In Davis v. Anthony, Inc., 886 F.3d 674 (8th Cir. 2018) the Eighth Circuit adopted rules concerning standing that place common sense limits on the ability of serial plaintiffs to expand their lawsuits any time they are threatened with mootness. The decision is worth a detailed look because it rejects the “deterrent effect” doctrine created by the Ninth Circuit, refuses to expand the Eighth Circuit’s own precedent in Steger v. Franco, Inc., 228 F.3d 889, 894 (8th Cir. 2000), and carefully limits the plaintiff to her pleaded allegations. In doing this it points the way to a new more positive view of those with disabilities, treating them not as frightened children requiring the protection of the courts and lawyers, but as adults with a right to sue for real injuries, but no need to be patronized by the courts. More
ADA – drive-by litigation
By Richard Hunt in ADA, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA FHA Litigation General, ADA Internet, ADA Internet Web, ADA Litigation Procedure, FHA, Internet Accessibility Tags: ADA standing, Fair Housing Act, Group Homes, internet accessibility, Quick Hits, World Wide Web
April is the cruellest month according to T.S. Eliot†, but it was really just busy for my practice and the courts. Here’s part one of our update on important decisions in the ADA and FHA world. We expect to be caught up after a long weekend of blogging and a couple of additional installments. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Web Access Tags: ADA, ada litigation, Credit Union, CUNA, WCAG 2.0, Website litigation
It seems that CUNA, the Credit Union National Association has been slaying the dragon of serial website accessibility litigation.* In fact, the filing of a CUNA brief recently caused the plaintiff to just give up, dismissing the case voluntarily rather than face another unfavorable decision.** Looking at why CUNA has succeeded when the history of website litigation is mostly a story of defense failures points to an important rejection of standing based on dignitary harm, a rejection that may give defendants in non-credit union cases a useful argument of their own. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Web Access Tags: "drive-by" ADA lawsuits, ADA, ADA cheap standing, ADA standing, serial ADA filers
Cases decided in the last few weeks are mostly good for business, not because they fail to enforce the ADA, but because they refuse to let dubious serial filer claims get beyond the initial pleading stage. Here’s the lineup.
Standing and cheap standing
Cheryl Thurston v. FCA US LLC, et al., EDCV172183JFWSPX, 2018 WL 700939, at *3 (C.D. Cal. Jan. 26, 2018) is a district court decision that in some ways anticipates the 5th Circuit decisions we blogged about earlier this week. It is a web accessibility case and could be crucial in the effort to stop abusive serial litigation against websites. The plaintiff alleged in general terms that she had tried to use the defendant’s website to find a dealer and that she found barriers to access. She did not allege that she was unable to find a dealer, and for the Court this meant she had failed to allege an injury. This may seem obvious, but courts in the Ninth Circuit have a long history of holding that mere exposure to an inaccessible public accommodation is sufficient to state a claim under the ADA based on the notion that it makes the plaintiff feel bad to see ADA violations. Rejecting that argument and requiring at least an allegation of real injury would be a giant step forward for getting rid of abusive litigation. More
Just in time for Valentine’s day the Fifth Circuit has definitively confirmed what should never have been an issue in the first place; that is, an ADA plaintiff does not have standing without suffering a real injury. The first decision, Deutsch v. Travis County Shoe Hosp., Inc., 16-51431, 2018 WL 704131 (5th Cir. Feb. 2, 2018) was not designated for publication, but discusses standing at length. Deutsch v. Annis Enterprises, Inc., 17-50231, 2018 WL 776073 (5th Cir. Feb. 8, 2018) will be officially published. It contains a similar discussion of standing.
Both cases are interesting because the Fifth Circuit, referring back to language from its decision in Frame v. City of Arlington, 657 F.3d 215 (5th Cir. 2011) (en banc), discusses whether the alleged ADA violations would “negatively affect” Deutsch’s “day-to-day life.” In Annis Enterprises the Court explains part of its earlier decision in Frame as follows:
Thus, the plaintiffs had established standing because they had “alleged in detail how specific inaccessible sidewalks negatively affect their day-to-day lives by forcing them to take longer and more dangerous routes to their destinations.”
2018 WL 776073, at *3, quoting Frame. Applying this standard to Deutsch, it then wrote: “unlike the Frame plaintiffs, Deutsch has not shown how the supposed ADA violations at Color at Dawn will “negatively affect [his] day-to-day li[fe].” Id. More