The financial markets are bouncing around like ping pong balls, but there is one financial indicator that is only going up. For website accessibility litigation we have a bull market and no sign of a recession. Based on federal filings alone the number of website accessibility cases almost tripled in 2018, increasing by 181%*. For ordinary serial ADA litigation based on parking and restrooms the market is flat and the cases confirm the general lack of consistent standards across circuits and between judges – know your court is the rule with respect to every strategic decision. The fake service animal businesses online continue to outrage businesses but without much resulting litigation. A few notable serial filing lawyers have gotten trouble, but the 181% increase in federally filed** web access cases has created both the most serious threat to businesses and the most interesting legal developments in Title III litigation. More
Accessibility Litigation Trends
Obesity and the ADA: Who is disabled and when does it matter?
Velez v. Il Fornanio (America) Corporation, 2018 WL 6446169, at *1 (S.D. Cal. Dec. 10, 2018) provides a perfect case study in the problems that arise when mental impairments give rise to physical impairments and both give rise to an ADA claim. The opinion isn’t long, but it deserves a careful look since obesity is on the rise and may represent the next frontier in disability rights litigation. More
Quick Hits – Cyber Monday edition
That’s right, it’s Cyber Monday. Interestingly enough there have been no ADA web access decisions since my last Quick Hits blog, but there are still a few developments of interest.
The long road from an interesting partial victory to a final settlement.
I blogged about States v. Mid-America Apartment Comms., Inc., 247 F. Supp. 3d 30, 36 (D.D.C. Mar. 27, 2017) last year.* The case was interesting because the defendant got a preliminary ruling suggesting that a certificate of occupancy based on a building code that incorporated FHA standards could be a defense to a claim under 28 USC §3604(f)(3)(C) for failure to properly design and construct multi-family housing. The potential for this defense was recognized in Miami Valley Fair Hous. Ctr., Inc. v. Preferred Living Real Est. Investments, LLC, 2018 WL 4690790, at *8 (S.D. Ohio Sept. 28, 2018) but found premature in a summary judgment context. Then, on November 21 of this year the Department of Justice announced a multi-million dollar settlement with Mid-America. I was interested in what happened between the 2017 ruling and the 2018 settlement, so I reviewed the case file to see if anything of interest to other defendants might appear. More
Rethinking ADA standing – web access cases are pointing the way.
The Supreme Court has said that before a plaintiff can file suit in federal court he or she must have suffered a “concrete and particularized” injury. The requirement is constitutional and comes from the case and controversy clause in Article III. For statutory claims like those under the ADA this means an injury of the kind the statute was intended to prevent. The rise of ADA website lawsuits has caused some courts to take a look at just what injury the ADA was intended to prevent. Was the ADA intended to prevent those with disabilities from suffering some dignitary harm based on the mere knowledge that discriminatory conditions exist, or does it require real discrimination in access to goods and services? More
Best blog anyone?
Accessibility Defense has once again been nominated for the Expert Institute’s Best Legal Blog competition. If you agree that this is useful tool for you please go ahead and vote for us, which you can do at this link: Vote for Accessibility Defense.