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 Litigation Procedure
Quick Hits – April is the cruelest month edition
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 Compliance Policies and Procedures – you need them, and now.
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
Quick Hits – He’s making a list and checking it twice.
ADA forum shopping – another problem with the internet.
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
Abusive ADA litigation – let’s treat the disease instead of the symptoms
A number of states have passed laws intended to stop abusive ADA lawsuits, including most recently Florida and Texas.* As we’ve reported several times recently some individual federal judges are taking their own steps to stem serial litigation without diminishing the rights of the disabled. All these efforts attack the problem at the wrong end. Serial ADA lawsuits are a just a symptom of a deeper problem – a lack of ADA education and regulatory enforcement. More