ADA – Hotels

FHA and ADA Quick Hits – afternoon showers edition

By in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Internet Web, ADA Litigation Procedure, FHA, FHA design/build litigation, Internet Accessibility Tags: , , , , ,

August is (in Texas at least) the month of afternoon thunderstorms. It’s a good metaphor for running a business subject to the ADA or FHA. Everything’s sunny and warm one minute then suddenly the wind is blowing and you are soaking wet. But the plants need the rain, so as usual there’s good and bad in ADA and FHA developments.

Unruh Act and the Internet – half a loaf is better than none.

You can read a detailed analysis of Matinez v. Cot’n Wash in Bill Goren’s blog “Gateway is Everything in California” so I’ll just hit the highlights. There is an ongoing controversy about whether the Americans with Disabilities Act applies to the websites of businesses with no physical facility open to the public. Some courts say yes and some say no. The Ninth Circuit, which covers federal courts in California, says “no.” As result the most prolific serial ADA filers, including the Pacific Trial Group and Apex Trial Law¹ turned in recent years to California’s Unruh Act and the California state courts, arguing that the Unruh Act does cover online only businesses. At least some lower California courts have agreed, but in Martinez v. Cot’n Wash one California Appeals court (there are six in all) said no, holding that the Unruh Act does not apply to the websites of online only businesses. This is big news coming from a state where thousands of serial ADA lawsuits and even more demand letters are sent every year. It isn’t the end of the road. While the decision is binding on lower courts, it isn’t binding on other California appellate courts or on the California Supreme Court, to which Marinez v. Cot’n Wash is likely headed. It also doesn’t apply to websites associated with physical facilities open to the public so it is not likely to lead to an immediate end of demand letters and lawsuits. California’s ADA litigation industry relies more on the threat of costly litigation than on the reality of winning and losing so until making a threat is sanctionable (which will require that the California Supreme Court speak) they probably won’t slow down. It likely though that the price of settlement will go down as it already has in face of other less dramatic losses in the last couple of years.

And for a different view of website accessibility.

In Walters v. Fischer Skis U.S., LLC, 2022 WL 3226352, at *7 (N.D.N.Y. Aug. 10, 2022) a New York federal court agreed with many of its sister courts that the ADA does apply even to internet only businesses. It also rejected a standing challenge based on the plaintiff’s alleged history as a skier, which made it plausible that he would shop at a ski manufacturer’s website. ADA website litigation is far from over.

Hotel websites – good enough for DOJ is good enough.

A number of ADA serial plaintiffs have tried to advance the notion that a hotel website whose accessibility information meets DOJ regulations might still not be sufficient to satisfy the ADA. In Love v. Marriott Hotel Services, Inc., 40 F.4th 1043 (9th Cir. 2022) the Ninth Circuit agreed with what I think is the unanimous opinion that if a website meets DOJ requirements then it satisfies the ADA.(7) It didn’t take long for lower courts to agree and dismiss cases. See, Salinas v. IA Lodging San Diego, L.L.C., 2022 WL 3219409, at *5 (S.D. Cal. Aug. 8, 2022).

Treating everyone the same can be an invitation to litigation.

A pair of recent cases and a DOJ press release all remind businesses that they must accommodate(9) those with disabilities even if that means not following internal procedures and treating disabled patrons differently than others. The problem is illustrated Martinez v. County of Alameda, 2022 WL 3327924 (N.D. Cal. Aug. 11, 2022). Martinez was blind. When she tried to file an assumed name certificate with the county an employee told her that it contained errors and what they were. Because she could not fix the mistakes herself she asked the clerk and then a supervisor for help. They refused because the county had a strict policy that while clerks were required to point out mistakes and even let a patron correct them on the spot clerks could never provide any help at all to anyone beyond telling them what was wrong with their forms. The Court denied motions for summary judgment on both sides, finding the plaintiff had a viable claim for failure to accommodate discrimination and for a claim that the county’s policy had a disparate discriminatory impact on those with disabilities.  Treating everyone the same may not be good enough for the ADA.

The defendant did better in Williams v. Bank of Am., 2022 WL 3141863 (E.D. Cal. Aug. 5, 2022) perhaps because the plaintiff was pro se and didn’t present her case properly. Williams wanted Bank of America to stop escrowing her insurance and taxes for reasons related to her mental illness. The Court’s analysis was simple: Bank of America treated her exactly like everyone else and so there was no discrimination. What Williams wanted, of course, was not equality but an accommodation in the bank’s policies that she thought was necessary for her equal use of the bank’s services. Equality of treatment isn’t a defense in an  accommodation case; after all, the point is to get different treatment, not the same treatment. The bank probably would have won regardless because the accommodation requested related less to the plaintiff’s needs than to an obsession with written receipts, but like Alameda County banks and other businesses must remember that a policy that merely treats those with disabilities the same as those without might violate the ADA.

That brings us to a recent DOJ press release announcing a settlement of a claim that a state agency didn’t provide interpretation services to those with disabilities.² The settlement sets out DOJ’s three requirements for interpretation services; requirements that would apply to Title III public accommodations as well as Title II governmental entities:

  • There must be an ADA coordinator to make sure the ADA is followed
  • There must be contracts in place with interpretation services so the services can be readily supplied and
  • Everyone involved needs training so they understand the obligation.

It is a good outline for any business that might have sustained interactions³ with hearing disabled individuals, but the key is not the degree of bureaucracy and rules, but the awareness of employees that they must accommodate disabled clients and customers in a way that is suitable for the occasion. It isn’t enough to treat everyone equally or to strictly follow the rules; sometimes the ADA requires different treatment and breaking the rules to accommodate the needs of those with disabilities.

What’s the right price for accessible seating?

Another DOJ settlement, this time with the City of Denver as owner of the Red Rocks Amphitheatre (as well as various promoters) reminds theaters, concert venues, stadiums and others to be careful about pricing accessible seating.(4) I was recently at Red Rocks and understand (I think) the origin of the problem. The amphitheatre is set in the side of a mountain and it wasn’t easy to make seating accessible except along the edge of the plaza at the top and in the first row at the bottom. These are, respectively, the worst and best seats in the house. I don’t know the specific prices in question, but I would bet the complaint was that accessible locations in row 1 were charged at the usual premium price, meaning non-ambulatory concert goers had no less expensive alternative than the worst seats possible. Federal regulations do not require creating accessible seats where it isn’t possible to do so, but they do require that disabled individuals have available the full range of ticket prices. In other words, if you have different ticket prices based on how far back the concert-goer sits there must be some accessible seats at each price point even if the only seats are in the most expensive location. Since you can’t charge more for the bad seats I assume Red Rocks will be required to charge those at the top the cheapest price like the rows immediately below them, but divide the accessible seating in row 1 into different groups and charge for them as if they were at various levels higher up. There is no way to make this fair to everyone all the time. Somebody in row 1 is going to be paying the same price as those up in row 50 while the person next to them is paying the premium price of a row 1 seat. The good news is that this won’t happen often because accessible seating is mostly unused.  There are about ten times as many accessible seating locations as are usually sold based on the numbers in DOJ’s press release, so a full range of prices should be available most of the time.

Another FHA settlement based on badly built apartments.

A recent settlement of an FHA case brought by local advocacy groups should remind apartment developers that the FHA’s requirements for accessibility can’t be ignored although apartment designers and contractors often do so.(5) The problems listed are all problems I have seen in similar FHA lawsuits:

  • kitchens with insufficient room for wheelchair users
  • bathrooms with insufficient room for wheelchair users
  • sliding glass doors with thresholds too high for wheelchair users
  • mailboxes too high for wheelchair users
  • inaccessible public spaces.

Having seen these so many times I can almost guarantee many of the problems were caused by:

  • galley kitchens specified with exactly the minimum width so that when the contractor misplaced the cabinets by an inch or two, or used wider countertops, the kitchen became too narrow.
  • kitchens of any kind where the designer didn’t take into account the fact that standard refrigerators are deeper than standard countertops, so the refrigerator created a space that was too narrow.
  • the designer specified bathrooms at the minimum to meet FHA requirements without considering that an in-swinging door could not be closed by a wheelchair users.
  • the designer specified bathrooms at the minimum to meet FHA requirements so that mis-located walls made it too small or mis-located plumbing stacks put the toilet to close to or too far from the wall.
  • the contractor used standard sliding glass doors with a typical 1″ or higher lip, which is twice as high as the FHA standards allow.
  • no matter what the designer specified, the electrician installed a/c and heating controls at a height that is convenient to install, which is a foot higher than the maximum permitted by FHA standards
  • sidewalks leading to common use facilities were too steep
  • gates to pools had the opening mechanism too high (because local codes require child-proof mechanisms and making them high is the cheapest way to do this)
  • the approaches to gates and doors were not large enough to meet FHA standards
  • mailboxes were standard stock units that have many mail slots higher than the maximum allowed by the FHA(6)

Developers of multi-family housing (remember the FHA covers condominiums as well as apartments) must take into account how easy it is for designers to make mistakes and that their contractors believe in industry tolerances that may not apply in an FHA or ADA context. The name of the game in multi-family is often to create the maximum number of units in the minimum amount of space, and that leads inevitably to construction that doesn’t meet FHA requirements.

How equal is equal enough?

The discussion of standing in Barnes v. AKM Foods, Inc.,  2022 WL 3229832 (E.D. Cal. Aug. 10, 2022) illustrates but doesn’t resolve a common problem in ADA litigation. If equality is impossible, how close do you have to get? The plaintiff alleged that the path of travel from accessible parking to the restaurant in question was too long and had excessive slopes that made it difficult for her although she did make it in the door (where she was turned away because of her dog). The defendant said that since the plaintiff made it inside she suffered no injury from the length and steepness of the route, but the court was willing to say there was an injury alleged and declined to consider evidence related to the details. The ADA accessibility standards are supposed to eliminate the question of how equal is equal enough. If the physical route meets those standards it is good enough; if not it isn’t. The plaintiff’s subjective experience is (in theory) irrelevant. The problem in this and similar cases is that the plaintiff pleaded a subjective case and the court refused to consider objective evidence at the motion to dismiss stage. Plaintiffs should be required to specify that the supposed architectural barriers violated the 2010 ADA Standards and, to give defendants a chance to get out without unnecessary legal fees, courts should be willing to accept evidence of compliance with those standards at the earliest stages of the lawsuit.

Surrender as a strategy

A typical ADA serial filer case settles because the cost of defense exceeds the cost of settlement and, of course, the harder you fight the more attorneys’ fees must be paid if the plaintiff wins. Half of this problem can in theory be solved by an offer of judgment. Under federal procedural rules this offer cuts off the plaintiff’s ability to run up their fees provided that they win no more than they were offered. The problem is the plaintiff can turn down the offer and still force the defendant to spend money defending the case. In
Cuesta v. DTC Lodging LLC, 2022 WL 3212924 (D. Colo. Aug. 9, 2022) the defendant avoided this problem by a complete surrender. It made an offer of judgment, admitted to ADA violations, and then moved for a judgment against itself to cut off the plaintiff’s ability to prolong the case. And it worked. The district court, over the plaintiff’s objections, entered a judgment against the defendant. The plaintiff’s lawyers will get fees, but only what they can justify for doing almost nothing. There is a bonus as well. The terms of the court’s permanent injunction are probably too broad to be enforceable, so the plaintiff may have no ability to force the defendants to fix anything at all.

Why not make an offer of judgment in every case? It may not be the cheapest way out. I routinely settle cases where the total cost to my client is less than what it would cost to go through the procedural machinations in Cuestra.  There is also a risk that remediation will involve unexpectedly high expenses. This is always a problem in website cases where remediation costs are high and difficult to estimate.  It can also be a problem in physical accessibility cases unless the defendant has paid for an expert analysis of all the items needing remediation. If the plaintiff’s attorney insists that the court’s injunction be specific enough to enforce, the defendant has the possibility of crippling remediation costs. I see this strategy as a useful means to push the plaintiff into a cheaper settlement, but if that doesn’t work Cuestra shows how the defense can win a case by agreeing to lose it.

And fighting for the sake of the fight.

In Brooks v. Tapestry, Inc.,  2022 WL 3229779 (E.D. Cal. Aug. 10, 2022) the defendant did what I’ve done hundreds of times in substantial business lawsuits; that is, launched their defense with a barrage of affirmative defenses (22 to be exact) that left open the possibility of defending the case on every theory imaginable. The plaintiff, a well known serial filer, responded with an all out attack on the propriety of pleading these defenses, arguing in many cases that they were not technically affirmative defenses because the plaintiff had the burden of proof. The defense won this round, with the court allowing it to plead all but one defense that was merely a duplicate of another. What the decision doesn’t answer is why so much time and money was spent on these issues. It is almost certain the plaintiff would have settled for less than the attorneys’ fees spent on this one very preliminary procedural skirmish, and while that might have included an agreement to make the website in question accessible the defendants claimed it already was. As for the plaintiff’s response, attacking the pleading of an affirmative defense is almost certainly a waste of time. After all, what matters in the end is the defendant’s ability to prove their affirmative defenses, not their ability to put it in a pleading.

There are justifications for a scorched earth litigation strategy. Maybe the defendant wanted to show to other prospective plaintiffs that they should find other, easier prey to attack. Maybe the plaintiff wanted to prove their willingness to fight so other defendants wouldn’t try the same thing. Maybe there were other motives on both sides that we’ll never know. What I can say for certain is this strategy probably doesn’t make sense in any case where the defendant just wants to get out as cheaply as possible.

Holding plaintiffs to the same standard as defendants.

ADA lawsuits often rest on what are at best technical violations of the ADA standards – a ramp that is 1/2% too steep or a sign that is an inch too low. In Gastelum v. C. Valley Hosp. LLC,  2022 WL 3211747 (E.D. Cal. Aug. 9, 2022) the Court held the plaintiff  to a similarly rigid standard when he sought a default judgment against the defendant. After several tries the plaintiff properly served one defendant, but the motion for default judgment had been filed based on an earlier failed attempt and so the magistrate judge refused to recommend it be granted. This isn’t something any defendant should count on happening and default can be very risky, but it is nice to see the old legal principal “what’s sauce for the goose is sauce for the gander” in action.

Tenant v. tenant – what’s a landlord to do?

I found the decision in Hume v. Guardian Mgt. LLC, 2022 WL 3226992 (D. Or. Aug. 10, 2022) particularly interesting because a client asked me about a similar issue just yesterday. In Hume a disabled tenant made an escalating series of accommodation requests concerning reserved parking, the last of which was that her parking space have an access aisle next to it. The landlord drew the line at the last request because it would have meant kicking some other tenant out of their reserved spot. The Court agreed the last request for accommodation was not reasonable because of the effect on another tenant. The FHA should never require a landlord to grant an accommodation that has a direct negative impact on another tenant; after all, the cost of providing fair housing should not fall on innocent bystanders.(8)

When serial filers can’t win against an opponent who doesn’t show up.

Brian Whitaker is a typical ADA serial filer. In order to avoid making it obvious that he never intended to do anything but file a lawsuit his complaints are intentionally vague about where he lives in relation to the places he sues. In Whitaker v. Authentic Sole, LLC, 2022 WL 3327375 (E.D. Cal. Aug. 11, 2022) the Court refused to grant a default judgment in Whitaker’s favor because it did not have enough information to determine whether Whitaker had standing to sue. Whitaker gets another bite at the apple, but it isn’t clear being more specific will help his cause. When a complaint is vague about the truth the usual reason is that the truth hurts.

++++++++++++++++++++++++++++++

¹ “Apex” is a popular name for law firms, including at least one other that handles disability law cases. I’m referring to Ryan Ferrell’s law firm.

² https://www.justice.gov/usao-edva/pr/goochland-powhatan-community-services-agrees-settle-americans-disabilities-act

³ businesses with only short term interactions of less consequence, like restaurants and retailers, can use more informal means of communication like notes.

(4) https://www.justice.gov/usao-co/pr/us-attorney-s-office-reaches-settlement-city-denver-and-concert-promoters-relating.

(5) I was not able to get the settlement itself, but an article about it can be found at https://www.syracuse.com/crime/2022/08/company-with-cny-apartment-complexes-agrees-to-pay-7m-to-settle-disability-lawsuit.html

(6) I’m not picking on this vendor, but the picture on their home page illustrates the problem. The maximum height for an accessible mailbox is 48″ which is probably shoulder height on the smiling gentleman at https://www.mailboxes.com/apartment-building-mailboxes/?gclid=EAIaIQobChMIlPCz9bnH-QIVH8LCBB0jzwFCEAAYASAAEgJg6PD_BwE

(7) If you search my blogs for “Reservations Rule” you’ll find most if not all the previous cases discussed at least briefly.

(8) See my blog The horns of a dilemma – landlords, tenants and emotional support animals under the FHA for a similar case. There is a difference between a direct harm to another tenant like taking away a parking space and the indirect harm every other tenant suffers when an animal is allowed as an accommodation in a “no pets” apartment complex. For landlords the difficulty is knowing what constitutes a direct harm in cases of conflict between tenants with opposing needs.

(9) There is a persistent vocabulary problem in discussing both the ADA and the FHA in the same blog. The ADA requires that covered entities “modify” their policies and procedures when it is necessary for the equal use of or access to their goods and services. The FHA requires that housing providers “accommodate” those with disabilities in the same way, and uses “modify” to refer strictly to physical changes in a dwelling. I use “acccommodate” in the FHA sense when discussing ADA matters because it seems to be readily understood, while using the word “modify” in ADA cases can lead to confusion.


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Quick Hits – If you’re going through hell edition.

By in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA Attorney's Fees, ADA Internet Web, ADA Litigation Procedure, ADA service animals, ADA Vending Machines, ADA Web Access, FHA Emotional Support Animals, HOA, Public Facilities, Reasonable accommodation, Rehabilitation Act Tags: , , , , , , ,

Dante’s hell was a complicated place, as this map by Botticelli suggests. Although Rodney Atkins’ advice “if you’re going through hell, keep on going” appears sound, winding through all the complexities of the ADA and FHA can seem like descending through all nine levels of hell. Nonetheless, I’m happy to act on a temporary basis as Virgil and see how far we can get. No promise about whether we’ll find a Beatrice to take you to Paradise.

Self-service kiosks under fire

Davis v. Laboratory Corp. of Am. Holdings,  2022 WL 1682416, at *1 (C.D. Cal. May 23, 2022) certifies a class of blind users in a class action based on inaccessible self-service kiosks.(7) There is a theme here that runs through a variety of ADA cases dealing with time and cost saving technology. From the famous and finally settled Dominos case through the various kiosk decisions the heart of the question is to what degree those with disabilities must suffer inconvenience in their access to goods and services. Some inconvenience is inevitable – disabilities are disabling – but when the path to goods and services is blocked by technology inconvenience becomes inequality. In Dominos sighted pizza lovers could order a pizza in a few minutes with an app on their phone while blind users had to call and wait on line for a couple of hours. In Davis and similar kiosk cases clients could arrive and log in quickly and easily or, it is alleged, wait a long time for personal service. I find it hard to believe designing an accessible kiosk is especially difficult – standards for ATMs have been in place for a dozen years and the technology is similar. We all know litigation is not the solution to this kind of thoughtlessness, but I advise my clients to avoid the problem by only dealing with vendors who offer accessible technology.

Mootness – non-existence is pretty good proof no meaningful relief is possible.

In Whitaker v. Chan, 2022 WL 1814142 (N.D. Cal. June 2, 2022) the court had little trouble finding the original complaint was moot when there was no operating business in the facility being sued. Along the way it reminded us that damages, including nominal damages, cannot be recovered under the ADA and that Unruh Act claims don’t belong in federal court.

Mootness – pulling the trigger a little too soon.

In Dalfio v. J.G. Mgmt Properties IV, LLC et al, 2022 WL 2079716, at *5 (S.D. Cal. June 9, 2022) the defendants came within 2 alleged ADA violations of getting the case dismissed at the Rule 12 stage. The problem was that while the Court was skeptical about the remaining violations, “the merits of the action are intertwined with the jurisdictional issue of mootness and jurisdictional findings would be inappropriate.” In another case from the same plaintiff the defendant lost a motion for summary judgment because the plaintiff’s expert found remaining ADA violations. Dalfio v. Barlas, 2022 WL 1693827, at *1 (S.D. Cal. May 26, 2022). Mootness is tricky because ADA requirements are numerous and complicated. As a defense strategy it must be carefully managed. (9)

Factual attacks on standing – you need to find the trigger

In Johnson v. Rosvin, Inc., 2022 WL 1987857 (N.D. Cal. June 6, 2022) the defendant leveled what is called a factual attack on standing at the Motion to Dismiss phase. This requires evidence, which the defendant provided in the form of a defective declaration that had some obvious misstatements of fact. You don’t need to like Scott Johnson or his lawyers to know that having filed hundreds, maybe thousands, of lawsuits they know how to say what needs to be said. I wrote long ago that outrage is neither a defense nor a substitute for a carefully planned strategy.²

An HOA on the warpath.

In Parada v. Sandhill Shores Prop. Owners Assn., Inc., 2022 WL 1693977, (S.D. Tex. May 25, 2022) the defendant attacked the plaintiff’s claims in every way imaginable but failed, predictably, in every case. It’s worth looking briefly at the facts. The plaintiff suffers from Alzheimer’s disease which is a handicap or disability under either the FHA or ADA. The defendant claimed it wasn’t, which was foolish and may have made other defenses less believable. The FHA injury claimed by the plaintiff was the inability to use her house without constant fear and distress because a proposed beach access path would constantly bring strangers near her house, something that can be unusually upsetting for those with profound memory loss. Evidence might eventually establish that her distress was not so severe she could not equally use and enjoy her dwelling, but once you assume the pleadings are true the truth becomes an issue for another day. The defendant treated the plaintiff’s ADA claim as if it were the same as her FHA claim; that is, the only question was the use and enjoyment of her home, which is not an ADA public accommodation. The problem, as the court correctly pointed out, is that there was a public accommodation at issue, the beach.(10) Just because an action interferes with the use of a home doesn’t mean it can’t also interfere with the use of a public accommodation. The last gasp was an effort to stop the federal lawsuit because there was a parallel state court action based entirely on state law principles. Because the outcome of neither was determinative of the other abstention was denied.

There was one interesting note at the end of the decision. the HOA claimed it was compelled to place the beach path by the plaintiff’s home by the Texas Open Beaches Act and the City of Galveston Beach Access Plan. It is worth remembering that municipalities and many state agencies are also subject to the accommodation requirements in the Fair Housing Act. Just because it violates the law doesn’t mean it is impossible to do.

Surrender as a strategy, with a twist.

I note default judgment cases, usually from California, just to see what the market price of a default might be. In Cuesta v. DTC Lodging LLC, 2022 WL 2077940 (D. Colo. June 8, 2022) and Meggs v. Colorado Hosp. Group, LLC, 2022 WL 1810597 (D. Colo. June 2, 2022) the defendants took a more affirmative approach to surrender. They admitted all the material allegations in the plaintiff’s complaint and moved for entry of judgment against themselves. The goal was explicit – cut off the expenditure of money on attorneys’ fees. The plaintiff opposed the motion because, I suspect, it did the one thing no plaintiff’s firm can live with – it limited the profit they would make from the litigation. It is worth remembering that almost all Title III ADA lawsuits are about money for lawyers, not access for the disabled. In any case the courts thought the defendant’s approach was reasonable and granted the motion for judgment. I have been a proponent of this kind of strategy for a long time, but this is the first time I have seen it successfully implemented.¹

Default as a strategy

In Gastelum v. C. Valley Hosp. LLC, 2022 WL 2072839 (E.D. Cal. June 9, 2022) the plaintiff, a serial filer who now seems to file pro se because his attorney, Peter Strojnik, is not practicing law, failed to obtain a default judgment because he couldn’t get the defendants’ properly served. The lesson for defendants, found in the details of the decision, is that adequate service is not subject to rigid rules. Another court might have found service was adequate and granted a default judgment. Default as a strategy should be a choice, not an accident.

The market for default judgments is slipping. In Johnson v. Iguanas Burritozilla, Corp., 2022 WL 1750472 (N.D. Cal. May 31, 2022) the court awarded a total of $1085 in attorneys’ fees. All you need to know about the industrial nature of this litigation is that the total attorneys’ time was 2.2 hours and that 14 different legal assistants billed time to the matter. It’s not a law firm, it’s an assembly line.

Johnson and his lawyers did better in Johnson v. Pennylane Frozen Yogurt, LLC, 2022 WL 1750382, (N.D. Cal. May 31, 2022) with an award of $1,912.50. To file this cookie cutter lawsuit required 4 lawyers and 13 legal assistants. It’s a volume business.

If Disney World isn’t your cup of tea

go to Florida for cheap ADA standing. Following the Eleventh Circuit’s lead in Laufer v. Arpan, LLC, 29 F.4th 1268 (11th Cir. 2022), the court in Lugo v. Island Harbor Beach Club, LLC,  2022 WL 1773973, at *2 (M.D. Fla. June 1, 2022) denied a motion to dismiss against a serial website tester. The district court had little choice, but the 11th Circuit got it wrong³ and will have to opportunity to deal with the hundreds or thousands of lawsuits that are sure to result.

Disney Land, on the other hand, may be less welcoming. The Court’s analysis of standing in Gastelum v. Pinnacle Hotel Circle LP, 2022 WL 1608704, at *5 (S.D. Cal. May 20, 2022) is very much in line with the 2nd Circuit’s recent decision in Calcano v. Swarovski N.A. Ltd. (8) The court wanted specific facts justifying an injury and intent to return rather than the usual vague claims about willingness to return at some time in the future. Gastelum is given an opportunity to amend but run into the age old problem of serial litigants: the more you say the easier it is to spot the lies.

It’s hard to make a quick buck with a class action.

Serial litigation is all about making a quick buck. The goal is a lawsuit expensive enough to make the defendant want to settle and an offer of settlement cheaper than the cost of defense. One way to bump up the potential defense costs and risks is a class action, and many ADA serial lawsuits include a class action claim. In Brooks v. Morphe LLC, 2022 WL 2052680, at *1 (E.D. Cal. June 7, 2022) the defendant didn’t bother to answer the lawsuit, but because it was presented as a class action the court declined to enter judgment without certifying the class. Efforts to certify a class were apparently slipshod – not surprising when the goal is to keep costs as low as possible in order to maximize profits. The result was an order requiring a do-over. I don’t understand why the defendant did not appear to fight the lawsuit because unlike many physical access cases, website cases are very risky in terms of the potential remediation costs. I do understand why the plaintiff’s lawyers didn’t do a good job (according to the Court). Nothing in the ADA serial filer business model calls for it.

Remembering the “nexus” requirement in the 9th Circuit.

The Ninth Circuit has held that a website is covered by the ADA only if it is associated with a physical place of business. Langer v. Oval Motor Sports, Inc., 2022 WL 1914063 (N.D. Cal. June 3, 2022) is a reminder that this “nexus” requirement means that a website violates the ADA only if the lack of website accessibility inhibits the user’s ability to take advantage of the goods and services of that physical business. The Court granted a motion to dismiss because the plaintiff only alleged he had trouble accessing the website, not that he had trouble accessing the business itself. The same result was reached in Gomez v. Ackerman Fam. Vineyards LLC, 2022 WL 1693707, at *3 (N.D. Cal. May 26, 2022). This will be a useful defense against plaintiffs who find it easy to sue based on an inaccessible website but might find it hard to drive all the way to the physical business.

Pigs get fat. . .

I’ve never really understood why the saying “pigs get fat, hogs get slaughtered” makes any sense. Not being a farm boy I had to Google the difference between pigs and hogs, the later being (I’m told) bigger than the former. Assuming bigger means greedier I guess this bit of folk wisdom applies to the plaintiffs’ lawyers in Caplan v. All Am. Auto Collision, Inc., 2022 WL 1939553 (11th Cir. June 6, 2022).  It was a standard ADA serial filer case. Mediation failed because the plaintiffs’ lawyers demanded too much in attorneys’ fees. They then moved for summary judgment and won, but the district court cut their fees by 75% based on excessive billing and other conduct that appeared designed to drive up the fees. The Eleventh Circuit agreed, affirming an award of just $7500. On its face that is a very low amount for fees through summary judgment in a federal lawsuit, and I think it can only be understood as reflecting both the District Court and Court of Appeals knowing the case would have settled at mediation but for the excessive attorneys’ fee demands. I have to believe that a more reasonable fee application might have been granted without this kind of reduction. By demanding far too much the plaintiffs’ attorneys showed their true colors.

Real ADA problems make for complicated lawsuits.

Tyler v. Valley MRI and Radiology, Inc., 2022 WL 2067859, (E.D. Cal. June 7, 2022) is not your typical serial filer ADA lawsuit. In fact, it is not a serial filer case at all. The plaintiff was real patient of the defendant and her claim – that the only accessible parking was not as close as it should be to the building – wasn’t obviously correct or incorrect. The legal issue – must accessible parking be as close as possible to a building entrance – couldn’t be resolved without a trial. The discussion of the legal issue is worth reading for any defense counsel facing this kind of claim. The case itself is a refreshing change from the usual endless line of decisions dealing with serial filers.

Lack of pre-suit notice as an ADA defense.

It isn’t clear why the plaintiff in Munoz v. S. Fla. Fair and Palm Beach County Expositions, Inc., 2022 WL 1744013 (S.D. Fla. May 31, 2022) thought it was worthwhile to try to strike an affirmative defense based on lack of pre-suit notice, but the result is a good discussion of the role pre-suit notice might play in an ADA case. The bottom line: pre-suit notice is not required by the ADA but a failure to give notice may be evidence that the plaintiff “acted in bad faith, [was] unduly litigious, or [ ] caused unnecessary trouble and expense.” None of these are easy to prove, but all of them might be present in a typical ADA serial filer case.

Doesn’t the point of the law matter?

I’ve been corresponding with William Goren, who just blogged about an interesting standing decision from the Seventh Circuit.(4) The Rehabilitation Act(5) decision in Ellison v. U.S. Postal Serv., 2022 WL 1617435, at *4 (S.D. Ind. May 19, 2022) gets right at the heart of our discussion about tester standing and whether the goals of the statute matter in determining if the tester suffered an injury. The plaintiff, who was wheelchair bound, could not access her local post office because it had stairs. Various solutions were tried but, she said, were not sufficient. She could, however, get the same goods and services from three other post offices within ten miles of her home. The Court dismissed her claims under the Rehabilitation Act because the law was intended to guarantee access to government programs, not government facilities. In this case the post offices were a little more inconvenient, but that didn’t add up to a denial of meaningful access. The case is being appealed, but Indiana is in the Seventh Circuit and the case Bill blogged about suggests the plaintiff will fare no better in the court of appeals.

Indemnity in FHA design/build cases.

The decision in  U.S. v. J. Randolph Parry Architects, P.C., 2022 WL 1645796, at *4 (E.D. Pa. May 24, 2022) is notable mostly for what it never discusses; that is, whether the FHA as a matter of policy precludes any claim shifting liability to a third party. I’ve blogged about this issue before (6) but the Court never addresses it. Instead the Court simply refuses exercise supplemental jurisdiction over state law contribution and indemnity claims because they would clutter up the discrimination case with related but not relevant issues. Of particular concern was the defendant architect’s desire to add 39 additional third-party defendants, essentially treating the case like a typical construction defect case in which everyone who ever walked onto the job suit is brought into the lawsuit in order to get at their insurance. The Court’s approach is sensible because simply allocating injunctive relief among the parties based on their individual faults can accomplish the same thing as overlapping contribution claims. The lawsuit involves fifteen facilities in four states; meaning there’s probably real money at issue. I wouldn’t be surprised to see the parallel state court cases being filed in the near future.

Sanctions against a pro se – possible but not easy.

In Simmons v. Village of Minier, 2022 WL 1607901 (C.D. Ill. May 20, 2022) the Court sanctioned a pro se serial filer, but only after giving him the benefit of the doubt on most of his abusive claims. The standard, quoted from another case, was “when a layman persists in a hopeless cause long after it should have been clear to him, as a reasonable (though not law-trained) person, that his cause was indeed hopeless, sanctions should be imposed….” Lawyers advising clients on the likelihood of attorneys fees after prevailing in a civil rights case should keep this standard in mind.

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¹ See Strategies for Surrender

² See Quick Hits – Vernal Equinox edition, Standing for serial plaintiffs – it’s a legal issue, not a moral problem and Quick Hits – Polar Vortex edition

³ See Stigmatic injury and how the 11th Circuit got in wrong in Laufer v Arpan

(4) See, Is ADA Title II, III Tester Standing a Thing Anymore?

(5) It is, more or less, the ADA for the federal government.

(6) See, Contribution, Indemnity and Disability – Does the FHA make sense? and Time for a do-over – the 9th Circuit gets indemnity and contribution right among others.

(7) See, FHA and ADA Odds and Ends for my latest note on the subject, and track back through the footnotes to the other blogs on this subject. This and other kiosk cases are not typical serial litigant cases involving a tester with dubious standing. DOJ has been active in kiosk cases and as this class certification shows they aren’t going to settle for a few thousand dollars and a meaningless promise to fix the problem.

(8) See the next blog below this one.

(9) See, Mootness and the ADA – Fighting may not be the best way to win. and my many other blogs with the word “mootness.”

(10) It isn’t clear from the opinion whether the HOA owned the beach or merely owned the land giving access to a publicly owned beach. If the HOA does not own the beach the question of whether the HOA is a public accommodation becomes a little more complex. I suspect that the path to the beach itself is a public accommodation, subjecting the HOA to the ADA with respect to that path.


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A short sharp shock – the end of the beginning for serial ADA lawsuits?

By in ADA, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Internet Web, ADA Litigation Procedure, Uncategorized Tags: , , ,

Painting of Queen Mary I of England“Short sharp shock” is too good a phrase not to re-use, as proved by the fact that after its first use by Mary I of England to describe her hope that burning a few protestants would bring others back into the fold and its popularization by Gilbert and Sullivan it turned up in a song by Pink Floyd and as the title of Michelle Shocked’s first album. My use probably won’t get added to the Wikipedia page on the phrase (7) but it suits a discussion of braille gift card litigation and the effect of TransUnion v. Ramirez in ADA litigation.

A few days after the Supreme  Court issued its opinion in TransUnion v. Ramirez I predicted that it would have an effect on ADA industrial litigation.¹ I’m happy to report that this particular prediction seems to be coming true.² The latest example is Calcano v. Swarovski N.A. Ltd., 2022 WL 1788305, at *1 (2d Cir. June 2, 2022) a case dealing with the sudden rise and fall of ADA lawsuits demanding braille gift cards.(6) The Second Circuit took its own 2013 holding on ADA standing, boosted it with the holding in TransUnion, and threw out five lawsuits with typical industrial boilerplate allegations. The Court’s reasoning deserves some attention because it will be useful  for defense counsel in any typical ADA lawsuit.

The standing related allegations were identical in all five lawsuits:

  • Plaintiff “telephoned Defendant’s customer service office in an attempt to purchase a store gift card from the Defendant and inquired if Defendant sold store gift cards containing Braille.”
  • Plaintiffs state that they live near their respective Defendants’ stores and have been customers “on prior occasions.”
  • Plaintiffs also claim that they “intend[ ] to immediately purchase at least one store gift card from the Defendant[s] as soon as the Defendant[s] sell[ ] store gift cards that are accessible to the blind.”

Beyond this they alleged in conclusory fashion that they were unable to equally use and enjoy the goods and services of the defendant businesses because they were blind and needed braille gift cards.

The Second Circuit began its analysis with its own 2013 decision in Kreisler v. Second Ave. Diner Corp., 731 F.3d 184 (2d Cir. 2013). In Kreisler the Court held that a plaintiff alleged the injury in fact and necessary likelihood of future injury if:

“(1) the plaintiff alleged past injury under the ADA; (2) it was reasonable to infer that the discriminatory treatment would continue; and (3) it was reasonable to infer, based on the past frequency of plaintiff’s visits and the proximity of defendants’ [businesses] to plaintiff’s home, that plaintiff intended to return to the subject location.”

Kreisler, 731 F.3d at 187–88. Projecting its own test onto the later TransUnion decision the Court held that third requirement, a reasonable inference of intent to return, was intended to make sure the “’the risk of harm is sufficiently imminent and substantial’ to establish standing,” quoting TransUnion, 141 S. Ct. at 2210. It went on to adopt the 11th Circuit’s standing analysis, which it describes this way:

Thus, the central inquiry is not whether a complaint pleads the magic words that a plaintiff “intends to return,” but if, “examined under the ‘totality of all relevant facts,’ ” the plaintiff plausibly alleges “a real and immediate threat of future injury.” . . . (including “definiteness of the plaintiff’s plan to return” and “frequency of the plaintiff’s travel near the defendant’s business” as factors to consider in assessing whether a plaintiff “faces a real and immediate threat of future injury” (cleaned up)).

quoting Kennedy v. Floridian Hotel, Inc., 998 F.3d 1221, 1233 (11th Cir. 2021). It did not adopt the 11th Circuit’s explicit four factor analysis concerning intent to return³ instead sticking to its own earlier and more general description of the needed analysis: “we must refer to a complaint’s “factual context” to discern whether to accept “a complaint’s conclusory statements.”” quoting Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 148 (2d Cir. 2011), which in turned quoted Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
With its framework for analysis in place the Court’s next step was a crucial one, for it rejected the idea that quoting or paraphrasing language from its own cases was sufficient. The reasoning is crucial and worth quoting:
Here, each Plaintiff pleads the identical assertion that he resides “in close proximity to” Defendants’ businesses, has been a “customer at Defendant’s [location] on prior occasions,” and “intends to immediately purchase at least one store gift card from the Defendant as soon as the Defendant sells store gift cards that are accessible to the blind.” . . . . These allegations parrot the court’s language in Kreisler, see 731 F.3d at 188, and Plaintiffs characterize them as factual assertions that we must presume as true. But these assertions are nothing more than “legal conclusion[s] couched as … factual allegation[s].
It would have been helpful if the Court had told us a little more about the difference between the allegations in Calcano and the allegations in Kreisler. Where the plaintiffs in Calcano pled “close proximity,” Mr. Kreisler pled “within several blocks,” and where the plaintiffs in Calcano pled “prior occasions” Mr. Kreisler pled that he passed by “three or four times a week.” The reason the allegations in Calcano were conclusory is that the words came not from Mr. Kreisler’s allegations, but rather from what the Court calls the Camarillo test after its decision in Camarillo v. Carrols Corp., 518 F.3d 153, 158 (2d Cir.2008). A description of a legal test is a conclusion that could apply to many different allegations. Facts, the court seems to be saying, won’t usually be alleged in words that quote a legal test.
Far more important than this distinction is, however, the Court’s willingness to compare the allegations in the various Complaints to facts that could only have come from outside the Complaint. The Court notes that one plaintiff claims he lived near a store that doesn’t exist, and that another used “close proximity” to refer to a location in Manhattan when he lived in the Bronx. Phrases like “close proximity” are used by serial litigants to avoid facts because facts are their enemy. A willingness to test such allegations against facts that cannot be disputed is the first step to early dismissal of these claims.
A second important fact is the Court’s willingness to insist on details. It describes the failings in the complaints like this:
Calcano, Dominguez, and Thorne fail to provide any details about their past visits or the frequency of such visits. They do not specify which stores they visited or what items they purchased. And they do not say why they want to purchase braille gift cards—for their own use or as gifts—so urgently that they intend to do so “immediately … as soon as the Defendant[s] sell[ ] store gift cards that are accessible to the blind.” . . .  Without such basic information, Plaintiffs cannot possibly show that they have suffered an injury that is “concrete and particularized.”
This is a standard that is almost never imposed on plaintiffs in ADA cases, especially in the Ninth Circuit, which only reluctantly acknowledges the possibility that plaintiffs might routinely file lawsuits that have no merit and is the reason why eliminating ADA litigation abuse has been left in the hands of the prosecutors.(4) Applying the Second Circuit’s insistence on details to ADA suits generally would make the suits almost impossible to plead.
Finally, and most important of all, the Second Circuit was willing to consider these lawsuits in the larger context of hundreds of lawsuits filed by the same law firms and plaintiffs. “Third, we cannot ignore the broader context of Plaintiffs’ transparent cut-and-paste and fill-in-the-blank pleadings.” Too many district judges bury their head in the sand and refuse to consider that the plaintiff’s actions in other lawsuits reflect on the credibility of allegations in the suit before them. Some recognize that multiple filings of almost identical filings are relevant (5) but this is not universal at the motion to dismiss stage.

Except for the decision in TransUnion nothing really changed between the earlier Second Circuit decisions and Calcano. I’m sure the Court would say it would have reached the same result regardless, but I think TransUnion has reminded this and other Courts that standing is an important concept that, among other things, takes the federal courts out of the business of aiding and abetting get rich quick schemes based on finding a pet plaintiff to file multiple lawsuits. To quote Winston Churchill, “This is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”

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¹ See Transunion v Ramirez – has the Supreme Court put an end to cheap standing in ADA litigation?

² Circuit Court decisions in ADA serial filer cases that cite TransUnion include Laufer v. Arpan LLC, 29 F.4th 1268 (11th Cir. 2022) (which got it wrong for reasons I explain in Stigmatic injury and how the 11th Circuit got in wrong in Laufer v Arpan), Harty v. W. Point Realty, Inc., 28 F.4th 435, 438 (2d Cir. 2022) and Laufer v. Looper, 22 F.4th 871, 877 (10th Cir. 2022) (both of which got it right).

³ We have previously considered four factors relevant to this analysis: “(1) the proximity of the defendant’s business to the plaintiff’s residence; (2) the plaintiff’s past patronage of the defendant’s business; (3) the definiteness of the plaintiff’s plan to return; and (4) the frequency of the plaintiff’s travel near the defendant’s business.”  Kennedy v. Floridian Hotel, Inc., 998 F.3d 1221, 1233 (11th Cir. 2021).

(4) On April 11, 2022 the District Attorneys for San Francisco and Los Angeles County filed a civil action against the Potter Handy law firm and its partners claiming that it had filed numerous fraudulent ADA lawsuits. On May 19 a grand jury in San Francisco indicted Kousha Berokim, a Beverly Hills attorney, for grand theft by false pretense for ADA filings targeting small businesses. I think most ADA defense attorneys would agree these represent only the tip of the iceberg in terms of filings that are based on misrepresentations about the plaintiff’s standing to sue.

(5) See, Hunter v. Branch Banking and Tr. Co., 2013 WL 4052411, at *5 (N.D. Tex. Aug. 12, 2013), citing Norkunas v. Wynn Resorts Holdings, LLC, 2007 WL 2949569, at *4 (D.Nev. Oct.10, 2007) (stating that “a plaintiff’s litigation history can undercut the sincerity of his or her expressed intent to return”); Brother v. Tiger Partner, LLC, 331 F.Supp.2d 1368, 1374–75 (M.D.Fla.2004) (similar).

(6) See my blogs Blogathon – ADA and FHA cases with a little help from my friends. and Quick Hits – Vernal Equinox edition for a very brief history that will, we can only hope, end with Calcano.

(7) Wikipedia will confirm these facts. I only knew of its use in Gilbert and Sullivan’s Mikado and as Michelle Shocked’s album title. Mary I and burning protestants was a surprise, as was its use as the name of a “crossover thrash band” from Liverpool. Now I have to go look up “crossover thrash” music.


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Stigmatic injury and how the 11th Circuit got in wrong in Laufer v Arpan

By in Accessibility Litigation Trends, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Internet Web Tags: , , , , ,

King Cnut rebukes his courtiers for believing he can control the tideCan the 11th Circuit hold back the tide as King  Cnut famously failed to do?² In Laufer v. Arpan LLC, 2022 WL 906511 (11th Cir. Mar. 29, 2022) the 11th Circuit disagreed with the Fifth, Tenth and Second Circuits concerning the injury sufficient to satisfy the standing requirements in Article III of the Constitution. If the case goes to the Supreme Court the 11th Circuit is likely to get its feet wet on Article III standing, but of more interest is the Court’s failure to consider whether the plaintiff had even suffered a statutory injury; that is, did she suffer the kind of injury Title III of the ADA was intended to prevent? If there was no statutory injury then the question of constitutional injury never arises. More


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ADA and FHA Quick Hits – it could be worse edition

By in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - Standing, FHA, FHA definition of handicap, FHA Emotional Support Animals, HOA, Uncategorized Tags: , , ,

Flag of UkrainePictures of bombed out buildings and civilian casualty counts are a reminder that aggravating and expensive as ADA and FHA lawsuits can be, taking these disputes to court is a luxury most people in the world do not enjoy.  For those of us who can engage in a civilized discussion of legal issues, here are the latest cases and other news. You’ll see where I think the courts and administration have gone wrong, but I’d rather be here than most of places in the news these days.

HUD and DOJ pushing hard on ESA cases.

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