The title of today’s blog recognizes the gift bestowed by Judge Nannette Brown on everyone interested in the ADA in all its many details. Bailey v. Bd. of Commissioners of Louisiana Stadium and Exposition Dist., 2020 WL 5309962 (E.D. La. Sept. 4, 2020) is the latest of Judge Brown’s decisions concerning the dispute over stadium seating in the Superdome. Written after trial, the 64 page decision methodically dissects the law concerning concerning which standards apply to what parts of a facility after alterations, what the sight-line requirements for stadiums are under the various standards, including an exposition of the law concerning Auer deference and the effect of Kisor v. Wilke, how Title II program accessibility requirements fit into design/build standards, what kind of control is required for a person to be an “operator” of a public accommodation, when and how the “reasonable modification” requirement in Title III of the ADA applies to Title II entities, and last but not least the extent to which Title I’s “interactive process” requirement might apply to Titles II and III. The Fifth Circuit, and maybe the Supreme Court, will have the last word in this case, but if you are looking for a quick reference to almost every issue that comes up in a case involving altered facilities you can find it in this decision.¹ More
ADA Internet Web
Thanks for the shout-out Lainey – a website plug-in followup
Lainey Feingold, a long time and well know advocate for those with disabilities, referred to my earlier blog on website plug-ins* that promise accessibility in her latest blog. HONOR THE ADA: AVOID WEB ACCESSIBILITY QUICK-FIX OVERLAYS. That was nice, but even better was the way she collected other sources on website plug-ins and their problems, making her blog well worth reading for anyone interested in this subject. Of course no matter how much you study the situation the conclusion is always the same – you can’t make a website accessible with a plug-in and you certainly can’t avoid lawsuits with a plug-in. Businesses need relief from lawsuits that do nothing to promote accessibility and drain resources away from remediation, but that relief isn’t going to come in the form of doing almost nothing.
* Is there a silver bullet for ADA website accessibility? Sorry, but the answer is no.
Hunt interviewed for Accessible.org Podcast
Just a quick note for those who want to hear as well as read what I have to say. The Accessible.org podcast interview is available now at any of the following links:
A quick hit – arbitration could tame the ADA website litigation monster update
I’ve written before about the possibility that a properly written clickwrap or browsewrap arbitration agreement could help tame the ADA litigation monster, which like the Hydra seems to grow two new heads for each one that is cut off. A new decision from the United States District Court in Illinois, Miracle-Pond, et al. v. Shutterfly, Inc., No. 19-CV-4722, 2020 WL 2513099 (N.D. Ill. May 15, 2020) confirms that except in cases involving California consumers* a clickwrap or browsewrap type agreement can indeed force a lawsuit to arbitration provided it is properly written and presented to the user. More
ADA and FHA Quick Hits – is it safe to come out yet edition.
Like most of you I’ve been working from home for the last couple of months, meaning primarily that my dogs are getting a lot of exercise. There has been no sign of any slowdown in the ADA and FHA litigation business, so there is plenty to cover in this Quick Hits edition.
Owners liability for leased premises – you can’t rely on your tenant.
Dunbar v. Empire Szechuan Noodle H. Inc., 2020 WL 2132339 (S.D.N.Y. May 5, 2020) perfectly illustrates the overriding responsibility of a property owner for the accessibility of a leased premises. The tenant defendant, Empire Szechuan, was evicted for non-payment of rent and went out of business. The Court had no trouble finding claims against it were moot since there was no possibility of effective injunctive relief. The property owner, New Gold Equities, did not fare so well. The court rejected its argument that claims were moot because the new tenant was contractually obligated to comply with the ADA because that compliance was in the future and therefore far from certain. The Court also noted that the ADA lease provision didn’t add much because the new tenant and owner were already obligated to comply with the ADA. A property owner who relies on their tenant may find themselves with continuing liability regardless of any lease provision.