All but two of today’s cases are from serial filers, and 7 of 17 are from a single serial filer, Scott Johnson. The fact that serial filers dominate the world of ADA litigation is hardly news; in fact, it would news if an ordinary disabled individual who suffered a real ADA injury filed suit. It is also news that federal judges in the mid-west are showing an increased reluctance to keep cases alive based on dubious standing claims. As Bradley Cooper sings in the latest version of A Star if Born, “Maybe it’s time to let the old ways die.” More
ADA – serial litigation
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Web Access, ADA Website Accessibility Tags: Accessible websites, ADA defense, ADA Supreme Court, ADA website defense, Dominos v Robles
Domino’s Pizza has filed a Petition for a Writ of Certiorari with the United States Supreme Court challenging the Ninth Circuit’s recent ruling in favor of Guillermo Robles.* The Court’s decision on whether to grant certiorari will have a profound impact on the possible “tsunami”** of website accessibility lawsuits, but we don’t have to wait for that decision to find the Petition itself interesting.
What I find most intriguing is Domino’s argument that the Ninth Circuit has adopted a new, third standard for application of the ADA to the internet. Along with other commentators I have always seen a two way split in the Circuits. Some (the First, Second and Seventh) simply hold that all websites are public accommodations subject to the ADA. It is a simple approach that leaves no room for doubt about a website’s accessibility obligation. Others (the Third, Sixth, Eleventh and Ninth Circuits) find that a website is covered by the ADA only if it has some nexus to a physical place of business. The exact nature of that nexus is a question being slowly answered as different situations are presented to the courts, but details aside, the nexus requirement seemed a common thread in decisions from these Circuits. More
Accessibility moots a website accessibility claim – a surprising decision that shouldn’t surprise anyone.
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA Attorney's Fees, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Mootness, ADA Web Access, ADA Website Accessibility Tags: ADA defense, ADA website accessibility, ADA website defense, Diaz v Kroger, Katherine Failla
On Tuesday, June 4 Judge Katherine Failla of the Southern District of New York issued a critical decision finding that a website accessibility case could be mooted by simply fixing the website. Diaz v. Kroger Co., Case No. 1:18-cv-7953 (June 4, 2019). She also found that Kroger was not subject to personal jurisdiction in New York on more conventional grounds, but the mootness holding is critical. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees Tags: ADA defense, ADA Website Litigation, FHA Defense, Oscar Rosales, Pacific Trial Group, Peter Strojnik, Scott Ferrell, Scott Johnson, unruh act
This Memorial Day we are once again firing up the grill with hundred dollar bills to celebrate how the ADA its current form encourages litigation that makes lawyers rich without any correspondening improvement in meaningful access for the disabled. The first case presents the unappetizing picture of a single claimed lack of access generating parallel state and federal proceedings as defendants and plaintiffs maneuver for a procedural advantage. The last explores the exploitation of California law by plaintiffs who can use internet accessibility claims to bring the whole world into their favorable local courts. In between we will see some courts pushing back, though only in the most egregious cases. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Web Access, Internet Accessibility Tags: ADA attorney ethics, ADA defense, ADA website defense, Oscar Rosales
An April 3, 2019 decision from Texas’ Third District Court of Appeals should give pause to many lawyers filing website accessibility lawsuits under the ADA. In Commission for Lawyer Discipline v. Rosales, Case No. 03-18-00147-CV (April 3, 2019)* the Court of Appeals wrote this about an ADA website demand letter:
“And regardless of whether Rosales “believes” that the ADA applies and that the WCAG guidelines establish ADA standards, the question of whether the ADA applies to websites is, as Rosales admits in his briefing to this Court, an unsettled issue that courts across the country disagree on. To that extent, his statement that “the Americans with Disabilities Act applies to websites” is, at best, a misrepresentation and, at worst, dishonest and deceitful.” More