I’ve observed before that titles II and III of the ADA create what can be called a crime looking for a victim.* The decision in Hamer v. City of Trinidad, 2019 WL 2120132 (10th Cir. May 15, 2019) shows how defining the crime can change the burden cities may face today based on decisions that go back decades or even centuries. The decision in Hamer will allow almost any person with a disability to demand that every inaccessible facility of a town like Trinidad be fixed regardless of its historical origin and regardless of how long the plaintiff has known of the problem. This decision contradicts decisions from other Circuits and follows a dubious analytical path. (For those who want a different view on this case, William Goren’s blog Repeated Violations Doctrine makes the case for this decision being correct). More
ADA – Standing
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees Tags: ADA defense, ADA Website Litigation, FHA Defense, Oscar Rosales, Pacific Trial Group, Peter Strojnik, Scott Ferrell, Scott Johnson, unruh act
This Memorial Day we are once again firing up the grill with hundred dollar bills to celebrate how the ADA its current form encourages litigation that makes lawyers rich without any correspondening improvement in meaningful access for the disabled. The first case presents the unappetizing picture of a single claimed lack of access generating parallel state and federal proceedings as defendants and plaintiffs maneuver for a procedural advantage. The last explores the exploitation of California law by plaintiffs who can use internet accessibility claims to bring the whole world into their favorable local courts. In between we will see some courts pushing back, though only in the most egregious cases. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA FHA General, FHA design/build litigation, First Fix Then Fight, Uncategorized Tags: ADA defense, ada litigation, FHA Defense, FHA design/build litigation
A third of the reported ADA and FHA decisions in the last three weeks involved a single plaintiff, Scott Johnson. Mr. Johnson’s name is often found in this blog because he has been a fertile source of decisions on a wide range of ADA issues. As discussed below, outrage is one common response to his lawsuits.
Outside the courts my ADA news feed delivers two kinds of articles for the most part. One kind complains about serial filers and their impact on local businesses. The other complains about the lack of accessibility in public accommodations and governmental entities. Neither seems to ask the big question that I have asked for years: Can’t we find some better way to increase accessibility than wasteful private litigation? The present system is a failure, as evidenced by the fact that decades after passage of the ADA private lawsuits continue to increase in number. Nonetheless, the two sides of the serial litigation issue seem stuck on a fruitless debate about the morality of serial filing instead of trying to address the possibility of a genuinely effective system of enforcement. And with that sermon behind us, here are your tax day cases.
The readily achievable standard.
Cases decided on an unopposed summary judgment motion don’t usually merit much notice, but there is a footnote in Johnson v. AutoZone, Inc., 2019 WL 1245143, at *4 (N.D. Cal. Mar. 18, 2019) worth remembering. The Court points out that there is no kind of barrier removal that is per se readily achievable. In more substantial cases this can make a difference in the plaintiff’s ability to obtain a summary judgement. It also contradicts other decisions like Johnson v Sammy’s Restaurant cite below that find certain kinds of remediation are per se readily achievable.
Mootness by decree.
One of the most difficult problems faced by defendants who are sued more than once over the same violation is proving that claims arising out of policies or procedures are moot. Unlike physical changes, changes in policy may not be sufficiently permanent to satisfy the “heavy burden” of proving a claim is moot. Moore v. Greyhound Bus Lines, Inc., 2019 WL 1283939 (S.D. Cal. Mar. 20, 2019) points to one solution for this problem. The plaintiff’s claims were essentially policy and training claims similar to claims settled by a Consent Decree in an action by the Department of Justice. The court found that the obligations of the Consent Decree were sufficient to moot the plaintiff’s claims. Where repeat litigation is likely – as in website cases – settlement by Consent Decree may be a valuable defense, subject of course to the difficulties we discussed after the decision in Haynes v Hooters.*
Default as a strategy.
Johnson v. RK Investment Properties, Inc., 2019 WL 1575206 (N.D. Cal. Mar. 18, 2019) is a case in which default as a strategy seems to have worked very well. The plaintiff’s claims were limited to those in his original pleading, as required in a default judgment context, and besides the inevitable injunction the magistrate judge awarded only the minimum $4000 statutory damages under the Unruh Act along with $4,457.50 in attorneys’ fees and costs. The case could hardly have been defended for less.
Outrage is not a defense.
Johnson v. Sammy’s Rest., Inc., 2019 WL 1517572 (E.D. Cal. Apr. 8, 2019) is another reminder that mere outrage at the abuse of the ADA by serial plaintiffs is not a defense when real architectural barriers remain. Scott Johnson and his lawyers are among the most prolific serial filers in the United States, but the Ninth Circuit has eliminated any meaningful standing requirement in ADA cases, so the only real defense is compliance with the law. In this case the defendants apparently complained a good deal about how Johnson misuses the ADA, but didn’t go so far as to remediate the architectural barriers at issue, meaning the fees spent on defense were simply wasted.
Don’t make a promise you can’t keep.
A consent decree worked wonders in Moore v. Greyhound Bus Lines, but caused nothing but problems in
Yancey v. LH Hosp. LLC, 2019 WL 1274731 (S.D.N.Y. Mar. 20, 2019). The original lawsuit was settled by a consent decree calling for installation of a ramp. Later, after the defendant facility had been sold, it was discovered that the cost of the agreed upon ramp was far more than anyone had assumed and so the work was never done. The plaintiff sued to enforce the decree, which the court did with little hesitation. Its response to the arguments concerning unexpected expense was simple – once the defendants made the deal they had only themselves to blame if they didn’t take all the contingencies into account. Settlements can be perilous and blanket agreements to remediate are particularly so.††
Credit Union website cases
These are now so numerous they justify their own category in these blogs. Mitchell v. BMI Fed. Credit Union, 2019 WL 1242663 (S.D. Ohio Mar. 18, 2019) is a puzzling case because was decided based on insufficient allegations of an intent to return – always a prerequisite in ADA cases because injunctive relief is the only relief available. The plaintiff’s lawyers are experienced in website litigation** so the failure was not accidental. My guess is that the intent to return allegations were omitted to avoid filing a knowingly false pleading – claims that will withstand a motion to dismiss may not withstand the closer scrutiny of discovery. In the meantime the discussion merits close analysis by defense counsel hoping to find ground for an early dismissal.
Organizational and associational standing.
Death eliminates standing in ADA cases.
Biting the hand that feeds you.
In Access Living of Metro. Chicago, Inc. v. City of Chicago, 2019 WL 1429647, (N.D. Ill. Mar. 29, 2019) an organization dedicated to access by the disabled sued one of its governmental donors for not doing enough to insure that projects funded by the City were accessible. The City moved to dismiss based on a lack of standing and failure to state a claim, but the Court was not buying either. What is most interesting about the case is the grotesque inefficiency of having a government funded organization suing the government. It is impossible to tell from the Complaint what efforts were made before suit was filed to resolve the problems claimed, but when the left and right hands are fighting with each other the outcome can’t be anything but waste.
Sales and service counters.
Johnson v. Starbucks Corp., 2019 WL 1427435 (N.D. Cal. Mar. 29, 2019) applies DOJ’s recent guidance on interpretation of the counter length requirement to deny a plaintiff motion for summary judgment.† With any luck at all these claims, which were never particularly compelling, should slowly disappear.
Schutza v. Alessio Leasing, Inc. 2019 WL 1546950 (S.D. Cal. Apr. 8, 2019) is another sales or service counter case, but in this one the defendants acted too soon, trying to obtain a dismissal at the pleading stage. The line between adequate specificity and generalizations is not always clear, but when a plaintiff identifies a specific architectural barrier like a service counter additional detail is probably not required. The court did dismiss the plaintiff’s Unruh Act claims based on the predominance of state law issues. Eliminating the plaintiff’s state law damage claim is a victory – unless he re-files.
Getting in hot water over hot water.
I will admit that Abel v. Oceanic Arcata, LP, 2019 WL 1559562 (N.D. Cal. Apr. 10, 2019) addressed an accessibility requirement I have never seen in a lawsuit and that I could not find used in a lawsuit after researching the issue. Section 607.6 of the 2010 Accessibility Standards requires that water from a shower spray unit be limited to 120° F. presumably because some disabled individuals cannot easily move out of the spray and might be burned, which is precisely what seems to have happened in this case. There is an equivalent requirement in California state law and, it appears, in the Model Plumbing Code and Uniform Plumbing Code. While it might seem that a mere ADA violation is less significant than the likely personal injury claim, the possible award of attorneys’ fees may make the claim valuable in states like Texas that do not provide for such fees in ordinary tort cases. It may also be outside insurance coverage, thus representing an unexpected expense for the defendant. Hotels and other public accommodations with showers may want to check the temperature.
Inspections in ADA cases.
FHA relevance and discoverability in serial filer cases.
* See our discussion of this subject in Haynes v Hooters – hard lessons about ADA website litigation
** This is an ironic understatement – they have filed hundreds of drive-by style lawsuits all over the United States.
† We commented on a similar case in our St. Patrick’s Day Edition.
‡ Jason Morgan v. Parc Plaza Development, LP, Order of United States Magistrate Judge, No. 3:19-cv-00492-G, (N.D. Tex. Feb. 8, 2018) – not reported.
†† See our discussion in Beware the ADA settlement that buys a big bag of nothing and the other blogs to which it refers.
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet, ADA Litigation Procedure, ADA Mootness, FHA, FHA Reasonable Accommodation, Uncategorized Tags: ADA Counters, ADA defense, ADA Mootness, FHA Defense
I’m a day late with the St. Patrick’s Day Edition of Quick Hits but that’s no reason not to raise a toast to the saint who, as my great-grandfather William Mullin said, drove all the snakes out of Ireland except the politicians.
Counter widths and the ADA
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet, ADA Internet Web, ADA Policies Tags: ADA defense, ADA Internet, ADA website, CSUN Assistive, Lainey Feingold, WCAG
I’m just departing from the 2019 Assistive Technology Conference with a few prejudices confirmed but with some new ideas as well.
I spoke with a number of companies that sell consulting services for web accessibility based on a wide range of business models. Since the website litigation storm broke in 2015 the field has developed, but there is still no good accessibility solution for a small retail store or restaurant. Simple websites are less likely to have accessibility issues, but their owners are heavily dependent on small, independent web designers and developers who often live in blissful ignorance of accessibility issues. Twenty-five years after passage of the ADA strip shopping centers that don’t meet ADA standards are still being built because smaller contractors and one person architecture firms don’t know about or understand the construction standards. The same thing will be true for web accessibility twenty-five years from now if we don’t find a way to educate the web design community about it. For those who don’t want to wait the following link has a list of resources from Lainey Feingold’s website. Resources.
It seems likely that accessibility litigation concerning mobile applications is going to increase. Easy to use tools for testing the accessibility of mobile apps are now becoming more available. That will make it easy for those members of the plaintiffs’ bar who are on the prowl for targets to find mobile apps to sue. In this case however businesses and developers have the lead time needed to make their apps accessible if they will only pay attention to the need.
Speaking of the plaintiffs’ bar, I was reminded by Ms. Feingold that buried in the avalanche of lawsuits whose only purpose seems to be lawyer enrichment are a few brought by organizations and individuals whose first concern is accessibility for those who are disabled. It is a reminder that the real problem with web accessibility cases is not that they exist, but that they are wasteful because they divert resources away from accessibility and to lawyers, whether on the plaintiff or defense side. The most needed ADA reform is one that delivers robust enforcement without waste.
A number of defense lawyers, including myself, spoke about one aspect or another website accessibility litigation. No one is defending the idea that websites should remain inaccessible, but cases are being defended nonetheless for various reasons, including unreasonable settlement demands by plaintiff’s lawyers and defendants who are simply fed up with being sued over and over again based on supposed WCAG non-comformance that does not affect the usability of the site. DOJ’s refusal to regulate is part of the problem, but it is becoming clear that reliance on WCAG 2.0 AA as an ADA standard imposes an unreasonable requirement of perfection on any website. Our existing model for measuring accessibility comes from the world of physical access. Strict technical requirements make sense when you’re building a permanent physical structure because if it is built to comply with the requirements it generally continues to remain compliant. Modern websites are complex and dynamic. Compliance with any rigid standard is bound to fail as the website changes over time. We need a regulatory definition of ADA compliance focused on usability rather than technical perfection.
The main takeaway for me was that a lot of people are working very hard to make the world more accessible for the disabled, but the emphasis in the news is on those who abuse the system for some kind of personal gain. The reporting is not the problem. It simply reflects the fact that the existing statute and regulations lend themselves to abuse. Unfortunately the solutions are all political, and political solutions don’t seem possible right now. The best advice remains the same as in 2014. If you have a website, You need a nerd, not a lawyer.