Surrender as a strategy in ADA litigation.

September 22, 2017 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Attorney's Fees, ADA Litigation Procedure, ADA Mootness Tags: ADA default judgment, ADA defense, ADA surrender

The defendant in Johnson v. Patel, 2017 WL 3953949 (E.D. Cal. Sept. 8, 2017) used an increasingly common strategy to deal with an ADA lawsuit. He gave up. Most lawyers would never recommend complete surrender as a strategy, but in the last two years we have seen a significant number of these cases from California, so it is worth asking whether allowing a default can ever be a good strategy.

Johnson v. Patel is a typical default case. The defendant, a motel, never filed an answer and allowed a default judgment to be taken against it. The Court, as one would expect, found the allegations in the complaint to be true, awarded statutory damages under California law, awarded attorney’s fees, and entered an injunction requiring remediation of the alleged barriers to access. This will cost the defendant about $13,000 in cash ($8,000 in statutory damages and a little more than $4,000 in attorneys’ fees) and require it to remediate the items listed in the complaint, which may or may not really need remediation.

It could hardly have done better had it filed an answer and tried to settle the case. Because damages, attorneys and an injunction are inevitable if there are real barriers to access plaintiffs rarely settle for less, and the attorneys’ fee component only goes up as the case goes on. A defendant with existing barriers to access is only going to increase its total cost by the amount of its own attorneys’ fees if it decides to fight. It also takes the risk of expanded remediation, because a property inspection is likely to discover problems the plaintiff, especially a serial plaintiff, did not take the time to discover.

The only cheaper way to deal with this kind of lawsuit is to remediate all the barriers to access so quickly that a mootness defense eliminates the cash outlay for attorneys’ fees. Still, the monetary damages remain to be recovered by the plaintiff in a state court action, and the cost of filing an answer and motion to dismiss is likely to exceed what this plaintiff got in a default judgment. It is also likely to trigger that additional property inspection as the plaintiff fights to keep the case alive. Giving up may be the most effective strategy, and it at least postpones if it does not eliminate spending money on remediation.

This doesn’t mean default is always a good strategy. Controlling the pace of remediation through a settlement may be a good idea when the plaintiff alleges extensive and expensive to fix barriers to access. Filing an answer is also the only way to effectively raise the defense that barrier removal is not readily achievable. Large or well known businesses may simply find that defaulting creates too many image problems, especially if the default is publicized by the plaintiff. A defendant contemplating default should always discuss these strategic considerations with a lawyer. Default is a strategy, not a panacea.

The best strategy, of course, is to have no barriers to access, especially not barriers that are visible from the street or a parking lot. “Fix First, Then Fight” has been our motto since we started practicing in this area, and it still represents the most basic principle for defending ADA lawsuits whether the plaintiff is a low-life serial filer or a high-toned disability rights organization.

NOTE: Our blog on “Strategies for Surrender” discusses another kind of surrender, the Rule 68 Offer of Judgment, which has benefits and risks as well. Since that blog we’ve been able to use Rule 68 offers successfully in a few cases, but care is still required.

Dialing for Dollars – Ninth Circuit encourages abusive ADA litigation

September 11, 2017 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Standing, ADA FHA Litigation General, ADA Policies, Hospitality, Hotels Tags: ADA, ada litigation, CREEC, dialing for dollars, drive-by lawsuits, Hospitality Partners, Ninth Circuit, serial ADA litigation

In Civil Rights Education and Enforcement Center v. Hospitality Properties Trust, 2017 WL 3401319 (9th Circuit, August 9, 2017) the Ninth Circuit decided once again to make abusive serial ADA litigation as easy as possible, ignoring both the constitutional limits on standing and the way cheap standing† has created a crisis in ADA litigation that Congress is only now beginning to fix.* The plaintiffs in Hospitality Properties Trust never visited the hotels they sued, relying instead on telephone calls in which they were supposedly told the defendant hotels lacked accessible free shuttle services. Beyond alleging the existence of these calls they included boilerplate allegations that they would have stayed at the hotel if there had been shuttle service and that they would visit in the future but were deterred by the ADA violation. This, they claimed, created an injury sufficient for Article III standing. More

ADA and the internet – you can be tagged for what your vendors do wrong.

September 8, 2017 By Richard Hunt in Accessibility Litigation Trends, ADA, ADA Internet, ADA Internet Web, ADA Web Access

Near the end of the decision in Gil v. Winn-Dixie Stores, Inc., 2017 WL 2547242, at *3 (S.D. Fla. June 12, 2017) the trial court includes in its injunctive relief a requirement that Winn-Dixie “require any third party vendors who participate on its website to be fully accessible to the disabled by conforming with WCAG 2.0 criteria.” This ruling rests on the ADA’s prohibition of discrimination “through contractual, licensing, or other arrangements.” [See, 42 U.S.C. §12182(b)(1)(A).] Winn-Dixie is a good reminder that becoming WCAG 2.0 compliant means focusing not just on your own website, but also on all the websites or web services to which you link. That can be a problem for businesses without much economic power.

Winn-Dixie is not a small business, but the web service providers mentioned in the Winn-Dixie decision, American Express and Google, are much bigger. Most businesses need third party vendors more than those vendors need them, so they aren’t likely to be able to force a change or do without the service provided them. This is an especially serious problem when the third party service is a pure internet business with a strong legal arguments against any ADA accessibility obligation. You might ask a vendor like Paypal or Google to guarantee accessibility for your customers, but you aren’t likely to succeed.

This disparity in bargaining power may be an excuse for partial non-compliance. In Natl. Assn. of the Deaf v. Harvard U., 2016 WL 3561622, at *16 (D. Mass. Feb. 9, 2016), report and recommendation adopted, 2016 WL 6540446 (D. Mass. Nov. 3, 2016) the court recognized that the ability to control third parties might play into the question of whether providing access presented an undue burden. As is so often the case in ADA litigation, once you reach the complexities of economic bargaining power and the advantages of similar but not identical third-party services the battle becomes so expensive that few businesses can afford to put up a fight.

Whether or not a business thinks it can negotiate with a big third-party vendor, it should at least consider the accessibility of third party websites and web services when deciding who to do business with, and it should document some effort to find accessible third-party vendors. Otherwise it may find that its own efforts to be accessible will not protect it from ADA liability while the courts slowly – very slowly – work toward resolving the nature of ADA obligations for websites.

Common sense and the ADA – A breath of fresh air from California

August 27, 2017 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Standing, ADA Attorney's Fees, ADA Litigation Procedure, ADA Mootness Tags: accessible parking, ADA technical violations, common sense ADA, handicap parking

Strong v. Johnson et al, 2017 WL 3537746 (S.D. Cal. Aug. 27, 2017) probably won’t go down in history as a landmark ADA decision, but shows a sometimes uncommon level of common sense about the difference between technical ADA requirements and the reality of accessibility.

By the time of this decision, the defendants had remediated all of the barriers to access that gave rise to the original lawsuit. The plaintiffs, undeterred, sent their expert back out to look for more. What he found was an excessive cross-slope “at the head” of the accessible parking space and an excessive running slope at the handicapped parking sign. Both appear to constitute violations of the 2010 ADA Standards, which require that “parking spaces” have slopes of no more than about 2% and make no distinction between the different parts of the parking space.

The Court rejected these technical violations because: “Passengers do not load, unload, or transfer into or out of vehicles at the head of a parking space, and vehicular lifts do not deploy there.” What matters for accessibility is how the slope of the space affects a disabled person, not whether there is some spot that has a slightly excessive slope. The Court had a similar observation about slopes in the middle of a parking space: “While excessive slope in the center of a parking space might technically be a violation of some kind, the fact that it is in the middle of the parking space means it would be underneath any vehicle parked there.” The court does mention the slope at the sign, but the same reasoning applies. A person in a wheelchair isn’t going to run into or even scrape a sign, so the slope at the sign is irrelevant to accessibility.

This common sense matters to defendants because one of the many games experts play in this ADA cases involves what this expert seems to have done; that is, taking measurements at many locations, trying to find just one or two that will justify a complaint. Parking spaces are large enough that it is hard to make the entire space and adjacent aisle perfectly flat, so this game often yields results. Requiring the plaintiff to show not just a technical violation, but a violation that mattered for accessibility, will often be a victory for a defendant who would otherwise end up re-paving a perfectly good parking space.

The Court also rejected the idea that the slopes might affect the plaintiff as she traversed the parking lot because as a matter of fact she never crossed the lot; she just parked and got out of her van. The slopes might be a problem for someone, but they were not for her. The Court had a similar observation about the striping on the access aisle. After noting that there did not seem to be even a technical violation the Court went on to note that: “And even if this might be a barrier for someone, Plaintiffs have never said why it would be a barrier for them.” Access aisles are required to be marked so as to discourage parking, but this only matters if the plaintiff cannot load or unload because of a parked vehicle, which evidently never happened.

For those who wonder why the Plaintiffs tried so hard to keep their lawsuit alive when the owner had fixed all the problems they identified, the answer is simple. Money. When remediation makes a lawsuit moot the plaintiff’s lawyers go home empty handed, and for most lawyers there is no more horrible result than that. Our next blog – “Mootness done right” – will discuss a case demonstrating what defendants must do if they want to take advantage of the mootness defense. In the meantime, remember that in one court, at least, common sense about the real impact of technical violations matters.

Hunt paper on Winn-Dixie decision published by Usablenet.

August 24, 2017 By Richard Hunt in Accessibility Litigation Trends, ADA Internet, ADA Internet Web Tags: ADA Internet, ADA regulations, ADA web, WCAG 2.0

Richard’s paper on the “Practical Implications of the Winn-Dixe Lawsuit” was posted to the Usablenet blog on August 23, 2017. This short paper reviews the history of application of the ADA to the Internet and the practical consequences of the present confusing state of the law. You can access it using the link above.

You may also be interested in our other recent posts on this subject:

ADA and the Internet Update – DOJ sends its regulations to Hanger 51

Baby steps – the first post-trial decision on the ADA and the internet.

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