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
ADA – Standing
A pair of recent cases, both brought by the same law firm on behalf of different plaintiffs, underscore the importance for every business of having policies and procedures for both ADA compliance and maintenance. This is especially important for businesses with multiple stores because a policy and procedure class action will elevate a single bad parking space to a nationwide class action, making both remediation and settlement or remediation very expensive.* 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.
The Travis County Shoe Hospital case quotes the same language from Frame, then applies it to Deutsch with these words:
In contrast, Deutsch has not provided a description of any concrete plans to return to Travis County Shoe, and he also has not shown how the alleged ADA violations negatively affect his day-to-day life. Deutsch testified at the hearing that he had not been to Travis County Shoe before the day he alleges he encountered the ADA violations. Deutsch further testified that he had not returned to the business since that day. He “perhaps” had an intention of returning to the business but had no specific intention of doing so.
Based on evidence in the record, Deutsch has visited Travis County Shoe one time. Not only has he not returned to the business, he has not expressed an intent to do so even if any alleged barrier to his access is removed. In addition, unlike the plaintiffs in Frame, Deutsch has not shown how the alleged violations negatively affect his day-to-day activities. See id.
I’ve quoted Travis County Shoe at length because it appears the Fifth Circuit is requiring two different things for ADA standing. One is an intent to return. The other is a showing that the alleged ADA violations would negatively affect the plaintiff’s day-to-day activities. This makes perfect sense, for an ADA violation can scarcely injure a person who was simply out looking for violations; however, there is a large body of case law, mostly in the Ninth Circuit, holding that a disabled person suffers an injury by merely seeing an ADA violation. See, e.g., Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 944 (9th Cir. 2011). This kind of cheap standing* is what drives the ADA litigation machine, which depends on plaintiffs like Deutsch who simply drive around looking for ADA violations and then file suit in the hope of a quick settlement. This kind of plaintiff will never be able to honestly allege a negative affect on day-to-day activities from a violation seen only once while looking for violations.
The Fifth Circuit seems to have done what other courts should have done long ago; require that ADA plaintiffs prove a concrete injury to establish standing. That single requirement would stem the tide of ADA litigation and end the driving for dollars industry that has grown up based on cheap standing and quick settlements.
*See our earlier blog ““Cheap standing” under the ADA: district courts push back.“
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Mootness
Access Now, Inc. v. Otter Products, LLC, 2017 WL 6003051 (D. Mass. Dec. 4, 2017) points out one of the many problems created by the thoughtless application of the ADA to websites – the potential for forum shopping. Massachusetts is one of the most favorable venues for ADA website cases because its federal courts have held that all websites are subject to the ADA regardless of their connection to a physical place of business. In Otter Products the plaintiff lived in Massachusetts and had no difficulty persuading the Court that it could exercise jurisdiction over the defendant based on product sales over the internet to Massachusetts residents. The possibility of being sued in almost any state comes with doing business nationwide. The problem with ADA lawsuits is that while we have a single federal law there is no single federal standard for determining which websites must be accessible or what accessibility means. This means plaintiff’s law firms will be choosing where to file suit based on an agenda that may bear little or no relationship either to real accessibility or what Congress intended. Businesses with nationwide sales may as well accept that every website must be accessible (because that is what the most liberal courts have held) and that website accessibility will mean whatever they lack (because that is the allegation needed to get past a motion to dismiss). More