We’ve written before about the perils of private ADA settlements. The yin and yang of ADA defense. Perilous settlements and temporary victories, and Starbucks and the ADA – more perilous settlements and temporary victories. explain how an ADA settlement can cost plenty and do nothing. The problem is simple. If you settle one case, but have not brought your business into ADA compliance, you are at risk for another case, and another, and another. That risk came home to roost for the defendant in Gniewkowski v. Party City Holdco, Inc., Case No. 2:16-cv-1686 (W.D. Penn.). In a decision issued on January 27 Judge Schwab, who has perhaps more experience in web access cases than any other federal judge thanks to the prolific filings of the Carlson Lynch firm, denied a motion for summary judgment based on the settlement of a web access case from Florida. Party City Holdco appears to be on its way to paying twice to settle the same website accessibility claim. More
ADA – serial litigation
A December 30 opinion from the Eastern District of New York should remind businesses that the obligation to comply with the ADA does not depend on the moral quality of the plaintiff. While judges do not like plaintiffs and lawyers who merely exploit the ADA for profit, they also understand that the law is the law.
In Adams v. 724 Franklin Ave. Corp., 2016 WL 7495804 (E.D.N.Y. Dec. 30, 2016) the defendant’s counsel, aware of past cases in which the district court had shown a certain hostility to serial litigants, decided that instead of defending the ADA lawsuit against his client he would offer a small settlement and then dare the plaintiff to take a default judgment. The court characterized his correspondence with plaintiff’s counsel in these words: More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Litigation Procedure, Internet Accessibility Tags: ADA Reform, ADA serial litigation, Anderson Cooper, drive-by lawsuits
Sixty Minutes and Forbes have now weighed in on the serial litigation crisis that threatens small businesses sued for often innocent or trivial ADA violations. Congress is gearing up once again to require pre-suit notice, a change demanded by businesses and opposed by disability rights groups. Meanwhile, the pace of ADA filings has only increased, with hyper-aggressive lawyers moving from dozens to hundreds of lawsuits a month, many now concerning web access. Federal judges have responded in some cases with sanctions that amounted in one case to more than $100,000.
How did we get to here? Why has a law to help the disabled turned into a litigation industry? The answer is more complicated than unethical lawyers or profiteering plaintiffs. At the root of the litigation crisis are four things: More
The ADA played a typically minor role in the recent election. Democrats made it clear they were for the disabled but did not propose specific new programs. Republicans barely mentioned the disabled except for a brief controversy involving Trump mocking a disabled reporter. With disability rights playing such a minor role in Republican politics one might think that Trump’s election means no change, but in fact a Trump presidency may lead to a significant narrowing of the ADA’s application and reduced federal enforcement action. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Web Access Tags: ADA drive-by litigation, ADA serial litigation, ADA standing, Ron Deutsch, Travis County
This is a follow up to last week’s blog, “Consolidate and Eliminate.” A magistrate judge in the Western District of Texas seems to be just that in a series of cases (more than 300) filed by Jon Deutsch in Austin, Texas. Deutsch v. Annis Enterprises, Inc., 2016 WL 5317431 (W.D. Tex. Sept. 21, 2016). I won’t provide a detailed analysis of the opinion, which should be read by every lawyer representing defendants in serial litigant cases,* but two points stand out. First, the Court conducted an evidentiary hearing, thus moving past the pleading stage, at which standing depends only on the plaintiff’s willingness to lie. Putting the plaintiff to his proof of standing early in the case is the single most important reason to consolidate and eliminate because it allows the critical fact issue to be resolved early, before the costs of litigation become absurd. More