A couple of recent cases caught my eye because they serve as reminders of the persistence of certain strategic considerations in ADA defense. The first, Taylor v. Wing It Two, Inc., 2013 WL 3778315 (S.D. Fla. 2013) demonstrates the perils of a settlement that isn’t followed by complete remediation. The defendant had settled a previous ADA lawsuit but had not, it appears, actually remediated every ADA violation. The Court rejected the argument that this settlement bound the new and different plaintiff in part because the new plaintiff sued for violations that were not part of the earlier settlement. A settlement without full remediation is a flimsy shield against later lawsuits. More
Since 2010 the Department of Justice has been in the process of creating rules for web access under the ADA. No rules have been proposed, and this month the DOJ announced that it was splitting the proposed rule making into two parts and delaying the issuance of a notice of proposed rule making for both. The original proposed rules were to cover both Title II entities (cities other municipalities) and Title III entities (private businesses operating as places of public accommodation. The Title II rules will now proceed as a separate process with an earlier proposed date. More
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, Restaurants, Retail Tags: ada litigation, ADA pleading, ada violation, FHA Litigation, private lawsuits, private litigants, real-estate, restaurants
A case decided just last week, Dodson v. Strategic Restaurants Acquisition Co., 2013 WL 3120322 (E.D. Cal. 2013) is worth study for any ADA or FHA defense attorney. There is plenty of technically useful information because the Court has provided an extensive survey of cases discussing whether Iqbal and Twombly apply to affirmative defenses. This is an unsettled question, and the Court lists many of the pro and con authorities. There is also an important moral lesson for defense attorneys. The Court isn’t likely to hold the defendant to a lower pleading standard than the standard for the plaintiff. What’s sauce for the goose is sauce for the gander.
Starbucks has a long history of litigation about the height of its pickup counters. In 2003 Starbucks settled a claim by a California disabilities rights group concerning the height of its pickup counters. In 2011 Starbucks obtained the dismissal of another pickup counter height lawsuit, Chapman v. Starbucks, 2011 WL 66823 (E.D.Cal. 1022) based on mootness. The counter had been lowered to comply with the ADA requirements. In 2012 Starbucks settled a case that included counter height allegations in the Southern District of Florida. Access 4 All, Inc. v. Starbucks, Case No. 0:11-cv-61010 (S.D. Fla.). The settlement terms do not appear in the record, but most ADA settlements include remediation plus attorney’s fees, so it is a reasonable guess that Starbucks had to lower the counters in the 4 stores at issue. Just a few days ago, on June 5, 2013, a different District Court awarded Robert Cruz some $145,960.07 in attorney’s fees for his successful action against Starbucks concerning one Starbucks store. The Consent Decree in that case called for lowering the pickup counter. Cruz v. Starbucks Corporation, 2013 WL 2447862 (N.D. Cal. 2013) and see Docket 29-1 in the underlying case, 3:10-cv-01868. More
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA Litigation General, Public Facilities, Restaurants, Retail, Shopping Centers Tags: ada litigation, private lawsuits, real-estate, restaurants, retail, service animals
Imagine you are the operator of a paintball facility. A group of 15 blind individuals make a reservation without, however, mentioning they are blind. They arrive more than an hour late after a hike of several miles and are in a generally bad mood. One or two of them have trouble navigating the facility, with one running into a post and another almost falling off a deck. You conclude that they cannot, in the time available, learn to use the equipment and safely engage in the sport, so you decline to allow them to play. Naturally, you are sued under the ADA.
Another story of ADA absurdity? Not exactly. In Blind Industries & Services v. Route 40 Paintball Park, 2013 WL 1209649 (D.Md. 2013) the District Court concluded that under the circumstances it was reasonable for the owner to conclude that there was a direct threat to the More