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May 2006


March 13, 2006 - Denver - Fox & Robertson, a firm of Denver civil rights attorneys, announced today it has settled a nationwide class action lawsuit filed to resolve disability access issues at Kmart stores.

Under the terms of the settlement, Kmart will survey and bring all of its stores nationwide into compliance with Department of Justice Standards over a seven and a half year period following court approval, and will institute policies to ensure access to merchandise, counters, restrooms, fitting rooms and parking. Kmart has also agreed to pay $13 million in damages.

The lawsuit was filed in 1999 but was delayed during Kmart's bankruptcy proceedings. During those proceedings Kmart's top management team was replaced, and the settlement was reached with Kmart's new management. The case has been pending in federal district court in Denver, before Judge John Kane, with whom the settlement papers were filed today.

"This settlement ensures that people with disabilities can shop at Kmart just like anyone else," said Carrie Ann Lucas, one of three people who originally brought the complaint. "It also shows that Kmart values all of its customers and wants to do what it takes to make sure we can shop at their stores."

Ms. Lucas and the other plaintiffs filed suit under the Americans With Disabilities Act.

"Kmart did the right thing for its customers," said Amy Robertson of Denver-based Fox & Robertson and co-lead counsel for the plaintiffs. "The company's management chose to make the changes necessary so all their customers have access to the wide range of products in these stores."

"Kmart's comprehensive commitment to provide access for individuals with disabilities in all of its stores is a landmark in the implementation of our national civil rights laws," said Bill Lann Lee, of the San Francisco law firm of Lieff Cabraser Heimann & Bernstein. Mr. Lee, former head of the United States Department of Justice Civil Rights Division, joined the case as co-lead counsel for the class after it was certified last July.

The settlement contains several innovative features, including a Kmart-initiated plan to provide customers with disabilities with two-way communication devices that permit them to request assistance retrieving merchandise and a website through which Kmart and the plaintiffs will seek feedback on the implementation of the settlement.

In addition to wide-ranging architectural and policy improvements, the settlement requires Kmart to pay $13 million in damages to members of the settlement class in California, Colorado, Hawaii, Massachusetts, New York, Oregon and Texas, states which impose statutory minimum damages for failure to comply with disability access laws. This is the largest recovery in a lawsuit filed over access for individuals with disabilities.

In addition to the damages, Kmart will pay the plaintiffs' attorneys' fees and costs.

"We have been very pleased with Kmart's approach to the resolution of this case. We hope that all companies will act as responsibly as Kmart has in addressing these issues," Robertson said. In the papers filed today, the parties request that Judge Kane give preliminary approval to the settlement. If he does so, notice will go out to potential class members and they will have an opportunity to review and comment on the settlement.

The settlement agreement is available on Fox & Robertson's website: