Hello Amazon, and welcome to the world of ADA litigation.

By in Accessibility Litigation Trends, ADA - drive-by litigation, ADA Internet, ADA Internet Web, ADA Web Access Tags: , , , ,

amazon frown_edited-1The major news outlets seem to have overlooked the most interesting aspect (to me) of Amazon’s acquisition of Whole Foods; that is, Amazon’s leap into the world of serial ADA filers and controversy over internet accessibility. Amazon has experimented with physical stores, but soon it will have hundreds of them in the U.S., and every one of them has some kind of ADA accessibility issue. That isn’t an accusation, but an assumption based on the highly technical requirements in the 2010 ADA Standards and the proven inability of even the most sophisticated organizations to control the hundreds or thousands of people whose jobs are not primarily related to accessibility to do what is required. Somebody’s going to stack boxes in a hallway, block a checkout counter, take too long to repair a vandalized accessible parking sign, or fail to notice a 10% slope where 8.3% is the maximum. Whole Foods has already been sued many times based on accessibility failures in its stores.

As for its web site, Whole Foods has already been sued twice in the Southern District of Florida based on a claim of website inaccessibility. It settled the first case, Gomez v. Whole Foods Market, Inc., Case No. 1:16-cv-25017 in February of this year only to be sued in April by a different plaintiff.* Amazon, with no physical stores, has never had to worry about so-called “drive-by” litigation because it has had the Netflix case on its side. Whole Foods can’t make that argument. Moreover, it’s hard to imagine Amazon doesn’t intend to eventually create a unified shopping environment with Whole Foods, and that will bring with it the threat of lawsuits against Amazon itself. As of today, the WAVE tool shows 29 errors and 33 alerts on Amazon’s home page alone. That and a blind plaintiff are all a plaintiffs’ firm needs.

Amazon has plenty of money and lawyers, and the ADA/internet connection is still very much up in the air, but web accessibility is no joke for complex websites because making a complex website accessible can be very expensive and the better financed plaintiffs’ firms are capable of taking on the biggest opponents. It didn’t make the papers or cable news, but I hope somebody at Amazon is thinking about website accessibility, because I’m pretty sure there is a plaintiff’s lawyer somewhere who read the news and is busy figuring out how to welcome Amazon to the world of ADA accessibility litigation.

*Haynes v Whole Foods Market Group, Inc., Case No. 0:2017-cv-60749.

 


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

By in Accessibility Litigation Trends, ADA Internet, ADA Internet Web

baby-steps3Yesterday, on June 13, Judge Robert Scola of the Southern District of Florida issued his opinion on website accessibility in Gil v. Winn Dixie Stores, Inc. Case No. 1:16-cv-20320 (SD Fla. June 13, 2017) He conducted a two day trial, but the outcome was inevitable after his earlier decision denying a motion to dismiss. In that decision Judge Scola adopted, in essence, the reasoning of Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp.2d 946 (N.D. Cal. 2006). Target held that if a website had a sufficient nexus with a physical place of business then it was covered by the ADA as a service of that public accommodation. This sidestepped the more theoretical question of whether a stand alone website is a public accommodation. It appears to have been undisputed that the Winn-Dixie website offered services related to its brick and mortar stores, so the trial in which evidence of that fact was put in the record was really just a formality.

What’s next? This is still only the opinion of a single federal district judge, and he declined to rule specifically on just what it means to have an accessible website. Based on a review of the pre-trial stipulations and Winn-Dixie’s determined defense to this point an appeal seems likely. If so, it will give the Eleventh Circuit a chance to rule on the Target theory for applying the ADA to the internet in the most definitive way and to say something about the ADA and websites not related to physical public accommodations. No matter how the prospective appeal turns out the decision will be critical for business.

It also puts the Trump Department of Justice to the test.  In the waning days of President Obama’s term the Department of Justice filed a Statement of Interest in support of the plaintiff in the Winn-Dixie case. Since the appointment of William Sessions as Attorney General it has been widely speculated that DOJ will become less interested in expansive readings of civil rights statutes. If DOJ decides to pull its support for the plaintiff, or even just to remain silent, advocates of an accessible internet will lose a critical ally. Short of an act of Congress DOJ regulations are the most authoritative way the ADA could be applied to the internet. Those regulations seem to be stalled, and a lack of interest in this case may indicate that further movement is unlikely. That in turn will leave businesses with no clear guidance on what the ADA requires, or even if it requires anything at all.

We’ve moved from scattered decisions at the earliest stages of a lawsuit to a judgment after trial that is perfectly positioned for an appeal that will give some definition to the idea of internet accessibility. Stay tuned.


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The interactive process under ADA Title III – maybe not the law, but a good idea anyway.

By in Accessibility Litigation Trends, ADA Litigation Procedure, Interactive Process Tags: , , ,

rvp-yelling-at-refIn its May 2, 2017 decision in Koester v. Young Men’s Christian Assn. of Greater St. Louis, 855 F.3d 908, 909 (8th Cir. 2017) the Eighth Circuit casually suggested that the “interactive process” does not apply to accommodation requests under Title III of the ADA. It sidestepped the issue in the end, but wrote that it approached a claim based on a failure of the process with a “a healthy dose of skepticism that these concepts are applicable in this Title III case.” As authority it dropped a footnote to its earlier decision, Mershon v. St. Louis U., 442 F.3d 1069, 1078 (8th Cir. 2006). In Mershon the Court expressed doubt that the interactive process applied to a claim in an academic setting, referring in turn to the decision in Stern v. U. of Osteopathic Med. and Health Scis., 220 F.3d 906, 909 (8th Cir. 2000).  The Stern case did not include any expression of doubt; only a recognition that the question was unresolved: “Even if such an interactive process is required in an academic setting. . . .” This time the authority cited was a lower court decision, Guckenberger v. Boston U., 974 F. Supp. 106, 142 (D. Mass. 1997). In Guckenberger, oddly enough, the Court assumed that an interactive process was required by Title III, but found that the system in place at the defendant university was sufficiently interactive.
Like the old game of telephone, in which a message becomes increasingly garbled as it is passed from one person to another   Guckenberger’s assumption that an interactive process is required by Title III was somehow converted to the opposite in Koester. None of this changed the outcome of any case, but it might leave businesses and their lawyers wondering just what Title III does require when an accommodation is requested.
In many cases there is only one answer and no chance to discuss it. If a person with a guide dog wants to bring it in the restaurant the only accommodation is to allow the dog. In many other cases, however, there is time for at least a discussion about a solution that works for everyone. Does the decision in Koester mean this isn’t necessary?  The answer is simple – it doesn’t matter. In the early days of the ADA a District Judge in Maine explained that an interactive process is “a means of arriving at a reasonable accommodation.” Dudley v. Hannaford Bros. Co., 190 F. Supp. 2d 69, 75 (D. Me. 2002), aff’d, 333 F.3d 299 (1st Cir. 2003). For businesses, schools and other Title III entities the point of the interactive process is not to engage in some legal tango as each side seeks an advantage, but rather to avoid a lawsuit by finding a solution to a mutual problem. Your business has something to sell. A disabled individual wants to buy it but cannot because of a disability. Everyone benefits if there is agreement on a solution. While the Eighth Circuit may be skeptical of the applicability of the interactive process to Title III cases, businesses and consumers should have no doubt that it is a good idea.

 

 


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ADA Litigation – cooking hotdogs with $100 bills.

By in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation Tags: , , , ,

Cooking hotdogs with 100 billsThe following link is to a story on ABC 15, Arizona concerning the latest developments in the ongoing investigation of abusive ADA litigation in Arizona and New Mexico. Local Judge Orders Release. The article explains the situation in some detail, but the basic news is simple. A private company hired lawyers and plaintiffs to file ADA lawsuits, paying for their services and pocketing what looks like a substantial profit. None of this might have ever come to light except that the number of suits (in the thousands) was astonishing even by ADA serial litigation standards.

For both disabilities advocates and firms like ours that defend ADA lawsuits this kind of report poses a critical question: Is this the norm, or an aberration? When we see dozens or hundreds of ADA suits filed in a short time by a single firm and plaintiff are we seeing a legitimate effort to create an accessible world or exploitation of a law for purely private benefit?

In most cases the answer is simple exploitation. What happened in Arizona and New Mexico is particularly shocking because the enterprise behind the lawsuits wasn’t even doing to filing – it subcontracted out the jobs of both plaintiff and lawyer. However, even legitimate non-profit disabilities rights organizations use litigation to make money, and a review of public financial records will show that in many cases the litigation enterprise mostly generates money that pays lawyers to file more lawsuits.

Despite the flurry of news reports whenever a new serial filer hits town this kind of ADA litigation has been going on for almost as long as the law has been in effect. Tens of thousands of lawsuits have been filed, and the pace of filing has only increased in recent years. Private lawsuits were supposed to make our society more accessible to those with disabilities, but time has proven the system is a wasteful failure. In the most common types of ADA cases the legal fees will be three to four times the cost of fixing any real problem, and in California they may be ten times the cost, and at the end of the day all that has been accomplished is a re-striped accessible parking spot with the sign moved up 10 inches and a business community that views disability rights as a scam that just makes money for lawyers.  There is no more inefficient or ineffective means to advance a public policy than to put it the hands of litigators, and the history of ADA litigation proves it.

Congress is working on legislation aimed at cutting down on serial filing, but none of the pending bills create any kind of real alternative for improving accessibility. Even provisions for business education are unfunded and therefore meaningless. If there is a solution, it will have to come from private organizations concerned with accessibility who are willing to replace litigation with creative new programs that help businesses become accessible without spending most of the money on lawyers.


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Good News – the defense lost in an FHA pet deposit case.

By in ADA FHA Litigation General, Animals, FHA Emotional Support Animals, Landlord-tenant

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Lucky, our attack cat, reacts to the news

On May 17 a jury in the District of Montana found that a landlord violated the Fair Housing Act by requiring a pet deposit from a disabled tenant and awarded damages of almost $40,000. (U.S. v. Katz et al, Case No. 14-68). Why is this good news for landlords? Because there was a jury trial, meaning the landlord had a chance to win.

HUD and the DOJ have long taken the position that any requirement of a pet deposit for a service dog or assistance animal* violates the reasonable accommodation provisions of the FHA. (Notice dated April 23, 2013, FHEO-2013-01). The position is illogical on its face because HUD and DOJ recognize that a disabled tenant remains responsible for any damage caused by a service or assistance animal. If the tenant remains responsible for the damage, why not require a damage deposit? HUD does not require that landlords waive a rent or general damage deposit for disabled tenants, and a pet deposit is no different. Nonetheless, HUD has spoken and requests for accommodation in the form of pet deposit waivers have skyrocketed since 2013.

HUD’s rigid view has been rejected by some courts (Unconventional wisdom concerning pet deposits under the Fair Housing Act). A 20 year old Ninth Circuit decision concerning a parking fee explains exactly why HUD is wrong. In U.S. v. California Mobile Home Park Mgmt. Co., 107 F.3d 1374 (9th Cir. 1997) the plaintiff claimed that the defendant should have waived parking fees charged to a caregiver. The Court found that the plaintiff had failed to make a prima facie case of discrimination because: “Cohen–Strong failed to show that the assessment of the fees caused  the denial of her use and enjoyment of her dwelling.” The Court went on to discuss various possibilities for others to pay the fees, none of which had been proven wrong by the plaintiff. A pet deposit fee, like any other fee charged by a landlord, has a discriminatory effect only if the disabled individual cannot afford to pay it. On its face a pet deposit requirement is neutral, applying to every renter, regardless of disability.**

It is conceivable that a pet deposit policy might have a disparate impact on disabled individuals because they are more likely to lack the financial resources to pay the deposit, but assuming this is true merely insults the community of disabled individuals, many of whom have no desire for charity and value their independence. A reasonable accommodation analysis might consider the financial resources of the tenant, but it is foolish to assume all disabled tenants are impoverished. The real beneficiaries of HUD’s position are the sellers and buyers of disability letters and certificates based on internet questionnaires or thirty minute phone calls. Both those who sell such letters and those who buy them are morally disabled, but that is not a disability recognized by the Fair Housing Act.

And so a jury verdict for the United States against a landlord is good news. Based on interviews with attorneys familiar with the case and a review of the court’s docket it is clear the government never tried to use HUD’s policy statement as a way of proving discrimination as a matter of law. This forced the government to prove that the pet deposit requirement actually interfered with the use and enjoyment of the premises. The landlord lost, but at least the court allowed the jury to consider the evidence. If other courts follow this precedent landlords willing to put up a fight will have a chance to win, and plaintiffs claiming discrimination based on failure to waive a pet deposit will be required to prove that a pet deposit requirement really interfered with their use and enjoyment of the premises. Most landlords understand that in the world of FHA litigation you can lose. U.S. v. Katz strengthens the argument that it should at least be a fair fight.

*”Assistance animal” is HUD’s term for animals that do not qualify as service dogs or service miniature horses under the ADA, but nonetheless provide some emotional comfort or other assistance to a disabled person.

**HUD has argued that a “pet deposit” does not apply to service and assistance animals because they are not “pets;” an position that could be evaded by changing the name of the deposit to “animal deposit.” If there is nothing more substantive than this HUD’s position is just silly.


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