Tag Archives: moeller v. taco bell

Litigation triumph (with photographic incompetence).

As we announced earlier on CREEC’s website, we finally settled the almost 12-year-old Taco Bell case.  Although the settlement requires notice and court approval, we decided to indulge in a bit of BBQ-based celebration on Thursday evening at T-Rex in Berkeley with most but not all of our wonderful team.   Unfortunately, my stubborn insistence on never using the pop-up flash on my camera resulted in some pretty blurry and/or grainy photos.  Blerg.  I’m now looking for an external flash for an Olympus XZ-2 that can tilt but that does not turn the whole thing into a giant, lumbering, unwieldy piece of photographic equipment.

On to our team!  Here is the core litigation team — sans Tony Lawson, who was in LA, and Brad Seligman, who is now The Hon. and had pre-existing obligations relating to his talented musical daughters. It also doesn’t include the wonderful Dan Goldstein, who joined the team last fall to assist with settlement and who deserves huge heaping helpings of praise (and, later, scotch) for his successful efforts.

Below:  lawyers Tim Fox, me, Mari Mayeda, and Jocelyn Larkin and Named Plaintiff (and disability rights goddess) Corbett.


Bill Lee, who through his own work and that of his firm, was incredibly helpful to and supportive of our case.


Co-counsel Robert Schug and Jocelyn Larkin of the Impact Fund and mentor Lainey Feingold.  (I really do need to investigate the flash situation….)


Future civil rights rock stars Sarah Morris (CREEC) and Meredith Johnson* (Impact Fund) plotting world domination.


Tim’s assistant Dustin McNa enjoys some of T-Rex’s famed health food.


And finally, the highlight of the evening:  obscure whiskey tasting!  The bartender told us this was a bottle from the latch batch ever of this whiskey.  “Like drinking a dodo bird,” explained Dustin.


This post doesn’t even begin to recognize all of the people who helped us out over the past 12 years.  We’ll have a more complete, better-photographed version after (God willing) final approval.


* It turns out Meredith and Tim both went to St. Olaf College in The Middle of Somewhere Very Cold, Minnesota.  We were treated to a brief but inspiring rendition of their college fight song, “Um Yah Yah” (which I think translates as “What Were We Thinking???”).   If you think I’m making that up — at least the song title part — check the school’s website!

Groundhog Day in the Taco Bell case

Remember the movie Groundhog Day, when Bill Murray wakes up every morning and has to relive the same day?  That’s what it’s like to litigate our case against Taco Bell.  For example, Taco Bell has argued in three different motions — in 2007, 2009, and 2011 — that our case is moot.  The court rejected the argument each time, but I’m guessing that won’t prevent them from making the same argument again.


The latest example is Taco Bell’s argument that, because our complaint listed only a handful of the barriers at issue, they have no idea — ten years into the litigation — what the case is about.

When they made this precise argument two years ago, we pointed out the many opportunities they had had to learn about the barriers at issue, including:

  • The plaintiffs’ 2003 depositions;
  • The plaintiffs’ 2003 declarations, filed with the Court;
  • The 2005-2006 comprehensive, collaborative, court-sanctioned, survey in which a jointly-selected expert visited all of the stores and reported to both parties the barriers he found.  (Spoiler alert:  there were a lot of barriers!); and
  • The 2010 list of barriers we prepared and filed with the Court.
    • Despite this wealth of information, Taco Bell’s 2011 brief claimed dramatically that

Taco Bell was forced to literally guess as to the precise nature of the alleged barriers that plaintiffs intended to challenge.

Literally guess?  Literally* guess?

In response, the Court held:

For [Taco Bell] to argue . . . that it was not placed on notice of the claimed violations because not all the barriers were listed in the [complaint], is to elevate form over substance.

Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831, 852 (N.D. Cal. 2011).

But when we woke up on March 5, 2013, and found Taco Bell’s latest motion in our inboxes — claiming it was not “on notice” concerning the barriers in the case — well:


So we have once again explained all of the opportunities that an observant attorney has had to perceive the barriers at issue, that is, all of the bullet points above along with a second round of plaintiffs’ depositions.

Any guesses when we’ll all stop waking up at 6:00 on February 2 and find redemption in the arms of Andie MacDowell or perhaps behind the wheel with Punxsutawney Phil?



* I’m thinking this calls for a quick rendition of “I do not think that word means what you think it means.”  On the other hand, it is possible that Taco Bell’s attorneys had simply never read these documents and were, in fact, literally guessing.