Serial litigators file lots of cases and that means lots of decisions, sometimes coming in batches. I’ve omitted a few decisions that say nothing more than the cases I have reviewed just to keep this blog manageable. If there is a theme, it is simply that despite very clear trends toward limiting serial litigation by paying more attention to standing, the outcome of any given case depends very much on the judge because there is still relatively little Circuit court guidance on some issues. Like Delacroix’s inspirational painting of Liberty Leading the People, celebrations of freedom from abusive ADA and FHA litigation may be premature. Before making any strategic decision you need to research the specific decisions of the judge who will hear your case because the ancien régime isn’t gone yet. More
ADA Class Actions
ADA and FHA Quick Hits – is it safe to come out yet edition.
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Class Actions, ADA Internet Web, ADA Mootness, ADA Policies, ADA Web Access, FHA, FHA design/build litigation Tags: ADA consent decree, ADA defense, ADA Testers, ADA Website Litigation, Beshay Foods, Braille gift cards, Coca Cola Freestyle, COVID-19, FHA Defense, First Fix then Fight, Jack-in-the-box, Johnson v Starbucks, Legal Justice Advocates, Portell Law Group, Seyfarth Shaw
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.
ADA and FHA Blogathon – tortoise and the hare edition
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Class Actions, ADA Internet Web, ADA Mootness, ADA Web Access, FHA, Uncategorized Tags: ADA defense, ADA web access, driveby lawsuits, FHA Defense, Serial filers
Being slow but steady the tortoise, as we all know, won the race. The picture on the left tells you the strategy I ended up using. In any case the news is current as of November 14, the last day I checked for new ADA and FHA decisions. There’s plenty of interest, as usual.
A pre-emptive strike on website accessibility succeeds.
The plaintiff in Expensify, Inc. v. White, 2019 WL 5295064 (N.D. Cal. Oct. 18, 2019) sought to take matters into its own hands and local court by suing a pair of serial website filers for a declaratory judgment that its website was not in violations of the ADA. The defendants almost immediately agreed to waive their claims, presumably because they did not want to litigate without the home field advantage they command in the Western District of Pennsylvania. The plaintiff was not content and tried to keep the case alive, but the Court found the waivers mooted its claims. The key finding is that there was a dispute justifying the complaint for declaratory relief. It is only a district court decision, but Defendants who receive a demand letter without a lawsuit should consider this kind of pre-emptive strike as a good way to avoid an unfriendly jurisdiction. More
ADA website accessibility litigation – confusion about standards is driving abusive litigation.
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA - Standing, ADA Class Actions, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Mootness, ADA Web Access, ADA Website Accessibility Tags: ADA defense, ADA injunctive relief, ADA Mootness, ADA standing, Diaz v Kroger, Diaz v Lobel's, website accessibility
I’m not Maimonides, but I do think we need a Guide for the Perplexed concerning ADA website litigation because it seems that in many cases both courts and litigants have mistakenly treated websites as if they were buildings. Websites are not buildings, and recognition of that fact would do a great deal to eliminate or slow down abusive website lawsuits. If you are a defendant in such a suit or think you might be, this blog is for you and your lawyers. There is no silver bullet, but there are approaches to defense with real promise. More
Browsewrap could tame the ADA website litigation monster.
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA Class Actions, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Point of Sale, ADA regulations, ADA rulemaking, ADA Web Access, ADA Website Accessibility Tags: ADA defense, Arbitration, Browsewrap, Clickwrap, Container Store, FHA Defense, Point of Sale, website accessibility
In the last two years the federal courts have had a number of opportunities to find that Title III claims under the ADA are not arbitrable and have declined the invitation. That doesn’t mean these cases are in fact going to arbitration. In every case I found the arbitration agreement was found to be unenforceable on state law grounds, leaving open the possibility of a public policy argument. Nonetheless, I think that a properly written and implemented arbitration clause can force a Title III case into arbitration and give defendants a chance to avoid much of the unnecessary cost of litigation. Here’s why.
The starting point in a discussion of arbitration for civil rights statutes has to be Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647 (1991). In Gilmer the Supreme Court found that claims under the Age Discrimination in Employment Act could be made subject to a valid arbitration agreement, rejecting claims that it was somehow inconsistent with public policy. A few months later Congress passed the Civil Rights Act of 1991, in which, among other things, it affirmed that More