Access Now, Inc. v. Otter Products, LLC, 2017 WL 6003051 (D. Mass. Dec. 4, 2017) points out one of the many problems created by the thoughtless application of the ADA to websites – the potential for forum shopping. Massachusetts is one of the most favorable venues for ADA website cases because its federal courts have held that all websites are subject to the ADA regardless of their connection to a physical place of business. In Otter Products the plaintiff lived in Massachusetts and had no difficulty persuading the Court that it could exercise jurisdiction over the defendant based on product sales over the internet to Massachusetts residents. The possibility of being sued in almost any state comes with doing business nationwide. The problem with ADA lawsuits is that while we have a single federal law there is no single federal standard for determining which websites must be accessible or what accessibility means. This means plaintiff’s law firms will be choosing where to file suit based on an agenda that may bear little or no relationship either to real accessibility or what Congress intended. Businesses with nationwide sales may as well accept that every website must be accessible (because that is what the most liberal courts have held) and that website accessibility will mean whatever they lack (because that is the allegation needed to get past a motion to dismiss). More
ADA – serial litigation
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - Hotels, ADA - serial litigation, ADA Attorney's Fees, ADA Internet, ADA Internet Web, Restaurants Tags: ADA hotels, ADA restaurants, ADA website, Serial filers
Brooke v. A-Ventures, LLC, 2:17-CV-2868-HRH, 2017 WL 5624941, at *1 (D. Ariz. Nov. 22, 2017) is a case with an unusual procedural posture and a holding that shows a frightening misunderstanding of issues concerning website development. According to this judge, making a website accessible is an admission of an ADA violation and a business website can never be fixed so well that a case against it is moot. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Mootness, ADA Policies, ADA Web Access, FHA Emotional Support Animals
Black Friday is approaching. In honor of the annual sales we’ve collected a bevy of cases containing helpful lessons for any business subject to the ADA or Fair Housing Act.
Siler v. Abbott House, Inc., 2017 WL 5494989 (S.D. Fla. Nov. 16, 2017) teaches a simple lesson for HOA’s: call your lawyer before you do anything concerning a disabled tenant or resident. In this case the prospective tenant was, it seems clear, treated very badly by a condominium home owners association. The conduct went from merely improper (questions about her obvious disability and need for personal assistants) to just spiteful (moving an access button to make sure she couldn’t reach it). Despite a later letter from the HOA’s lawyer apologizing and trying smooth things over the Court refused to dismiss the tenant’s claims for damages and attorneys’ fees. This isn’t a final victory for the plaintiff, but it guarantees the HOA will spend tens of thousands of dollars in legal fees if it doesn’t settle. Every HOA needs a clear set of policies regarded disabled tenants, and if those policies don’t exist, the Board should not act without first calling a lawyer. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Mootness Tags: Burningham v TVI, Gomez v Empower U, HB 1463, HB 3765, HB727
A number of states have passed laws intended to stop abusive ADA lawsuits, including most recently Florida and Texas.* As we’ve reported several times recently some individual federal judges are taking their own steps to stem serial litigation without diminishing the rights of the disabled. All these efforts attack the problem at the wrong end. Serial ADA lawsuits are a just a symptom of a deeper problem – a lack of ADA education and regulatory enforcement. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Litigation Procedure Tags: ADA Reform, ADA serial litigation, Litigation and Management Services, LLC, Zimmerman
Last week’s Quick Hits blog got a good response, so we are repeating it this week. Both of this week’s cases concern abusive serial litigation and the efforts of courts and state governments to put an end to it.