Courts in Florida, at least, do not appear to be impressed by the Ninth Circuit’s decision in Civil Rights Education and Enforcement Center v. Hospitality Properties Trust, 2017 WL 3401319 (9th Circuit, August 9, 2017).* In Seiger v. M&M Fin. Inv’rs Intl., Inc., 2017 WL 3971451, at *1 (M.D. Fla. Sept. 8, 2017) a District Judge in Florida reviewed the case law in his jurisdiction and concluded that a plaintiff who never personally saw or encountered a barrier to access could not have standing because he had not suffered any injury. Mere knowledge of the barrier to access was not enough. More
ADA – serial litigation
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Attorney's Fees, ADA Litigation Procedure, ADA Mootness Tags: ADA default judgment, ADA defense, ADA surrender
The defendant in Johnson v. Patel, 2017 WL 3953949 (E.D. Cal. Sept. 8, 2017) used an increasingly common strategy to deal with an ADA lawsuit. He gave up. Most lawyers would never recommend complete surrender as a strategy, but in the last two years we have seen a significant number of these cases from California, so it is worth asking whether allowing a default can ever be a good strategy. More
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
- 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