Although you wouldn’t know it from watching the news many of the 677 federal judges in the U.S. are working on cases that don’t deal with how to count votes.  Here’s a look at what they’ve been up to.

Eleventh Amendment abrogation for ADA claims

In Natl. Assn. of the Deaf v. Fla., 2020 WL 6575040 (11th Cir. Nov. 10, 2020) the Eleventh Circuit held that Congress validly abrogated 11th Amendment immunity with respect to the State of Florida’s legislature, a holding that may eventually lead to a requirement that public legislative sessions be made accessible to those with hearing disabilities. The arguments are too complex for a Quick Hits blog, but it is notable that the Court found that Congress had the power to abrogate state immunity even when no fundamental right is at issue. The case seems destined for a newly constituted Supreme Court, so stay tuned.

Hotel booking websites – are you liable for what you don’t control?

The defendant in Laufer v. Shank Inc., 2020 WL 6551225 (S.D. Ga. Nov. 6, 2020) decided to allow a default judgment, possibly thinking it was simply the cheapest way out of the lawsuit. What it got was an order requiring it to make all the third-party booking sites it uses comply with the ADA; an order it almost certainly cannot obey. Whether and to what extent a business should be liable for the inaccesibility of third party services isn’t perfectly clear, but in the age of the internet it is crucially important. Almost all hotels rely on third-party booking sites they do not control but which they cannot do without. In the age of Covid-19 restaurants are increasingly reliant on third-party online ordering services like GrubHub, and on third party deliver services like UberEats. For the defendant in Shank, Inc. these critical legal issues likely to be raised defending a motion for contempt, which is not the best posture in which to raise a complex legal defense.

A more nuanced view of third-party booking sites is found in Kennedy v. R.V. Corp., 2020 WL 6386394 (S.D. Ga. Oct. 30, 2020). In Kennedy the defendant chose not to contest a motion for summary judgment that resulted in an order requiring it to maintain postings on third-party booking services that complied with its obligations under DOJ regulations requiring information about accessible rooms on hotel websites. The difference between this case and Laufer illustrates one of the reasons not to default even if defeat is inevitable. The ability to shape the injunction granted by the District Court can be the difference between a manageable obligation and one that cannot be kept.

The cost of default.

In physical accessibility cases, as I often note, default can be a reasonable strategy because the cost of the relief granted – remediation – can be determined from the complaint. In Johnson v. In Suk Jun, 2020 WL 6507995, (N.D. Cal. Nov. 5, 2020) the defendants were ordered to fix their inaccessible parking and pay damages and attorneys’ fees totaling $6,4680, a result that no amount of defense could have likely improved. In Cartwright v. Patel, 2020 WL 6271056 (S.D. Cal. Oct. 25, 2020) the plaintiff did slightly better with an award amounting to $8600 against each defendant ($4,000 each in damages plus $4600 in fees and costs).

The best defense is a good offense? Not always

In IXL Learning, Inc. v. Martin, 2020 WL 6459411 (N.D. Cal. Nov. 3, 2020) one of the victims of a threatened lawsuit by serial filer Dominick Martin decided to go on offense. Instead of waiting to be sued they sued first, asking for a declaratory judgment that Martin’s claims should be denied. Martin promptly filed his own lawsuit in state court, alleging only claims under the Unruh Act in order to avoid removal to federal court. (see the discussion of state court cases below). Acknowledging that IXL Learning had won the race to the courthouse and that it had jurisdiction, the federal court still declined to hear the case because, as it pointed out, all the issues and defenses could be fully litigated in the state court action, which was more appropriate for state court claims. This kind of preemptive strike is appealing, but seems unlikely to succeed cases involving a purely state law remedy.

The yin and yang of dignitary harm to support standing in ADA website cases.

Laufer v. Ft. Meade Hospitality, LLC, 2020 WL 6585955 (D. Md. Nov. 10, 2020) and Laufer v. U.L.S.T., LLC, 2020 WL 6487199, at *4 (N.D. Ill. Nov. 4, 2020) illustrate the uncertainty that attends ADA litigation with respect to standing. In Ft. Meade Hospitality the Court found that Laufer had failed to plead a plausible intent to use the website to make a reservation; hence, her inability to use the website for that purpose caused her no injury. The Court specifically rejected the notion of dignitary harm suffered by merely being exposed to an inaccessible website as sufficient to give rise to standing. The judge in U.L.S.T. reached the opposite result, holding that dignitary harm was sufficient to give rise to standing. One of my law professors collected cases like this because he was a legal nihilist who believed that courts make whatever decision the judge wants and then find an excuse for it. Without going that far it can certainly be said that the ADA in its current form and the refusal of DOJ to make sensible web accessibility regulations makes these contradictions inevitable.²

Your policies are no better than your people – a lesson from Costco

No one disputed that the defendant in Schutza v. Costco Wholesale Corporation, 2020 WL 6561440 (S.D. Cal. Nov. 9, 2020) had an ADA compliant service counter; they disagreed on how it was being used. Schutza claimed that he asked at the membership desk to be helped at the lower ADA service counter but was refused and that it was being used exclusively for merchandise returns. Costco said the lowered counter was available for membership services, but it couldn’t produce direct evidence contradicting what Schutza said happened. The Court found that both of Schutza’s ADA claims would go to trial because there were disputed issues of fact. Costco could not escape a claim of direct discrimination because it could only say that in general the lowered counter was available for membership services; it couldn’t prove Schutza was lying when he said he had not been served. Schutza’s claim that he had been denied a reasonable modification of the supposed rule against using the lowered counter also survived. Costco claimed that it could not be liable for the refusal of a low level employee to modify its supposed policies, but the Court found no such limit in the ADA. The fact is that your line employees, not your managers, are going to have the most interactions with disabled customers. If they don’t understand the ADA it doesn’t matter how well managers and executives understand it, or how well drafted corporate policies are.¹

If you are keeping score on dismissal of pendant or supplemental Unruh Act claims . . .

In Langer v. Honey Baked Ham, Inc. 2020 WL 6545992 (S.D. Cal. Nov. 6, 2020), Davidson v. Roma Bridge, LLC, 2020 WL 6587064 (C.D. Cal. Oct. 20, 2020), Dorsey v. Winning Beauty Supply (U.S.A.), Inc., 2020 WL 6541983 (C.D. Cal. Oct. 20, 2020), Brian Whitaker v. 1810 Downtown Rest., Corp., et al,  2020 WL 6493748, at *5 (C.D. Cal. Oct. 20, 2020) and Carmen John Perri v. Ben T. Khoe et al, 2020 WL 6493731 (C.D. Cal. Oct. 13, 2020) the Courts sided with others who agree that state law issues predominate in Unruh Act claims and that the Court should therefore decline to exercise pendant jurisdiction. I’ve noted similar cases on both sides of this issue in past blogs. For defense counsel the rule is “know your judge” when trying to get pendant claims dismissed.

Then there are the failed efforts to get out of state court in California. . .

In Aderiyeke Lawal v. Patagonia Glob. LLC, et al., 2020 WL 6681859 (C.D. Cal. Nov. 11, 2020), as in the cases cited therein, the Court remanded an Unruh Act claim concerning an inaccessible website to the state court from when it had been removed. The reason was simple; although the ADA played a role in the claim it was not part of the claim itself.

In Martin v. Aspen Skiing Co., 2020 WL 6376674 (C.D. Cal. Oct. 30, 2020) Scott Ferrell of Pacific Trial Attorneys used his favorite trick to avoid federal court: He filed a case that would otherwise be removable because of diversity jurisdiction but specifically limited his total recovery to $1 less than the minimum required for removal.(5) The Court found there was no removal jurisdiction and agreed with Aderiyeke v. Patagonia Global that by raising only Unruh Act claims the plaintiff had succeeded in avoiding any federal question jurisdiction.

The number of state court website cases in California has exploded in the last few years as federal courts became less attractive because of the Ninth Circuit’s view that stand alone websites are not covered by the ADA and District Judges imposed mediation and other requirements that made it harder for plaintiffs’ lawyers to use the threat of legal fees to obtain favorable settlements. Businesses unhappy with the situation will have to seek legislative relief; so far the federal courts are not willing to keep cases that arise under the Unruh Act.

The ADA still doesn’t require accessible gift cards.

Point of sale merchandise displays do not violate the ADA.

The defendant in Arroyo v. Baseline Enterprises, LLC, 2020 WL 6438412 (C.D. Cal. Oct. 19, 2020) had a service counter that perfectly complied with ADA standards but was partially covered with merchandise displays. Following earlier precedents from the Ninth Circuit the Court held that the ADA only required that the counter meet specific height and width criteria; not that it be kept free of obstructions. At some point a counter is no longer usable by anyone, but in the Ninth Circuit at least POS displays are permitted within reason.³

Cheap standing is still a thing . . .

Brooke v. Airport Blvd. Realty LLC, 2020 WL 6484810 (N.D. Cal. Nov. 4, 2020) is the kind of decision that fuels the ADA litigation industry. Refusing to accept a factual attack on the allegations in the Complaint and deciding to overlook the fact that the plaintiff was clearly lying about intent to return the Court denied a motion to dismiss, guaranteeing that the cost of defense would exceed the cost of settlement and handing the plaintiffs what amounts to a victory that will primarily benefit the lawyers. Until Congress recognizes that cheap standing is the driver of abusive serial litigation the cases will continue to hurt businesses and make lawyers rich.(4)

But not everywhere.

The plaintiff’s motion for default judgment was denied without prejudice to repleading in The Independence Project, Inc. v Ronald Moore, 2020 WL 6363714 (D.N.J. Oct. 29, 2020) because the plaintiffs allegations of intent to return were not plausible in light of the distance he lived from what seems to be an ordinary strip center and the lack of any definite plans to return. Cases like this that force the plaintiff to plead standing with enough specificity to be sanctioned when it turns out they were lying are the only way to reduce abusive serial lawsuits. At present the analysis used in The Independence Project seems limited to the East Coast, just as the cheap standing exemplified by Brooke v. Airport Blvd. is found almost exclusively in the Ninth Circuit, and particularly California. When a federal law is enforced with such widely varying results between one coast and the other it seems safe to say something is wrong.

Open for take-out is open to the public.

¹ I’ve noted this problem in earlier blogs. “Quick Hits – Is it safe to come out yet.” “Quick Hits – Halloween Candy Edition” and “Quick Hits – Memorial Day Edition” are just a few. One poorly trained employee can cost the company tens of thousands of dollars in legal fees and in some cases result in civil penalties.

² Some other cases on tester standing in hotel cases can be found in my blogs “Cheap Standing under the ADA” “Quick Hits – Christmas in September” and others.

³ I wrote about this first in 2015. See, POS Marketing and ADA Compliance – you can’t have it both ways. Since that post the tide has turned against requiring that accessible sales counters be completely free of merchandise, as the cases cited in Arroyo demonstrate.

(4) A search for “cheap standing” in my blogs will turn up most of my rants, I mean discussions.

(5) This strategy has succeeded in avoiding removal, but its use shows how cynical Pacific Trial Attorneys is in its approach to website accessibility litigation. If the court ordered remediation costing more than $75,000 Would Mr. Ferrell give up his fees to keep the judgment within the $74,999 limit, or would he give up remediation of the website? And how would a court order partial remediation if the cost exceeded the pleaded limit? Choosing to limit the relief available as a strategy for forcing quick settlements seems to indicate that Mr. Ferrell’s only interest is in money for himself; after all, if accessible websites were the goal he could get complete relief in federal court without limiting the cost of remediation.