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
ADA Litigation Procedure
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
Quick Hits – ADA and FHA news of note
Last week’s Quick Hits blog got a good response, so we are repeating it this week. Both of this week’s cases concern abusive serial litigation and the efforts of courts and state governments to put an end to it.
Ford v. Jalisco Market, LLC, 2:16-CV-619-CW-BCW, 2017 WL 4621612, at *15 (D. Utah Oct. 13, 2017) is in many ways a companion to last week’s Ford v. H Unit Five, Inc. The same serial filer and her counsel worked desperately but to no avail to keep a lawsuit alive after all the originally pled ADA violations had been remediated. The decision is a good read for defense counsel because the tortious path to dismissal included a number of mis-steps to avoid. For any concerned business the case has fresh interest because of the Court’s observation that the conduct of the plaintiff’s lawyer might constitute a violation of the applicable standards of conduct. Besides the serial nature of the lawsuit, the Court noted that the plaintiff’s response to any effort at discovery or defense was to increase her settlement demand and take some action intended to drive up the cost of defense. In other words, plaintiff and her counsel were using otherwise legitimate procedures only as means to coerce settlement. This is not an uncommon litigation tactic, but the Court’s recognition of the fact that serial lawsuits of this kind are nothing but an exploitation of the ADA and the court system is one that seems to be spreading.
Surrender as a strategy in ADA litigation.
The defendant in Johnson v. Patel, 2017 WL 3953949 (E.D. Cal. Sept. 8, 2017) used an increasingly common strategy to deal with an ADA lawsuit. He gave up. Most lawyers would never recommend complete surrender as a strategy, but in the last two years we have seen a significant number of these cases from California, so it is worth asking whether allowing a default can ever be a good strategy. More