Just a quick note about some upcoming CLE opportunities, not all of them accessibility oriented. If you are wondering about the photo at left, it’s for something a little different. I’ll be presenting a one-hour webinar “Write Your Brief Like a Country Song: The Universal Rules of Effective Communication” for the University of Texas CLE program on January 24. You can find all the details at this link: “Write your Brief Like a Country Song.” On February 11 at 1:00 p.m. ET I’ll be collaborating with William Goren (www.williamgoren.com) to present “The Internet and ADA Compliance” for the American Bar Association. You can find registration details at this link: “The Internet and ADA Compliance.” Last but not least, this Sunday morning, January 19, I’ll be presenting a three hour overview of the ADA and FHA accessibility rules and regulations to the Society of Exchange Counselors in Fort Worth. For more about the Society you can check out their website at “Society of Exchange Counselors“
Accessibility Litigation Trends
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Litigation Procedure, FHA, FHA design/build litigation, FHA Reasonable Accommodation, Internet Accessibility, Title II Tags: ADA defense, ADA Mootness, ADA Website Litigation, Bike share programs, Dana Bowman, Eric Calhoun, FHA Defense, Peter Strojnik, unruh act
Christmas is over with lumps of coal and sugar plums distributed in ways that often seem unrelated to who has been naughty or nice. Regular readers will see just how little has changed in the course of 2019 despite some important defense victories in the Sixth and Eight Circuits. With most ADA litigation centered in New York, California and Florida the serial litigation business will almost certainly continue to thrive in 2020.
Personal jurisdiction over website owners
Experts and the ADA
Mooting website accessibility claims
Mooting physical accessibility claims.
ADA litigation and the peculiar case of Peter Strojnik
ADA pleading – more than boilerplate is required
No federal jurisdiction of Unruh Act claims
FHA “remediation defendants” and tester standing
ADA Standing – has the worm turned?
Shared bicycles and the like.
Schulz v. Bay Area Motivate, LLC, 2019 WL 6493979 (N.D. Cal. Dec. 3, 2019)† In this case the plaintiff claimed that a bike share program operated under a city license violated the ADA because there were no bikes he, as a quadriplegic, could use. The court rejected an attack on standing, but found that:
- bicycles are not “conveyances” covered by the ADA requirements for municipal transportation systems,
- the nature of this plaintiff’s disability is such that he could not use the program even if it had different equipment because his use would require that pickup locations be staffed and have storage for his wheelchair; thus, the city was not required to accommodate his special needs,
- the private defendant was not required to provide rental equipment other than that it usually provided under the general rule that public accommodations do not have to modify their inventory.
This disposed of all plaintiff’s claims and resulted in dismissal for failure to state a claim under state or federal law.
The chicken and the egg – accommodation requests must be dealt with in a timely way.
Condominium parking for the disabled – get it right the first time.
Being wrong is not sanctionable.
This summer Scott Smith’s claims against RW’s Bierstube were dismissed for lack of standing.** In Smith v. RW’s Bierstube, Inc., 2019 WL 6464142 (D. Minn. Dec. 2, 2019) the Court nonetheless denied a claim for defense attorneys’ fees, joining a host of other courts in holding that such fees are awardable only for frivolous claims. The Eighth Circuit has recently ruled on ADA standing in ways that supported the dismissal of Smith’s claims‡, but Steger v Franco continues to haunt Eight Circuit jurisprudence, creating just enough uncertainty to make claims like Smith’s non-frivolous even if they are implausible.
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Theaters, ADA Web Access Tags: ADA arbitration, ADA defense, ADA Title II, ADA website, Bird scooters, electric scooters, FHA Defense, Strojnik, uber
Before delving into the fascinating details of ADA and FHA legal developments it doesn’t hurt to remember that in the larger scheme of things the day-to-day problems caused by flaws in the ADA and FHA are not as earth shattering as we like to imagine.
Cities may be responsible for the carelessness of the public
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Web Access, FHA, FHA Advertising, FHA Class Actions, Internet Accessibility, Uncategorized Tags: ADA defense, FHA Defense, Legal Justice Advocates, website accessibility, Yvette Harrell
There’s a new kid on the block in the world of serial accessibility demands.** It’s not a boy band, its “Legal Justice Advocates.” They’ve been sending demand letters to apartment owners, mortgage lenders and real estate agents claiming to represent an outfit called “Victims Awareness, Inc.” which, they claim, is a “national not-for-profit” with disabled members “throughout the nation.” Victims Awareness, Inc., they claim, uses experienced testers (who are not claimed to be disabled) to check on the accessibility of websites. The firm then sends a demand requiring remediation of unspecified defects and money for the lawyers. After seeing a few of these and getting calls from lawyers who saw more I thought it would be worthwhile to take a longer look at the firm and its supposed client. More
Just a brief note about another alleged abuse of the ADA. According to a press release from the Department of Justice an attorney living in Florida filed hundreds of lawsuits naming as plaintiff individuals whose identities he stole. You can read the press release at this link. If you take the nearly 1000 cases filed by Mr. Finkelstein and add them to the lawsuits filed by Oscar Rosales, Peter Strojnik Sr., and Scott Dinan it starts to become clear that a significant percentage of ADA Title III lawsuits are filed solely to enrich a lawyer and often without any substantive merit. While some commentators say the ADA needs to be scrapped, the real solution is simply to provide a procedure for early dismissal with minimum expenditure of defense attorneys’ fees. Some courts have instituted mandatory mediation programs with this goal, but in many cases the cost of mediation alone makes defense impractical. The real solution is simply a heightened standard for standing that requires plaintiffs to have suffered a real injury and a heightened standard for pleading that requires plaintiffs to identify specifically the ADA violations they claim to have encountered. With that and a program of referring every Title III complaint to a magistrate judge for examination (similar to the way most courts handle pro se complaints) abusive lawsuits could be substantially reduced. The goal is not to make it impossible for plaintiffs to file ADA lawsuits, but rather to limit such lawsuits to those who have suffered a real injury.