benjamin-franklin-03 copyThis last week a federal district court in Ohio kicked out most of an ADA plaintiff’s claims that were based on the defendant’s lack of an ADA policy.  Mark Timoneri  v. Speedway, LLC,  2016 WL 2756868  (N.D. Ohio May 12, 2016). Just a few weeks earlier the federal district court for the Western District of Pennsylvania confirmed an earlier magistrate judge’s recommendation to confirm a class under the same facts. Heinzl v. Cracker Barrel Old Country Store, Inc., 2016 WL 1761963 (W.D. Pa. Apr. 29, 2016) adopting the recommendation in Heinzl v. Cracker Barrel Old Country Stores, Inc, 2016 WL 2347367 (W.D. Pa. Jan. 27, 2016). The cases illustrate how different judges can reach very different results on similar facts as well as a fundamental disagreement on whether Title III of the ADA requires ADA compliance policies.

In Heinzl the plaintiff sued Cracker Barrel, the chain of hillbilly themed stores, alleging a variety of ADA violations. The basis for class certification was, as the decision explained:

she contends that Cracker Barrel’s company-wide ADA  compliance policies and practices are woefully inadequate to ensure that Cracker Barrel meets its legal obligation to provide facilities accessible to persons, like her and the proposed class, who have mobility disabilities.

The defendant admitted that “it had no formal ADA policy”  and the plaintiff was able to show through her experts that many Cracker Barrel stores had parking and other ADA issues. After a lengthy discussion the Court concluded that it could order Cracker Barrel to:

to put in place an ADA  compliance policy that will effectively take note of ADA  violations on an ongoing basis so that they can be remedied and Defendant’s stores remain compliant.

It therefore certified a nationwide class of individuals who were denied access to Cracker Barrel due to its inadequate policy.

Speedway reached a very different result. The allegation of an inadequate policy was almost identical to that in Cracker Barrel.

ADA compliance policies are inadequate in both their conception and implementation and are not reasonably calculated to make their facilities fully accessible to, and independently usable by individuals with mobility disabilities.

The facts concerning Speedway’s policy were similar as well. Plaintiff’s experts had surveyed a number of Speedway stores and found many ADA violations, evidence, according to the plaintiff, that lack of an adequate policy was a cause of ADA violations. The Court found, however, that this was not enough.

The Court finds that this conclusory allegation of a policy, which would encompass any type of ADA violation regarding individuals with mobility disabilities, is insufficient to confer standing to sue on behalf of a potentially nationwide class.

Based on this the Court dismissed all claims with respect to stores the plaintiff had not visited and struck the class allegations.

The only real difference between these cases is the judges who decided them, although there is more than a hint in Heinzl that the magistrate judge did not trust defendant’s counsel. One could make lawyerly arguments about minor distinctions, but the holdings cannot be reconciled. In the Western District of Pennsylvania not having a policy will justify a class action seeking relief in the form of an injunction to create a policy. In Ohio not having a policy will result in dismissal of any class allegations.

One obvious conclusion is that every business should have an ADA compliance policy for its physical facilities. Such a policy both improves the likelihood that buildings will be ADA compliant and acts as a shield to allegations based on the lack of such a policy. At the same time, every business needs to understand that unless the policy is perfectly implemented individual lawsuits and class actions are still possible. Heinzl is aiming for an “effective” policy, but it is far from clear what that means. Is a policy “effective” if you can find one violation in a hundred stores? Ten violations? Fifty?  Every business should have an ADA compliance policy, but it is the implementation of that policy that will provide the only effective means of deterring litigation.