If you’re not all in, you need to get out quickly. That seems to be a theme that runs through many of this week’s roundup of recent decisions. As we will see several times below, ADA lawsuits generally require a decision to surrender or fight to the death at the beginning of the case. Anything usually results in money wasted on attorneys’ fees. That said, defendants continue to succeed in some cases, justifying a close look at the particular court and its history before making a decision on how to proceed. More
ADA Internet Web
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Mootness, ADA Point of Sale, ADA Vending Machines, ADA Web Access, FHA, FHA Reasonable Accommodation, Internet, Internet Accessibility Tags: ADA defense, ADA Mootness, ADA standing, FHA Defense, Readily Achievable, WCAG 2.0, website accessibility
We aren’t quite to Halloween, but the candy is certainly crowding the shelves of local stores, whose owners might want to take a look at Ryan v. Kohls, Inc., discussed below. Beyond that we have the usual roundup of default judgment cases, website accessibility standing cases, and of course some ordinary “drive-by” cases involving physical accessibility mixed in with cases that deserve special attention because they could have a broad impact on ADA and FHA litigation. Here they are. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA Attorney's Fees, ADA Internet, ADA Internet Web, ADA Policies Tags: ADA regulations, ADA website, Department of Justice ADA Regulations, DOJ letter to Congress, Ted Budd
On September 25 the Department of Justice responded to a congressional plea for regulatory guidance with a firm “no.” In its letter to Congressman Ted Budd DOJ made it clear that it had no intention of restarting the regulatory process it abandoned last year and that it did not believe regulations were necessary or desirable. It did say that in the absence of regulation the failure to meet an industry standard like WCAG 2.0 AA is not necessarily proof of an ADA violation. This allows businesses to prove (if they can) that despite not meeting that or some other standard their business websites are accessible.
Yesterday the Department of Justice rolled out a new online technical assistance webpage that cleans up a lot of the organizational problems I’ve blogged about in the past.* You can find it here. It isn’t perfect. You might wonder why, for example, we still have both a “Primer for Small Business” and a “Guide for Small Businesses” as well as two different documents concerning service animals. DOJ’s habit of publishing one topic guidances can be helpful, but the failure to consistently integrate them into more comprehensive documents makes it hard for businesses to have a single consistent place to go when they need information. We really need a well organized on-line encyclopedia of ADA guidance in plain language so that a business looking for a particular answer doesn’t have to guess which of the many available on-line documents will have it. It is also notable that DOJ still has materials written before the publication of the 2010 Standards as well as materials concerning communication that are more than 15 years old and therefore very likely to be out of date in light of technological developments.
Still, the re-organization is a welcome change and should be of some benefit to businesses interesting in maintaining ADA compliance without necessarily calling a lawyer.
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Mootness, ADA Public Accommodation, ADA Web Access Tags: ADA defense, ADA franchise, ADA Mootness, ADA web internet, Haynes v Dunkin' Donuts
Congress and the President are taking a break, but the ADA and FHA cases keep coming. It has been an unusual few weeks because we have two circuit court opinions to discuss, though neither breaks much new ground. A third circuit court decision – Mielo v. Steak and Shake Operations – will get a blog of its own.
Temporary obstructions under the ADA
One of the circuit court decisions is Hillesheim v. Myron’s Cards and Gifts, Inc., 17-1408, 2018 WL 3602372 (8th Cir. July 27, 2018), which deals with problem of aisles blocked by “temporary” obstructions. We’ve blogged about this before* and the law really hasn’t changed. DOJ’s regulations acknowledge that aisles that are required to be 36″ wide will from time to time be blocked when shelves are being re-stocked or perhaps repaired. This doesn’t excuse the case in which the aisles are always blocked with something temporary. The line between temporary obstructions and permanent clutter can be hard to draw, and early in a lawsuit is not when hard lines are drawn. In this case the District Court dismissed a claim based on clutter in the aisles, applying an absolute rule that temporary obstructions could not violate the ADA. The Eighth Circuit disagreed, finding that the issue required factual development to decide whether the temporary obstructions were really temporary. This put it in line with the earlier cases cited in our past blogs. More