Brooke v. A-Ventures, LLC, 2:17-CV-2868-HRH, 2017 WL 5624941, at *1 (D. Ariz. Nov. 22, 2017) is a case with an unusual procedural posture and a holding that shows a frightening misunderstanding of issues concerning website development. According to this judge, making a website accessible is an admission of an ADA violation and a business website can never be fixed so well that a case against it is moot. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Mootness, ADA Policies, ADA Web Access, FHA Emotional Support Animals
Black Friday is approaching. In honor of the annual sales we’ve collected a bevy of cases containing helpful lessons for any business subject to the ADA or Fair Housing Act.
Siler v. Abbott House, Inc., 2017 WL 5494989 (S.D. Fla. Nov. 16, 2017) teaches a simple lesson for HOA’s: call your lawyer before you do anything concerning a disabled tenant or resident. In this case the prospective tenant was, it seems clear, treated very badly by a condominium home owners association. The conduct went from merely improper (questions about her obvious disability and need for personal assistants) to just spiteful (moving an access button to make sure she couldn’t reach it). Despite a later letter from the HOA’s lawyer apologizing and trying smooth things over the Court refused to dismiss the tenant’s claims for damages and attorneys’ fees. This isn’t a final victory for the plaintiff, but it guarantees the HOA will spend tens of thousands of dollars in legal fees if it doesn’t settle. Every HOA needs a clear set of policies regarded disabled tenants, and if those policies don’t exist, the Board should not act without first calling a lawyer. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Mootness Tags: Burningham v TVI, Gomez v Empower U, HB 1463, HB 3765, HB727
A number of states have passed laws intended to stop abusive ADA lawsuits, including most recently Florida and Texas.* As we’ve reported several times recently some individual federal judges are taking their own steps to stem serial litigation without diminishing the rights of the disabled. All these efforts attack the problem at the wrong end. Serial ADA lawsuits are a just a symptom of a deeper problem – a lack of ADA education and regulatory enforcement. More
On October 2, 2017 the Supreme Court denied the plaintiff’s petition for certiorari in McGee v. Coca Cola Refreshments U.S.A., Inc., letting stand the decision by the 5th Circuit holding that Coca Cola vending machine was not a “place of public accommodation” covered by Title III of the ADA.* Last month a District Court in the Eastern District of Pennsylvania applied the same reasoning to a DVD rental kiosk. Nguyen v. New Release DVD, LLC, CV 16-6296, 2017 WL 4864995 (E.D. Pa. Oct. 27, 2017). Neither McGee nor Nguyen mention an earlier case, Jancik v. Redbox Automated Retail, LLC, 2014 WL 1920751 (C.D. Cal. May 14, 2014) that also attacked automated machines allowing DVD rentals. Interestingly enough, in Jancik v Redbox the defendants conceded that their DVD rental kiosks were places of public accommodation subject to Title III of the ADA. It apparently never occurred to them that the difference between a public accommodation and a mere “service” was whether the goods were delivered by a machine instead of a human. Were they wrong? These cases illustrate a real problem with the way “public accommodation” is defined in Title III. More
Near the end of the decision in Gil v. Winn-Dixie Stores, Inc., 2017 WL 2547242, at *3 (S.D. Fla. June 12, 2017) the trial court includes in its injunctive relief a requirement that Winn-Dixie “require any third party vendors who participate on its website to be fully accessible to the disabled by conforming with WCAG 2.0 criteria.” This ruling rests on the ADA’s prohibition of discrimination “through contractual, licensing, or other arrangements.” [See, 42 U.S.C. §12182(b)(1)(A).] Winn-Dixie is a good reminder that becoming WCAG 2.0 compliant means focusing not just on your own website, but also on all the websites or web services to which you link. That can be a problem for businesses without much economic power.
Winn-Dixie is not a small business, but the web service providers mentioned in the Winn-Dixie decision, American Express and Google, are much bigger. Most businesses need third party vendors more than those vendors need them, so they aren’t likely to be able to force a change or do without the service provided them. This is an especially serious problem when the third party service is a pure internet business with a strong legal arguments against any ADA accessibility obligation. You might ask a vendor like Paypal or Google to guarantee accessibility for your customers, but you aren’t likely to succeed.
This disparity in bargaining power may be an excuse for partial non-compliance. In Natl. Assn. of the Deaf v. Harvard U., 2016 WL 3561622, at *16 (D. Mass. Feb. 9, 2016), report and recommendation adopted, 2016 WL 6540446 (D. Mass. Nov. 3, 2016) the court recognized that the ability to control third parties might play into the question of whether providing access presented an undue burden. As is so often the case in ADA litigation, once you reach the complexities of economic bargaining power and the advantages of similar but not identical third-party services the battle becomes so expensive that few businesses can afford to put up a fight.
Whether or not a business thinks it can negotiate with a big third-party vendor, it should at least consider the accessibility of third party websites and web services when deciding who to do business with, and it should document some effort to find accessible third-party vendors. Otherwise it may find that its own efforts to be accessible will not protect it from ADA liability while the courts slowly – very slowly – work toward resolving the nature of ADA obligations for websites.