Fist by Richard1ADA forum shopping – another problem with the internet.

Access Now, Inc. v. Otter Products, LLC, 2017 WL 6003051 (D. Mass. Dec. 4, 2017) points out one of the many problems created by the thoughtless application of the ADA to websites – the potential for forum shopping.  Massachusetts is one of the most favorable venues for ADA website cases because its federal courts have held that all websites are subject to the ADA regardless of their connection to a physical place of business. In Otter Products the plaintiff lived in Massachusetts and had no difficulty persuading the Court that it could exercise jurisdiction over the defendant based on product sales over the internet to Massachusetts residents. The possibility of being sued in almost any state comes with doing business nationwide. The problem with ADA lawsuits is that while we have a single federal law there is no single federal standard for determining which websites must be accessible or what accessibility means. This means plaintiff’s law firms will be choosing where to file suit based on an agenda that may bear little or no relationship either to real accessibility or what Congress intended. Businesses with nationwide sales may as well accept that every website must be accessible (because that is what the most liberal courts have held) and that website accessibility will mean whatever they lack (because that is the allegation needed to get past a motion to dismiss).

ADA limitations.

Hamer v. City of Trinidad, 16-CV-02545-NYW, 2017 WL 5969815 (D. Colo. Dec. 1, 2017) presents an interesting and thorough discussion of the statute of limitations in ADA cases. My fellow blogger William Goren has already said most of what needs to be said, so I simply refer you to his blog Just When Does the Statute of Limitations Begin to Run in ADA Cases.

Counting parking spaces.

Davis v. Morris-Walker, Ltd., CV 17-1270(DSD/FLN), 2017 WL 6209825 (D. Minn. Dec. 7, 2017) is a straightforward decision concerning how to count ADA accessible parking spaces. After the suit was filed it appears the defendant did the needed remediation based on its own parking lot. The plaintiff claimed this was not adequate because the number of accessible spaces did not take into account a nearby parking lot. The court agreed with the defendant. The only interesting question is why the plaintiff, having achieved the goal of getting the remediation wanted to continue fighting. The answer, of course, is attorneys’ fees. A plaintiff whose claim is dismissed as moot does not recover attorneys’ fees. This creates an incentive for plaintiffs to pursue a case beyond its logical end. I’ll be blogging about this structural problem with the ADA and how it might be addressed in the near future. Stay tuned.

What were they thinking?

The Midwest Disability Initiative and Gerald Doyen v. JANS Enterprises, Inc., 17-CV-4401 (JNE/FLN), 2017 WL 6389685, at *1 (D. Minn. Dec. 13, 2017). If you wonder why the disabilities rights community has such a difficult relationship with the business community this case points to one explanation. The organizational plaintiff, MDI, settled a lawsuit with the defendants on August 2, 2017. Sixteen days later they found a new disabled plaintiff and filed a new lawsuit against the same defendants. Really? The Court refused to grant sanctions to the defendants but had no trouble finding the 2nd lawsuit was barred by res judicata. One can only assume that the members of the Midwest Disability Initiative hate all businesses so much that they can’t see how unreasonable their own actions appear.

An ADA defense to claims of negligence.

Thorpe v. BJ’S Restaurants, Inc., 617CV1162ORL18TBS, 2017 WL 6335901, at *4 (M.D. Fla. Dec. 8, 2017) is a rare case in which ADA compliance was used to establish as a matter of law that a restroom was not negligently designed. A restaurant patron was injured when an inward swinging door hit him as he walked to the sink. He later died of his injuries and his survivors sued claiming the restroom was negligently designed because the door swung into an area where patrons might stand. The Court granted a defense motion for summary judgment based on testimony that the restroom complied with the local building code and the requirements of the ADA with respect to clear spaces at the door and sink. We’ve written before on the different treatments courts have given to the claim the ADA is a safety related statute* but this seems to be the first time ADA compliance was taken as evidence of non-negligent design.


Chapman v. City of Lincoln, 215CV00270MCEEFB, 2017 WL 6344343, at *3 (E.D. Cal. Dec. 12, 2017) is an interesting mootness case because it doesn’t discuss the standard for mootness determinations based on policy changes. We observed last week ** that making easily reversible changes in policy will not usually moot a claim because there is not a sufficient guarantee the alleged violation will not recur. In this case the change that mooted the plaintiff’s claims was moving the location of city council meetings from an inaccessible location to an accessible one. The Court dismissed for mootness without any mention of the possibility the location of the council meetings might be moved back at any time. The legal nihilists (a school of jurisprudential philosophy) would say this proves there is no real standard and the judges make it up as they go along. A better explanation lies in the fact the city acted promptly, corrected the accessibility issues at the original location and generally acted like good guys. Fix first, then fight, and you are more likely to get a win.

*  Personal injury and the ADA – is every violation per se negligence? and other earlier blogs.
** The nightmare before Christmas – ADA violations where everything is not enough.