Quick Hits – ADA and FHA news of note

October 23, 2017 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Litigation Procedure Tags: ADA Reform, ADA serial litigation, Litigation and Management Services, LLC, Zimmerman

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.

September 22, 2017 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Attorney's Fees, ADA Litigation Procedure, ADA Mootness Tags: ADA default judgment, ADA defense, ADA surrender

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

Common sense and the ADA – A breath of fresh air from California

August 27, 2017 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Standing, ADA Attorney's Fees, ADA Litigation Procedure, ADA Mootness Tags: accessible parking, ADA technical violations, common sense ADA, handicap parking

Strong v. Johnson et al, 2017 WL 3537746 (S.D. Cal. Aug. 27, 2017) probably won’t go down in history as a landmark ADA decision, but shows a sometimes uncommon level of common sense about the difference between technical ADA requirements and the reality of accessibility.

By the time of this decision, the defendants had remediated all of the barriers to access that gave rise to the original lawsuit. The plaintiffs, undeterred, sent their expert back out to look for more. What he found was an excessive cross-slope “at the head” of the accessible parking space and an excessive running slope at the handicapped parking sign. Both appear to constitute violations of the 2010 ADA Standards, which require that “parking spaces” have slopes of no more than about 2% and make no distinction between the different parts of the parking space.

The Court rejected these technical violations because: “Passengers do not load, unload, or transfer into or out of vehicles at the head of a parking space, and vehicular lifts do not deploy there.” What matters for accessibility is how the slope of the space affects a disabled person, not whether there is some spot that has a slightly excessive slope. The Court had a similar observation about slopes in the middle of a parking space: “While excessive slope in the center of a parking space might technically be a violation of some kind, the fact that it is in the middle of the parking space means it would be underneath any vehicle parked there.” The court does mention the slope at the sign, but the same reasoning applies. A person in a wheelchair isn’t going to run into or even scrape a sign, so the slope at the sign is irrelevant to accessibility.

This common sense matters to defendants because one of the many games experts play in this ADA cases involves what this expert seems to have done; that is, taking measurements at many locations, trying to find just one or two that will justify a complaint. Parking spaces are large enough that it is hard to make the entire space and adjacent aisle perfectly flat, so this game often yields results. Requiring the plaintiff to show not just a technical violation, but a violation that mattered for accessibility, will often be a victory for a defendant who would otherwise end up re-paving a perfectly good parking space.

The Court also rejected the idea that the slopes might affect the plaintiff as she traversed the parking lot because as a matter of fact she never crossed the lot; she just parked and got out of her van. The slopes might be a problem for someone, but they were not for her. The Court had a similar observation about the striping on the access aisle. After noting that there did not seem to be even a technical violation the Court went on to note that: “And even if this might be a barrier for someone, Plaintiffs have never said why it would be a barrier for them.” Access aisles are required to be marked so as to discourage parking, but this only matters if the plaintiff cannot load or unload because of a parked vehicle, which evidently never happened.

For those who wonder why the Plaintiffs tried so hard to keep their lawsuit alive when the owner had fixed all the problems they identified, the answer is simple. Money. When remediation makes a lawsuit moot the plaintiff’s lawyers go home empty handed, and for most lawyers there is no more horrible result than that. Our next blog – “Mootness done right” – will discuss a case demonstrating what defendants must do if they want to take advantage of the mootness defense. In the meantime, remember that in one court, at least, common sense about the real impact of technical violations matters.

The interactive process under ADA Title III – maybe not the law, but a good idea anyway.

June 12, 2017 By Richard Hunt in Accessibility Litigation Trends, ADA Litigation Procedure, Interactive Process Tags: 8th Circuit, ada litigation, interactive process, Koester

In its May 2, 2017 decision in Koester v. Young Men’s Christian Assn. of Greater St. Louis, 855 F.3d 908, 909 (8th Cir. 2017) the Eighth Circuit casually suggested that the “interactive process” does not apply to accommodation requests under Title III of the ADA. It sidestepped the issue in the end, but wrote that it approached a claim based on a failure of the process with a “a healthy dose of skepticism that these concepts are applicable in this Title III case.” As authority it dropped a footnote to its earlier decision, Mershon v. St. Louis U., 442 F.3d 1069, 1078 (8th Cir. 2006). In Mershon the Court expressed doubt that the interactive process applied to a claim in an academic setting, referring in turn to the decision in Stern v. U. of Osteopathic Med. and Health Scis., 220 F.3d 906, 909 (8th Cir. 2000). The Stern case did not include any expression of doubt; only a recognition that the question was unresolved: “Even if such an interactive process is required in an academic setting. . . .” This time the authority cited was a lower court decision, Guckenberger v. Boston U., 974 F. Supp. 106, 142 (D. Mass. 1997). In Guckenberger, oddly enough, the Court assumed that an interactive process was required by Title III, but found that the system in place at the defendant university was sufficiently interactive.

ADA testing and ADA exploitation are not the same – the courts are getting it.

April 19, 2017 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Litigation Procedure

The broad sweep of ADA litigation history runs from early cases in which serial litigants (also known as “drive-by” litigants) were given the benefit of the doubt as crusaders for civil rights to more recent cases in which courts have found reasons to restrict this kind of abusive litigation. Many courts are awarding minimal attorneys fees on default judgment, imposing semi-objective standards for determining intent to return as an element of standing, and otherwise making it difficult for those who file for profit difficult to do so.

A decision out of the Western District of Texas goes a step further in being honest about the evaluation of serial litigants. In Deutsch v. Abijaoude, 2017 WL 913813, at *5 (W.D. Tex. Mar. 7, 2017) the Court writes:

And while there is no doubt that a “tester” plaintiff can have standing under the ADA, Betancourt, 735 F. Supp. 2d at 605, Deutsch is far from being a “tester.” He sued 385 business in 306 days (and those 306 days include all of the intervening Saturdays, Sundays and holidays when the courthouse was closed). He did not provide the businesses pre-suit notice or allow them to cure the deficient parking before suing, and his attorney demanded payment of thousands of dollars in attorney’s fees before he would dismiss the suits, even when the problems were quickly remedied. See, e.g., Dkt. No. 6–1 in A–15–CV–1198 LY.

This is the kind of practical appraisal of a plaintiffs’ conduct in which courts must engage if the exploitation of the ADA for profit is to end. “Tester” standing was first recognized in only limited circumstances based on the right of racial minorities to be given truthful information, regardless of their intent to buy or rent. See, Havens Realty Corp. v Coleman, 455 U.S. 363, 102 S.Ct. 1114 (1981). In Havens the question whether a person was entitled to truthful information about a rental even if he did not intend to rent. The Court found that the word “person” in the relevant section of the Act embraced individuals who did not intend to rent, and so providing false information was a violation of the statute. The tester’s standing came from nothing more than the breadth of the word person and the very clear statutory prohibition against providing false information. Unfortunately, “testers have standing” was soon elevated to a principle of law applied without regard to the existence of a specific statutory harm. Instead testers were given standing based on the notion of dignitary harm suffered when a disabled individual merely sees violations of accessibility standards. See, Smith v. Pacific Properties and Development Corp., 358 F.3d 1097 (9^th Cir. 2004).

This dignitary harm is a legal fiction, and because it is fictional the courts have had to draw arbitrary lines to provide some minimal restraint on serial litigation. For example, a plaintiff has standing to sue with respect to violations he or she has never seen, but only if he or she has personally confronted at least one violation at the same premises. See the discussion in Brooke v. Clay Andro Peterson, 2016 WL 2851440 (C.D.Cal. May 13, 2016). Merely seeing pictures of a violation without personally visiting the premises is not enough, though it isn’t clear why the dignitary harm of confronting a violation in person is worse than seeing a picture or reading a reliable report. The distinction is arbitrary because the harm is fictional.

Deutsch points toward a more rational basis for finding that a disabled person has suffered harm; that is, was the person actually denied access to the premises. The purpose of the ADA and the disability provisions of the FHA was to make facilities accessible, not to make disabled individuals feel good about society’s efforts on their behalf. A drive-by litigant like Deutsch who never intended to get out of the car suffers no harm because, never desiring access, he was never denied it. The weight of authority goes against this idea, but the massive abuses of the ADA in Arizona and lesser abuses elsewhere may convince courts that the concrete, imminent harm required by the U.S. Constitution and by both the ADA and FHA can come only from a denial of access, not from merely feeling bad about seeing a barrier to access.