We aren’t quite to Halloween, but the candy is certainly crowding the shelves of local stores, whose owners might want to take a look at Ryan v. Kohls, Inc., discussed below. Beyond that we have the usual roundup of default judgment cases, website accessibility standing cases, and of course some ordinary “drive-by” cases involving physical accessibility mixed in with cases that deserve special attention because they could have a broad impact on ADA and FHA litigation. Here they are. More
ADA – drive-by litigation
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA FHA Litigation General, ADA Litigation Procedure Tags: ADA default judgment, ADA defense, burden shifting, Colorado Cross Disability, Readily Achievable
I have often discussed the benefits of mootness as a defense in Title III ADA cases. Simply fix the problem and the plaintiff’s right to sue evaporates. Unfortunately, not all problems can be easily or cheaply fixed, leaving the defendant in the unpleasant position of having to spend an absurd amount of money or make an irritating settlement that pays the plaintiff’s lawyer to give up the claim. When the cost to fix a problem is high, the “readily achievable” standard in the ADA comes into play and can help the defendant.
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Mootness, Animals, FHA Emotional Support Animals Tags: ADA defense, ADA Internet, ADA website, FHA Defense, FHA Guidelines, Glueck v National Conference of Bar Examiners, Hillesheim v Holiday Stationstores, mootness, service animals, Wetzel v Glen St. Andrew
Landlord liability for tenant discrimination
Wetzel v. Glen St. Andrew Living Community, LLC, 2018 WL 4057365 (7th Cir. Aug. 27, 2018) is a critically important decision for landlords because it holds a landlord may be liable for its failure to restrain discriminatory conduct by tenants. The plaintiff is a lesbian who found herself the subject of a “torrent” of abuse from fellow tenants based on her sexual orientation that included both verbal and physical assaults. The rules of the apartment complex were similar to those of most apartments and permitted the landlord to take action against any tenant whose conduct was a threat to the health and safety of others or interfered with the peaceful use and enjoyment of the apartments. The plaintiff reported the abuse to management, who did nothing about it. In fact, they engaged in various kinds of conduct that essentially punished the plaintiff for complaining. When the plaintiff finally sued under the Fair Housing Act the landlord’s defense was that it could not be held liable for discrimination by other tenants.
The Court first recognized what it called a “hostile housing environment” claim analogous to a hostile workplace environment claim in an employment case; that is, a manager may be liable for the conduct of others that creates a hostile environment if the manager has sufficient control over that conduct. It then analyzes in some detail whether the landlord had the necessary kind of control, eventually finding that there was at least a sufficient allegation of control based on the landlord’s ability to affect tenant conduct through the enforcement of its own policies, including for example its right to evict tenants whose conduct unreasonably interferes in the use and enjoyment of the premises. The case was decided on a motion to dismiss, so the Court was only looking at allegations, but any landlord should understand that failing to control discriminatory conduct by tenants when it is possible to do so may lead to direct liability under the Fair Housing Act.‡
More on websites, the ADA, and standing.
Carello v. Aurora Policemen Credit Union, 2018 WL 3740545 (N.D. Ill. Aug. 7, 2018) is another credit union website case in which the court agreed that someone who could never be a member of a credit union could not suffer an injury from the inaccessibility of its website. Counting the losses and victories in these credit union cases is an interesting exercise, and one that makes sense for any credit union defendant. The larger issue is whether the “actual injury” requirement in these cases will expand to other kinds of cases in which it is clear the plaintiff never intended to use the goods or services of a website but claims some psychic injury from being confronted with a barrier to access. That issue was discussed, but avoided in another recent credit union case, Tawam v. APCI Fed. Credit Union, 2018 WL 3723367 (E.D. Pa. Aug. 6, 2018). In Tawam the court found the plaintiff has sufficiently alleged that he could in fact utilize the services of the defendant credit union even though he could not become a member because it was part of a group of credit unions that included credit unions in which he could become a member. This allowed it to sidestep the dignitary injury issue entirely although its brief listing of many of the relevant cases will be useful to defense counsel looking for authorities. We’ve made our position on this issue clear many times, most prominently in “Abusive ADA litigation – let’s treat the disease instead of the symptoms.”
Reed v. 1-800-Flowers.com, Inc., 2018 WL 4054879 (E.D.N.Y. Aug. 24, 2018) would simply be another denial of a defense motion to dismiss were it not for a complete but not too lengthy review of the relevant law and regulatory history concerning ADA website litigation. Defense lawyers wanting a convenient reference for all the reasons they are like to lose an early dismissal motion need look no farther than this decision.
ADA pleading and proof.
The Eighth Circuit has issued a number of significant rulings in the last few months on ADA issues, reflecting an increase in ADA serial litigation within the Circuit.** In Hillesheim v. Holiday Stationstores, Inc., 2018 WL 3946372 (8th Cir. Aug. 17, 2018) the Court helpfully outlined what is and is not sufficient in terms of alleging an actual injury sufficient to maintain an ADA case. It also broke down the plaintiff’s case based on individual violations, implicitly rejecting the idea that if the plaintiff can allege even one violation he or she has standing to pursue all other violations.† In this case the plaintiff failed to allege how he was injured by some of the supposed violations, leading the Eight Circuit to conclude he had failed to establish standing for those violations:
It [plaintiff’s declaration] did not explain how the lack of an access aisle or insufficient vertical signage injured him. It made no mention, for example, of whether he had difficulty identifying which spots were handicap accessible or even whether the alleged defects caused him to leave without entering the store. Alleging bare violations of the ADA without evidence of an actual injury is insufficient to establish Article III standing.
In contrast the plaintiff’s allegation that a particular garbage can blocking a ramp deterred him from entering the store because he was afraid of being injured met the specificity requirement – he tied his ADA injury to a specific feature. This is the kind of careful standing analysis required by Article III of the Constitution and critical to the ability of the courts to distinguish between lawsuits filed only to profit attorneys and lawsuits filed to vindicate the policy of accessibility in the ADA.
In Longhini v. Lakeside Operating Partn., L.P., 2018 WL 4101003 (M.D. Fla. Aug. 3, 2018), report and recommendation adopted 2018 WL 4092117 (M.D. Fla. Aug. 28, 2018) a plaintiff managed to lose a default judgment through sloppy pleading. He failed to specify whether the building was a pre-existing structure, which determines whether the “new construction” standard or the “readily achievable” standard applies, and also failed to allege the supposed violations with sufficient detail to permit entry of an enforceable injunction. These are common problems with serial filers whose business model requires that minimum time be spent churning out boilerplate complaints, and the careful analysis, like that of the Eighth Circuit in Hillesheim, represents a way by which the courts can address a problem Congress has been unwilling to solve.
Content obligations for movies and video.
Johnston v. AC JV, LLC, 2018 WL 3769799 (W.D. Wash. Aug. 9, 2018) answers a question that the Department of Justice has already answered in its regulations concerning closed captioning in movies. DOJ regulations require almost all movie theaters to provide the means for deaf patrons to see closed captions if they are distributed with a movie.‡‡ They do not require that closed captions be provided by the theater itself. The court also rejects a claim that a movie maker must include closed captioning, finding that merely producing movies for public consumption does not make the producer a “public accommodation” subject to the ADA. This case should be of interest to the many websites that include third party content over which they have little or no control, for it suggests that such websites are not obligated to make content accessible if the third party provider fails to make it accessible.
Mootness done right.
Defendants in ADA serial filer cases continue to get it right and get ADA claims dismissed by following a simple formula: Fix the problem, get a report from an ADA expert that covers all the bases, and move for summary judgment. Lindsay v. 1777 Westwood Limited Partnership, et al.,2018 WL 4006425 (C.D. Cal. Aug. 17, 2018). This case is worth noting because of the defendant’s expert’s thoroughness – with respect to a claim about the parking space he opined that “[t]he location, configuration, measurements, slopes, striping and signage for the accessible parking space and adjacent [access] aisle were all in compliance.” This is the kind of evidence needed to defeat a plaintiff willing (as this one was) to say almost anything to keep the case alive. The case also includes a reminder that the ADA’s requirements, broad as they are, do not require perfect accessibility. The Court rejected a claim that there should be multiple accessible routes across the parking lot in case the one accessible parking space was occupied. A defendant that does what the ADA Standards require has done all that must be done.
Mootness that doesn’t work
In Thomas v. West 2018 WL 3768525 (S.D.N.Y. Aug. 8, 2018) the defendant attempted to moot a claim that a large landing was not accessible removing for sale merchandise from the area so that it was no longer a sales area. The court, finding that this change was not of sufficient guaranteed permanence found the case was not moot because it would be too easy to put the merchandise back later. It is a good reminder that claims based on procedures and policies are very difficult to moot, and that having policies in place before suit is filed is the only effective way to deal with claims based on operations rather than construction. The case is also a reminder that no significant renovation of any public accommodation should be undertaken without a thorough ADA review. The origin of this case was a renovation that added an inaccessible mezzanine to the store. If it sounds like adding a new facility and not making it accessible is a bad idea, that’s because it is a bad idea. (The court’s earlier opinion at 242 F.Supp. 3d 293 (March 15, 2017) is also worth study by defense counsel, for it contains a thorough discussion of the alternative facilitation rule, which the Court rejects).
ADA Standards define meaningful access.
Guerra v. West Los Angeles College, 2018 WL 4026452 (C.D. Cal. Aug. 20, 2018) is a Title II case that confirms the ADA’s standards for physical access constitute the definition of accessible. The individual plaintiffs were unable to navigate a long sidewalk that met the ADA requirements for slope and cross-slope because they were not strong enough to so without a wheelchair or scooter. The Court found that because the ADA has no length requirements for accessible routes the mere length could not be a violation regardless of the effect of that length on a particular disabled individual. This is an important observation for many shopping centers and other large facilities because creating an accessible route may involve a sidewalk that takes a circuitous route in order to avoid slopes or other obstacles, particularly when the public transit stop is some distance from an accessible entrance. The Court also confirmed that there are limits on the right of a disabled person to choose how to access a facility. The plaintiffs preferred to walk, but could not walk long distances. The Court found that because either could use a scooter to cross a greater distance they had meaningful access to the facilities despite their preference for walking. This observation is relevant to claims we discussed recently concerning the Paragolfer and similar devices.*
ADA standing – know your jurisdiction
Marradi v. Karoska Landing, Inc., 2018 WL 4100041 (D. Mass. Aug. 27, 2018) should remind defense lawyers that standards for standing vary from one jurisdiction to another. The defense moved to dismiss based in part on a standing analysis that is applied in the 11th Circuit and some others, but has not been applied in the 2nd Circuit. ADA defense requires real knowledge of judicial approaches that vary from circuit to circuit and even from judge to judge.
Default as a defense strategy.
Johnson v. Top Investment Property LLC, 2018 WL 3993419, at *10 (E.D. Cal. Aug. 17, 2018) is a typical default judgment case. The defendant failed to answer, presumably because it knew that the cheapest way out of an ADA case is to do nothing until ordered to do so by the Court. This makes sense because (a) remediation of any real barriers to access is inevitable and (b) payment of plaintiff’s attorneys’ fees for a default judgment is likely to be less than paying defense fees to advance a mootness defense. The case will be useful to attorneys who adopt this defense strategy by defining the parameters of what the plaintiff’s lawyer can hope to recover. The decision cites cases finding that the total number of reasonable hours for a default judgment case is between 9.2 and 25 at a billing rate of $250 to $300 per hour. Defendants should, however, be cautious. In a recent decision from the Northern District of California the Court found a billing rate of $375 per hour reasonable for a 9 year attorney. Che v. San Jose/Evergreen Community College District Foundation, 2018 WL 3930153, at *2 (N.D. Cal. Aug. 16, 2018). Before deciding to default a defendant must know what the particular court in which the case is docketed will do with both billing rates and hours.
Is this a default case?
Below average is not disabled.
Service animals must be accommodated.
Berardelli v. Allied Services Inst. of Rehab. Med., 2018 WL 3849363 (3d Cir. Aug. 14, 2018) the Third Circuit held that “as a matter of law” a request to accommodate a service animal was a reasonable request. This means that a defendant faced with such a request has to prove it is not reasonable, rather than the other way around. The Court also found that the Rehabilitation Act, which applies to certain federally funded programs, includes a reasonable accommodation requirement like that in the ADA even though it is not explicitly contained in the Rehabilitation Act. This is important to entities covered by the Rehabilitation Act because it permits the recovery of damages while the ADA does not. Covered entities need to understand that their obligations are essentially identical to those of any ADA public accommodation, with the added risk of money damages.
Making serial plaintiffs play by the rules.
Brooke v. Padre Hotel, LP, 2018 WL 3769830, (E.D. Cal. Aug. 7, 2018) is one of a host of ADA hotel accessibility cases filed by Teresa Brooke and her attorney Peter Kristofer Strojnik. Under Ninth Circuit law this kind of serial litigation based on dubious claims of standing cannot be easily dealt with in the early stages of a case. That does not mean, however, that courts cannot enforce their own rules in order to diminish the burden of such cases. In Padre Hotel the plaintiff attempted to expand her lawsuit beyond the original claims concerning an accessible hotel entrance to include claims based on a lack of accessible deluxe rooms and suites. In doing this she missed the court’s amendment deadline by several weeks and, when moving for leave to amend, failed to address the relevant standard for such motions. The court had no trouble denying the motion for leave, leaving the plaintiff with a limited case based on barriers to access that can be remediated with relative ease. Serial plaintiffs and their counsel create a large workload not only for the courts, but for themselves, because lots of lawsuits means lots of deadlines to meet. There is nothing inherently wrong with lots of lawsuits, but there is no reason for the courts to give professional plaintiffs any leeway in meeting their obligations to the court.
A frankly odd decision on ADA injuries.
** The Ninth Circuit and Eleventh Circuit have generally issued the most ADA decisions because California and Florida typically lead the nation in ADA lawsuits.
† The Ninth Circuit’s decision to permit an ADA plaintiff to seek relief for ADA violations that never caused him or her any harm is one of the foundations of modern serial litigation practice, for it turns the smallest ADA violation into a potential nightmare of inspections and re-inspections of an entire facility. See “ADA pleading – can a plaintiff give fair notice of an ADA violation if he doesn’t know it exists?” The Eighth Circuit recently rejected this expansive view of standing, as I discussed in “ADA standing and pleading – common sense from the 8th Circuit.”
‡ Thanks to William Goren, whose blog at williamgoren.com is a valuable ADA resource, for calling this case to my attention. I must also thank my subscriber who forwarded it, but whose identity I won’t make public.
‡‡ Closed captions are text that accompanies the video image but is not visible without special equipment. Open captions are text that is visible with the video.
*** See our blog, “Quick Hits – ADA news of note“
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Class Actions, ADA Litigation Procedure, ADA Mootness, ADA Policies Tags: ADA Class Action Defense, ADA injunctive relief, ADA maintenance requirements, ADA Policies and Procedures, Steak 'n Shake
In Mielo v. Steak ‘N Shake Operations, Inc. 2018 WL 3581450 (3rd Circuit 2018) the Third Circuit took a close look at lawsuits seeking to require not just that a facility be made accessible, but also that the defendant be required to adopt policies assuring future accessibility. This is an important issue for defendants because a claim for the imposition of a policy is a good way for a plaintiff to avoid mootness. Physical ADA defects can often be easily and cheaply fixed. Once fixed claims for an injunction to fix the defects are moot and the plaintiff’s attorney loses his chance to be paid. Adopting a policy, on the other hand, is unlikely to moot a policy based claim because policies can be easily undone and mootness requires some assurance that the supposed fix will remain in place. At the end of the day the Court allowed the policy claims to stand until the merits were further developed. Its reasoning and mistakes are worth a close look.
Is policy based relief available under the ADA?
The Third Circuit comes very close to holding that an injunction requiring the adoption of a policy is not available under the ADA, writing that:
In light of our inability to fully engage the merits at this stage of the litigation, we are not at liberty to decide whether Plaintiffs’ novel interpretation of the ADA and its corresponding regulations would survive a dispositive motion under either Rule 12(b)(6) , or Rule 56 of the Federal Rules of Civil Procedure .
It is notable that the Court leaves open the possibility of a Rule 12(b)(6) motion because before this appeal the case had proceeded well past the early dismissal phase. By twice calling the plaintiffs theories “novel” the Court may be suggesting that the defendants go ahead and challenge the claims when the case is remanded.
This hint, however, should not have been required. The injunctive relief available under the ADA is limited to “an order to alter facilities” and if necessary “requiring the provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods.” “Modification of a policy” refers back to the reasonable modification requirement in 42 U.S.C. §12182(b)(2)(A)(ii). That portion of the statute does not require the creation of new policies. In addition, any policy requiring that a business find and remove barriers to access would be redundant because the statute already requires this. The policy demanded by the plaintiffs in Steak ‘n Shake would say, in essence, “it is our policy to obey the law.” In fact, the policy the plaintiff wanted would have required less than the statute already requires. The plaintiffs wanted a policy requiring annual ADA inspections and remediation. Right now the ADA requires immediate remediation of architectural barriers – you can’t wait to do it once a year. A policy requiring Steak ‘n Shake stores to do less than the law permits hardly seems worthwhile.
The plaintiffs claimed that the desired policy would implement the requirement in 28 C.F.R. §36.211 that “those features of facilities and equipment that are required to be readily accessible” be maintained “in operable condition.” The plaintiffs argued, in essence, that every part of the facility was required to be readily accessible and therefore the regulations required regular maintenance of sidewalks, parking spaces and other potential architectural barriers. While the Court refused to consider the question, the statute and other regulations make it clear this regulation does not impose an obligation to maintain of the accessibility of an entire facility. It is the “features” that must be maintained in operable condition, not the facility, and of course “operable condition” hardly applies to things like parking spaces and sidewalks that one may use, but does not “operate.”
At the end of the day what the plaintiffs wanted was a policy that would affirm Steak ‘n Shake’s obligation to follow the law. Requiring such a policy is no different than ordering the defendant to follow the law, a kind of injunction courts almost aways refuse. Belitskus v. Pizzingrilli, 343 F.3d 632, 650 (3d Cir.2003).
Standing to seek policy based relief.
After finding that policy based relief was possible in theory the Court turned to whether the plaintiffs had standing to seek this relief. The Court begins with a useful summary of the requirements of ADA standing. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant and (3) that is likely to be redressed by a favorable decision.” It begins its discussion with the “injury in fact” requirement.
The Court first observes that “bare procedural or technical violations of a statute” do not create the kind of concrete harm required to show an injury in fact. Thus, it finds the plaintiffs cannot rest their claims on the mere non-existence of the desired policy; they are required to show that the lack of a policy caused them harm. The Court finds the plaintiffs have suffered the requisite concrete harm based on their alleged difficulties ambulating through allegedly non-compliant parking facilities. This is unremarkable. Difficulty navigating a facility is precisely the kind of harm the ADA was meant to prevent.
The Court next asks whether this harm is “fairly traceable” to the supposed misconduct; in this case, not having an ADA maintenance policy. It analogizes the “fairly traceable” requirement to the “but for” causation element of tort cases. Here the Court finds that the bare allegation that defendant’s conduct “caused” their injury is the equivalent of a pleading that “but for” the absence of a policy they would not have been injured. That bare assertion is precisely the kind of “a formulaic recitation of the elements of a cause of action” the Supreme Court found inadequate in Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009). Without some explanation of how the lack of a policy caused the plaintiffs’ specific injury the claim should have been dismissed.
This is especially true given the uncertain link between any policy and the plaintiff’s harm. The plaintiffs’ theory assumes that the parking lot was originally in compliance with the ADA, then fell out of compliance at some later date, and would have been remediated before the plaintiffs visited if an annual inspection policy had been in place. This is a rather long string of facts to be incorporated by implication in the word “caused.”*
The Court almost rejects the existence of redressability, observing that an injunction requiring only the adoption of a policy would not guarantee that the policy was followed and would not therefore assure that the plaintiffs would not encounter the same conditions in the future. Here again the Court is willing to stretch to permit the lawsuit to continue, finding that it is at least “likely” that the requested injunction will prevent future harm because “nothing suggests” individual stores would violate the policy, and that the district court would retain jurisdiction for some time “to address any potential failures by Steak ‘n Shake” fix problems found by the policy.
The immediate logical flaw in this argument comes from the district court’s continuing jurisdiction. So long as the district court maintains jurisdiction to require Steak ‘n Shake to remediate any barriers to access a policy requiring remediation is superfluous. It is the court, not the policy, that will prevent future injury. After the district gives up its continuing jurisdiction the likelihood that the policy will be effective depends on the policy being more effective in encouraging ADA compliance than the existing statutory requirement. It is hard to imagine that individual store managers who have not followed the law will be more likely to follow a mere corporate policy.
Even if it is assumed the policy will be followed more strictly than the law, finding that it is likely to redress the alleged potential future injury requires a considerable leaps between the links in the chain of causation. The plaintiffs were already asking for an injunction to require remediation of existing problems, so the starting point for how the policy might affect them in the future is all Steak ‘n Shakes being in compliance with all ADA standards. To prove the policy will redress the potential future injury to the plaintiffs they must prove it is (1) likely the facilities will fall out of compliance with ADA standards at a time when they are still likely to visit the store but after the court loses continuing jurisdiction, (b) the desired annual inspections for ADA violations will detect the out of compliance condition and (c) the condition will be corrected before the plaintiffs again visit the store. For parking lots and parking places required maintenance is unlikely to be necessary for years, so this chain of causes requires looking many years into the future to consider injuries not to disabled persons in general, but to these specific plaintiffs. Arguing that an ADA policy will redress future injuries is no more than speculation.
The Third Circuit came close to rejecting the entire idea that the ADA would support an injunction ordering that public accommodations adopt specific ADA compliance policies. It should have taken the last step and found that the ADA does not require any business to have a an ADA compliance policy. The statute does not require it and a mere policy is unlikely to redress future injuries because it is does no more than affirm the existing obligation to follow the law.
* In the word of the Supreme Court, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not “show[n]”—“that the pleader is entitled to relief.” Id.
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Mootness, ADA Public Accommodation, ADA Web Access Tags: ADA defense, ADA franchise, ADA Mootness, ADA web internet, Haynes v Dunkin' Donuts
Congress and the President are taking a break, but the ADA and FHA cases keep coming. It has been an unusual few weeks because we have two circuit court opinions to discuss, though neither breaks much new ground. A third circuit court decision – Mielo v. Steak and Shake Operations – will get a blog of its own.
Temporary obstructions under the ADA
One of the circuit court decisions is Hillesheim v. Myron’s Cards and Gifts, Inc., 17-1408, 2018 WL 3602372 (8th Cir. July 27, 2018), which deals with problem of aisles blocked by “temporary” obstructions. We’ve blogged about this before* and the law really hasn’t changed. DOJ’s regulations acknowledge that aisles that are required to be 36″ wide will from time to time be blocked when shelves are being re-stocked or perhaps repaired. This doesn’t excuse the case in which the aisles are always blocked with something temporary. The line between temporary obstructions and permanent clutter can be hard to draw, and early in a lawsuit is not when hard lines are drawn. In this case the District Court dismissed a claim based on clutter in the aisles, applying an absolute rule that temporary obstructions could not violate the ADA. The Eighth Circuit disagreed, finding that the issue required factual development to decide whether the temporary obstructions were really temporary. This put it in line with the earlier cases cited in our past blogs. More