Just a brief note about another alleged abuse of the ADA. According to a press release from the Department of Justice an attorney living in Florida filed hundreds of lawsuits naming as plaintiff individuals whose identities he stole. You can read the press release at this link. If you take the nearly 1000 cases filed by Mr. Finkelstein and add them to the lawsuits filed by Oscar Rosales, Peter Strojnik Sr., and Scott Dinan it starts to become clear that a significant percentage of ADA Title III lawsuits are filed solely to enrich a lawyer and often without any substantive merit. While some commentators say the ADA needs to be scrapped, the real solution is simply to provide a procedure for early dismissal with minimum expenditure of defense attorneys’ fees. Some courts have instituted mandatory mediation programs with this goal, but in many cases the cost of mediation alone makes defense impractical. The real solution is simply a heightened standard for standing that requires plaintiffs to have suffered a real injury and a heightened standard for pleading that requires plaintiffs to identify specifically the ADA violations they claim to have encountered. With that and a program of referring every Title III complaint to a magistrate judge for examination (similar to the way most courts handle pro se complaints) abusive lawsuits could be substantially reduced. The goal is not to make it impossible for plaintiffs to file ADA lawsuits, but rather to limit such lawsuits to those who have suffered a real injury.
ADA – drive-by litigation
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Class Actions, ADA Internet Web, ADA Mootness, ADA Web Access, FHA, Uncategorized Tags: ADA defense, ADA web access, driveby lawsuits, FHA Defense, Serial filers
Being slow but steady the tortoise, as we all know, won the race. The picture on the left tells you the strategy I ended up using. In any case the news is current as of November 14, the last day I checked for new ADA and FHA decisions. There’s plenty of interest, as usual.
A pre-emptive strike on website accessibility succeeds.
The plaintiff in Expensify, Inc. v. White, 2019 WL 5295064 (N.D. Cal. Oct. 18, 2019) sought to take matters into its own hands and local court by suing a pair of serial website filers for a declaratory judgment that its website was not in violations of the ADA. The defendants almost immediately agreed to waive their claims, presumably because they did not want to litigate without the home field advantage they command in the Western District of Pennsylvania. The plaintiff was not content and tried to keep the case alive, but the Court found the waivers mooted its claims. The key finding is that there was a dispute justifying the complaint for declaratory relief. It is only a district court decision, but Defendants who receive a demand letter without a lawsuit should consider this kind of pre-emptive strike as a good way to avoid an unfriendly jurisdiction.
Getting tough on standing in ADA cases
Chamaidan v. Tomy B. Haircare Inc., 2019 WL 4917895 (E.D.N.Y. Sept. 30, 2019) is part of a growing trend in which courts look skeptically at the claims of serial filers whose only injury is supposedly confronting a barrier to access. The Court first took at hard look at the allegation of injury, noting that the plaintiff had not alleged which particular barrier to access interfered with her access to the defendant salon nor explicitly that she had in fact visited the salon. This failure would have justified dismissal by itself, but the Court also looked at the intent to return allegations, which were vague at best. The Court found them inadequate, citing this rule from an earlier decision:
“In the case of a public accommodation for which other reasonable substitutes may exist, like restaurants and malls, the plaintiff must plead facts that tend to show that the plaintiff will likely frequent the area where the public accommodation is located and is interested in what it has to offer.”
The willingness of federal courts to require reasonably specific allegations of injury and future injury is the hinge on which eliminating abusive serial lawsuits.
Beierle v. Taco Treat of Great Falls, Inc., 2019 WL 5213306, (D. Mont. Oct. 16, 2019) and Beierle v. CHS, Inc., 2019 WL 5213315, (D. Mont. Oct. 16, 2019)
Beierle is a would-be Scott Johnson who filed a bunch of cases making generic claims of ADA violations. The Court dismissed these two based on the plaintiff’s failure to state in sufficiently specific terms: “what barriers he encountered or exist in a place he plans to return and “how his disability was affected by them so as to deny him the ‘full and equal’ access that would satisfy the injury-in-fact requirement.” When a sighted plaintiff sues over signage, and a plaintiff no confined to a wheelchair complains about accessible seating I think the claim is made in bad faith and should be sanctioned. It is more likely Beierle will either replead the one or two violations that might affect him and then try to settle.
Dalton v. Simonson Station Stores, Inc., 2019 WL 5579981, (D. Minn. Oct. 29, 2019) is one of a string of losses based on lack of standing by this plaintiff and his lawyer. The decision was at the summary judgment stage and included a finding the claims were moot. It also left open the possibility of a new lawsuit arising out of later visits to the defendant service station. Most interesting is the discussion of the plaintiff’s desperate efforts to keep the lawsuit alive despite every reasonable ADA complaint having been addressed. This and similar cases are not about disabled access, they are about fees for the lawyers. It is also worth noting that despite the Court’s concerns about the plaintiff’s litigation strategy, it declined to find the lawsuit was brought in bad faith and therefore rejected the defendants’ request for fees. Dalton v. Simonson Station Stores, Inc., 2019 WL 5566712 (D. Minn. Oct. 29, 2019). When the original lawsuit rests on a real ADA violation there is little chance of a fee recovery by the defense no matter what happens later.
Jones v. Natl. R.R. Passenger Corp., 2019 WL 5087594 (N.D. Cal. Oct. 10, 2019) appears to be a personal injury case in the guise of an ADA case. The plaintiff was injured while riding a bus because her mobility scooter was not properly secured. The Court found she lacked standing to seek injunctive relief because she had not plausibly alleged she would take the bus again or that the kind of incident in which she was hurt was likely to recur. The Court also rejected her damage claims because, it found, the Defendant met its ADA obligations by having the appropriate hardware to secure scooters and training the drivers to use it. Although it comes at the end of the decision, the fundamental problem with the plaintiff’s case appears to be that the scooter manufacturer specifically warned users not to sit in the scooter while it was in a moving vehicle. The ADA protects the disabled against discrimination, not their own bad decisions.
ADA Class Actions – competing rules and competing responses.
Williams v. Potomac Fam. Dining Group Operating Co., LLC, 2019 WL 5309628 (D. Md. Oct. 21, 2019) is a purported class action that includes a good discussion of the competing views of how to handle cases in which the plaintiff has suffered only one injury at one location but wants to act on behalf of others who may have suffered a similar injury at other locations. The plaintiff had visited a single Applebee’s restaurant and encountered architectural barriers that, he claimed, interfered with his access to the restaurant. A fan of Applebee’s specials he alleged an intent to return the Court found plausible. It therefore denied a motion to dismiss claims with respect to that restaurant. The Court then turned to the class action allegations and the competing views of how to handle such allegations in this circumstance.
The two approaches recognized by the Court look, respectively, at the standing of the plaintiff with respect to other locations as a standing problem, and at the standing of the plaintiff with respect to other locations as a class certification problem. The former approach leads to dismissal without addressing class certification because it finds a plaintiff without standing to sue other locations cannot include them as part of a class. The latter approach, which this Court adopted, considers standing only as one element of the several required for certification of a class.
Having adopted the “class certification” approach to dealing with multiple locations the Court next considered when it would take up those issues, before or after discovery. After examining various authorities the Court concluded that an early resolution was appropriate if it could be done based on the pleadings. Turning to the pleadings, the Court found that the plaintiff had failed to plead a class whose members had claims united by common questions of law and fact – the “commonality” requirement. The problem was the plaintiff’s effort to cover a large number of possible architectural barriers when he had encountered only a few related to parking. Because his class would include individuals who suffered a completely different injury the claims of its members lacked commonality. The Court dismissed the class allegations with leave to amend, and it is possible a narrower class might have plausibly common claims. It is worth noting, however, that the problem discussed in the Beierle cases cited above may be problem in establishing numerosity. The plaintiff’s proposed class was “all persons with qualified mobility disabilities,” but his complaints concerning parking would, in many cases, affect only those actually confined to a wheelchair. There are also possible remaining commonality issues, including standing for injunctive relief. For those of us who practice in the area these specific issues are less important than the Court’s thorough discussion of the competing principles that apply to every class action.
Murphy v. Aaron’s, Inc., 2019 WL 5394050 (D. Colo. Oct. 22, 2019) reached a different result, rejecting early dismissal based on the claim that the class would include members from out of state who did not have the right to bring claims in the Colorado court. Here the conflicting lines of cases held, on one hand, that jurisdiction over the claims of each class member was important and on the other that only the jurisdiction of the named plaintiff mattered. The Court adopted the latter view, at least delaying further consideration of jurisdiction issues until class certification.
You’ve got to try harder than that on ADA standing
Barberi v. Tax Conneck USA Inc., 2019 WL 5079541, (S.D. Fla. Oct. 10, 2019) is a reminder that at the motion to dismiss stage something more than a mere denial is required to get a favorable ruling. Barberi is a serial filer with more than 500 suits to his name, so his standing allegations under the ADA are subject to doubt, but at the motion to dismiss stage of a lawsuit their truth is assumed. The defendant did not more than say they did not “believe” Barberi visited the premises or would return, but that isn’t enough when the pleadings are in order.
The defendants attacked the plaintiff’s standing without success in Johnson v. Sweet Spark, Inc., 2019 WL 5422949, (E.D. Cal. Oct. 23, 2019). It is likely true, as defendants claimed, that Johnson had no intention of using the goods and services of the defendant, but the 9th Circuit rule is simple:“motivation is irrelevant to the question of standing under Title III of the ADA.” This is part of the 9th Circuit’s larger belief that the actual injury requirement for standing under Article III of the Constitution embraces the injury of feeling some kind of regret at confronting an ADA violation. I would suggest that a plaintiff seeking ADA violations, which is what Johnson does for a living, feels only glee at discovering them and therefore has suffered no injury of any kind.
Peter Strojnik Sr., on the other hand, showed how a lazy plaintiff can lose. Strojnik v. 1315 Orange LLC, 2019 WL 5535766 (S.D. Cal. Oct. 25, 2019) Strojnik Sr. has shifted away from filing thousands of suits on behalf of hired plaintiffs to filing pro se suits based on his own alleged disability. Like many courts, the Southern District of California checks pro se complaints to make sure they state a claim over which the court has jurisdiction before allowing the defendant to be served. The Court’s check convinced it that Strojnik Sr. had not alleged a claim over which the court had jurisdiction and dismissed the case. It’s worth noting that despite the problems leading to the dismissal of this case merely being outraged at his conduct is not a valid defense.
Outrage is not a defense.
In Strojnik v. Ensemble Hotel Partners, LLC, 2019 WL 5595169 (N.D. Cal. Oct. 30, 2019) Strojnik Sr. appears to have filed suit against a party that claimed it had previously settled a related case. The defendant counterclaimed for breach of contract but the counter-claim was dismissed because the Court could not find evidence that the counterclaim was either compulsory or permissive. The key observation is this: “The parties cite virtually no legal authority in support of their respective arguments.” It appears the defendant was so outraged it thought that outrage would carry the day. It didn’t, and it almost never will. Serial plaintiffs are annoying at least and act in bad faith at worst, but anger is not a defense to an ADA claim.
Policy related injunctions under the ADA
Most ADA complaints tack on an allegation that the defendant’s policies and procedures are defective as a way of avoiding mootness, which is hard to achieve with policies but easy to achieve with physical barriers. There are limits to the relief available, however, as illustrated in Murphy v. Aaron’s, Inc., 2019 WL 5394050 (D. Colo. Oct. 22, 2019). The Court dismissed claims for injunctive relief that would have compelled the defendant to proactively seek out and remediate existing architectural barriers. After examining existing regulation the Court concluded:
Taken together, it follows that the ADA allows Defendant to make repairs when problems are brought to its attention, rather than requiring it to implement a proactive policy and seek out repairs in the manner that Plaintiff demands.
It’s worth noting that having a policy to seek out and remediate ADA violations is a good way to avoid litigation, but businesses who want to wait until they are sued to fix things have the option.
HUD has decided to take a more active role dealing with fake service and assistance animals according to a press release issued on Nov. 8. The headline says it all:
You can read the rest by clicking the link in the headline. It is interesting that the emphasis is on how those with disabilities are conned into believing they need the various items these websites sell when most of the customers are probably individuals who don’t have a disability and are using the vests and certificates to engage in their own kind of fraud.*
Mental impairment v. disability
I don’t usually write about employment cases, but EEOC v. West Meade Place LLC et al, 2019-WL 5394314 (M.D. Tenn. October 22, 2019) is important for both Title III cases and FHA cases because it explains why a mental impairment is not necessarily a disability. The employee claimed to be disabled by an anxiety disorder that made it impossible to work when it “flared.” The court found that evidence from her physician about having an anxiety disorder was probably insufficient because she did not “explain how she reached that diagnosis by use of her medical expertise.” More important, the court rejected the notion that the employee was disabled because there was no real evidence she was substantially limited in any major life activity. She had missed only one day of work in several years and her own description of her symptoms indicated that when she had an anxiety flareup she just needed quiet for 15 minutes or so before returning to work. Landlords who get bogus emotional support animal requests will recognize that these requests fail to either show a reliable diagnosis of anxiety or similar mental impairments and never contain information suggesting the impairment substantially limits a major life activity. The only problem with these cases is that many HUD investigators either don’t know the law or don’t know how to apply it, so it is often impossible to get a legally correct result without a lawsuit.
A bitter second bite at the apple.
In Shaw v. Gera, 2019 WL 4933636 (N.D. Cal. Oct. 7, 2019) the plaintiff and his lawyers sued a group of defendants with whom they had settled an identical suit a few years earlier. He refused to stand down after being notified that the settlement agreement precluded the later suit and the end was result was an order to pay more than $11,000 in attorneys’ fees to the defendants. The case shares a common feature with others in which the plaintiffs have been sanctioned; that is, a failure by the plaintiff’s attorneys to respond in a timely way to motions or court orders. This is one of many problems with industrial scale litigation (the plaintiff has filed more than 200 lawsuits and his firm several thousand). Since the only goal is to generate legal fees, and the business model requires a high volume of low profit cases, there isn’t much time left over to deal with substantive issues of any kind.
Moot and not so moot
Some of the claims in Alonso v. Alonso, 2019 WL 5268554, (S.D. Fla. Oct. 17, 2019) were dismissed as moot because the defendant doctor moved out of the office that had alleged ADA accessibility violations. Others, based on policies and procedures, were allowed to continue because they had not been ended with sufficient certainty. The case has a good discussion of the limits of the voluntary cessation doctrine well illustrated by the contrasting results in claims arising from physical access and claims arising out of bad policies.
Connecting the dots in FHA complaints
The plaintiff in Antonelli v. Gloucester County Hous. Auth., 2019 WL 5485449, (D.N.J. Oct. 25, 2019) was disabled and was apparently treated badly by the defendant. Her FHA disability discrimination claims were dismissed because she could not connect the bad treatment to her disability. There are a few subtleties about the burden of proof on discrimination, but there is no theory that doesn’t require some causal connection for a claim to be sustained.
No judgement for a form complaint.
Default as a strategy
The defendants who defaulted in Spikes v. Shockley, 2019 WL 5578234 (S.D. Cal. Oct. 28, 2019) ended up with a judgment requiring that they fix their parking, which had to be done in any event, plus pay $4,000 in statutory damages under state law and $4,446 in legal fees plus costs. The fees are perhaps a bit above market, but it is hard to see how any defense could have obtained a better result.
In Buchholz v. Sai Saffron 180 LLC, 2019 WL 5617927 (S.D. Fla. Oct. 31, 2019) default led to a similar result, with a total monetary award of around $7,000, including $2500 in expert witness fees. This, however, was a website case and so the remediation order could involve very large expense. My guess is that the defendant’s website will soon no longer exist, because if it were making money it would have defended the case.
Waste in ADA litigation
In Medina Rodriguez v. Canovanas Plaza Rial Econo Rial, LLC, 2019 WL 5448538 (D.P.R. Oct. 23, 2019) the Court addressed at length cross-motions for summary judgment before finally ruling in favor of the plaintiff on two specific ADA violations while reserving judgment on others and on the existence of a disability. There is no easy way to summarize all the rulings along the way concerning the difference between expert and percipient witnesses, problems with late designation of witnesses, and the applicable standards for accessibility except to wonder whether, given this complexity, the parties might have spent more on lawyers than it would take to fix all the alleged problems. All litigation is messy in this way, but this kind of messiness in ADA litigation over a single facility is probably a sign of waste for which both parties may be to blame.
In Johnson v. Shobeiri, 2019 WL 5458106, (N.D. Cal. Oct. 24, 2019) the plaintiff’s counsel was awarded around $8,000 in fees after settling a claim involving one non-compliant parking lot and one transaction counter that was too high. The defense fees were around $5,000. It would be surprising if the remediation costs were as much as $2,000, meaning the legal fee expenditure was perhaps six times the cost of remediation. Champions of serial litigation might consider this level of waste when they argue that this is a good way to enforce the ADA.
Metrology (me·trol·o·gy) is the science of measuring things, and Schutza v. So Cal Truck Accessories & Equip., 2019 WL 5454107, (S.D. Cal. Oct. 24, 2019) serves as a reminder that there is a right way and a wrong way to measure slopes for ADA compliance. Slopes are to be measured by comparing the ends of the sloped area; that is, change in height over distance. Most ADA experts, especially those working for plaintiffs, measure slopes by checking the slope in one or two spots rather than overall. Because concrete is rarely poured with scientific precision this makes it possible by careful placement of a level to find slopes that exceed those in the design of the ramp. This is an important point for defense counsel to remember when confronted with claims that a slope was less than a percent off from the ADA requirement.
When the ADA is not a good IDEA
When it comes to public education the Individuals with Disabilities Education Act (IDEA) overlaps both Title II of the ADA and Section 504 of the Rehabilitation Act. That doesn’t mean ADA and Section 504 can be used as a simple alternative when pursuit of an IDEA claim might be inconvenient. In this case the magistrate judge recommended dismissal of claims under the ADA and Section 504 because the claims all could have been made under IDEA, and IDEA includes an exhaustion of remedies requirement the plaintiffs had not met. IDEA and its procedures are complicated because theyare calibrated to deal with the complicated problem of providing education to disabled children while leaving them in ordinary classrooms as far as possible. It seems so much easier to sue under the ADA and Section 504, but as this case illustrates, they cannot be used to avoid the requirements of the IDEA.
* Thanks to William Goren, www.williamgoren.com for sending this to me.
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Mootness Tags: ADA defense, ADA Mootness, ADA standing, FHA Defense, Landis v Mariners, unruh act
The blog a day pace I thought I might hit hasn’t happened but I’m not giving up. Here is the first of several Quick Hits on recent ADA and FHA developments.
ADA standing – aiming to high leads to a crash and burn.
It appears the plaintiff in Rizzi v. Hilton Dom. Operating Co., Inc., 2019 WL 4744209 (E.D.N.Y. Sept. 30, 2019) decided to attack not one, but all of the websites operated by the defendant hotel company. Unfortunately, this meant the plaintiff could not identify any single website to which he plausibly intended to return. Litigation filed in the public interest rather than to alleviate an individual harm is the proper business of the Department of Justice, which has no similar limits on standing to sue.
Mootness done right
Dispersed dining and the 5% rule.
One of the plaintiff’s complaints in Theodore v. 99 Restaurants, LLC was that accessible seating was not provided in the “bar area.” The factual response was that 9 accessible seating spots were available with lines of sight to the television sets above the bar – which is really the only feature most bars offer that differs from ordinary dining. The Court nonetheless discussed the ADA’s dispersal requirement, finding that:
Nevertheless, the caselaw on this issue supports defendants’ view that the ADA and applicable regulations do not require the restaurant to have accessible seating in every area of the facility. Rather, accessible seating must be “dispersed throughout the space or facility.”
Declining supplemental jurisdiction in California.
The court in Whitaker v. Mac, 2019 WL 4849199 (C.D. Cal. Oct. 1, 2019) joined a growing number of California federal courts that will not consider Unruh Act claims along with an ADA claim. The argument is simple: California has decided to control abusive litigation under the Unruh Act with heightened pleading and other requirements that don’t apply in federal court. Plaintiffs seek to get the benefit of the Unruh Act (damages) without the detriments by adding an Unruh Act claim to their ADA claim. That, according to this court, permits it to decline supplemental jurisdiction in order to be a tool for avoiding state law. Other district courts have rejected this argument*, so in California the rule for a motion to dismiss remains “know your judge.”
Default as a strategy
The defendant in Smith v. Hartmann’s Moonshine Shoppe, LLC, 2019 WL 4888996 (D. Minn. Oct. 3, 2019) did reasonably well by choosing default, ending up with an order to remediate that was inevitable and a bill for the plaintiff’s fees and costs of less than $6,000. I don’t believe I’ve seen default as a strategy outside of California, so this may be a spreading trend. The danger, of course, is that the plaintiff will get more and more expensive injunctive relief than they may have been entitled to. In my view negotiating the terms of remediation and then settling is worth the money spent on defense counsel. Of course I am defense counsel, so my interests are clear.
Outside food and disabilities.
Like the case from Colonial Williamsburg I blogged about earlier this year** Castillo v. Hudson Theatre, LLC, 2019 WL 4805648 (S.D.N.Y. Sept. 30, 2019) deals with the obligation of public accommodations that serve food to allow outside food for those with disabilities. In this case, however, the plaintiff jumped the gun and filed suit without first requesting that the defendants accommodate her need to bring in outside food. Unlike cases involving physical barriers in which the ADA violation is the mere existence of the barrier cases involving policies and procedures require that an accommodation be requested and denied before there is an ADA violation.
Limits on expert testimony in ADA cases.
As the parties gear up for trial in Landis v. Washington State Major League Baseball Stadium Pub. Facilities Dist., 2019 WL 4735403 (W.D. Wash. Sept. 27, 2019) the Court is taking a look at just what the plaintiff’s expert can and cannot say. Because the expert identified accessibility problems but not specific solutions in this decision the Court limits his testimony to problems and “general solutions” that apply elsewhere. It isn’t clear how the plaintiff will put on evidence that would let the Court enter an injunction specific enough to be enforced, and at least one possibility is an order requiring the parties to figure it out after judgment. That is often the approach in FHA cases where remediation is complex. In any case the trial is bound to be an interesting affair with broad implications for all stadiums and sports arenas.†
There has been a lot of ADA and FHA news in the last 10 days, so in an effort to catch up I’m going to aim for a blog a day over the next few days. Today’s is dedicated to cases reported to me by colleagues and subscribers, some of which have not yet appeared in official court reports.
Standing is the Achilles heel of serial plaintiffs
Maximilian Travis of Muchmore & Associates PLLC in Brooklyn told me about a result that confirms what we all know – a serial plaintiff’s greatest weakness is standing. You can allege anything to get past a motion to dismiss, but when the truth don’t lie, as they say, the standing claims of most serial litigants won’t stand up to the slightest scrutiny. That is no doubt why the plaintiff in Wu v. Jensen-Lewis, Case No. 1:17-cv-06534-34, (EDNY)* decided to voluntarily dismiss all her claims shortly before a status conference that would have likely required her deposition and browser history. This isn’t surprising – serial plaintiffs often lose on standing when they push through to trial. The fact that defendants have to spend a of money to win on an issue that deprives the court of jurisdiction is a weakness in the ADA as interpreted by the courts.
Robert Taft sent me the decision in Crawford v. Hines Cty., Case No. 3:17CV118TSL-RHW (SD Miss. Oct. 8, 2019), in which the plaintiff also ran into a standing problem. There was no doubt the plaintiff was disabled and that the county was covered by Title II of the ADA. The issue was whether the plaintiff was likely to suffer a future harm that would give him standing to seek injunctive relief with respect to inaccessible features of the county courthouse. He had visited the courthouse for various reasons over several years but had no specific plans to return except as a “tester” looking for ADA compliance problems. The court found as a matter of fact that the plaintiff was not likely to return as a “tester” based on his failure to return to the courthouse to check on accessibility at any time after he first complained to the county about accessibility. This is reminder that “tester” status does not exclude ADA standing, but does not guarantee it either. Many plaintiffs allege an intent to return based on their desire to see whether the property is ADA compliant, but in most cases this allegation is not supported by the facts for serial plaintiffs rarely bother to return to the same place twice. The only surprising thing is that Crawford relied only on tester status. As a county resident he was very likely to have other business at the courthouse in the future, and while the future dates would not be known, the probability of a return trip was high.
Robert Taft also called to my attention the decision in Hernandez v. Caesars License Co., LLC, Case No. 19-06090 (DNJ Oct. 4, 2019). While the application of the ADA to most websites is a matter of controversy there is no doubt hotel websites are obliged to provided certain information about handicap accessible facilities to potential patrons. This plaintiff, like others, spends his days checking out hotel websites to see if they comply with DOJ regulations concerning this information, suing those who don’t. The court analyzed his standing claim by asking first what kind of injury he might have suffered. He did not claim he was prevented from visiting the hotel by the lack of information, presumably because he doesn’t intend to visit any hotel whose website he visits. His injury was instead that he could not “independently determine whether he could stay” at the hotel. The court characterized this as an “informational injury” that occurs when the plaintiff is not given legally required information or cannot access information to which he is entitled. However, inability to access information is not in and of itself an injury. To show real harm the plaintiff must show that because he didn’t have the information he was unable to do something he wanted to do. Because the plaintiff never wanted to stay at the hotel, his inability to obtain information caused him no harm. Other courts have disagreed with the position, recognizing the inability to use the website as an independent injury. See, Poschmann v. Coral Reef of Key Biscayne Developers, Inc., 2018 WL 3387679, at *3 (S.D. Fla. May 23, 2018). In a larger context this case is part of a trend in which federal courts refuse to recognize dignitary harms to those who test websites without any intent to take advantage of the underlying goods and services. That gets back to the most fundamental question about Title III of ADA itself. Was it intended to make the world a happier place in general for those with disabilities or only to guarantee equal participation in economic and social life.
Braille gift cards? A novel theory being pursued by serial litigants.
Stephen Meyer of Meyer Inspection Services was the first of several correspondents to point out news articles concerning a set of new lawsuits filed by Gottlieb and Associates, a well know serial filer of website accessibility lawsuits. These new suits claim that stores violate the ADA by not making gift cards available in braille or with braille packaging. The Complaint has a lot of information about the gift card market and retailers who voluntarily provide gift cards and other goods with braille packaging but does not address the very specific ADA regulations concerning goods sold. 28 CFR §36.307(a) provides that Title III does not require a public accommodation “alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities.” Gottlieb alleges that gift cards are a service of the issuing retailer in an effort to avoid this regulation, but as a matter of fact gift cards are sold like other goods in a store’s inventory, usually in a display by the checkout counter next to the gum and lip balm. This is especially true of retailers who sell not their own gift cards, but gift cards of other stores. It is also far from clear how the lack of braille gift cards would ever deter the plaintiff from buying goods and services. After all, if you can buy a gift card then you can buy the goods and services directly. It would be foolish to predict the outcome of these cases, particularly since the retailers may decide the cost of braille gift cards or braille packaged gift cards is not high enough to be worth fighting over. I don’t think, however, that the claims made in these lawsuits would be found compelling by the Supreme Court if the cases ever got that far.
Gender issues and disability
I learned about the October 22, 2019 decision in Doe v. Northrop Grumman Systems Corp., Case No. 5:19-CV-00991-CLS (ND AL), from Robert Taft and William Goren, whose blog on the case at williamgoren.com is worth reading. This is one of several cases in the last year dealing with gender dysphoria and transgender individuals. The ADA excludes from the definition of disability “transsexualism” and “gender identity disorders not resulting from physical impairments.” The Northrop Grumman court found this unequivocally excluded Doe’s transsexual gender identity. Earlier cases like Doe v. Mass. Dept. Corrections, 17-12255-RGS (D. Mass, June 14, 2018) have recognized gender dysphoria as a disability, citing evidence of a physical cause (“diagnoses have a physical etiology, namely hormonal and genetic drivers contributing to the in utero development of dysphoria.”) as well as arguing that gender dysphoria is just not covered by the phrase “gender identity disorder” because it is a diagnosis developed long after the passage of the ADA. At the heart of this dispute is the far deeper (and more ancient) question of what constitutes an impairment. The brain is a physical organ, and gender identity arises from that organ and its interaction with other parts of the body. When reproductive organs line up with gender identity we consider gender identity inevitable. When gender identity and reproductive organs don’t line up the cause is certainly physical (the brain is an organ like any other) but we have to confront the question of whether this difference between a less common kind of brain and other more common kinds is an “impairment.” Transsexual individuals generally do not like to consider themselves impaired because the problems that arise from gender identity issues are social, not physical. It is the reaction of others to transsexual gender identity that makes life difficult, not the gender identity itself. At the same time, existing laws forbidding gender discrimination may not apply to non-traditional gender identities, an issue before the Supreme Court right now. This makes the ADA an attractive way to fight against discrimination based on gender identity. Treating gender identity as arising from an impairment may help transgender individuals in the short term, but the real solution lies in understanding that the case in which gender identity does not line up with reproductive organs is fundamentally the same as the case in which gender identity does line up with reproductive organs. It is the identity, not the reproductive organs that matters.**
Personal jurisdiction as a limit on ADA website complaints.
The internet is everywhere, but long before plaintiffs’ lawyers decided to get rich suing websites under the ADA courts recognized that just because a business website could be accessed from anywhere in the world did not mean it met constitutional fairness requirements to sue the business anywhere in the world. I blogged about the Kroger case in this regard† and Robert Taft has provided two additional examples of courts refusing to exercise personal jurisdiction over defendants with no real ties to the jurisdiction in which they were sued. In Comacho v. Northeastern University, 2019 U.S. Dist. LEXIS 178306 (SDNY Oct. 15, 2019) the Court described three categories of website; those that were purely passive, permitting no user interaction, those that permitted the completion of transactions by a user, and those that permitted some interaction with the user but without permitting the completion of a transaction. The first does not support personal jurisdiction, the second can certainly support personal jurisdiction, and the third may or may not support personal jurisdiction. Placing the defendant’s website in the third category the Court found the degree and nature of the interactions permitted did not satisfy the constitutional fairness requirement first described long before the internet in International Shoe v. Washington. Camacho v. Emerson Coll., 2019 U.S. Dist. LEXIS 178354 (SDNY Oct. 15, 2019) reached the same result. While larger online retailers will rarely benefit from a personal jurisdiction defense, smaller retailers and others who do not sell goods or services nationwide may find that lack of in personam jurisdiction is a valid defense that can be raised early enough in the case to save money on settlement and legal fees.
Owning a tape measure isn’t enough.
Another case reported by Robert Taft, Hillery v. Sun City Anthem Cmty. Ass’n, Inc., 2019 U.S. Dist. LEXIS 177313 (D. Nev. Oct. 11, 2019), explicates the difference between physical access discrimination and operational discrimination as well as the difference between expert opinions and legal conclusions. Although the claimed discrimination did not involve the physical characteristics of the defendant’s facilities the plaintiff retained an architect as expert witness. The court first rejected the expert’s opinion to the effect that the facility was a “public accommodation” covered by the ADA, finding that this was a legal conclusion that the Court could determine without expert assistance. Expert reports that leap from facts to a violation of the law will often be subject to the same objection. The Court also rejected the expert’s opinion that the plaintiff was disabled, finding in essence that doctors, not architects, were required to reach such a conclusion. His opinions concerning the sufficiency of accommodations offered by the defendant and whether a requested accommodation would have fundamentally altered or created an undue burden were rejected because he merely restated the facts and then gave his opinion on the legal conclusion to be reached without additional explanation. The same was true of his opinion that the defendant harassed the defendant, which was not based on any particular expertise he had. The court did allow his opinion that the defendant did not “meaningfully” comply with the ADA’s accommodation requirement but found it “shaky.” The takeaway from the court’s extensive discussion of the expert’s testimony is simple – you can’t prosecute or defend an ADA accommodation case with a single expert, especially an expert whose training is limited to physical accommodation. The existence of a disability requires medical evidence and the existence of undue burden or fundamental alteration requires someone with operational and financial expertise. This makes these cases harder to prosecute and defend but is a natural result of the law’s complexity.
* See our earlier blogs about this case at The role of experts in Title III website litigation
As I predicted, the United States Supreme Court denied Domino’s Petition for Certiorari today. It did so without any formal explanation – the case is simply listed as one of many for which cert was denied. I’m sure the blogosphere and many business groups will decry the lost opportunity for a ruling that might limit ADA website litigation, but after thinking it over I don’t think there was ever much the Supreme Court could have done that would deter ADA website filers. The split in the circuits that was used to justify the Supreme Court’s interest only concerned whether websites with no affiliated physical place of business are covered by the ADA. A favorable decision would have still left the vast majority of businesses at risk. Equally important, the U.S. Supreme Court has no jurisdiction over state versions of the ADA, meaning that plaintiffs in two of the hottest states for these lawsuits, California and New York, could keep filing under state law. Finally, and most important, almost all ADA website cases are filed only to get money for the lawyers who file them. The settlement dynamics are simple – a business pays the lawyers less than the cost of a basic defense and agrees to fix its website because it makes economic sense to do so. No matter what the Supreme Court might have done it could not have significantly changed that settlement dynamic, for even the most business friendly decision could only give defendants a reasonable chance of success on a Rule 12(b)(6) motion. The Supreme Court could not make that motion cheap enough to beat the certainty of settlement because the cost of such a motion is deeply embedded in the structure of the Rules of Federal Procedure. Even more important, the heads I win, tails you still lose advantage on recovery of attorneys fees for plaintiff’s is one fundamental driver of all ADA litigation and the Supreme Court can’t do anything about that without overturning decades of civil rights precedent. The Supreme Court could favorably rule on standing issues in a case I’ll blog about tomorrow, but the refusal of cert. in Domino’s is only a mild disappointment because the real solution remains with Congress.