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Kurlander v. Kroenke Arena Company, LLC

United States District Court, D. Colorado

April 13, 2018

KIRSTIN KURLANDER, on behalf of herself and others similarly situated, Plaintiff,
v.
KROENKE ARENA COMPANY, LLC, Defendant.

          ORDER GRANTING PLAINTIFF'S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

          WILEY Y. DANIEL, SENIOR UNITED STATES DISTRICT JUDGE.

         I. BACKGROUND

         THIS MATTER is before the Court on Plaintiff's Unopposed Motion for Final Approval of Class Action Settlement (ECF No. 66), filed on March 23, 2018. On April 5, 2018, the Court held a hearing on this motion and Plaintiff's Unopposed Motion for Attorneys' Fees and Costs (ECF No. 67). For the reasons set forth below, I will grant Plaintiff's Unopposed Motion for Final Approval of Class Action Settlement.

         Plaintiff Kirstin Kurlander, a deaf woman, brought this class action case to address the lack of captioning at sporting events at the Pepsi Center, which is owned and operated by Defendant Kroenke Arena Company, LLC (“KAC”). Plaintiff alleged that KAC was in violation of Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181 et seq. (“Title III” or “ADA”). KAC denied such liability.

         On August 31, 2017, this Court certified the following class pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2):

All Pepsi Center patrons who are deaf or hard of hearing and unable to hear using assistive listening devices, who have been, since November 10, 2014, or in the future will be, denied full and equal enjoyment of the goods, services, facilities, advantages, or accommodations of the Pepsi Center based on Defendant's failure to provide open captioning of aural content during non-concert events for which the center-hung display is used.

         Order on Class Certification (ECF No. 55) at 2, 17. The Court also appointed Plaintiff Kirstin Kurlander as the class representative and Amy Robertson of the Civil Rights Education and Enforcement Center as class counsel pursuant to Rule 23(g). Id. at 17.

         On December 28, 2017, the parties reached a settlement in this matter, memorialized in a proposed Consent Decree, which this Court approved on a preliminary basis on January 9, 2018 (ECF No. 65).

         II. FINDINGS OF FACT

         In September, 2015 -- a bit more than a year before this lawsuit was filed --Plaintiff sent Defendant a detailed letter describing Plaintiff's analysis of Title III's open captioning requirement applicable to arenas, such as the Pepsi Center. The parties discussed the possibility of resolution for over a year, but were unable to reach agreement. Plaintiff filed this lawsuit in November, 2016, and the parties focused on discovery and class certification. Following certification of the Class on August 31, 2017, ECF 55, the parties began to discuss different options for providing open captioning at the Pepsi Center. Counsel for Plaintiff and counsel for KAC attended a basketball game together in October, 2017, which started two months of negotiations, drafting, and site visits that resulted in the proposed Consent Decree.

         The Consent Decree requires KAC to caption all aural content spoken over the public address system as well as the lyrics of songs selected at least 24 hours before the event for all non-concert events for which the center-hung display is used. Consent Decree ¶ III(A). It will provide this open captioning on four LED displays mounted on the fascia of the third level of the Pepsi Center starting with the first preseason Avalanche game of the 2018 season. Id. ¶ III(B). Each board will show two lines of captioning in a font that is at least 10 inches high, and each board will provide space for captioning that is at least 45 characters long. Id.

         The Consent Decree requires KAC to provide information concerning captioning at various locations in the Pepsi Center and on relevant websites and publications of the Pepsi Center, and to retain a third party consultant to monitor the quality of captioning provided pursuant to the Consent Decree. Id. ¶ IV.

         The Consent Decree provides that, subject to Court approval, KAC will pay Class Counsel's attorneys' fees and costs through final approval in an amount not to exceed $200, 000, and will pay for work relating to monitoring in an amount not to exceed $75, 000. Id. ¶ IX.

         The Consent Decree does not provide for an award of damages to Plaintiff or to the Class and the Class does not release any claims for damages. In accordance with the only remedies available under Title III, the claims released by the Class are limited to claims for ...


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