Fashion Valley Nike Store, Ground Zero of Class Action for Deaf, Toes Line on Deal

Customers wait to enter the Fashion Valley Nike Store, whose employees are now wearing see-through masks. Photo by Chris Stone

Nike customers cooled their heels on Saturday as they lined up outside the brand’s iconic store store at Fashion Valley mall. Most ignored a small panel displayed in the window.

It was one of 10 mini-posters primarily related to COVID. But it was aimed at a specific clientele.

Next to a blue ear graphic it was written: “If you would prefer to be assisted by an employee who wears a clear face mask, or if you need other accommodation, please ask for assistance from a employee. “

Carlsbad attorney James Clapp was happy to hear that the sign had been posted. That meant his legal settlement with Nike had come into effect.

“The ear is the international sign of hearing access,” said Clapp. “Deaf people like me look for this symbol if we need housing, and I personally think it is visible enough that a deaf person will notice it instantly.”

Nike and Cali Bunn Class Action Settlement Documents. (PDF)

Clapp was lead counsel in a major class action lawsuit against the sportswear and footwear giant brought on behalf of Cali bunn, 22, a former Catholic cathedral volleyball star with profound hearing loss.

On January 28, Nike’s attorneys informed a San Francisco-based federal court that they had accepted a settlement on January 8 that would pay Bunn’s attorneys $ 85,000, just under half of the costs incurred.

Nike would pay Bunn $ 5,000 as a “service reward” because of the 15-20 hours she spent in litigation, “the reputational and financial risk she took, and the substantial rewards her efforts brought. finally conferred on deaf and hard of hearing customers of Nike in California. “

In July, Bunn, a student at Tulane University, went shopping for shoes at the Nike store in Fashion Valley. But with her salesperson wearing a COVID-mandated mask, she was unable to read lips – a “life-changing experience” that caused “angst”.

Last September, she sued Nike for accommodating the hearing impaired, citing state and federal Americans with disabilities law.

After two months of “cordial” negotiations, Nike and Bunn struck a deal with statewide effect – and possible national consequence.

Every Nike retail store in California is to provide clear face masks for employees as well as clean pens and paper to “facilitate the exchange of notes with customers who are deaf or hard of hearing and indicate that they prefer to communicate in writing.”

Nike has also agreed to post notices near the entrances of its 38 California stores advising customers who are deaf or hard of hearing they can ask for help.

Clapp said he and a co-counsel had worn, tested and approved the masks.

“They’re comfortable and do the job of letting you see the wearer’s mouth and facial expressions,” he said.

Nike did not respond to questions, including whether its California policy would be adopted nationally. A Fashion Valley store manager would not allow photos of the new masks, but instead direct questions to Nike.

But Clapp said in a statement, “My client and I agree that face masks are necessary to protect public health, but they also create communication challenges for the millions of deaf and hard of hearing people in the United States.

“We appreciate Nike’s proactive approach in addressing this important but neglected issue. I hope this regulation causes other retailers to follow suit on purpose. Accommodation for people with disabilities is not only required by law, but it shows a commitment to good customer service.

A mask maker agreed.

“Below Title III of the Americans with Disabilities Act … Entities such as businesses and non-profit organizations are required to provide effective accommodations on demand, including auxiliary aids, ”said Allysa Dittmar, President and Co-Founder of ClearMask, which makes a transparent face cover.

She wouldn’t say if Nike is a customer, but The Times of San Diego has learned that Nike is purchasing clear masks from one of its regular manufacturers outside of the United States.

“These are reusable / washable cloth masks, not disposable masks like the one made by ClearMask,” said a source who did not want to be identified.

Ahead of the settlement talks, Bunn’s attorneys visited seven Nike retail stores to confirm his policies were consistent statewide. Now both sides await formal approval from a federal judge.

At 2 p.m. on April 20, Judge Yvonne Gonzalez Rogers is expected to sign the settlement in his Oakland courtroom.

It takes so long because the agreement has to be distributed to state attorneys general across the country.

“Nike served the required notifications on January 14, 2021 and will file proof of compliance with this notification requirement. Thus, the final approval order cannot be taken before April 13, 2021, to comply with the CAFA notice obligation,Clapp told the court.

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