As I predicted, the United States Supreme Court denied Domino’s Petition for Certiorari today. It did so without any formal explanation – the case is simply listed as one of many for which cert was denied. I’m sure the blogosphere and many business groups will decry the lost opportunity for a ruling that might limit ADA website litigation, but after thinking it over I don’t think there was ever much the Supreme Court could have done that would deter ADA website filers. The split in the circuits that was used to justify the Supreme Court’s interest only concerned whether websites with no affiliated physical place of business are covered by the ADA. A favorable decision would have still left the vast majority of businesses at risk. Equally important, the U.S. Supreme Court has no jurisdiction over state versions of the ADA, meaning that plaintiffs in two of the hottest states for these lawsuits, California and New York, could keep filing under state law. Finally, and most important, almost all ADA website cases are filed only to get money for the lawyers who file them. The settlement dynamics are simple – a business pays the lawyers less than the cost of a basic defense and agrees to fix its website because it makes economic sense to do so. No matter what the Supreme Court might have done it could not have significantly changed that settlement dynamic, for even the most business friendly decision could only give defendants a reasonable chance of success on a Rule 12(b)(6) motion. The Supreme Court could not make that motion cheap enough to beat the certainty of settlement because the cost of such a motion is deeply embedded in the structure of the Rules of Federal Procedure. Even more important, the heads I win, tails you still lose advantage on recovery of attorneys fees for plaintiff’s is one fundamental driver of all ADA litigation and the Supreme Court can’t do anything about that without overturning decades of civil rights precedent. The Supreme Court could favorably rule on standing issues in a case I’ll blog about tomorrow, but the refusal of cert. in Domino’s is only a mild disappointment because the real solution remains with Congress.
Accessibility Litigation Trends
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Mootness, ADA regulations, ADA Web Access, ADA Website Accessibility Tags: ADA defense, ADA reasonable accommodation, ADA standing, FHA Defense, Strojnik
Halloween is a month away, but the candy is on the shelves at our local grocery stores and the courts are already delivering tricks and treats for those of us concerned with accessibility lawsuits.
The complexities of accessibility in federal programs.
Ramos v. Raritan Valley Habitat for Humanity, 2019 WL 4316575 (D.N.J. Sept. 12, 2019) contains more law than can be easily summarized, covering:
- HUD and federal sovereign immunity under the ADA, FHA and Rehabilitation Act
- Standing for complaints of administrative action where federal sovereign immunity is waived.
- State sovereign immunity under the ADA and FHA
- The elements of a failure to accommodate claim
- And of intentional discrimination claims.
The most interesting thing to me about the case is the facts that gave rise to it, for the complaints that will ultimately go forward seem to reflect the state agency’s stubborn refusal to be helpful to a disabled couple. If the allegations are true the state would not provide forms and letters with a font big enough for the vision disabled plaintiffs to read them and refused to meet either at their residence or by video conference to accommodate their inability to travel. This, by the way, was after the parties had reached a conciliation agreement that supposedly resolved the matter. Agencies, landlords and others who want to stay out of court should think of the accommodation process as a shared effort to solve a problem, not an adversary proceeding to be won or lost.
Bone v. U. of N. Carolina Health Care System, 2019 WL 4393531 (M.D.N.C. Sept. 13, 2019), like Ramos, has a complicated set of facts and an equally complicated series of rulings on issues that include associational standing and liability for the acts of contractors. It also shares the appearance that nobody associated with the defendants was really paying attention, which is always a problem in a bureaucracy. It’s quite possible the low level employee charged with delivering braille invoices to the plaintiffs thought a few months was reasonable turn around time given the seemingly eternal delays associated with hospital billing and reimbursement, but from the plaintiff’s standpoint getting collection notices for invoices he couldn’t read was disturbing. One question, however, is never raised or answered. There are a large number of handheld text reading devices available for the blind, and it would seem such devices could be a reasonable substitute for braille. At what point does the refusal of a disabled person to take advantage of new technologies make his or her request for accommodation unreasonable?
Default as a strategy
Strojnik v. Victus Group, Inc., 2019 WL 4254666 (E.D. Cal. Sept. 9, 2019) is a typical strategic default case. The plaintiff recovered $4,000 in statutory damages, $447 in costs and no attorneys’ fees because he was pro se. There is an injunction as well, but it simply orders the defendant to comply with the law, so the defendant could not have done better had it defended the lawsuit.
Hopson v. Singh, 2019 WL 4298040 (E.D. Cal. Sept. 11, 2019) is another default case in which no defense resulted in a reasonable outcome for the defense. The plaintiff got $4,000 in statutory damages, an injunction requiring compliance with the law, and a bit more than $2,000 in attorneys’ fees.
Cohan v. MMP (Detroit Livonia) Propco, LLC, 2019 WL 4439521 (E.D. Mich. Sept. 16, 2019) proves that default may be an even better strategy outside of California. The defendant’s default cost less than $2,000 in fees and costs though at the price of an order requiring that the facility comply with the ADA’s design/build requirements. The alleged failures appear to be easily fixable at modest expense, so this defendant may have made a wise decision by giving up the ability to either fight or negotiate the extent of remediation.
ADA website litigation
Gustafson v. Bi-State Dev. Agency of Missouri-Illinois Metro. Dist., 2019 WL 4260308 (E.D. Mo. Sept. 9, 2019) is more than a website case, but the interesting part of this opinion is the discussion of a discovery dispute concerning the defendant’s website. The defendant asked for detail about the plaintiff’s problems using the website, including specific URL’s and inaccessible pdf documents. The plaintiff provided a general description and an expert report, which the Court found sufficient given the plaintiff’s inability to see and therefore easily identify the requested information. The Court did not address an important underlying issue; that is, whether the plaintiff has standing to sue for remediation of defects he did not encounter or would not likely encounter in the future. It is convenient to allow a plaintiff to seek relief for every accessibility problem in a website, but it flies in the face of the constitutional requirement that the plaintiff suffer both a past and likely future real rather than hypothetical injury. It would be helpful if early cases like this one carefully considered the difference between what a particular plaintiff is likely to encounter and what a paid expert can discover. If the plaintiff is incapable of explaining where in the website he or she encountered a problem is it reasonable to expect the defendant to be able to defend the case?
In Bryan v. Florencia Park LLC, 2019 WL 4394002 (M.D. Fla. Sept. 13, 2019) the plaintiff’s claims concerning the defendant’s website were dismissed under Rule 12(b)(6) because she was unwilling or unable to say just what was wrong with the website as it related to visiting the owner’s physical hotel. The case is a little different from Gustafson because the plaintiff provided no expert report, but it touches on the same problem. The 11th Circuit is a “nexus” Circuit that requires websites to be accessible only when the website has some relation to use and enjoyment of a physical public accommodation.* Here the plaintiff alleged in general terms that she could not use the website and even added some specific WCAG failures, but did not provide enough detail to get over the requirement that allegations be more than conclusory. Even worse, she joined the defendant in encouraging the court to examine the website, which confirmed to the court that many of her allegations were false. Website accessibility claims are perhaps unique in the ADA world because the truth of the claims can often be determined by the court without leaving chambers. Whether this kind of judicial analysis is proper is an open question.
Speaking of nexus, Poschmann v. Fountain Tn, LLC 2019 WL 4540438 (M.D. Fla. Sept. 19, 2019) is a reminder that while general claims about website accessibility are subject to all kinds of legal issues, including the requirement of nexus, claims about hotel websites can be based on a specific regulation at 28 C.F.R. § 36.302. For claims based on violations of this regulation the interesting theoretical issues related to nexus disappear and the plaintiff need only allege the website’s failure to meet the regulatory requirements and an intent to return to the website, regardless of Circuit or district.
Stick to your guns.
Standing for serial litigants
Bryan v. Florencia Park LLC, 2019 WL 4394002 (M.D. Fla. Sept. 13, 2019) contains an interesting and as far I know unique argument for ADA standing by a serial litigant. In Florida and other 11th Circuit courts a Motion to Dismiss based on a failure to credibly allege an intent to return can be based in part on geographic distance. A plaintiff who lives far away may find it hard to credibly allege an intent to return. Here the plaintiff lived more than 400 miles away, but alleged she intended to return to meet her lawyers and work on other cases in the same area. The court found this was enough to overcome the distance problem:
If Plaintiff is a serial litigant as Defendant argues then it seems certain she will be returning frequently to visit her Pinellas County based attorneys, and attend to her many lawsuits in the area.
Just as jackels may travel great distances if they find a particularly good hunting ground, so a plaintiff with no good reason to visit a distant city or county can bootstrap standing by filing a bunch of lawsuits and therefore having a reason to return. In this case the plaintiff’s victory lasted only a few paragraphs – as discussed above she lost on the 12(b)(6) component of the defendants’ motion to dismiss because her allegations were insufficiently specific.
Causation and intent in Title II discrimination cases.
Whoops, maybe that wasn’t a good idea.
Trevino v. Steinreal 1 Fam. LP, 2019 WL 4409975 (W.D. Tex. Sept. 16, 2019) includes a good deal of procedural confusion, but it appears the plaintiff in a personal injury case decided at some point to add a claim under the ADA, possibly in order to obtain attorneys’ fees that are not usually available under Texas law. The defendants promptly removed the case to federal court, which is a much more defendant friendly forum for personal injury cases in the Western District. The plaintiff somewhat less promptly amended to drop all the ADA and other federal law claims. The end result was a remand to state court, with the federal court declining to force the plaintiff to remain in the federal system without any federal claims. It only took six amendments to make the round trip to federal court, suggesting someone didn’t think through their strategy in advance.
Who chooses the accommodation?
E.F. by Fry v. Napoleon Community Schools, 2019 WL 4670738 (E.D. Mich. Sept. 25, 2019) provides a tidy follow up to my last blog “Is economic discrimination disability discrimination” The case I discussed, Shaw v. Habitat for Humanity, rejected the idea that the defendant granting an accommodation had the right to determine what the accommodation would be. Napoleon Community Schools applies the same rule in a Title II context, with the court finding:
A public school is bound by the provisions of the ADA and does not have carte blanche to accommodate in any way it chooses when a covered individual has requested another accommodation.
The Court also discusses the difference between Title II intentional discrimination claims and failure to accommodate claims, a difference that did not seem to be obvious to the defendants. It is a good outline of the law in this area.
Counter-clutter and the ADA
Courts addressing this issue routinely find that the lack of clear space or the placement of merchandise on transaction counters violates neither the 2010 Standards nor the ADA.
Brian Whitaker, Pl., v. ELC Beauty LLC, Def., 2019 WL 4690202, at *2 (C.D. Cal. Sept. 25, 2019). Case dismissed.
* There isn’t time enough to refer to all my past blogs on this issue, but some of the most recent discussions are at “ADA Website litigation may get Supreme Court review” and “Websites and Coke Machines“. Those really interested in the details concerning nexus should check out “ADA ‘Accessible’ Websites: What Attorneys Need to Know” available at Mylaw CLE or “Website Accessibility Lawsuits” from the University of Texas CLE website. The former was a two hour presentation by Bill Goren and myself, the latter a one hour look at litigation only by myself.
By Richard Hunt in Accessibility Litigation Trends, ADA FHA Litigation General, FHA, FHA Reasonable Accommodation, Reasonable accommodation Tags: FHA accommodation, FHA Defense, FHA may be necessary, Salute v Stratford Greens, Shaw v Habitat
One of the more frequently quoted cases dealing with the relationship between the FHA and poverty is Salute v. Stratford Greens Garden Apartments, 136 F.3d 293, 301 (2d Cir. 1998). In Stratford the Second Circuit wrote that the FHA “addresses the accommodation of handicaps, not the alleviation of economic disadvantages that may be correlated with having handicaps.” The 11th Circuit’s decision in Shaw v. Habitat for Humanity, Case No. 17-13960 (11th Cir. Sept. 18, 2019) takes up the question of just where one draws the line between disability discrimination and economic discrimination. Along the way it also clarifies who gets to decide what accommodation is required and just what “necessary” means. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Mootness, FHA, FHA design/build litigation, FHA Emotional Support Animals Tags: ADA defense, ADA Stadium, ADA standing, ADA Website Litigation, FHA Defense, Olmstead
A hodgepodge, I just learned, is a not just a word for a confusing mixture, but also the name of a vegetable stew. The FHA and ADA decisions of the last few weeks may not be tasty, but they are varied. I’ve put the FHA case first because it involved an unforced error and illustrates why landlords of all sizes need to be aware of what the FHA permits and denies.
FHA disability claims – get it right the first time.
In Root v. Salazar, 2019 WL 4040405 (M.D. Fla. Aug. 27, 2019) made a critical mistake. Having in hand a legitimate non-discriminatory reason to refuse to rent he instead made an excuse that probably seemed more legitimate but wasn’t. The legitimate excuse was the tenant’s lack of steady income. The FHA does not require that landlords take financial risks to accommodate disabled tenants. The illegitimate excuse was that the duplex in question did not meet the FHA’s accessibility guidelines. A fundamental principle under the FHA, ADA and other similar disability laws is that the tenant gets to decide what he or she needs. It may seem helpful to tell a prospective tenant why they should rent elsewhere, but if the tenant is disabled or a member of a protected class that helpfulness will look like illegal discrimination.
Stadium seating and sightlines
Defendants SLAPP back
Langer v. Kiser et al, 2019 WL 4017033, at *7 (S.D. Cal. Aug. 26, 2019) presents an interesting counterpoint to cases I blogged about several years and several weeks ago.* The defendant counterclaimed for trespass, alleging that its parking lot was private and the plaintiff, a serial filer, wrongfully occupied it by driving in to look for ADA violations. The plaintiff responded with a motion to dismiss under California’s anti-SLAPP** law. The District Court found that the desire to find ADA violations satisfied the first requirement for an anti-SLAPP motion; that is, that the matter was one of public interest. The Court was unwilling to find, however, that the trespass claim had so little merit it should not be presented to a jury. What appears to distinguish this case from earlier failures for trespass claims is the insistence of the defendants that the parking lot is truly private. While the building served by the parking lot includes two public accommodations, the defendants insisted that every parking place was reserved for residents or business owners and employees. Nonetheless, it seems unlikely that the trespass claim will survive an appeal since the use of trespass as an attack on ADA serial plaintiffs does have public policy implications.†
The Independence Project, Inc. v. Ventresca Bros. Construction Co., 2019 WL 4126448, (S.D.N.Y. Aug. 30, 2019) is a kind of companion to Chapman v. NJ Properties Inc., a California case I blogged about two weeks ago.‡ After settling the defendants sought to avoid paying court awarded attorneys’ fees by claiming the plaintiff was not a prevailing party. Applying Second Circuit law the Court found that by explicitly agreeing to the Court’s continuing jurisdiction to enforce the settlement the plaintiff’s had sufficiently linked their claims to the Court’s power and could therefore avoid the Supreme Court’s holding in Buckhannon. The defendants also failed to obtain dismissal based on claims the plaintiff was not disabled, and effort that undoubtedly drove up the fees awarded to the plaintiff. For this kind of ADA lawsuit strategic decisions about defense and settlement must be made before any money is spent. Some defense costs may be unavoidable, but only unavoidable costs should be incurred.
Johnson v Starbucks – the saga continues
City website claims under ADA Title II
Rutherford v. Cesar’s Mexican Rest., LLC, 2019 WL 4193392 (S.D. Cal. Sept. 3, 2019) is notable because the Court insists that the plaintiff show an injury beyond merely relating his mobility impairment to the type of supposed ADA defect. This decision is round two for Rutherford in this case, and the Court’s approach, which requires Rutherford to show that particular defects caused him injury would, if adopted generally, be an effective restriction on abusive serial litigation.
Readily achievable is a question of fact.
The defendant in Brito v. Dunahay Properties Lllp, 2019 WL 4192111 (D. Colo. Sept. 4, 2019) almost, but didn’t quite manage to moot the claims against it. The problem was two architectural barriers whose remediation the defendant claims was not readily achievable because of cost. The plaintiff’s expert disagreed and presented a cost estimate the court found sufficient to raise a fact issue. The existence of the barriers was not in dispute, so the case will go to trial on the question of whether the cost is simply too high. I’m in no better position than the judge to say which side is right, but it is worth remembering when it comes to remediation that what you would prefer as a business owner may have to give way to what is needed to make the facility accessible.
You don’t lose, and you can’t quit.
United States v. State of Mississippi, 2019 WL 4179997 (S.D. Miss. Sept. 3, 2019) is too detailed in its analysis of the facts to be briefly summarized, but a couple of points are worth noting. First, deciding whether a state is meeting its Olmstead obligation requires detailed statistical data as well as individual patient interviews. The court observed that the case was largely a battle of experts. Second, having a program that looks good on paper is not sufficient if in reality disabled individuals do not have access to services available in theory. It’s relatively easy to write a policy. Putting it in to practice is what the law requires.
Plasma donation centers
I’ve written about plasma donation centers in the past² but rather than revisit the history of the circuit split here I’m going to take the easy way out and refer you to William Goren’s recent blog on Matheis v. CSL Plasma, Inc., the August 30 decision from the 3rd Circuit that finds such centers are places of public accommodations. His discussion can be found here.
¹ See, “Stadium Sightlines”
** “Strategic Lawsuit Against Public Participation”
† In theory there are non-serial customers who might have counterclaims filed against them as a defensive measure. Thus, allowing such counterclaims would discourage even claims by non-serial filers. There is no reason to think Langer is in it for anything but the money; however, a rule of law cannot assume bad faith on the part of every litigant.
° See “Auer deference and the Fair Housing Act – does Kisor change anything” for a discussion of the case.
°° See the “California Dreaming” heading in my blog “Sixth Circuit Affirms Committment”
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 Website Accessibility, Internet, Internet Accessibility Tags: Accessibility tools, ADA defense, ADA experts, ADA Website Litigation, Diaz v General Nutrition, Diaz v Lobel's
Two weeks ago I wrote about Diaz v. Lobels,* a case I think exemplifies some of the confusion concerning just what an accessible website should be. Today I want to take a harder look at the Court’s exclusion of testimony from the plaintiff’s expert to ask the question: Just what should an ADA expert testify about? The issue has come up in only three reported cases, each of which has its own take on the matter.
The exclusion of the plaintiff’s expert testimony in Diaz v. Lobels was based on two failings. The Court found the expert, Michael McCaffrey, failed to sufficiently describe his methodology and process, and failed to establish the methods were widely accepted or standard in the field. The Court did not reject the assumption underlying the report because the plaintiff and defendant stipulated that compliance with WCAG 2.0 or 2.1 would make the website accessible for ADA purposes and that non-compliance would make it inaccessible. Instead the Court focused on the “high level” description of the methods used by the team of individuals working for the expert, which the Court found insufficient when combined with a lack of testimony concerning the standards used. More