaintiffs cannot demonstrate either the six individuals or the potential class have enough in common.

Guzman, however, wrote the ERC’s allegations satisfy the commonality requirement at this stage of the proceedings. Citing earlier lawsuits in California — Castaneda vs. Burger King in 2009 and Moeller vs. Taco Bell in 2004 – Guzman said class standing was denied in one case based on a failure to show commonality among all restaurants in question. In the other, however, the chain “conceded that all of the stores were built in accordance with centrally designed blueprints that resulted in common accessibility violations at all of the stores,” which is the case with most Kohl’s stores.

Guzman also accepted the Equal Right’s Center’s associational standing, which Kohl’s had sought to invalidate. He further credited the plaintiffs for a stated commitment to continue shopping at Kohl’s stores if the disability impediments are addressed.

However, Guzman said the plaintiffs “hardly address” the issue of ascertainability. He indicated the proposed class definition lacks a time frame for the issues at the center of the allegations.

“Moreover,” he wrote, “what are the objective criteria by which class membership will be determined and how will class members be identified?

“The potential class numbers in the thousands and plaintiffs do not indicate how they will identify the members of a nationwide class of mobility-impaired individuals who were, at some point, denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any Kohl’s Department Store because of the presence of access barriers.”

Guzman directed plaintiffs to the Seventh Circuit’s position as stated in the 2012 decision, Jamie S. vs. Milwaukee Public Schools, in which the appeals court rejected class status based solely on the defendant’s alleged conduct, further referencing previous cases indicating “tolerance of a wildly indefinite class definition under Rule 23 is no longer the norm.”

Should the plaintiffs file an amended complaint and memorandum, Kohl’s would be granted two court days to file its own statement of intent to move to strike the revised class allegations on ascertainability grounds, and if so intended, an additional two weeks to actually file the motion. The plaintiffs would have their own 14-day period to file a motion in response before the next ruling.

Kohl’s is represented in the case by attorneys from the firm of Blake & Hostetler LLP, with offices in Chicago and Orlando, Fla.

The ERC and six individual plaintiffs are represented by attorneys from Robbins Salomon & Pratt Ltd., of Chicago, and the Washington Lawyers’ Committee for Civil Rights, of Washington, D.C.