Just last week the Supreme Court took a long hard look at something called “Auer deference” and decided that it would remain the law, but with some strings attached. Kisor v Wilke, No. 18-15 (June 26, 2019). I’ve never once had the occasion to mention Auer deference in this blog or in any brief I’ve filed in disability lawsuits, but the decision could have an impact on future disability rights litigation. In this blog I’ll consider the possible impact on litigation under the Fair Housing Act. In the next I’ll look at what turns out to be the more complex possible effects on litigation under Titles II and III of the ADA. Before I explain why, I should refer anyone interested in a detailed analysis of the decision to William Goren’s blog on the subject here.* More
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 Mootness, ADA Negligence, ADA Policies, ADA Website Accessibility Tags: ADA defense, drive-by lawsuits, FHA Defense, Scott Johnson, serial litigation, Starbucks, Usablenet
All but two of today’s cases are from serial filers, and 7 of 17 are from a single serial filer, Scott Johnson. The fact that serial filers dominate the world of ADA litigation is hardly news; in fact, it would news if an ordinary disabled individual who suffered a real ADA injury filed suit. It is also news that federal judges in the mid-west are showing an increased reluctance to keep cases alive based on dubious standing claims. As Bradley Cooper sings in the latest version of A Star if Born, “Maybe it’s time to let the old ways die.” More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Web Access, ADA Website Accessibility Tags: Accessible websites, ADA defense, ADA Supreme Court, ADA website defense, Dominos v Robles
Domino’s Pizza has filed a Petition for a Writ of Certiorari with the United States Supreme Court challenging the Ninth Circuit’s recent ruling in favor of Guillermo Robles.* The Court’s decision on whether to grant certiorari will have a profound impact on the possible “tsunami”** of website accessibility lawsuits, but we don’t have to wait for that decision to find the Petition itself interesting.
What I find most intriguing is Domino’s argument that the Ninth Circuit has adopted a new, third standard for application of the ADA to the internet. Along with other commentators I have always seen a two way split in the Circuits. Some (the First, Second and Seventh) simply hold that all websites are public accommodations subject to the ADA. It is a simple approach that leaves no room for doubt about a website’s accessibility obligation. Others (the Third, Sixth, Eleventh and Ninth Circuits) find that a website is covered by the ADA only if it has some nexus to a physical place of business. The exact nature of that nexus is a question being slowly answered as different situations are presented to the courts, but details aside, the nexus requirement seemed a common thread in decisions from these Circuits. More
By Richard Hunt in Accessibility Litigation Trends, ADA - Standing, Public Facilities, Rehabilitation Act, Title II Tags: ADA defense, ADA statute of limitations, ADA Title II, Babcock v Michigan, Frame v Arlington, Hamer v Trinidad
I’ve observed before that titles II and III of the ADA create what can be called a crime looking for a victim.* The decision in Hamer v. City of Trinidad, 2019 WL 2120132 (10th Cir. May 15, 2019) shows how defining the crime can change the burden cities may face today based on decisions that go back decades or even centuries. The decision in Hamer will allow almost any person with a disability to demand that every inaccessible facility of a town like Trinidad be fixed regardless of its historical origin and regardless of how long the plaintiff has known of the problem. This decision contradicts decisions from other Circuits and follows a dubious analytical path. (For those who want a different view on this case, William Goren’s blog Repeated Violations Doctrine makes the case for this decision being correct). More
Accessibility moots a website accessibility claim – a surprising decision that shouldn’t surprise anyone.
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA Attorney's Fees, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Mootness, ADA Web Access, ADA Website Accessibility Tags: ADA defense, ADA website accessibility, ADA website defense, Diaz v Kroger, Katherine Failla
On Tuesday, June 4 Judge Katherine Failla of the Southern District of New York issued a critical decision finding that a website accessibility case could be mooted by simply fixing the website. Diaz v. Kroger Co., Case No. 1:18-cv-7953 (June 4, 2019). She also found that Kroger was not subject to personal jurisdiction in New York on more conventional grounds, but the mootness holding is critical. More