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
ADA – serial litigation
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
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.