Quick Hits – Groundhog Day and the ADA

February 4, 2018 By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA Internet, ADA Internet Web, Definition of disability, FHA definition of handicap, Internet Accessibility Tags: ADA Internet, ADA website, Groundhog Day, Major life activity, Punxsutawney Phil

It looks like six more weeks of winter based on the reaction of Punxsutawney Phil to the long shadow he casts over weather forecasting. The last week of ADA decisions seems to confirm that it will remain chilly for businesses as well.

Website Accessibility*

If Punxsutawney Phil had seen Robles v. Yum! Brands, Inc., 2018 WL 566781 (C.D. Cal. Jan. 24, 2018) when he popped out of his hole on Groundhog Day he probably would have just given up and stayed inside for the rest of the year. Robles is another web accessibility case in which the district court simultaneously refuses to say just what an accessible website is and requires the defendant to build one. In other words, no summary judgment is possible and the defendant faces an expensive legal battle after which it may be ordered to do something impossible or, worse still, ordered to do something so ill-defined that it will lead to an endless argument about compliance. We discussed this in more detail in our earlier blog “What is an ADA accessible website? Well, it’s complicated.” More

Victory and confusion in ADA internet litigation – what next?

March 29, 2017 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, Internet, Internet Accessibility

ADA defendants just won two significant victories concerning internet accessibility. In a March 20, 2017 decision in Robles v. Dominos Pizza LLC, Case No. 2:16-cv-06599, (C.D. Cal.) Judge Otero dismissed a claim concerning the accessibility of Dominos’ web site and mobile app based on a due process objection. The Court found that DOJ’s failure to issue regulations implicated the holding in United States v. AMC Entertainment, 549 F. 3d 760 (9th Cir. 2008) that a failure to give fair notice of what was required violated due process. In Gomez v. Bang & Olufsen America, Inc., Case No. 1:16-cv-23801 (S.D. Fla) Judge Lenard adopted a rule derived from earlier cases in the 11th and 9th Circuits that that a claim under the ADA exists if “a website’s inaccessibility impedes the plaintiff’s “access to a specific, physical, concrete space.” He then dismissed the complaint because the plaintiff failed to allege with sufficient specificity that his access to the brick and mortar stores had been impeded. The holding seems more restrictive than the case on which he relies, National Association of the Blind v. Target Corp., 452 F.Supp.2d 946, 956 (N.D. Cal. 2006), but the differences are not explored in the opinion.

A few weeks earlier one of the leading plaintiffs’ firms in the field of internet accessibility entered into an agreement not to sue banks in Texas as part of a settlement of a barratry case brought by a banking trade association, another victory that shows one way to deal with serial or “drive-by” lawsuits. The Texas legislature is also considering an anti-troll law that would make bad faith ADA demands a violation of the law. If such a law survived a preemption challenge it might also help eliminate such lawsuits.

Hooray! Or maybe not. The two district court decisions only have persuasive value with respect to other district courts, and Judge Lenard’s decision turns on a defect in pleading that could be cured by amendment. The Texas bank settlement is just that; a settlement, and it was based on procedural rather than substantive issues. Judge Otero’s decision will certainly act as a roadmap for those who want to mount a vigorous defense to the next ADA internet claim, but it rests on 9th Circuit case law that might not be accepted in other circuits and its reasoning has already been rejected in other districts. At the end of the day these decisions represent nothing but the ordinary ebb and flow of ADA decisions in which defendants win some and lose some and then usually settle.

The state of law, in the meantime, remains mixed. In the 9th Circuit and 11th Circuit a pure internet business is not covered by the ADA. In the 9th and 11th Circuits a business with a physical presence and a web presence may be subject to the auxiliary aids and services requirement of the ADA, but the needed connection between the website and the physical store remains largely undefined. Finally, in some courts and circuits it appears the ADA applies to every website, regardless of its relationship to physical store. Because internet business is at least national most potential defendants will find their liability depends on where they are sued.

Continuing to move toward website accessibility is the most prudent strategy for any business that can afford it. Smaller enterprises that find the cost prohibitive may choose for strategic reasons to wait until the software tools improve and costs go down, but even smaller businesses should take the handful of relatively cheap steps available to improve accessibility, including the provision of a toll-free customer assistance number like that provided by Dominos Pizza. Recent victories are nice, but until the Supreme Court rules on the ADA and internet the state of the law will remain confused, and litigation avoidance will be the best strategy.

Magee v Coca Cola – why does the Supreme Court care about vending machines?

March 1, 2017 By Richard Hunt in Accessibility Litigation Trends, ADA Internet, ADA Internet Web, ADA Point of Sale, ADA Vending Machines, Internet, Internet Accessibility Tags: ADA, Forbes, internet, Magee v Coca Cola, Vending Machines

I blogged last year about the Fifth Circuit’s decision in Magee v. Coca–Cola Refreshments USA, Inc., 833 F.3d 530, 531 (5th Cir. 2016) (ADA and the Internet – what non-internet cases can tell us.) as well as the District Court’s similar holding (Vending Machines and the ADA). It looked like an interesting case, and it seems the Supreme Court may agree. As reported by Dan Fisher in Forbes (Supreme Court asks government if a Coke machine must be ADA compliant),* on February 27 the Supreme Court docketed a request to the Solicitor General for input on Magee’s pending petition for certiorari. The Supreme Court’s ADA decisions have focused almost exclusively on employment and education, not business accessibility, and while certiorari has not been granted, this request shows unusual interest in this aspect of the ADA. More

ADA reform: neither complaints nor pre-suit notice will solve the problem.

December 30, 2016 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Litigation Procedure, Internet Accessibility Tags: ADA Reform, ADA serial litigation, Anderson Cooper, drive-by lawsuits

Sixty Minutes and Forbes have now weighed in on the serial litigation crisis that threatens small businesses sued for often innocent or trivial ADA violations. Congress is gearing up once again to require pre-suit notice, a change demanded by businesses and opposed by disability rights groups. Meanwhile, the pace of ADA filings has only increased, with hyper-aggressive lawyers moving from dozens to hundreds of lawsuits a month, many now concerning web access. Federal judges have responded in some cases with sanctions that amounted in one case to more than $100,000.

How did we get to here? Why has a law to help the disabled turned into a litigation industry? The answer is more complicated than unethical lawyers or profiteering plaintiffs. At the root of the litigation crisis are four things: More

A couple of quick hits on the ADA, the internet, and public restrooms

November 20, 2016 By Richard Hunt in Accessibility Litigation Trends, ADA Internet, ADA Internet Web, ADA Mootness, Internet Accessibility Tags: Accessible Restrooms, ADA, Closed Captioning, Harvard

Three interesting decisions, and a news report were published last week that deserve attention, but really don’t need a lengthy discussion. First, in Natl. Assn. of the Deaf v. Harvard U., 2016 WL 6540446, at *2 (D. Mass. Nov. 3, 2016) the Court adopted the earlier Magistrate Judge’s recommendation against dismissal claims against Harvard for failing to caption its on-line video courses. The case will now continue into discovery or, more likely, settle as the costs of defense become unreasonable when compared to the cost of settlement. A related news story , Pitt Professor Sues Southside Works Cinema discusses a lawsuit based on the lack of closed captioning at a local movie theater. As with internet access, closed captioning in theaters is an area in which DOJ’s failure to regulate has created a situation in which litigation is going to define the requirements of the ADA because DOJ is incapable of figuring out how to make a good rule. I’m sympathetic to the difficulties face by DOJ after reading through the mass of requirements imposed on the regulatory process (see, Fed. Reg. vol. 79, pages 44976 to 44514), but these regulations were first announced in 2010. The regulatory process simply cannot keep up with the rapid pace of technological change, and so DOJ has adopted the far more inefficient and regulatory method of letting the requirements of the ADA be set through hundreds of different judicial decisions whose outcome depends not only on the quality of the judge, but also the quality and position of the litigants. If DOJ cannot regulate the details of accessibility, it should at least provide that accessibility is not required until those details are provided.

The inefficiency and sometimes outright stupidity of ADA litigation is perfectly illustrated by Love v. Sanchez, 2016 WL 6683152 (C.D. Cal. Nov. 14, 2016). The plaintiff alleged, correctly, that the defendant lacked accessible parking. Defendant provided a space, but did it wrong. Plaintiff obtained an expert report to that effect and filed a motion for summary judgment. Defendant hired an expert and made the space compliant except, perhaps, for slightly excessive cross slopes at two locations. Plaintiff hired a new expert who found those excessive cross-slopes. Defendant’s expert disagreed and, at the end of the day, the Court denied the motion for summary judgment because it could not determine the fact question as to which expert was right.

Conceding that the lawsuit had the beneficial effect of persuading the defendant to put in an accessible spot, consider the time and money spent afterwards quibbling about the difference between a 2.8% and 2.0% cross slope. The plaintiff’s motive was simple. His attorneys would not be paid unless they won. The defendant’s motive was equally simple. Losing would more than double his liability because he would also have to pay the plaintiff’s attorney’s fees. The focus of the lawsuit, almost from the beginning, was on payment for the attorneys, not accessibility for the disabled. This is a perpetual theme in ADA litigation, with access for the disabled usually taking second place to profits for the lawyers.

A third decision concerned public restrooms; or more accurately, a former public restroom. In Ramirez v. Golden Crème Donuts et al., 2016 WL 6648699 (9th Cir. Nov. 10, 2016) the Ninth Circuit reminded us that the ADA does not require public restrooms in public accommodations, and that closing a restroom to the public is one way to solve the problem of non-compliant restrooms. This is true even when local ordinances may require public restrooms because compliance with local law is a matter between the business and local authorities in which the federal courts will not ordinarily participate. Restroom renovation is frequently the most complex and expensive part of ADA compliance, so the quick fix of closing the restroom may be a good option in avoiding litigation even though in the long run the expense is unavoidable.

20 or more times a day an ADA claim is filed in Federal Court somewhere in the United States. This has been true for decades, and yet non-compliance appears to be as prevalent as ever. Maybe it’s time to re-think the way the ADA is enforced.