A victory on tester standing – lawsuit by Rafael Segovia dismissed.

By in ADA - drive-by litigation, ADA - serial litigation, ADA - Standing Tags: , , , , , ,

I’m not above patting myself on the back, and today Judge Sam Lindsay granted a Motion to Dismiss I filed for the defendant in Segovia v. Admiral Realty, Inc., Case No. 3:21-cv-2478 (N.D. Texas August 4, 2022). Judge Lindsay found, correctly, that Segovia had failed to plead the concrete and particularized injury and imminent threat of future harm required to maintain an action under Title III of the Americans with Disabilities Act.  Segovia and his lawyers¹ have filed the same form complaint in at least 31 lawsuits in the Northern District of Texas, and every single one of those cases that is still open should be subject to dismissal based on the same reasoning used by Judge Lindsay.² This isn’t, by the way, Segovia’s first setback. In June he voluntarily dismissed a lawsuit against another of my clients because he had made a fatal error when amending his complaint to avoid my original motion to dismiss. In July his attorneys voluntarily dismissed an almost identical complaint against one of my clients (though filed by a different serial ADA filer) rather than face the possibility of losing on summary judgment.

The conventional wisdom in the kind of serial ADA case filed by Segovia is that a quick settlement is the cheapest way out, but with Judge Lindsay’s opinion clients willing to take some risk could well decide they are not interested in paying off plaintiffs like Segovia whose industrial approach to litigation seems to be more about making money than helping those with disabilities.

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¹ He was represented in this case by William Strickland. He is represented in others by Matthew Sapp and Michael Sturgill of the Sapp Sturgill firm.

² Other District Judges are not obligated to agree with their colleagues, so other judges in the Northern District might reach a different result, but it is reasonable to hope other judges will appreciate the value of consistency among different courts when confronted with identical claims.


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What’s bugging HUD – the latest HUD actions based on disability

By in Accessibility Litigation Trends, FHA, FHA Emotional Support Animals, FHA Policies, FHA Regulation, Landlord-tenant, Policies and Procedures FHA ADA Tags: , , , ,

Seal of the Dept of Housing and Urban Development.HUD’s press releases are interesting reading, not because they help you understand the law, but because they help you understand what HUD thinks the law is, and because they are often object lessons in mistakes no housing provider should make. This is a round up of press releases in the last four or five months, each of which has its own lesson to teach. I’ve also included a discussion of HUD’s guidance on animal accommodations at the end based on Bill Goren’s recent blog on the subject.

Conditions on an animal accommodation are o.k., but there are limits.

HUD has charged an HOA in Wyoming with discrimination because while a housing provider like an HOA can impose reasonable conditions on an accommodation, it cannot impose unreasonable conditions. See. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_134 It’s worth taking a look at where this HOA went wrong, at least as HUD sees it, so others can avoid the same mistakes.

The first problem was the HOA’s evident hostility toward requests for accommodation for animals of all kinds. Instead of just asking homeowners who required an accommodation to request one, the HOA made a point of noting that it is a criminal violation of Wyoming law to misrepresent a service animal and specifically noting that other residents “do not like to see dogs” in the development. There is nothing wrong with a no-pets policy, but evident hostility towards those with disabilities is an FHA violation.

A second problem was inflexible demands for documentation in a specific form. Housing providers can request that a specific form be used for an accommodation request, but if the request comes in some other form it has to be evaluated in just the same way as a request on the right form. The specific requirements imposed by the HOA concerning the kind of information it needed were probably reasonable, but insisting that only a particular form be used to provide the information will never be acceptable to HUD.

Third, and probably most important, the HOA decided to retaliate against the complaining parties when they filed a complaint with HUD. As soon as the complaint was filed the HOA sent a letter to all residents criticizing the complaining parties for filing the complaint and suggesting that they lied about the status of their dogs. Nobody likes being on the receiving end of a HUD complaint, but the place to fight back is the investigation or litigation, not a public forum or some kind of public shaming. No matter how annoyed a housing provider is by a complaint that is or seems to be unjustified it will always be illegal to retaliate in any way. In fact, many complaints that originally had no merit at all turn into to very strong retaliation claims because of the response of the housing provider. It isn’t clear from the HUD charge of discrimination whether the HOA was represented by counsel, but an experienced FHA lawyer would certainly have advised them that they were going to have problems with HUD if they behaved as claimed in the charge of discrimination.

Being an awful person is likely to lead to a HUD charge or fine.

In early July HUD announced a $70,000 fine against a landlord who allegedly refused to rent to a family because their daughter had cerebral palsy and who had a history of posts on social media that expressed a prejudice against all children. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_131 The landlord didn’t appear to defend himself, so we only have HUD’s side of the story, but the lesson is clear. It isn’t against the law to be an awful person and hate people because they are disabled, but it is against the law to act out your awfulness as a landlord or housing provider. Landlords and other housing providers make mistakes, often because HUD’s internal standards don’t make any sense at all or because they don’t understand the law. There is, however, a difference that should be obvious to most people between a mistake and outright intentional discrimination.

Along the same lines, HUD resolved a charge of discrimination against a condominium management company that refused to waive its two person per bedroom limit for a family that needed temporary housing while one of the children had a bone marrow transplant. This was a settlement and we don’t know the management company’s side of the story, but it cost them more than $35,000 plus whatever they spent on lawyers after the complaint was filed. Reasonable occupancy limits are not discriminatory, but when a disabled child requires an accommodation landlords and HOAs need to think carefully about the optics and cost of refusal. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_109

Being awful plus a mistake? There’s a lesson here.

On July 1 HUD announced a conciliation agreement with a landlord that allegedly engaged in race and disability discrimination. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_122. Once again we only know HUD’s side of the story, but the disability discrimination claim is based on a situation that comes up all the time. The disabled tenant asked for a reserved parking space, presumably to shorten the distance from their parking space to their front door. The landlord refused, probably because of a no reserved parking policy. Providing a reserved parking spot is one of those accommodations that HUD, DOJ and the       courts will almost always consider reasonable. There may be room to argue about whether the tenant is disabled or has a disability related need, but otherwise a refusal to provide reserved parking for the tenant is likely to trigger a finding of cause.¹

Service animal issues again, and the cost of being the bearer of bad tidings

HUD issued a charge of discrimination against a landlord and their leasing agent with disability discrimination because they refused to allow a blind woman’s guide dog due to a no pets policy. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_087 This isn’t even a close call for a reasonable accommodation, but what apartment and HOA managers need to note is that the leasing agent was also charged even though it doesn’t appear she did anything but relay the owners’ position on the lease. I’ve blogged about this before² and the lesson is worth repeating. If you are a leasing agent or manager and your owner insists that you carryout their discriminatory orders your best bet is to quit because otherwise you may have personal liability.

Design/build liability – reasonable modification for out-of-compliance buildings.

I recently settled a small dispute with a landlord that wanted a tenant to pay for the curb ramp needed for them to access their apartment. The landlord messed up, but their lawyers knew that when an apartment complex is covered by the FHA design/build standards then modifications to make it meet those standards are at the landlord’s expense. This isn’t an uncommon problem it seems since HUD just resolved a similar dispute with property owners in Hawaii. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_080 The rules are not complicated, but if you aren’t sure talk to a lawyer before you turn down an modification request. Here they are:

  • For housing built before the effective date of the 2008 FHA Amendments the tenant bears the cost of accessibility modifications.
  • For housing built after the effective date of the 2008 FHA Amendments the tenant bears the cost of accessibility modifications if they are something in addition to what the FHA standards require.
  • For housing built after the effective date of the 2008 FHA Amendments the landlord bears the cost of accessibility modifications needed to bring the property into compliance with the FHA standards.

This last point applies even if the current owner is not liable for the original failure to build the apartments correctly. Another a good reason to require an accessibility survey before acquiring multi-family housing.

HUD believes in the interactive process – so should you.

HUD issued a charge of discrimination against a landlord and management company for refusing to even consider an accommodation for an “assistance animal” that would have violated a no pets policy. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_078 What stands out in this case is that the owners did not even start the accommodation process. I have real doubts about whether most or any assistance animal (as opposed to service animal) claims are legitimate because there is essentially no scientific support for the notion that emotional support animals provided needed help to those with various mental health disabilities. I’ve also found that most of the individuals requesting an accommodation for an emotional support animal are probably not suffering from a mental disorder that constitutes a disability. Having said that, refusing to even look at an accommodation request is going to trigger a charge of discrimination in every case. Refusing to engage in the “interactive process” is not discrimination according to the courts, but HUD believes it is and it is a long and expensive road from dealing with a charge of discrimination before HUD and finding a federal court that applies the law as written.³

Just how much deference should the courts give HUD’s guidance on assistance animals.

Bill Goren just blogged on the technical issue of the degree of deference courts should give HUD’s guidance on assistance animals (4) which reminded me of a general misunderstanding of reasonable accommodation law that lies behind some of the cases above. Bill asks the specific question of whether HUD’s belief that breed restrictions are not a valid reason to deny an accommodation would be deferred to by the courts.  Breed restrictions get a lot of attention in the animal accommodation world, but the discussion usually misses the point. A breed restriction is just another rule that might have to be waived as a reasonable accommodation, and there is no such thing as a generic dangerous dog. Pit bulls may be more dangerous or aggressive than other breeds in general, but the only pit bull a landlord will be asked to accommodate is the specific pit bull belonging to a disabled resident. If it is a sweetheart then the characteristics of the breed don’t matter. I advise my clients to interview the dog as part of the accommodation process. If it barks and snaps at a stranger it might be dangerous regardless of its breed and if it is calm and placid the opposite is true. In addition, it is always possible to put conditions on an accommodation if necessary to make it reasonable. Just because a dog is allowed despite a no pets policy the landlord isn’t required to let it or the owner do anything they want. With rare exceptions you can require a dog to be on a short leash, only be in specific areas outside the apartment, not make noise or disturb the neighbors and so forth. Every accommodation request has to be determined based on the specific circumstances, including the nature of the disability, the behavior of the dog, the kinds of places the dog may need to go, or not need to go, in order to fulfill its function, and so on. When HUD says things like a landlord cannot impose breed restrictions or cannot charge a pet deposit HUD is making the same mistake landlords who impose hard and fast rules on accommodations make; that is, it is failing to recognize that the principle of reasonable accommodation is always based on balancing the tenant’s need against the landlord’s responsibilities and needs in an effort to find a compromise that works for everyone involved. Given the huge diversity of disabilities and disability related needs trying to impose hard and fast rules on accommodations is absurd. Bureaucrats and businesses both love rules, but this is a situation in which rules just cause problems.

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¹ There is a difference between parking

² See, Shoot the messenger! Agent liability under the Fair Housing Act

³ I’ve blogged about recent cases holding that failure to engage in the interactive process is not itself actionable discrimination. FHA and ADA Odds and Ends

(4) See, Upon Further Review, the HUD Circular Just Might Survive Kisor as well as EPA v. West Virginia and be Given Judicial Deference I have blogged on this issue as well. See, Auer deference and the Fair Housing Act – does Kisor change anything?

 


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ADA regulations and the reality of website accessibility

By in ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Website Accessibility Tags: , , , , , ,

Logo of Trinitas Cellars winery

Trinitas Cellars Logo

It has long seemed that the best way to both create accessibility for websites and to tame the industrial ADA litigation monster is to have a technical regulatory standard. Most recently a group of U.S. Senators has written to the Attorney General urging a resumption of the regulatory process that was ended under President Trump.¹ Before the process was ended the proposed regulations were essentially the familiar Web Content Accessibility Guidelines 2.0; the same guidelines that have been adopted as regulations for government websites under Section 508 of the Rehabilitation Act. Another group of members of Congress tried to accomplish the same thing with legislation that would have added a new title to the ADA and require this kind of regulation.²

I thought for a long time that some kind of regulatory solution was needed, but my experience defending lawsuits concerning physical accessibility ADA suits has persuaded me that a regulatory approach that essentially makes some version of the Web Content Accessibility Guidelines legally binding – which is what the abandoned DOJ regulations did – will neither improve website accessibility nor tame the beast.³ Instead we need regulations that adopt a functional approach to accessibility – the kind of approach used by Judge William Orrick in the recent decision in Gomez v. Trinitas Cellars, LLC,  2022 WL 2194658 (N.D. Cal. June 17, 2022).

Judge Orrick was considering a Motion to Dismiss that he had converted to a motion for summary judgment, a procedure that allows consideration of evidence beyond the words of the Complaint. The defendant attacked the plaintiff’s standing to sue, which is a real issue for this plaintiff (4), but the most interesting part of the decision concerns the defendant’s claim that the website was in fact accessible. Judge Orrick’s approach to that question shows just how similar issues should be approached in every ADA lawsuit.

Mr. Gomez’s first claim was that some of the images on the website did not have a meaingful text equivalent and could not be “seen” by a visually impaired user with screen reading software (SRS). The first such image was the logo of the business, which the defendant admitted had a meaningless text label. Judge Orrick found that this did not violate the ADA because the plaintiff could not explain how the lack of a label would deny him the full and equal enjoyment of the business or deter him from visiting it. As Judge Orrick observes, “it may have been ideal for that banner to be readable, but that does not mean it shows a cognizable injury or violates the ADA.” He applied the same analysis to social media logos that were not SRS readable: “neither Gomez’s opposition nor his supplemental brief draws even an arguable connection between this lack of readability and a barrier that would matter to the ADA.” This is how the ADA should be applied to technical accessibility issues. The ADA’s guaranty is that no person will be denied: “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” (5) Symbols and logos that have no functional purpose cannot be fit within the kind of things whose enjoyment the ADA protects.

This was not a blanket finding that every technical problem was not a violation. The  Court recognized that menu items had to be accessible for the website to be usable at all, but it found as a matter of fact that the menus were accessible and could be read by SRS. Gomez’s last claim, concerning the contrast between text and background, was rejected because contrast does not matter to SRS, which is reading code, not visible text. Gomez was not blind – he only suffers from very poor vision – but his testimony was that he used SRS to navigate websites, so low contrast did not matter to him even though it might matter to a plaintiff with poor vision who did not rely on SRS.

Two principles can be found in Judge Orrick’s opinion. First, Title III of the ADA is violated only if some element of the website interferes with its practical use by a person with a disability. Second, an individual does not have standing to sue unless they were personally hindered in their use of the website even though some defective element is connected to their kind of disability. Any new regulations from DOJ should follow these principles and look at accessibility in practical rather than technical terms.(6) Instead of a “gotcha” list of technical requirements that no complex website can possibly meet, regulations should emphasize the purpose of the website, what users expect from it, and whether those expectations are met for individuals with a disability. For most commercial websites the purpose is to sell or rent something, and the question should be whether a person with a disability can accomplish that purpose with reasonable facility. From a litigation standpoint the plaintiff’s burden should be to plead the existence of a problem with the function of the website, not merely that logo or image lacks meaningful alternative text.

And while DOJ is thinking about meaningful regulations directed toward improving accessibility rather than generating meaningless litigation the courts might consider adopting Judge Orrick’s approach to cases involving physical accessibility. I’ve already pointed out the absurdity of so called “stigmatic injury” in Title III ADA cases.(7) Purely objective standards for accessibility have the advantage of being objective, but they suffer the disadvantage of being unachievable in practice. Plaintiffs should be required to plead and prove not just a technical violation, but also that they were personally suffered some kind of excessive inconvenience (8) in their full and equal enjoyment of a facility in order to plead or prove a Title III violation. This is the direction courts seem to be moving; it just needs to be incorporated in any new regulations defining accessibility.

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¹ See, letter dated June 10, 2022 from Senators Tammy Duckworth and Richard J. Durbin to Attorney General Merrick Garland. https://www.judiciary.senate.gov/imo/media/doc/22.06.10%20-%20LETTER%20-%20Duckworth-Durbin%20letter%20to%20DOJ%20on%20web%20accessibility%20-%20FINAL.pdf

² See my blog The Online Accessibility Act of 2020 – does it do what it needs to do?

³ Seyfarth Shaw recently reported that ADA filings are down by 22% in the first half of 2022. 2022 ADA Title III Mid-Year Federal Lawsuit Filings Drop 22% Compared to 2021. The most likely explanation is that recent prosecutions of some of the most notorious ADA serial filers and the Laufer standing decisions from the 5th and 10th Circuits have discouraged new filings. See, A short sharp shock – the end of the beginning for serial ADA lawsuits? and Laufer v Looper – the death of tester standing, and not just in ADA cases. This does not mean that misuse of the ADA no longer exists. Some law firms that engage in serial filing have now lowered their monetary demands and are sending demand letters before filing suit in an effort to make a quick settlement more attractive to defendants who would otherwise be tempted to fight back. The most extreme versions of this kind of ADA exploitation have criminal consequences, see https://www.justice.gov/usao-sdny/pr/attorney-pleads-guilty-filing-fraudulent-lawsuits-under-americans-disabilities-act. It is worth noting that the firms now sending demand letters instead of filing suit will generally not name their supposed client. This avoids criminal conduct like that prosecuted by DOJ, which involved using names without permission, but leaves open the question of whether the firm has a client at all. In the 40+ years I have been a litigator I have had thousands of clients receive demand letters, but the only times I’ve seen a demand letter that did not name a plaintiff have been demand letters concerning ADA website accessibility.

(4) A number of cases filed by Mr. Gomez have been dismissed just based on a lack of standing. See, e.g.,
Gomez v. Wunderlich, 2022 WL 2119120, at *1 (N.D. Cal. June 13, 2022) and Gomez v. Tribecca, Inc., 2022 WL 1469504, at *4 (C.D. Cal. May 10, 2022).

(5) 42 U.S.C. §12182(a).

(6) This kind of functional analysis will be incorporated in the upcoming version of the WCAG, version 3.0, which will measure conformance based more on practical effect than strict technical compliance. See, https://www.w3.org/TR/wcag-3.0-explainer/

(7) See, Stigmatic injury and how the 11th Circuit got in wrong in Laufer v Arpan

(8) Excessive inconvenience is an appropriate standard because disability by definition imposes some limits on the full and equal enjoyment of a facility. Even with perfect technical compliance a facility will be less convenient for a person with a disability than for a person without any disability.


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The Meta Fair Housing Settlement: watch out for unintended consequences . . .

By in Accessibility Litigation Trends, ADA FHA Litigation General, FHA Advertising, FHA Disparate Impact Tags: , , , ,

logo from Jurassic World Dominion movieThe Jurassic Park series of movies are all about unintended consequences. You can say the same thing about the Facebook advertising tools that were the subject of lawsuits against Meta. On June 21 the Department of Justice announced a settlement of claims against Meta related to Facebook’s advertising algorithms.¹ It is the second such settlement, the first having been obtained in a lawsuit filed by the National Fair Housing Alliance and other groups.² Both settlements are interesting reading for those who specialize in these subjects, but it is worth asking whether they will have any impact on other players in the real estate market. You don’t have to be a Meta, a Spectre, a T.H.R.U.S.H. or a Kaos(4) to for these settlements to have an effect on how you do business as a landlord, management company or real estate agent or broker. That’s because these settlements are aimed at new technologies, but rely on old fashioned legal principles that apply to all aspects of the housing market and to the unintended consequences of any kind of targeted marketing program.

To understand why you need to understand the legal issue behind the DOJ lawsuit, the NFHA lawsuit and the original HUD investigation of Facebook. The Fair Housing Act prohibits various kinds of discrimination in housing transactions, including what is called advertising discrimination. The relevant section (28 U.S.C. §3604(c)) covers more than just advertising, but the easiest to understand application is ads that show a preference for one group over another. “Whites only” or “Singles only” would be the most extreme examples.

But what if the advertiser is clever enough not to say “whites only” but wants to make sure there are no black applicants for an apartment? Facebook’s targeted advertising programs were tailor made for making sure that unwanted applicants didn’t apply for an apartment or try to buy a house but not being explicit about it. You don’t need to say “whites only” if you only advertise to whites. It didn’t have to be this blatant or deliberate though. Advertisements that target those who live in particular neighborhoods, or those whose children attend certain private schools, or even those who shop in certain stores could achieve the same effect. It also doesn’t have to be deliberate discrimination. If an apartment complex is designed to appeal to young single professionals the landlord may not intend to exclude families, but ads targeting the ideal market will have that effect. The claims made by NFHA, HUD and DOJ all concerned the notion that by providing the tools that facilitate discrimination Facebook was itself engaged in discrimination.

There is clearly a tension between the hyper-targeted marketing offered by Facebook and the inclusive marketing that serves the goals of the Fair Housing Act. The DOJ settlement resolves that tension by limiting the extent to which Facebook can offer highly targeted marketing. Facebook will not, in theory, be able to offer tools that let advertisers intentionally or unintentionally exclude individuals based on race, religion, gender, disability and other illicit categories. That doesn’t mean however that the settlement has nothing to say to parts of the housing industry that don’t rely on AI to place their ads. Here are some of the implications for the industry and beyond.

  • Other social media and online advertising platforms will be sued by DOJ or by the host of law firms that latch on to any new kind of lawsuit that promises lucrative returns. These platforms should already by thinking about how they can modify their targeted marketing programs to meet the standards to which Meta has agreed.
  • Advertising costs for real estate transactions will go up. Social media advertising is priced in part on the number of impressions of the ad displayed to users. One of the advantages of targeted marketing is fewer impressions are needed to generate the desired level of response. With less targeting advertisers will have to buy more impressions to generate the same level of engagement.
  • The landlords, managers and brokers who place ads could come under attack. Remember that Section 3604(c) is aimed primarily at those who place ads, not those who publish them. If it is illegal to offer tools that permit discriminatory advertising it is certainly illegal to use those tools for discriminatory purposes.
  • DOJ and others may attack advertising that is targeted by the choice of where it is displayed. Advertising on domestic websites written in languages other than English is an effective way to target only one ethnic or linguistic group. Ads posted on community oriented websites in Chinese, Vietnamese or Spanish will most likely never be seen by individuals who don’t speak those languages. Similarly, advertisements on Fox News and its local affiliates will be seen almost exclusively by whites.³ A landlord looking only for white tenants doesn’t need a sophisticated screening tool like those offered by Facebook. All they need to do is advertise only on websites, radio stations and television stations that appeal only to whites.

Finally, there is an extension of the principles behind the Meta settlement that goes beyond the housing market. EEOC and DOJ have recently suggested that AI based systems for finding employees can be discriminatory(5). Almost all businesses open to the public are subject to the prohibitions against discrimination in the ADA and the Civil Rights Act of 1964. These businesses use targeted marketing to attract individuals they think they are likely to sell to, but that marketing necessarily excludes others, and the exclusion may be largely of individuals of a particular race, ethnicity or religion. As in the housing market, what seems like innocent targeting of groups to which no objection can be made might also turn out to eliminate all or most of the members of some group against whom discrimination is illegal.

But returning to the housing industry, high profile settlements like these can serve to deter unlawful conduct, but they also serve to encourage litigation. Housing professionals should evaluate their advertising and marketing policies to decide whether they might have an unintentional discriminatory effect and whether they can be justified on grounds unrelated to discrimination. Discrimination can be an unintended consequence of targeted advertising. Another perhaps unintended consequence will be more strike suits. Where DOJ leads others with less worthy motives are sure to follow.

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¹ See, Justice Department Secures Groundbreaking Settlement Agreement with Meta Platforms, Formerly Known as Facebook, to Resolve Allegations of Discriminatory Advertising

² See, Fair Housing Groups Settle Lawsuit with Facebook: Transforms Facebook’s Ad Platform Impacting Millions of Users

³ See, Fox News’s Audience Almost Exclusively White as Network Faces Backlash Over Immigration Coverage

(4) Knowing just how humorless Meta and its owners are I’m sure they won’t get the joke. No, I don’t think Meta is a worldwide organization devoted to doing evil. Like the computers running the algorithms attacked by DOJ, Meta is just a very complicated machine for making money whose actions may have unintended consequences.

(5) See, The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees

 


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Quick Hits – If you’re going through hell edition.

By in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA Attorney's Fees, ADA Internet Web, ADA Litigation Procedure, ADA service animals, ADA Vending Machines, ADA Web Access, FHA Emotional Support Animals, HOA, Public Facilities, Reasonable accommodation, Rehabilitation Act Tags: , , , , , , ,

Dante’s hell was a complicated place, as this map by Botticelli suggests. Although Rodney Atkins’ advice “if you’re going through hell, keep on going” appears sound, winding through all the complexities of the ADA and FHA can seem like descending through all nine levels of hell. Nonetheless, I’m happy to act on a temporary basis as Virgil and see how far we can get. No promise about whether we’ll find a Beatrice to take you to Paradise.

Self-service kiosks under fire

Davis v. Laboratory Corp. of Am. Holdings,  2022 WL 1682416, at *1 (C.D. Cal. May 23, 2022) certifies a class of blind users in a class action based on inaccessible self-service kiosks.(7) There is a theme here that runs through a variety of ADA cases dealing with time and cost saving technology. From the famous and finally settled Dominos case through the various kiosk decisions the heart of the question is to what degree those with disabilities must suffer inconvenience in their access to goods and services. Some inconvenience is inevitable – disabilities are disabling – but when the path to goods and services is blocked by technology inconvenience becomes inequality. In Dominos sighted pizza lovers could order a pizza in a few minutes with an app on their phone while blind users had to call and wait on line for a couple of hours. In Davis and similar kiosk cases clients could arrive and log in quickly and easily or, it is alleged, wait a long time for personal service. I find it hard to believe designing an accessible kiosk is especially difficult – standards for ATMs have been in place for a dozen years and the technology is similar. We all know litigation is not the solution to this kind of thoughtlessness, but I advise my clients to avoid the problem by only dealing with vendors who offer accessible technology.

Mootness – non-existence is pretty good proof no meaningful relief is possible.

In Whitaker v. Chan, 2022 WL 1814142 (N.D. Cal. June 2, 2022) the court had little trouble finding the original complaint was moot when there was no operating business in the facility being sued. Along the way it reminded us that damages, including nominal damages, cannot be recovered under the ADA and that Unruh Act claims don’t belong in federal court.

Mootness – pulling the trigger a little too soon.

In Dalfio v. J.G. Mgmt Properties IV, LLC et al, 2022 WL 2079716, at *5 (S.D. Cal. June 9, 2022) the defendants came within 2 alleged ADA violations of getting the case dismissed at the Rule 12 stage. The problem was that while the Court was skeptical about the remaining violations, “the merits of the action are intertwined with the jurisdictional issue of mootness and jurisdictional findings would be inappropriate.” In another case from the same plaintiff the defendant lost a motion for summary judgment because the plaintiff’s expert found remaining ADA violations. Dalfio v. Barlas, 2022 WL 1693827, at *1 (S.D. Cal. May 26, 2022). Mootness is tricky because ADA requirements are numerous and complicated. As a defense strategy it must be carefully managed. (9)

Factual attacks on standing – you need to find the trigger

In Johnson v. Rosvin, Inc., 2022 WL 1987857 (N.D. Cal. June 6, 2022) the defendant leveled what is called a factual attack on standing at the Motion to Dismiss phase. This requires evidence, which the defendant provided in the form of a defective declaration that had some obvious misstatements of fact. You don’t need to like Scott Johnson or his lawyers to know that having filed hundreds, maybe thousands, of lawsuits they know how to say what needs to be said. I wrote long ago that outrage is neither a defense nor a substitute for a carefully planned strategy.²

An HOA on the warpath.

In Parada v. Sandhill Shores Prop. Owners Assn., Inc., 2022 WL 1693977, (S.D. Tex. May 25, 2022) the defendant attacked the plaintiff’s claims in every way imaginable but failed, predictably, in every case. It’s worth looking briefly at the facts. The plaintiff suffers from Alzheimer’s disease which is a handicap or disability under either the FHA or ADA. The defendant claimed it wasn’t, which was foolish and may have made other defenses less believable. The FHA injury claimed by the plaintiff was the inability to use her house without constant fear and distress because a proposed beach access path would constantly bring strangers near her house, something that can be unusually upsetting for those with profound memory loss. Evidence might eventually establish that her distress was not so severe she could not equally use and enjoy her dwelling, but once you assume the pleadings are true the truth becomes an issue for another day. The defendant treated the plaintiff’s ADA claim as if it were the same as her FHA claim; that is, the only question was the use and enjoyment of her home, which is not an ADA public accommodation. The problem, as the court correctly pointed out, is that there was a public accommodation at issue, the beach.(10) Just because an action interferes with the use of a home doesn’t mean it can’t also interfere with the use of a public accommodation. The last gasp was an effort to stop the federal lawsuit because there was a parallel state court action based entirely on state law principles. Because the outcome of neither was determinative of the other abstention was denied.

There was one interesting note at the end of the decision. the HOA claimed it was compelled to place the beach path by the plaintiff’s home by the Texas Open Beaches Act and the City of Galveston Beach Access Plan. It is worth remembering that municipalities and many state agencies are also subject to the accommodation requirements in the Fair Housing Act. Just because it violates the law doesn’t mean it is impossible to do.

Surrender as a strategy, with a twist.

I note default judgment cases, usually from California, just to see what the market price of a default might be. In Cuesta v. DTC Lodging LLC, 2022 WL 2077940 (D. Colo. June 8, 2022) and Meggs v. Colorado Hosp. Group, LLC, 2022 WL 1810597 (D. Colo. June 2, 2022) the defendants took a more affirmative approach to surrender. They admitted all the material allegations in the plaintiff’s complaint and moved for entry of judgment against themselves. The goal was explicit – cut off the expenditure of money on attorneys’ fees. The plaintiff opposed the motion because, I suspect, it did the one thing no plaintiff’s firm can live with – it limited the profit they would make from the litigation. It is worth remembering that almost all Title III ADA lawsuits are about money for lawyers, not access for the disabled. In any case the courts thought the defendant’s approach was reasonable and granted the motion for judgment. I have been a proponent of this kind of strategy for a long time, but this is the first time I have seen it successfully implemented.¹

Default as a strategy

In Gastelum v. C. Valley Hosp. LLC, 2022 WL 2072839 (E.D. Cal. June 9, 2022) the plaintiff, a serial filer who now seems to file pro se because his attorney, Peter Strojnik, is not practicing law, failed to obtain a default judgment because he couldn’t get the defendants’ properly served. The lesson for defendants, found in the details of the decision, is that adequate service is not subject to rigid rules. Another court might have found service was adequate and granted a default judgment. Default as a strategy should be a choice, not an accident.

The market for default judgments is slipping. In Johnson v. Iguanas Burritozilla, Corp., 2022 WL 1750472 (N.D. Cal. May 31, 2022) the court awarded a total of $1085 in attorneys’ fees. All you need to know about the industrial nature of this litigation is that the total attorneys’ time was 2.2 hours and that 14 different legal assistants billed time to the matter. It’s not a law firm, it’s an assembly line.

Johnson and his lawyers did better in Johnson v. Pennylane Frozen Yogurt, LLC, 2022 WL 1750382, (N.D. Cal. May 31, 2022) with an award of $1,912.50. To file this cookie cutter lawsuit required 4 lawyers and 13 legal assistants. It’s a volume business.

If Disney World isn’t your cup of tea

go to Florida for cheap ADA standing. Following the Eleventh Circuit’s lead in Laufer v. Arpan, LLC, 29 F.4th 1268 (11th Cir. 2022), the court in Lugo v. Island Harbor Beach Club, LLC,  2022 WL 1773973, at *2 (M.D. Fla. June 1, 2022) denied a motion to dismiss against a serial website tester. The district court had little choice, but the 11th Circuit got it wrong³ and will have to opportunity to deal with the hundreds or thousands of lawsuits that are sure to result.

Disney Land, on the other hand, may be less welcoming. The Court’s analysis of standing in Gastelum v. Pinnacle Hotel Circle LP, 2022 WL 1608704, at *5 (S.D. Cal. May 20, 2022) is very much in line with the 2nd Circuit’s recent decision in Calcano v. Swarovski N.A. Ltd. (8) The court wanted specific facts justifying an injury and intent to return rather than the usual vague claims about willingness to return at some time in the future. Gastelum is given an opportunity to amend but run into the age old problem of serial litigants: the more you say the easier it is to spot the lies.

It’s hard to make a quick buck with a class action.

Serial litigation is all about making a quick buck. The goal is a lawsuit expensive enough to make the defendant want to settle and an offer of settlement cheaper than the cost of defense. One way to bump up the potential defense costs and risks is a class action, and many ADA serial lawsuits include a class action claim. In Brooks v. Morphe LLC, 2022 WL 2052680, at *1 (E.D. Cal. June 7, 2022) the defendant didn’t bother to answer the lawsuit, but because it was presented as a class action the court declined to enter judgment without certifying the class. Efforts to certify a class were apparently slipshod – not surprising when the goal is to keep costs as low as possible in order to maximize profits. The result was an order requiring a do-over. I don’t understand why the defendant did not appear to fight the lawsuit because unlike many physical access cases, website cases are very risky in terms of the potential remediation costs. I do understand why the plaintiff’s lawyers didn’t do a good job (according to the Court). Nothing in the ADA serial filer business model calls for it.

Remembering the “nexus” requirement in the 9th Circuit.

The Ninth Circuit has held that a website is covered by the ADA only if it is associated with a physical place of business. Langer v. Oval Motor Sports, Inc., 2022 WL 1914063 (N.D. Cal. June 3, 2022) is a reminder that this “nexus” requirement means that a website violates the ADA only if the lack of website accessibility inhibits the user’s ability to take advantage of the goods and services of that physical business. The Court granted a motion to dismiss because the plaintiff only alleged he had trouble accessing the website, not that he had trouble accessing the business itself. The same result was reached in Gomez v. Ackerman Fam. Vineyards LLC, 2022 WL 1693707, at *3 (N.D. Cal. May 26, 2022). This will be a useful defense against plaintiffs who find it easy to sue based on an inaccessible website but might find it hard to drive all the way to the physical business.

Pigs get fat. . .

I’ve never really understood why the saying “pigs get fat, hogs get slaughtered” makes any sense. Not being a farm boy I had to Google the difference between pigs and hogs, the later being (I’m told) bigger than the former. Assuming bigger means greedier I guess this bit of folk wisdom applies to the plaintiffs’ lawyers in Caplan v. All Am. Auto Collision, Inc., 2022 WL 1939553 (11th Cir. June 6, 2022).  It was a standard ADA serial filer case. Mediation failed because the plaintiffs’ lawyers demanded too much in attorneys’ fees. They then moved for summary judgment and won, but the district court cut their fees by 75% based on excessive billing and other conduct that appeared designed to drive up the fees. The Eleventh Circuit agreed, affirming an award of just $7500. On its face that is a very low amount for fees through summary judgment in a federal lawsuit, and I think it can only be understood as reflecting both the District Court and Court of Appeals knowing the case would have settled at mediation but for the excessive attorneys’ fee demands. I have to believe that a more reasonable fee application might have been granted without this kind of reduction. By demanding far too much the plaintiffs’ attorneys showed their true colors.

Real ADA problems make for complicated lawsuits.

Tyler v. Valley MRI and Radiology, Inc., 2022 WL 2067859, (E.D. Cal. June 7, 2022) is not your typical serial filer ADA lawsuit. In fact, it is not a serial filer case at all. The plaintiff was real patient of the defendant and her claim – that the only accessible parking was not as close as it should be to the building – wasn’t obviously correct or incorrect. The legal issue – must accessible parking be as close as possible to a building entrance – couldn’t be resolved without a trial. The discussion of the legal issue is worth reading for any defense counsel facing this kind of claim. The case itself is a refreshing change from the usual endless line of decisions dealing with serial filers.

Lack of pre-suit notice as an ADA defense.

It isn’t clear why the plaintiff in Munoz v. S. Fla. Fair and Palm Beach County Expositions, Inc., 2022 WL 1744013 (S.D. Fla. May 31, 2022) thought it was worthwhile to try to strike an affirmative defense based on lack of pre-suit notice, but the result is a good discussion of the role pre-suit notice might play in an ADA case. The bottom line: pre-suit notice is not required by the ADA but a failure to give notice may be evidence that the plaintiff “acted in bad faith, [was] unduly litigious, or [ ] caused unnecessary trouble and expense.” None of these are easy to prove, but all of them might be present in a typical ADA serial filer case.

Doesn’t the point of the law matter?

I’ve been corresponding with William Goren, who just blogged about an interesting standing decision from the Seventh Circuit.(4) The Rehabilitation Act(5) decision in Ellison v. U.S. Postal Serv., 2022 WL 1617435, at *4 (S.D. Ind. May 19, 2022) gets right at the heart of our discussion about tester standing and whether the goals of the statute matter in determining if the tester suffered an injury. The plaintiff, who was wheelchair bound, could not access her local post office because it had stairs. Various solutions were tried but, she said, were not sufficient. She could, however, get the same goods and services from three other post offices within ten miles of her home. The Court dismissed her claims under the Rehabilitation Act because the law was intended to guarantee access to government programs, not government facilities. In this case the post offices were a little more inconvenient, but that didn’t add up to a denial of meaningful access. The case is being appealed, but Indiana is in the Seventh Circuit and the case Bill blogged about suggests the plaintiff will fare no better in the court of appeals.

Indemnity in FHA design/build cases.

The decision in  U.S. v. J. Randolph Parry Architects, P.C., 2022 WL 1645796, at *4 (E.D. Pa. May 24, 2022) is notable mostly for what it never discusses; that is, whether the FHA as a matter of policy precludes any claim shifting liability to a third party. I’ve blogged about this issue before (6) but the Court never addresses it. Instead the Court simply refuses exercise supplemental jurisdiction over state law contribution and indemnity claims because they would clutter up the discrimination case with related but not relevant issues. Of particular concern was the defendant architect’s desire to add 39 additional third-party defendants, essentially treating the case like a typical construction defect case in which everyone who ever walked onto the job suit is brought into the lawsuit in order to get at their insurance. The Court’s approach is sensible because simply allocating injunctive relief among the parties based on their individual faults can accomplish the same thing as overlapping contribution claims. The lawsuit involves fifteen facilities in four states; meaning there’s probably real money at issue. I wouldn’t be surprised to see the parallel state court cases being filed in the near future.

Sanctions against a pro se – possible but not easy.

In Simmons v. Village of Minier, 2022 WL 1607901 (C.D. Ill. May 20, 2022) the Court sanctioned a pro se serial filer, but only after giving him the benefit of the doubt on most of his abusive claims. The standard, quoted from another case, was “when a layman persists in a hopeless cause long after it should have been clear to him, as a reasonable (though not law-trained) person, that his cause was indeed hopeless, sanctions should be imposed….” Lawyers advising clients on the likelihood of attorneys fees after prevailing in a civil rights case should keep this standard in mind.

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¹ See Strategies for Surrender

² See Quick Hits – Vernal Equinox edition, Standing for serial plaintiffs – it’s a legal issue, not a moral problem and Quick Hits – Polar Vortex edition

³ See Stigmatic injury and how the 11th Circuit got in wrong in Laufer v Arpan

(4) See, Is ADA Title II, III Tester Standing a Thing Anymore?

(5) It is, more or less, the ADA for the federal government.

(6) See, Contribution, Indemnity and Disability – Does the FHA make sense? and Time for a do-over – the 9th Circuit gets indemnity and contribution right among others.

(7) See, FHA and ADA Odds and Ends for my latest note on the subject, and track back through the footnotes to the other blogs on this subject. This and other kiosk cases are not typical serial litigant cases involving a tester with dubious standing. DOJ has been active in kiosk cases and as this class certification shows they aren’t going to settle for a few thousand dollars and a meaningless promise to fix the problem.

(8) See the next blog below this one.

(9) See, Mootness and the ADA – Fighting may not be the best way to win. and my many other blogs with the word “mootness.”

(10) It isn’t clear from the opinion whether the HOA owned the beach or merely owned the land giving access to a publicly owned beach. If the HOA does not own the beach the question of whether the HOA is a public accommodation becomes a little more complex. I suspect that the path to the beach itself is a public accommodation, subjecting the HOA to the ADA with respect to that path.


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