DOJ’s recent decision to put regulations concerning the internet and the ADA on indefinite hold has important implications for business, but not all of them are good.* It seems likely this move was prompted by executive orders from the Trump Administration requiring that agencies review proposed regulations and limit those that might increase costs to business. This has not been a notable success in terms of dollars. The savings so far ($22 million per year) amount to only .3% of the cost of regulations issued in the last five years. More important, at least with respect to the ADA, DOJ’s calculation that no regulation saves money ignores the very large cost imposed on business by uncertainty about how to deal with internet accessibility in an age when suing under the ADA is a large and growing industry. The proposed DOJ regulations, while they were absolutely wrong about the scope of the ADA with respect to the internet, at least provided business and the courts with guidance about what might be required. Without the regulations we are left in a wild wild west of conflicting court decisions and no officially sanctioned standard by which to judge internet compliance. More
Accessibility Litigation Trends
Wasted time and money – Starbucks and the ADA
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA Attorney's Fees, ADA Mootness, ADA Point of Sale Tags: Point of Sale, Starbucks
In some ways the 9th Circuit’s recent decision in Kalani v. Starbucks Coffee Co., 2017 WL 2813864, at *1 (9th Cir. June 28, 2017) is one of the saddest in the long history of ADA litigation. Robert Kalani was a mild kind of serial plaintiff who filed 15 cases in the Northern District of California over a period of several years. The most seriously litigated was his lawsuit against Starbucks, which claimed in part that point of sale displays encroached on the clear counter space required by the ADA. Now it is almost over, revealing both the minimal impact that individual lawsuits have on accessibility and the incredible waste of money involved in defending such cases. More
Science v. HUD – science and business are the losers.
By Richard Hunt in Accessibility Litigation Trends, FHA Emotional Support Animals, FHA Reasonable Accommodation
Anyone reading the news, or at least the disability news, understands that so called emotional support animals for persons with mental disabilities are a big deal. The number of HUD complaints based on refusals to allow ESA’s is growing, and there is a booming industry filing complaints, selling fake service dog paraphernalia, and selling bogus diagnosis of disability. With all this going on, it might be reasonable to ask whether there is any evidence at all that ESA’s at home or on an airplane are really of any value at all to a person who is disabled. Despite the noise from animal advocates, the science doesn’t support their claims. More
Getting real – a step in the right direction for ADA claims
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, FHA Tags: ADA Fairness, ADA pleading, Drive-by ADA Plaintiffs, FHA Pleading, serial litigation
The usual elements of a complaint filed under the FHA and ADA are:
- A lengthy and unnecessary recital of the legislative history of the law, including all kinds of statements about the historical oppression of those with disabilities,
- A broad allegation that the plaintiff visited the defendant’s location, without details that might make the claim verifiable, and
- A series of broad statements about violations of the law that, once again, lack any detail that would make them verifiable.
Hello Amazon, and welcome to the world of ADA litigation.
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA Internet, ADA Internet Web, ADA Web Access Tags: Amazon, internet accessibility, WCAG 2.0, website accessibility, Whole Foods acquisition
The major news outlets seem to have overlooked the most interesting aspect (to me) of Amazon’s acquisition of Whole Foods; that is, Amazon’s leap into the world of serial ADA filers and controversy over internet accessibility. Amazon has experimented with physical stores, but soon it will have hundreds of them in the U.S., and every one of them has some kind of ADA accessibility issue. That isn’t an accusation, but an assumption based on the highly technical requirements in the 2010 ADA Standards and the proven inability of even the most sophisticated organizations to control the hundreds or thousands of people whose jobs are not primarily related to accessibility to do what is required. Somebody’s going to stack boxes in a hallway, block a checkout counter, take too long to repair a vandalized accessible parking sign, or fail to notice a 10% slope where 8.3% is the maximum. Whole Foods has already been sued many times based on accessibility failures in its stores. More