             Case: 11-12013     Date Filed: 08/30/2012   Page: 1 of 12

                                                                         [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT



                                   No. 11-12013


                      D. C. Docket No. 6:07-cv-01785-GAP-KRS

MAHALA AULT,
on her own behalf and on behalf of all others similarly situated,
STACIE RHEA,
on her own behalf and on behalf of all others similarly situated,
DAN WALLACE,
on his own behalf and on behalf of all others similarly situated,

                                             Plaintiffs-Appellees,

JERRY MILLER,
DISABILITY RIGHTS ADVOCATES FOR TECHNOLOGY,
DANIEL M. GADE,
ALAN A. MACCINI,
JAMES F. OVERBY,

                                             Intervenor Plaintiffs-Appellants,

JERRY KERR,

                                             Interested Party-Appellant,

             versus

WALT DISNEY WORLD CO.,

                                             Defendant–Appellee.
               Case: 11-12013       Date Filed: 08/30/2012      Page: 2 of 12




                      Appeal from the United States District Court
                          for the Middle District of Florida

                                     (August 30, 2012)

Before DUBINA, Chief Judge, JORDAN and ALARCON,* Circuit Judges

DUBINA, Chief Judge:

       This appeal is brought by objectors to the district court’s approval of a class

action settlement. The underlying case involves allegations that Appellee Walt

Disney World Company (“Disney”) is violating Title III of the Americans with

Disabilities Act, 42 U.S.C. § 12182, et seq. (“Title III”), by implementing a policy

that bans the use of two-wheeled vehicles, including Segways®, by customers

within its parks and hotels, without exception. The district court certified a

settlement-only class and found that the settlement reached between the class

representatives and Disney was fair. Objectors appeal both of these orders,

arguing that (1) class certification is inappropriate under Federal Rule of Civil

Procedure 23; and (2) the district court abused its discretion by approving the

settlement agreement after an extensive fairness hearing. We conclude that there

was no abuse of discretion and affirm the district court’s orders.


       *
        Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth Circuit Court of
Appeals, sitting by designation.

                                               2
               Case: 11-12013      Date Filed: 08/30/2012      Page: 3 of 12

                                              I.

       Disney has a policy that bans the use of all two-wheeled vehicles in all of

the parks and hotels within its Walt Disney World Resort and Disneyland Resort

(collectively “Disney Resorts”). The ban effectively prohibits the use of

Segways®1 and has no exceptions, even for those with disabilities. On November

9, 2007, Mahala Ault, Stacie Rhea, and Dan Wallace (collectively “class

representatives”) brought a class action suit against Disney on behalf of past and

future Disney customers who have a mobility disability and rely upon a Segway®

for mobility assistance. The class action suit alleges that Disney’s policy violates

Title III and seeks an injunction directing Disney to permit the use of Segways®

within Disney Resorts.

       A year later, the parties entered into a class-wide settlement agreement.

According to the terms of the settlement, Disney will maintain its ban on

Segways® and, in return, will develop a four-wheeled, electric-stand up-vehicle

(“the ESV”) for those for whom a stand-up mobility device is a necessity and who

are unable to utilize a mobility device that requires sitting, such as an electronic

wheelchair or motorized scooter. The settlement agreement also includes a



       1
         Because the only two-wheeled vehicle mentioned in this case is the Segway®, we refer
to Disney’s policy as a ban on Segways®.

                                              3
              Case: 11-12013     Date Filed: 08/30/2012    Page: 4 of 12

nationwide waiver of declaratory or injunctive claims relating to Disney’s policy.

Upon review of the settlement, the district court granted conditional class

certification and preliminarily approved the settlement.

      Following the district court’s approval of the settlement and dispersal of the

required class notice to individual class members and to members of organizations

that support people with mobility disabilities, several parties filed objections to the

settlement. The objectors include Appellant Disability Rights Advocates for

Technology (“DRAFT”), the United States Department of Justice (DOJ), which

filed an amicus curiae brief in this appeal, 23 State Attorneys General, and others

(collectively “objectors”).

      After receipt of the objections, the district court conducted a fairness

hearing to hear the objectors’ challenges. At the hearing, Disney’s Chief Safety

Officer, Greg Hale, presented evidence that allowing customers to bring

Segways® into the Disney Resorts would pose a significant safety risk to other

guests. Disney also presented evidence that the ESV was a beneficial substitute.

In rebuttal, the objectors presented testimony of people with severe mobility

disabilities—from amputations to neurological disorders—for whom, objectors

insist, using a Segway® is necessary and operating the ESV is impossible.

      After conducting the fairness hearing, the district court vacated its prior

                                           4
                Case: 11-12013   Date Filed: 08/30/2012    Page: 5 of 12

order conditionally certifying the class and dismissed the case for lack of

prudential standing, finding that because all of the named plaintiffs and objectors

were able to use wheelchairs or motorized scooters, none had been denied access

to Disney’s parks. Class representatives appealed to a panel of this court, which

held that the class representatives’ interests “are arguably within the zone of

interest protected by [Title III]” and remanded the case to the district court for “a

determination as to whether the claims of the named plaintiffs are typical of the

claims of the class and whether they are adequate representatives of the class.”

Ault v. Walt Disney World Co., 405 Fed. App’x. 401, 401 (11th Cir. 2010) (per

curiam).

      Between the district court’s dismissal for lack of prudential standing and

this court’s decision, the DOJ issued a new Title III regulation, 28 C.F.R. §

36.311. This regulation requires a public accommodation, such as Disney Resorts,

to “make reasonable modifications in its policies . . . to permit the use of other

power-driven mobility devices” unless Disney can demonstrate that the device

“cannot be operated in accordance with legitimate safety requirements.” Id. at

36.311(b)(1).

      After this court’s remand, the district court granted final class certification

based upon its prior findings, approved the settlement as fair and reasonable based

                                           5
              Case: 11-12013      Date Filed: 08/30/2012    Page: 6 of 12

upon the factors set forth in Bennett v. Behring Corp., 737 F.2d 982, 986 (11th

Cir. 1984), and overruled all objections. In determining that the class

representatives were unlikely to prevail at trial, one of the Bennett factors, the

district court made two findings. First, the district court afforded the new DOJ

regulation no deference under Chevron, U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837, 844, 104 S. Ct. 2778, 2782 (1984) because the court found that

“the revised regulations conflict with the plain language of Title III.” [R. 252 at

7.] Second, the district court found that even if the new DOJ regulation is

afforded deference, class representatives are still likely to fail in their claim

because of Disney’s legitimate safety concerns. The objectors then perfected this

appeal.

                                           II.

      The district court’s certification of a class pursuant to Rule 23 is reviewed

for abuse of discretion. Heffner v. Blue Cross & Blue Shield of Ala., Inc., 443 F.3d

1330, 1337 (11th Cir. 2006). We also review the district court’s approval of a

class action settlement agreement for abuse of discretion. Faught v. Am. Home

Shield Corp., 668 F.3d 1233, 1239 (11th Cir. 2011). “The proponents of class

actions settlements bear the burden of . . . demonstrating that the settlement

distribution is fair, reasonable, and adequate.” Id. (internal quotation marks

                                            6
                Case: 11-12013         Date Filed: 08/30/2012        Page: 7 of 12

omitted).

                                                 III.

       Objectors first argue that the class does not satisfy the prerequisites to class

certification set forth in Rule 23(a), insisting that “the claims or defenses of the

representative parties are [not] typical of the claims or defenses of the class[.]”

FED. R. CIV. P. 23(a)(3).2 Objectors argue that the class representatives’ claims

lack the required typicality because the class representatives do not rely upon their

Segways® for mobility to the same extent as other class members. For example,

Wallace only uses his Segway® once or twice a week, while Ault uses a cane or

scooter for help with mobility and infrequently uses her Segway®. In contrast,

according to the objectors, a Segway® for several class members is an absolute

necessity for mobility, which makes the claims of these class members sufficiently

different from those of the class representatives to defeat class certification.

       In the first order granting preliminary class certification, the district court

found that the claims of the class representatives are typical because all class

members assert that Disney’s Segway® ban violates Title III and precludes them



       2
         Objectors also argue that class representatives are not adequate representatives of the
class, FED. R. CIV. P. 23(a)(4), and that the district court improperly certified the class pursuant to
Rule 23(b)(2). We have considered these arguments and find them unpersuasive. Therefore, we
summarily reject them.

                                                  7
              Case: 11-12013     Date Filed: 08/30/2012    Page: 8 of 12

from using and enjoying Disney’s parks to the fullest. Following this court’s

remand, the district court found no reason to disturb this previous finding, and we

agree. Class members’ claims all stem from the same policy prohibiting the use of

Segways® within Disney Resorts, and all claims require analysis of Title III to

determine the outcome. While each class member may have a stronger or weaker

claim depending upon his or her degree of reliance, we conclude that this alone

does not make class representatives’ claims atypical of the class as a whole. Class

members’ claims need not be identical to satisfy the typicality requirement; rather,

there need only exist “a sufficient nexus . . . between the legal claims of the named

class representatives and those of individual class members to warrant class

certification.” Prado-Steiman v. Bush, 221 F.3d 1266, 1278–79 (11th Cir. 2000).

This nexus exists “if the claims or defenses of the class and the class

representative arise from the same event or pattern or practice and are based on the

same legal theory.” Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337

(11th Cir. 1984). All claims in this class action arise from the same

policy—Disney’s ban on Segways®—and are all based upon liability pursuant to

Title III. Thus, we conclude that the district court clearly did not abuse its

discretion by finding that the claims of the class representatives and class members

are typical and warrant class certification.

                                           8
              Case: 11-12013      Date Filed: 08/30/2012    Page: 9 of 12

                                           IV.

      Class actions can only be settled with the approval of the court. FED. R.

CIV. P. 23(e). In approving the settlement, the district court must conduct “a

hearing and . . . [find] that it is fair, reasonable, and adequate.” Id. at 23(e)(2).

The district court must also find that the settlement “is not the product of collusion

between the parties.” Bennett, 737 F.2d at 986 (internal quotation marks). When

the district court initially approved the settlement in the present case, the district

court considered the six factors espoused by this court in Bennett and found that

the class was unlikely to succeed at trial. See id. Based upon this finding, the

district court looked at the other Bennett factors and determined that the settlement

agreement afforded at least some relief that was fair and reasonable. See id. The

district court’s initial determination regarding the class’s likelihood of success at

trial occurred before the DOJ issued the new regulation that requires a public

accommodation to modify its policies to permit mobility assistance devices such

as Segways® unless the public accommodation determines that such devices

cannot be operated safely. 28 C.F.R. § 36.311(b)(1), 36.104. Before the district

court and this court, in its amicus brief, the DOJ argues that the regulation alters

the landscape of Title III jurisprudence in such a way as to make it likely the class

would succeed at trial if allowed to proceed. However, after this court’s remand,

                                            9
               Case: 11-12013        Date Filed: 08/30/2012       Page: 10 of 12

the district court disagreed with the DOJ and found that even if the new DOJ

regulation is afforded deference,3 Disney’s legitimate safety concerns present a

significant hurdle to the class’s ability to succeed at trial.

       The first Bennett factor is “the likelihood of success at trial[.]” 737 F.2d at

986. During an extensive fairness hearing before the district court, Hale testified

regarding the safety risks posed by the operation of Segways® in Disney Resorts.

The very factors Hale considered before deciding that Segways® are too

dangerous for operation in Disney Resorts are the very factors facilities are

required to consider under the new regulation. See 28 C.F.R. 36.311(b)(2)(i)–(v)

(requiring a public accommodation to consider the attributes of the device, the

volume of foot traffic in the facility, the design and operational characteristics of

the facility, whether safety restrictions on the use of the device can mitigate its

danger, and whether operation of the device will harm the environment in

determining if a specific device is allowable in the facility). The district court

found that based upon this testimony Disney is likely to succeed at trial in




       3
         We acknowledge that the district court also found that the DOJ regulation should be
given no deference, finding it to be contrary to Title III. See Chevron, 467 U.S. at 843–44, 104 S.
Ct. at 2782. However, because we affirm the case on other grounds, we defer answering this
question and leave it for another day.

                                                10
                Case: 11-12013        Date Filed: 08/30/2012         Page: 11 of 12

showing that it has fulfilled its obligations under Title III.4 Objectors and the DOJ

would like us to hold that this finding constitutes an abuse of discretion. We

decline to do so. The issue before us is not who prevails over whom, but rather,

the question is whether the district court abused its discretion in its finding

regarding who was most likely to prevail at trial. We conclude from the record

that there is no abuse of discretion.

       The second Bennett factor that must be considered is “the range of possible

recovery[.]” 737 F.2d at 986. Class representatives in this class only seek

injunctive or declaratory relief; therefore, the class receives either nothing or an

injunction requiring Disney to permit Segways® at Disney Resorts. Because the

district court found that class representatives were unlikely to prevail at trial, the

district court found that Disney’s agreement to produce and make available the

ESVs is a beneficial remedy for the class. This finding does not constitute an



       4
          Following oral argument, this court was made aware of the recent decision of
Baughman v. Walt Disney World Co., No. 10-55792, __ F.3d __ (9th Cir. July 18, 2012), where
the Ninth Circuit ruled that Disney was not entitled to summary judgment in a case filed by an
individual challenging its Segway® ban because genuine issues of material fact existed. The
Ninth Circuit did not hold that Title III requires Disney to permit Segways® in Disney Resorts,
and in fact explicitly stated that Segways® can be excluded if Disney determines that the safety
factors listed in 28 C.F.R. § 36.311(b)(2) warrant exclusion. Baughman, __ F.3d at __. In the
present case, the district court found that if this action went to trial, Disney was likely to prevail
because of its reliance upon those exact safety factors. Therefore, Baughman is factually and
procedurally different from the case at bar and does not transform the district court’s well
reasoned analysis into an abuse of discretion.

                                                  11
              Case: 11-12013       Date Filed: 08/30/2012      Page: 12 of 12

abuse of discretion. If Disney prevails at trial, the class will be left with no

remedy at all. This settlement precludes such a Draconian result and ensures that a

stand-up mobility device is available at Disney Resorts that conforms to its unique

safety requirements. Therefore, we conclude that the district court’s finding that

the settlement results in a “fair, adequate, and reasonable” remedy within the range

of possible recoveries is also not an abuse of discretion. See Bennett, 737 F.2d at

986.5

                                             V.

        After a careful review of the record and with the benefit of oral argument,

we conclude that the district court did not abuse its discretion in certifying the

class and in approving the settlement. Accordingly, we affirm its orders.

        AFFIRMED.




        5
         We also summarily reject objectors’ arguments regarding the nationwide waiver of
claims included in the settlement agreement.

                                              12
