Quick Hits Black Friday_edited-2Black Friday is approaching. In honor of the annual sales we’ve collected a bevy of cases containing helpful lessons for any business subject to the ADA or Fair Housing Act.
Siler v. Abbott House, Inc.,  2017 WL 5494989 (S.D. Fla. Nov. 16, 2017) teaches a simple lesson for HOA’s: call your lawyer before you do anything concerning a disabled tenant or resident. In this case the prospective tenant was, it seems clear, treated very badly by a condominium home owners association. The conduct went from merely improper (questions about her obvious disability and need for personal assistants) to just spiteful (moving an access button to make sure she couldn’t reach it). Despite a later letter from the HOA’s lawyer apologizing and trying smooth things over the Court refused to dismiss the tenant’s claims for damages and attorneys’ fees. This isn’t a final victory for the plaintiff, but it guarantees the HOA will spend tens of thousands of dollars in legal fees if it doesn’t settle. Every HOA needs a clear set of policies regarded disabled tenants, and if those policies don’t exist, the Board should not act without first calling a lawyer.

Alvarez-Vega on behalf of E.A.L. v. Cushman & Wakefield/Prop. Concepts Com.,  2017 WL 5441831 (D.P.R. Nov. 14, 2017) is an interesting example of a court unwilling to dismiss a poorly pleaded complaint when the missing facts were well known. In ADA cases the plaintiff must plead that barrier removal is readily achievable. The plaintiff in this case pleaded that fact using language from the statute without any accompanying facts. This, the court found, failed to meet the Iqbal/Twombly pleading requirements. At the same time, the Court noted that the size of the defendant entity was well known and could support an inference that it had the needed resources to make remediation readily achievable. It therefore denied the motion to dismiss. Defending a case based on purely technical arguments appeals to lawyers, but it is often a losing strategy because it misses the point that judges want to do justice.

Nevarez v. Canyon Lakes Golf Course & Brewery LLC,  2017 WL 5479649 (N.D. Cal. Nov. 15, 2017) examines the often difficult to discern line between personal devices that a disabled individual must provide for him or herself and goods that are available to the public accommodation and that it must therefore supply. The item at issue is a “ParaGolfer,” which could be called a personal device or a species of adaptive golf cart. If the former the disabled individual is responsible for obtaining it. If the latter, it is the obligation of the golf course. The Court denied a motion to dismiss because it found there were fact issues, although it expressed some skepticism about the device being a species of golf cart. As assistive technologies improve it is likely that efforts to shift the costs to business will cause this kind of litigation to increase. With the DOJ out of the regulation business for now the courts will end up deciding these on a case by case basis.

Access Now, Inc., R. David New, John Mule, Stephen Yerardi, and Stephen Theberge v. Blue Apron, LLC, 2017 WL 5186354 (D.N.H. Nov. 8, 2017) is yet another website accessibility case holding that purely internet businesses are covered by the ADA. Of greater interest is the Court’s rejection of a due process claim based on the lack of regulations. The due process claim has been accepted by some courts**, but this Court found that the language of the statute, taken alone, was sufficient to give reasonable notice of what was required. Other Courts have taken the same position, but it clearly contradicts the way Congress designed the statute. When the ADA was first enacted its effective date was delayed until 21 months after the creation of guidelines for accessible design, giving businesses plenty of time to know what was required of them. The notion that businesses can be required to make their facilities “accessible” without the slightest definition of “accessible” flies in the face of conventional notions of due process.

Kelley v. Seagull Book & Tape, Inc.  2017 WL 5054707 (D. Utah Nov. 2, 2017), Mize v. Kai, Inc., 2017 WL 5195203, at *2 (D. Colo. Nov. 9, 2017) and Kelley v. Cafe Rio, Inc., 2:17-CV-783 TS, 2017 WL 5499781 (D. Utah Nov. 15, 2017) serve as a reminder that there is more to mootness than fixing an architectural barrier. Some careful lawyering is required. In Mize the defendant remediated and took pictures that it attached to its motion to dismiss. The Court denied the motion, finding that the lack of authentication of the pictures and a lack of any showing that policies would prevent a recurrence made the motion inadequate. In Seagull the defendant moved to dismiss based on remediation, attaching a declaration to its motion. That declaration was more than just a picture, but the Court still found it lacked necessary detail. The Court converted the motion to dismiss to a motion for summary judgment and gave the parties time to present additional evidence. In Cafe Rio the defendant moved to dismiss based on remediation as well, but with a more specific affidavit and proof of a policy that the premises would be inspected for ADA compliance every thirty days.* The Motion was granted outright. Defendants wanting to assert a mootness defense should be prepared to provide summary judgment quality evidence both that problems have been remediated and that there are policies in place to prevent any recurrence.

Kennedy v. Paniccia-Indialantic, LLC,  2017 WL 5178182 (M.D. Fla. Nov. 8, 2017) is a failed settlement case; that is, a case in which an earlier settlement failed to moot later litigation. It appears part of the problem was the same as in Seagull and Mize; that is, the Motion to Dismiss lacked the specificity needed to show that the old settlement in fact resolved the new case. More important though, it appears that the remedial work had not been completed. Completed remediation moots a future claim by a different plaintiff. An agreement to remediate does not. Most plaintiffs will settle based on a long term remediation plan – we’ve negotiated as long as 18 months for relatively simple work on parking lots or doorways. This is a nice way to postpone the expense, but it comes with a risk. Until the work is done the settlement does nothing to moot future claims.

Long v. Live Nation Worldwide, Inc., 2017 WL 5194978 (W.D. Wash. Nov. 9, 2017) raises but does not resolve the question of whether a standard “clickwrap” or “browsewrap” agreement can compel arbitration of an ADA claim based on website accessibility. The question was not answered because it turned out the plaintiff had not assented to the agreement on the website he visited, and the agreement he assented to on a related website did not cover other websites. Courts have enforced arbitration agreements with respect to ADA claims [see Siebert v. Amateur Athletic Union of U.S., Inc., 422 F. Supp. 2d 1033, 1036 (D. Minn. 2006)] and have also enforced clickwrap agreements in discrimination cases. [see, Fteja v. Facebook, Inc., 841 F. Supp. 2d 829, 832 (S.D.N.Y. 2012)] so there doesn’t appear to be any per se barrier to using a clickwrap agreement to at least compel arbitration of website accessibility claims. Website owners will want to consider how they can create enforceable arbitration agreements that bind the kind of testers who are out looking for websites to sue.

Our last case, Smith v. RW’s Bierstube, Inc. et al, 2017 WL 5186346 (D. Minn. Nov. 8, 2017) is reminder of just how far plaintiffs will go to keep a case alive and how a sensible court can use standing to eliminate serial claims. The dispute in Smith concerned the scope of discovery. The plaintiff wanted to go beyond pleaded ADA violations that had been remediated so he could keep his lawsuit alive despite remediation of every architectural barrier he had encountered. This required an inspection of the property. The Court, considering the request from a mootness standpoint saw no reason to allow the plaintiff to un-moot the case by expanding. It also sensibly rejected the idea that the plaintiff could have standing to sue for barriers he did not even know about. The only thing that keeps this from being a complete defense victory was the Court’s agreeing to allow the plaintiff to amend. That amendment will undoubtedly add new claims because, in ADA serial litigation, the point is not ADA compliance, but attorney enrichment.

*This isn’t clear from the opinion itself. We went to the Court’s file online to look at the actual filings.

** See our earlier blog Quick Hits