DISABLED IN ACTION OF METROPOLITAN NEW YORK May 2006 www.disabledinaction.org DUANE READE CASE SETTLED! Access is Good for Business by Jean Ryan After almost five years of litigation, Magistrate Debra Freeman, of the Disabled In Action’s access lawsuit U.S. District Court, Southern District of against the Duane Reade drugstore New York, signed the consent decree on chain has been settled, and it affirms January 24, 2006, to end the lawsuit our civil right to shop by being able to that Disabled In Action and 10 named do such things as pass through store plaintiffs initiated with New York aisles, reach count- Lawyers for the ers and credit card Public Interest, Inc. swipe machines, and Fish and Neave, and communicate LLP (now Ropes and privately with phar- Gray, with one of macists. We are our principal attor- looking forward to neys now at Wilmer, the improvements Cutler, Pickering, that Duane Reade Hale, and Dorr, LLP). has promised to Judge Freeman’s make. order came more Carr Massi, DIA President, speaking than a year after the Photo by Marianne Lado Duane Reade, continued parties agreed to avoid trial and settle encouraged to fight for their civil rights, on many issues. The two issues the and hopefully other businesses will parties could not agree on, and which realize their responsibilities and provide Judge Freeman ruled on, were standards access without expensive, time- for stock in the aisles and whether or consuming litigation. not the terms of the consent decree While several recent articles in the would be confidential. In a victory for popular media have characterized Disabled In Action’s long held view that Duane Reade stores as cluttered, too civil rights cases have to be public often, people with mobility and sensory knowledge, Judge Freeman ruled that disabilities have experienced their the settlement and her decision would stores as inaccessible. We have been unable to get into some stores because of steps, locked doors(!), blocked entryways, or double sets of doors that don’t allow enough clearance between them for a wheelchair. Thanks to the lawsuit settlement, most of these problems will be surveyed and corrected within two years. Once in a store, we often could not get through the aisles because of Activists Anne and Fusun with signs displays on the floor or stock in the Photo by Marianne Lado aisles or because of the way shelves (gondolas) are placed. Duane Reade be open to the public, not confidential, has agreed to provide 36" of clear aisle but that the parties must try to space (typically the width of 3 floor collaborate on press about the case. We tiles) with the exception of infrequent, held a joint press conference in front of very small sections of 32" width where a Duane Reade store in midtown on the larger width is impossible to April 19, 2006. achieve. It is Disabled In Action’s view that Hooray! Not being able to get to through publicizing information about merchandise has been frustrating, but civil rights cases, other people with literally being blocked by heavy boxes disabilities can be inspired and of merchandise or by empty boxes in a narrow aisle or in an elevator, unable to page 2 Duane Reade, continued get out, and yelling for help, are experiences we are happy to put behind us. After Judge Freeman participated in discussions with each side, Duane Reade offered to pack out (put away) new merchandise in 2, 4, or 6 hours (depending on the store) after the delivery truck leaves, and Judge Freeman incorporated this into her order. "That will be a great improve- Three of our Lawyers – Marianne Lado and Gavin Kearney from NYLPI and Wi l l i a m ment over having merchandise on the McCabe from Ropes and Gray floor blocking the aisles," said Marty Photo by Jean Ryan Sesmer, a plaintiff. Duane Reade officials also agreed to calls, wrote depositions, e-mails, letters, lower high counters to 37" and in new and briefs, and researched the issues, stores have them be 36", and to have a surveyed stores, watched security private telephone to the pharmacist in tapes, and gave their time to come to bi-level stores without an elevator. No DIA meetings to explain and discuss the longer will a clerk be an intermediary issues. when we have to communicate with the DIA plaintiffs and officers put in a pharmacist about medication. great deal of work, too, in this case. Disabled In Action would like to Sometimes suing seems easy because a thank New York Lawyers for the Public disability rights group may think that Interest, Inc., especially Marianne Lado, the lawyers will do all the work and we’ll Dennis Boyd, and Gavin Kearney, as well get everything we want, everything that as Ropes and Gray, LLP (formerly Fish is necessary for access. The real world and Neave, LLP) attorneys, especially does not work that way. William McCabe, Stanley Liang, Tom We talked with our lawyers from the Vetter, Paul Keller (who is now at very beginning, telling them about Wilmer, Cutler, Pickering, and Hale, access problems. We surveyed stores. LLP), Nina Horan, Shazi Malik, and We had conference calls and meetings Spencer Yee for their tireless, dedi- at their offices and at DIA meetings. We cated, and excellent work on this case. had to provide documents, receipts, They attended countless meetings, page 3 Duane Reade, continued last year before the conclusion of this case, you knew she was not a shopper. Her partner, Michael, did all the shopping. As Frieda reported it, the deposition went something like this: DR Lawyer – "What have been your experiences shopping in Duane Reade stores?" Frieda – "I don’t shop. I have not shopped in a Duane Reade store, but I want them all to be Jean Ryan with attorneys Wm. McCabe and accessible." Gavin Kearney Photo by Marianne Lado DR Lawyer – "What? You don’t shop?" Frieda – "No, I don’t." letters, e-mails, even our wheelchair and scooter manuals(!). DR Lawyer – "Then what are you doing here?" A number of plaintiffs and DIA officers were singly deposed (asked Frieda – "I am here to represent DIA and answer questions about it." questions) in a room by Duane Reade lawyers for several days in 2004. It was Several of us went to court for long grueling for all of us. I am very sensitive days. The first few days we were there, to cold and drafts, and, even though the we actually had to go to the security weather was 95 degrees outside, I office and be escorted to the hidden, actually brought winter clothes and wore a blanket on the second day to cope with the cold inside. We were asked all kinds of questions about DIA and about store access, like when we could not get down an aisle, what did the outside of the boxes say? Frieda Zames, bless her heart, was deposed on behalf of DIA. She was asked about her Duane Reade shopping experiences by the attorney for Duane More access equals more business Reade. If you knew Frieda, who died Photo by Marianne Lado page 4 Duane Reade, continued locked accessible restroom. After in a settlement agreement, it is a good complaining mightily that this was like agreement if neither side is totally kindergarten and is not what other happy because you each have to people have to go through, we compromise to agree. An example of progressed to being able to something we wanted but could not get independently get into the rest room, is the total elimination of displays in the but it was still hidden aisles. As long as Duane and unmarked. Reade keeps 36" clearance in the aisles, they can have We also prepared for displays because we can a trial that was to be still get through, and if held in mid-December, merchandise is blocked by 2004. We found people the displays, it is blocked to attend court every for everyone, not just for day, even in holiday people with disabilities. season, but both sides were able to agree to Another thing we settle on the eve of the wanted was access to every trial so we did not have pharmacy, even those to go to trial. The two currently on an inaccessi- Ev e r y press conference needs a cop issues that the sides ble level, but the ADA does could not agree on, Photo by Marianne Lado not require an elevator in stock in the aisles and whether or not every store, nor is there necessarily the case would be confidential, were room for an elevator in every bi-level decided in January 2006 by Judge store. Freeman. The third thing we wanted and could Any lawsuit is hard work and is a not get, that the Kmart plaintiffs got gamble; you never know what the judge (see http://www.foxrob.com/pleadings/ will order or what the two sides will be Km a r t / S e t t l e m e n t % 2 0 A g r e e m e n t % 2 0 - % 2 0 able to agree on. Also, the ADA does no%20exhibits.pdf, section 14.7) was not mandate total access. While we for Duane Reade to agree to tie sought only access for the plaintiffs and accessibility to the managers’ not money, Duane Reade agreed to evaluation, promotions, and pay donate $50,000 to Disabled In Action so because accessibility is not just we can continue our work. structural – it is often a matter of practice, of people’s behavior to keep Our lawyers repeatedly told us that page 5 Duane Reade, continued the aisles clear.