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
ADA – serial litigation
- 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.
The following link is to a story on ABC 15, Arizona concerning the latest developments in the ongoing investigation of abusive ADA litigation in Arizona and New Mexico. Local Judge Orders Release. The article explains the situation in some detail, but the basic news is simple. A private company hired lawyers and plaintiffs to file ADA lawsuits, paying for their services and pocketing what looks like a substantial profit. None of this might have ever come to light except that the number of suits (in the thousands) was astonishing even by ADA serial litigation standards.
For both disabilities advocates and firms like ours that defend ADA lawsuits this kind of report poses a critical question: Is this the norm, or an aberration? When we see dozens or hundreds of ADA suits filed in a short time by a single firm and plaintiff are we seeing a legitimate effort to create an accessible world or exploitation of a law for purely private benefit? More
A decision out of the Western District of Texas goes a step further in being honest about the evaluation of serial litigants. In Deutsch v. Abijaoude, 2017 WL 913813, at *5 (W.D. Tex. Mar. 7, 2017) the Court writes:
And while there is no doubt that a “tester” plaintiff can have standing under the ADA, Betancourt, 735 F. Supp. 2d at 605, Deutsch is far from being a “tester.” He sued 385 business in 306 days (and those 306 days include all of the intervening Saturdays, Sundays and holidays when the courthouse was closed). He did not provide the businesses pre-suit notice or allow them to cure the deficient parking before suing, and his attorney demanded payment of thousands of dollars in attorney’s fees before he would dismiss the suits, even when the problems were quickly remedied. See, e.g., Dkt. No. 6–1 in A–15–CV–1198 LY.
This is the kind of practical appraisal of a plaintiffs’ conduct in which courts must engage if the exploitation of the ADA for profit is to end. “Tester” standing was first recognized in only limited circumstances based on the right of racial minorities to be given truthful information, regardless of their intent to buy or rent. See, Havens Realty Corp. v Coleman, 455 U.S. 363, 102 S.Ct. 1114 (1981). In Havens the question whether a person was entitled to truthful information about a rental even if he did not intend to rent. The Court found that the word “person” in the relevant section of the Act embraced individuals who did not intend to rent, and so providing false information was a violation of the statute. The tester’s standing came from nothing more than the breadth of the word person and the very clear statutory prohibition against providing false information. Unfortunately, “testers have standing” was soon elevated to a principle of law applied without regard to the existence of a specific statutory harm. Instead testers were given standing based on the notion of dignitary harm suffered when a disabled individual merely sees violations of accessibility standards. See, Smith v. Pacific Properties and Development Corp., 358 F.3d 1097 (9th Cir. 2004).
This dignitary harm is a legal fiction, and because it is fictional the courts have had to draw arbitrary lines to provide some minimal restraint on serial litigation. For example, a plaintiff has standing to sue with respect to violations he or she has never seen, but only if he or she has personally confronted at least one violation at the same premises. See the discussion in Brooke v. Clay Andro Peterson, 2016 WL 2851440 (C.D.Cal. May 13, 2016). Merely seeing pictures of a violation without personally visiting the premises is not enough, though it isn’t clear why the dignitary harm of confronting a violation in person is worse than seeing a picture or reading a reliable report. The distinction is arbitrary because the harm is fictional.
Deutsch points toward a more rational basis for finding that a disabled person has suffered harm; that is, was the person actually denied access to the premises. The purpose of the ADA and the disability provisions of the FHA was to make facilities accessible, not to make disabled individuals feel good about society’s efforts on their behalf. A drive-by litigant like Deutsch who never intended to get out of the car suffers no harm because, never desiring access, he was never denied it. The weight of authority goes against this idea, but the massive abuses of the ADA in Arizona and lesser abuses elsewhere may convince courts that the concrete, imminent harm required by the U.S. Constitution and by both the ADA and FHA can come only from a denial of access, not from merely feeling bad about seeing a barrier to access.
ADA defendants just won two significant victories concerning internet accessibility. In a March 20, 2017 decision in Robles v. Dominos Pizza LLC, Case No. 2:16-cv-06599, (C.D. Cal.) Judge Otero dismissed a claim concerning the accessibility of Dominos’ web site and mobile app based on a due process objection. The Court found that DOJ’s failure to issue regulations implicated the holding in United States v. AMC Entertainment, 549 F. 3d 760 (9th Cir. 2008) that a failure to give fair notice of what was required violated due process. In Gomez v. Bang & Olufsen America, Inc., Case No. 1:16-cv-23801 (S.D. Fla) Judge Lenard adopted a rule derived from earlier cases in the 11th and 9th Circuits that that a claim under the ADA exists if “a website’s inaccessibility impedes the plaintiff’s “access to a specific, physical, concrete space.” He then dismissed the complaint because the plaintiff failed to allege with sufficient specificity that his access to the brick and mortar stores had been impeded. The holding seems more restrictive than the case on which he relies, National Association of the Blind v. Target Corp., 452 F.Supp.2d 946, 956 (N.D. Cal. 2006), but the differences are not explored in the opinion.
A few weeks earlier one of the leading plaintiffs’ firms in the field of internet accessibility entered into an agreement not to sue banks in Texas as part of a settlement of a barratry case brought by a banking trade association, another victory that shows one way to deal with serial or “drive-by” lawsuits. The Texas legislature is also considering an anti-troll law that would make bad faith ADA demands a violation of the law. If such a law survived a preemption challenge it might also help eliminate such lawsuits.
Hooray! Or maybe not. The two district court decisions only have persuasive value with respect to other district courts, and Judge Lenard’s decision turns on a defect in pleading that could be cured by amendment. The Texas bank settlement is just that; a settlement, and it was based on procedural rather than substantive issues. Judge Otero’s decision will certainly act as a roadmap for those who want to mount a vigorous defense to the next ADA internet claim, but it rests on 9th Circuit case law that might not be accepted in other circuits and its reasoning has already been rejected in other districts. At the end of the day these decisions represent nothing but the ordinary ebb and flow of ADA decisions in which defendants win some and lose some and then usually settle.
The state of law, in the meantime, remains mixed. In the 9th Circuit and 11th Circuit a pure internet business is not covered by the ADA. In the 9th and 11th Circuits a business with a physical presence and a web presence may be subject to the auxiliary aids and services requirement of the ADA, but the needed connection between the website and the physical store remains largely undefined. Finally, in some courts and circuits it appears the ADA applies to every website, regardless of its relationship to physical store. Because internet business is at least national most potential defendants will find their liability depends on where they are sued.
Continuing to move toward website accessibility is the most prudent strategy for any business that can afford it. Smaller enterprises that find the cost prohibitive may choose for strategic reasons to wait until the software tools improve and costs go down, but even smaller businesses should take the handful of relatively cheap steps available to improve accessibility, including the provision of a toll-free customer assistance number like that provided by Dominos Pizza. Recent victories are nice, but until the Supreme Court rules on the ADA and internet the state of the law will remain confused, and litigation avoidance will be the best strategy.