Quick Hits – Now is the summer of our discontent edition

June 22, 2020 By Richard Hunt in Accessibility Litigation Trends, ADA - Hotels, ADA - serial litigation, ADA Litigation Procedure, ADA Mootness Tags: ADA defense, Braille gift cards, COVID-19, mootness, negligence and ADA, Readily Achievable, Service Counters, Strojnik, Voting Rights Alabama

Here’s a very unhappy looking King Richard III contemplating the murder of his nephews and possible rivals for the throne, or perhaps the latest headlines. While the latest cases on accessibility law don’t usually look like light reading, right now they are a cheery diversion from the rest of world events. Here we go:

Voting Rights and the ADA

People First of Alabama v. Merrill, 2020 WL 3207824 (N.D. Ala. June 15, 2020) deserves its own blog, but illustrates how the reach of the ADA is sufficient to touch every aspect of public life. In People First the plaintiffs were elderly and disabled, suffering as a result from an enhanced risk of significant illness or death from Covid-19. They claimed that Alabama’s restrictive absentee voting laws violated Title II of the ADA by depriving them of access to voting, which is for ADA purposes a state program for which the ADA requires equality of access. The Court agreed in most respects and entered a preliminary injunction requiring the state to make absentee voting easier in several respects. The case is on appeal, so the outcome remains uncertain, but it illustrates how the provisions of Title II of the ADA can affect every state and local government program, including those usually thought of as purely political.

Mootness done right, eventually

Johnson v. Montpelier One LLC, 2020 WL 3268613 (N.D. Cal. June 17, 2020) appears to be on the way to dismissal for mootness, but only after a false start with an affidavit that did not state in sufficient detail how the alleged architectural barriers had been remediated. Mootness is the best defense to a physical access case under the ADA, but cutting corners with a conclusory affidavit won’t get you there.

Accessible counters – a Ninth Circuit victory for common sense.

Kong v. Mana Inv. Co., LLC, 2020 WL 3265179 (9th Cir. June 17, 2020), Johnson v. Starbucks Corp., 2020 WL 3265063, at *1 (9th Cir. June 17, 2020) and Lindsay v. Starbucks Corp., 19-55738, 2020 WL 3265180, at *2 (9th Cir. June 17, 2020). Are a trio of Ninth Circuit rulings on an issue that has been litigated frequently: Does the counter length requirement in the ADA require that the counter be free of clutter? The answer is a definitive no, at least in the 9th Circuit. *

Braille gift cards and the ADA – the answer is no.

Dominguez v. Taco Bell Corp., 2020 WL 3263258 (S.D.N.Y. June 17, 2020), Mendez v. BG Retail LLC et al 2020 WL 3318293 (S.D.N.Y. June 18, 2020) and Delacruz v. Jamba Juice Co., 2020 WL 3250392, at *1 (S.D.N.Y. June 16, 2020) are among a growing number of cases (at least 10 decisions this week alone) holding that the ADA does not require braille gift cards because it does not require modification of products. This is now a predictable result, but it is bothersome that dozens of lawsuits making a patently absurd claim were filed in the first place, that who knows how much money and judicial resources have been wasted on attorneys’ fees defending them, and that it appears the lawyers for the plaintiffs who filed the lawsuits will suffer no consequences.

Another federal court declines supplemental jurisdiction over Unruh Act claims

In Schutza v. Enniss Family Realty LLC et al 2020 WL 3316969 (S.D. Cal. June 18, 2020) another federal judge in California declined to exercise supplemental jurisdiction over an Unruh Act claim, depriving the plaintiff of the damage remedy that drivers higher settlements in California. The decision is not unique* but other courts disagree with the arguments for declining supplemental jurisdiction. Until the 9th Circuit rules on this issue the rule will be to know your judge because these decisions are being made on a court by court level.

Negligence and the ADA

Strojnik v. Braemar Partn., 2020 WL 3250184 (S.D. Cal. June 16, 2020) adopts the majority view that the ADA is not a safety statute and that ADA accessibility violations do not automatically give rise to a claim for negligence. I’ve blogged about this before, as has William Goren. See,Personal injury and the ADA – is every violation per se negligence? ADA and FHA Quick Hits – is it safe to come out yet edition. and Goren’s blog at Negligence/negligence per se and title III of the ADA: Opportunity for personal injury attorneys to expand their practice. As is often the case in ADA matters, you need to know your court and state law to know whether the ADA plays a role in negligence claims.

Strojnik again – and perhaps in real trouble.

Peter Strojnik is a prolific litigator who does not always lose, but may have pushed his luck too far. In Strojnik v. Village 1017 Coronado, Inc., 2020 WL 3250608 (S.D. Cal. June 16, 2020) his claims were dismissed for lack of standing because he never visited the defendant hotel, but in its discussion the Court noted that in another case:

the Court has an evidentiary hearing scheduled for July 24, 2020 on the issue of whether Plaintiff should be declared a vexatious litigant in part for misrepresenting his disability status in that complaint.

Strojnik has already been declared a vexatious litigant by another Federal Court in California and was disbarred in his home state of Arizona. See, Strojnik v. IA Lodging Napa First LLC, 2020 WL 2838814 (N.D. Cal. June 1, 2020). He remains unrepentant and undeterred because there are few effective remedies against those who abuse the legal system and even fewer judges willing to take strong action against lawyers and non-lawyers who use the system to wreck legal and economic havoc on the lives of innocent business owners.

Pleading the “readily achievable” standard.

Girotto v. LXC, Inc. et al, 2020 WL 3318275 (S.D.N.Y. June 18, 2020) includes a number of little lessons. For example, it is not basis for early dismissal to call the plaintiff a liar because the Court assumes the allegations in the complaint are true. It does touch on an issue on which not all courts agree; that is, whether the plaintiff must plead that removal of architectural barriers is readily achievable. This Court says no; the plaintiff must prove the remediation is readily achievable at trial, but does not need to plead it. Other courts have disagreed**, so know your court and judge is, as usual, the rule.

The danger of being the enforcer

The plaintiff in Sullivan v. Storer Transit Sys., 2020 WL 3254400 (N.D. Cal. June 16, 2020) has a physical disability that is not apparent. When she tried to sit in the rows of a casino bus reserved for the disabled she was (she claims) yelled at by the driver and told to sit elsewhere. After a failed original complaint the beefed up allegations in her amended complaints were sufficient to state a cause of action. Sometimes it is necessary to make sure that those without disabilities don’t take advantage of disabled seating or parking, but businesses that choose to judge need to have policies to prevent hasty action. Legitimate resentment against those who abuse the disability rights laws has to be tempered with the understanding that not all disabilities are obvious.

Advocacy or idiocy? A blogger prevails

Straw v. Dentons US LLP, 2020 WL 3182775 (S.D.N.Y. June 11, 2020) is only tangentially an ADA case although an ADA claim was made. The Plaintiff, who was suspended from the practice of law in Indiana, sued a blogger and a legal publisher for reporting on his difficulties. The Court had little trouble finding the claims should be dismissed, but did make an argument that seems likely to be wrong. Based on a 2nd Circuit decision in an employment case the Court held that the ADA anti-retaliation provision does not give rise to individual liability and dismissed the claims against the blogger sued by Mr. Straw. It makes sense in an employment context to hold only the employer, not individual agents of the employer, liable for retaliation against a disabled person. In this case, however, it appears that the blogger was acting as an individual rather than merely as an agent of his employer. To say that no individual can be liable for retaliating against a person advocating for the disabled doesn’t really make sense. A more pertinent problem with the plaintiff’s claim here is that the ADA’s anti-retaliation provision prohibits “discrimination,” which implies disparate treatment of some kind. Those who criticize the ADA plaintiffs’ bar² are not discriminating against them in any meaningful sense of the word.

* I have blogged about this trend several times, most recently in Blogathon – not so quick hits on the ADA and FHA.

** See, “Readily Achievable” – It’s as easy as pie – maybe.

¹ See, for example, Quick Hits – Halloween Candy edition. Quick Hits – Tax Day Edition and Counter clutter – Is it a barrier or a bad policy under the ADA?

² I should say I have a personal interest in this, having been threatened many times with suits for defamation based on my blogs. So far no one has had the nerve to follow through on those threats, but there is clearly a segment of the ADA plaintiffs’ bar that doesn’t like those who tell the truth about their business.

ADA and FHA Quick Hits – is it safe to come out yet edition.

May 15, 2020 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Class Actions, ADA Internet Web, ADA Mootness, ADA Policies, ADA Web Access, FHA, FHA design/build litigation Tags: ADA consent decree, ADA defense, ADA Testers, ADA Website Litigation, Beshay Foods, Braille gift cards, Coca Cola Freestyle, COVID-19, FHA Defense, First Fix then Fight, Jack-in-the-box, Johnson v Starbucks, Legal Justice Advocates, Portell Law Group, Seyfarth Shaw

anxious woman with covers pulled over head Like most of you I’ve been working from home for the last couple of months, meaning primarily that my dogs are getting a lot of exercise. There has been no sign of any slowdown in the ADA and FHA litigation business, so there is plenty to cover in this Quick Hits edition.

Owners liability for leased premises – you can’t rely on your tenant.

Dunbar v. Empire Szechuan Noodle H. Inc., 2020 WL 2132339 (S.D.N.Y. May 5, 2020) perfectly illustrates the overriding responsibility of a property owner for the accessibility of a leased premises. The tenant defendant, Empire Szechuan, was evicted for non-payment of rent and went out of business. The Court had no trouble finding claims against it were moot since there was no possibility of effective injunctive relief. The property owner, New Gold Equities, did not fare so well. The court rejected its argument that claims were moot because the new tenant was contractually obligated to comply with the ADA because that compliance was in the future and therefore far from certain. The Court also noted that the ADA lease provision didn’t add much because the new tenant and owner were already obligated to comply with the ADA. A property owner who relies on their tenant may find themselves with continuing liability regardless of any lease provision.

ADA and FHA Quick Hits – Spring has sprung edition

April 16, 2020 By Richard Hunt in ADA, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet Web, ADA Mootness, FHA, Uncategorized Tags: ADA defense, FHA Defense, Gonzalez v Chinatown Hotel, Hillesheim, Scott Johnson

The Rite of Spring in the world of ADA and FHA litigation is a lot more like Stravinsky’s ballet – which terminates in the death of the lead character – than the bunnies and ducks that we usually associate with April. But whatever your spring festival, here’s the latest in the case law.

Corona Virus and Title III of the ADA

A great deal of attention has been paid to whether the disease Covid-19 constitutes a disability under the FHA and ADA. Crochet v. California College of the Arts, et al..,2020 WL 1815741 (N.D. Cal. Apr. 9, 2020) looks at a different aspect of the pandemic – whether injunctive relief matters when a physical place of business is only operating remotely. The plaintiff sought a preliminary injunction under the FHA to stop what she considered excessive rent charges. The court refused on the simple principle that money damages was an adequate remedy. This section of the opinion is worth reading because of its discussion of the principle that ordinary equitable limits on injunctive relief do not apply to the FHA. The plaintiff also wanted an injunction requiring the defendant to offer her the same level of shuttle bus service as other students. This the court refused because with the current California shut-in order there were no shuttle busses running and they were unlikely to start running before the plaintiff graduated. This raises the interesting question of how courts should deal with Title III ADA cases filed against businesses that are now shut down or offering only delivery service. Most cases will settle, but those that move forward will require deeper thinking about standing and available relief when the future is so uncertain. More

Quick Hits – Making a list and checking it twice edition

December 28, 2019 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

Camacho v. Vanderbilt U., 2019 WL 6528974 (S.D.N.Y. Dec. 4, 2019) is another case looking at the relationship between what a website does for the residents of a state and personal jurisdiction over claims related to that website. The Court applies the 2nd Circuit’s spectrum analysis to the website in a detailed way that is beyond the scope of a Quick Hits blog, concluding in the end that the presence of tools aimed at helping college prospects decide whether to apply were sufficient to find the required minimum contacts with the state of New York. The Court also finds that the plaintiff has standing despite having filed 50 similar lawsuits against other universities. While this might suggest the allegation about intending to utilize the website in the future is unlikely to withstand close scrutiny, college websites are used by a particular class of individual who is likely to do a lot of online shopping for a place to go to school, making the allegations at least plausible.

ADA and FHA Quick Hits – Day that will live in infamy edition

December 9, 2019 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

More than a year ago I was interviewed for a local Dallas paper about complaints that rental bicycles were making sidewalks inaccessible for the disabled.‡ I rather blithely opined that the City of Dallas could not be responsible for the carelessness of people who rent bicycles. In Evans v. Bird Rides, Inc., 2019 WL 5864583 (N.D. Cal. Nov. 8, 2019) a District Judge in California disagrees, finding that blind plaintiffs unhappy with electric scooters stated a plausible claim under Title II of the ADA because “[i]t was predictable, not just foreseeable, that the scooters would sometimes be parked carelessly and block” the path of the disabled. Given the many companies now in the scooter business and the number of scooters on the streets of any major city this kind of claim is likely to become more common. Cities that license the scooter providers need to carefully consider the terms of their license and the extent to which they can limit their liability for Title II claims. Having said that, I still don’t believe Title II of the ADA obliges cities to manage the lack of courtesy of their citizens. Among other problems is the inability of the city to police the problem or the court to grant meaningful relief because the barrier encountered by any individual one day is unlikely to be present the next, and just where any individual plaintiff might next encounter a similar barrier is impossible to know. Managing the necessarily complex response of a city to this kind of problem is not the kind of work courts are suited for.

ADA – Hotels