We aren’t quite to Halloween, but the candy is certainly crowding the shelves of local stores, whose owners might want to take a look at Ryan v. Kohls, Inc., discussed below. Beyond that we have the usual roundup of default judgment cases, website accessibility standing cases, and of course some ordinary “drive-by” cases involving physical accessibility mixed in with cases that deserve special attention because they could have a broad impact on ADA and FHA litigation. Here they are. More
ADA Litigation Procedure
“Readily Achievable” – It’s as easy as pie – maybe.
I have often discussed the benefits of mootness as a defense in Title III ADA cases. Simply fix the problem and the plaintiff’s right to sue evaporates. Unfortunately, not all problems can be easily or cheaply fixed, leaving the defendant in the unpleasant position of having to spend an absurd amount of money or make an irritating settlement that pays the plaintiff’s lawyer to give up the claim. When the cost to fix a problem is high, the “readily achievable” standard in the ADA comes into play and can help the defendant.
Steak ‘n Shake – Almost but not quite there on policy based relief.
In Mielo v. Steak ‘N Shake Operations, Inc. 2018 WL 3581450 (3rd Circuit 2018) the Third Circuit took a close look at lawsuits seeking to require not just that a facility be made accessible, but also that the defendant be required to adopt policies assuring future accessibility. This is an important issue for defendants because a claim for the imposition of a policy is a good way for a plaintiff to avoid mootness. Physical ADA defects can often be easily and cheaply fixed. Once fixed claims for an injunction to fix the defects are moot and the plaintiff’s attorney loses his chance to be paid. Adopting a policy, on the other hand, is unlikely to moot a policy based claim because policies can be easily undone and mootness requires some assurance that the supposed fix will remain in place. At the end of the day the Court allowed the policy claims to stand until the merits were further developed. Its reasoning and mistakes are worth a close look.
Is policy based relief available under the ADA?
The Third Circuit comes very close to holding that an injunction requiring the adoption of a policy is not available under the ADA, writing that:
In light of our inability to fully engage the merits at this stage of the litigation, we are not at liberty to decide whether Plaintiffs’ novel interpretation of the ADA and its corresponding regulations would survive a dispositive motion under either Rule 12(b)(6) , or Rule 56 of the Federal Rules of Civil Procedure .
It is notable that the Court leaves open the possibility of a Rule 12(b)(6) motion because before this appeal the case had proceeded well past the early dismissal phase. By twice calling the plaintiffs theories “novel” the Court may be suggesting that the defendants go ahead and challenge the claims when the case is remanded.
This hint, however, should not have been required. The injunctive relief available under the ADA is limited to “an order to alter facilities” and if necessary “requiring the provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods.” “Modification of a policy” refers back to the reasonable modification requirement in 42 U.S.C. §12182(b)(2)(A)(ii). That portion of the statute does not require the creation of new policies. In addition, any policy requiring that a business find and remove barriers to access would be redundant because the statute already requires this. The policy demanded by the plaintiffs in Steak ‘n Shake would say, in essence, “it is our policy to obey the law.” In fact, the policy the plaintiff wanted would have required less than the statute already requires. The plaintiffs wanted a policy requiring annual ADA inspections and remediation. Right now the ADA requires immediate remediation of architectural barriers – you can’t wait to do it once a year. A policy requiring Steak ‘n Shake stores to do less than the law permits hardly seems worthwhile.
The plaintiffs claimed that the desired policy would implement the requirement in 28 C.F.R. §36.211 that “those features of facilities and equipment that are required to be readily accessible” be maintained “in operable condition.” The plaintiffs argued, in essence, that every part of the facility was required to be readily accessible and therefore the regulations required regular maintenance of sidewalks, parking spaces and other potential architectural barriers. While the Court refused to consider the question, the statute and other regulations make it clear this regulation does not impose an obligation to maintain of the accessibility of an entire facility. It is the “features” that must be maintained in operable condition, not the facility, and of course “operable condition” hardly applies to things like parking spaces and sidewalks that one may use, but does not “operate.”
At the end of the day what the plaintiffs wanted was a policy that would affirm Steak ‘n Shake’s obligation to follow the law. Requiring such a policy is no different than ordering the defendant to follow the law, a kind of injunction courts almost aways refuse. Belitskus v. Pizzingrilli, 343 F.3d 632, 650 (3d Cir.2003).
Standing to seek policy based relief.
After finding that policy based relief was possible in theory the Court turned to whether the plaintiffs had standing to seek this relief. The Court begins with a useful summary of the requirements of ADA standing. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant and (3) that is likely to be redressed by a favorable decision.” It begins its discussion with the “injury in fact” requirement.
The Court first observes that “bare procedural or technical violations of a statute” do not create the kind of concrete harm required to show an injury in fact. Thus, it finds the plaintiffs cannot rest their claims on the mere non-existence of the desired policy; they are required to show that the lack of a policy caused them harm. The Court finds the plaintiffs have suffered the requisite concrete harm based on their alleged difficulties ambulating through allegedly non-compliant parking facilities. This is unremarkable. Difficulty navigating a facility is precisely the kind of harm the ADA was meant to prevent.
The Court next asks whether this harm is “fairly traceable” to the supposed misconduct; in this case, not having an ADA maintenance policy. It analogizes the “fairly traceable” requirement to the “but for” causation element of tort cases. Here the Court finds that the bare allegation that defendant’s conduct “caused” their injury is the equivalent of a pleading that “but for” the absence of a policy they would not have been injured. That bare assertion is precisely the kind of “a formulaic recitation of the elements of a cause of action” the Supreme Court found inadequate in Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009). Without some explanation of how the lack of a policy caused the plaintiffs’ specific injury the claim should have been dismissed.
This is especially true given the uncertain link between any policy and the plaintiff’s harm. The plaintiffs’ theory assumes that the parking lot was originally in compliance with the ADA, then fell out of compliance at some later date, and would have been remediated before the plaintiffs visited if an annual inspection policy had been in place. This is a rather long string of facts to be incorporated by implication in the word “caused.”*
The Court almost rejects the existence of redressability, observing that an injunction requiring only the adoption of a policy would not guarantee that the policy was followed and would not therefore assure that the plaintiffs would not encounter the same conditions in the future. Here again the Court is willing to stretch to permit the lawsuit to continue, finding that it is at least “likely” that the requested injunction will prevent future harm because “nothing suggests” individual stores would violate the policy, and that the district court would retain jurisdiction for some time “to address any potential failures by Steak ‘n Shake” fix problems found by the policy.
The immediate logical flaw in this argument comes from the district court’s continuing jurisdiction. So long as the district court maintains jurisdiction to require Steak ‘n Shake to remediate any barriers to access a policy requiring remediation is superfluous. It is the court, not the policy, that will prevent future injury. After the district gives up its continuing jurisdiction the likelihood that the policy will be effective depends on the policy being more effective in encouraging ADA compliance than the existing statutory requirement. It is hard to imagine that individual store managers who have not followed the law will be more likely to follow a mere corporate policy.
Even if it is assumed the policy will be followed more strictly than the law, finding that it is likely to redress the alleged potential future injury requires a considerable leaps between the links in the chain of causation. The plaintiffs were already asking for an injunction to require remediation of existing problems, so the starting point for how the policy might affect them in the future is all Steak ‘n Shakes being in compliance with all ADA standards. To prove the policy will redress the potential future injury to the plaintiffs they must prove it is (1) likely the facilities will fall out of compliance with ADA standards at a time when they are still likely to visit the store but after the court loses continuing jurisdiction, (b) the desired annual inspections for ADA violations will detect the out of compliance condition and (c) the condition will be corrected before the plaintiffs again visit the store. For parking lots and parking places required maintenance is unlikely to be necessary for years, so this chain of causes requires looking many years into the future to consider injuries not to disabled persons in general, but to these specific plaintiffs. Arguing that an ADA policy will redress future injuries is no more than speculation.
The Third Circuit came close to rejecting the entire idea that the ADA would support an injunction ordering that public accommodations adopt specific ADA compliance policies. It should have taken the last step and found that the ADA does not require any business to have a an ADA compliance policy. The statute does not require it and a mere policy is unlikely to redress future injuries because it is does no more than affirm the existing obligation to follow the law.
* In the word of the Supreme Court, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not “show[n]”—“that the pleader is entitled to relief.” Id.
Let’s celebrate the ADA’s 28th birthday with meaningful reform of a broken system.
Last week marked the 28th anniversary of passage of the ADA and for a brief time the disability law headlines in my Google News feed were celebratory. On ordinary days there are mostly two kinds of headlines. One group of headlines condemns serial or “drive-by” lawsuits as an unfair attack on innocent small businesses, using words like “extortion” and “hold-up.” The other suggests that any change to the current system of private enforcement of the ADA amounts to destroying it, saying for example that a requirement of pre-suit notice would “strip protections for Americans with disabilities granted under the Americans with Disability Act (ADA) of 1990.”* There doesn’t seem to be much middle ground, but it is worth asking whether either side is right.
Businesses sued under Title III of the ADA almost always have the same reaction. “I didn’t know I was violating the law.” Many businesses in older buildings still believe that they are “grandfathered” and don’t have to comply with the ADA, which is simply false. Others run afoul of the technical requirements in the 2010 Standards for Accessible Design, which differ from the earlier 1991 requirements and in many cases from what looks at first glance like a perfectly accessible parking space or door. In any case the business owner regards him or herself as innocent and while they are usually willing to fix the problem it seems unfair to pay their own lawyer and the lawyer who filed suit thousands of dollars. The pending legislation requiring pre-suit notices speaks to this feeling of unfairness by giving businesses a chance to fix the problem before they get sued.
The position of disability advocates on the other side boils down to two arguments. The first is that ignorance is no excuse with a law that has been in effect for 28 years now. The second is that the current sue first and give notice later is necessary because it more or less insures the lawyer will get paid. If pre-suit notice were required and businesses fixed their problems the lawyer would never get to file suit and would have no leverage to demand payment of fees. This, it is argued, would make attorneys turn to elsewhere to make money, leaving ADA enforcement up to the Department of Justice, which doesn’t have the time or resources to attack individual small businesses. Behind both arguments is often a good deal of anger about the still omnipresent barriers to access faced by those with disabilities.
The problem with the business argument is that it doesn’t address the fundamental problem – a failure of compliance. A few serial filers file frivolous lawsuits, but in the vast majority of cases the ADA violations are real and need to be fixed. In this respect disability advocates have a valid point. Twenty-eight years after the law was passed it should not be possible for me to find three strip shopping centers within a mile of my house that don’t meet ADA parking requirements, including one that redid its parking but did it wrong. The pending house bill, while it contains provisions for educating businesses about the ADA, explicitly refuses to provide new funding for that effort. Since the last 28 years of education have failed it is hard to see how a new educational effort without new money will succeed.
Unfortunately, the exact same problem applies to the arguments of disability advocates in favor of the current serial litigation system of enforcement. We’ve been doing it for 28 years with no sign that it is working. Despite the hoopla, the number of ADA lawsuits is tiny compared to the number of businesses with compliance issues, and most business owners will never be sued.* When it causes headlines serial litigation is educational, but that comes at the cost of creating hostility towards individuals with disabilities and the law itself, neither of which is likely to prompt voluntary changes in compliance. As a means of achieving widespread compliance with Title III, serial litigation has been a failure. The only real beneficiaries have been lawyers.
Why has Title III of the ADA failed, especially with small businesses? The primary reason seems to be ignorance. The ADA was passed 28 years ago, but small businesses come and go with the seasons. Unless a small business is reached when it is formed it may not exist long enough for word about the ADA to sink in, especially in communities that have not yet been hit by a high volume serial filer. Even in those communities the story makes headlines for a while and then disappears so that the next generation of owners will never hear of it. A second equally important reason is confusion. Most local building codes include some accessibility requirements, which can lead businesses to believe that their certificate of occupancy is a certificate of accessibility. Unfortunately local codes are less complete than the ADA in their requirements and in some cases requirements don’t match. For example, cities still using older versions of the International Building Code will impose parking space requirements that don’t meet current ADA standards. A business that has just paid fees for a city inspection is unlikely to understand it must also pay a private ADA expert to examine the property for compliance issues the city missed. A final reason is money. Modifications cost money and the tax credits available for ADA compliance work don’t apply to buildings constructed after 1991 even though many non-compliant buildings have been built since 1991.
Given these problems real ADA reform; that is, reform that seeks to improve ADA compliance and avoid often unfair ADA lawsuits should include these components:
- A system for making sure every new small business is informed of its ADA obligations. This shouldn’t be hard since such businesses already interact with the IRS and data on business formation is readily available from the states. It will require money, but if the goals of the ADA are worth achieving it is worth the expense.
- A grace period during which new small businesses can remediate older premises to make them comply with ADA standards. A new business that knows it has six months, but no more, to become ADA compliant will have a meaningful deadline in which to act.
- A tax credit for both inspection and remediation that applies to all remediation regardless of the age of the building. Congress was far too optimistic when it assumed that all new construction would comply with ADA standards and that only older buildings would require remediation.
- A provision that treats compliance with local accessibility requirements as sufficient when they overlap the requirements of the ADA. This would avoid the trap faced by businesses that are lead to believe they are compliant because they meet local code requirements.
- Provisions for pre-suit notice in private litigation similar to HB 620, but accompanied by funding for DOJ enforcement and education actions. DOJ enforcement has a huge advantage over private enforcement because DOJ does not collect attorneys’ fees. This means that money is not diverted to lawyers that could be better used for remediation.
These sensible reforms would undoubtedly face opposition from businesses that don’t want DOJ enforcement, from tax hawks who hate paying for federal mandates and from the well-heeled plaintiffs’ bar that has a vested interest in making sure most businesses remain open targets for litigation. Nonetheless, it is clearly time to fix an ADA enforcement mechanism that has failed to create the kind of accessibility that was the purpose of the ADA while aggravating businesses and making lawyers rich. Twenty-eight years of failure is enough.
* From On the Anniversary of the ADA, Demand That Lawmakers Defend Our Care.
** Website lawsuits may be an exception. They are so easy to file and the numbers are rising so quickly that any businesses with a significant internet presence has a real risk of being sued.
Haynes v Hooters – hard lessons about ADA website litigation
This is not the owl of Athens, a symbol of wisdom associated with the goddess Athena. Nonetheless, there is some wisdom to be gained by taking a look at Haynes v. Hooters of Am., LLC, 17-13170, 2018 WL 3030840 (11th Cir. June 19, 2018). The case has already been the subject of many articles in the pay-to-play legal press and an excellent blog by William Goren.* The main lesson to be learned from Haynes v. Hooters is one that we’ve known a long time – a private settlement agreement will not moot a new claim by a new plaintiff. Only remediation will do that. There is, however, a deeper and more disturbing message. In website accessibility claims meaningful claims of mootness may well be impossible to achieve.
To understand why we start with the point of the mootness defense. Mootness as an abstract legal concept simply means that there is no case or controversy for the judge to decide because there is no meaningful relief that the plaintiff can be granted. The mootness defense failed in Haynes because the earlier settlement on which the defense was based had an expiration date and because even before it expired a new plaintiff could not enforce it. Thus the new plaintiff could be awarded meaningful relief in the form of an injunction requiring Hooters to do what it promised in the earlier settlement. Because that relief was meaningful the case was not moot. QED as the logicians say. More