April was a busy month for courts confronting ADA lawsuits and some of the news is good for business; at least for business outside the Ninth Circuit. Of the cases we discuss, the two website cases are the most interesting, for they show how website accessibility cases are pointing the way back to a requirement of real rather than merely hypothetical injuries as a prerequisite to filing suit.
Standing and serial litigants
Zimmerman v. GJS Group, Inc., 217CV00304GMNGWF, 2018 WL 1512603 (D. Nev. Mar. 27, 2018) demonstrates the opportunities and challenges defendants and courts face when dealing with serial litigants. The State of Nevada intervened and requested that all of the plaintiff’s active cases be consolidated for the purpose of determining whether the plaintiff, a serial filer averaging around 25 cases a month, had standing to sue. The Court had no trouble finding that standing presented a common question of law and fact justifying consolidation; however, it felt obliged to remind the defendants that under Ninth Circuit precedent the plaintiff’s claim to be a tester was irrelevant because motivation is not relevant, and that the Ninth Circuit does not require an intent to return based on the deterrent effect doctrine we discussed in our last blog. This doesn’t mean the plaintiff is bound to have standing, but it should focus discovery on the credibility of his claims to be deterred from returning. Being a tester does not necessarily defeat standing, but it does cast doubt on claims related to deterrence. The advantage of consolidation in this and similar cases is that it permits litigation of the standing issue at a reasonable expense and accelerates a fact finding so the parties don’t have to wait until trial to know the outcome.
White v. Wisco Restaurants, Inc., 17CV103-L(JMA), 2018 WL 1510611, at *1 (S.D. Cal. Mar. 27, 2018) will remind defense counsel how easy it is to plead a claim under the ADA and how futile it is to attack such pleadings in a Motion to Dismiss, at least in the Ninth Circuit. The Court found the plaintiff’s standing allegations were adequate because she pleaded that she (a) encountered a barrier violating ADA standards that (b) was related to her disability and (c) it precluded her from the full and equal enjoyment of the facility.” The Court rejected the notion that specific allegations about dates and motives were required. Some courts have required more specificity, as we have reported, but an early motion to dismiss is probably a losing proposition in the Ninth, Second and other circuits.
In the Eleventh Circuit, on the other hand, an early motion to dismiss can work, as illustrated by Kennedy v. Beachside Com. Properties, LLC, 17-14356, 2018 WL 2024672, at *1 (11th Cir. May 1, 2018). The Court of Appeals affirmed the dismissal of a complaint by a plaintiff who lived more than 150 miles from the property and visited the area often but did not allege any specific intent to return. This is an implicit rejection of the Ninth Circuit’s deterrent effect doctrine, which accepts as an injury the plaintiff being deterred from returning by a fear of finding additional violations of the ADA standards.‡ In the Eleventh Circuit a plaintiff who does not credibly plead a specific intent to return will be found to lack standing at the motion to dismiss stage.
Carroll v. New People’s Bank, Inc., 1:17CV00044, 2018 WL 1659482, at *2 (W.D. Va. Apr. 5, 2018)
Carroll v. Farmers and Miners Bank, 2:17CV00049, 2018 WL 1659481, at *1 (W.D. Va. Apr. 5, 2018)
These are important cases for defendants in ADA website cases because they are among the few that dismisses a claim on standing grounds even though the defendant bank did not have restrictions on who could be a customer.* The Court found the plaintiff lacked standing primarily because he did not allege any intent to visit a physical facility and lived hundreds of miles from the nearest branch. Most important though, the Court rejected the notion of dignitary harm; that is, that a plaintiff suffers an injury by merely seeing or experiencing a discriminatory condition. The Court’s explanation is worth quoting in full:
Moreover, if dignitary harm under such circumstances was sufficient to confer standing, “then any disabled person who learned of any barrier to access [of a public accommodation] would automatically have standing to challenge the barrier, thereby essentially eliminating the injury-in-fact requirement.” Order at 5, Griffin v. Dep’t of Labor Fed. Credit Union, No. 1:17-cv-1419, (E.D. Va. Feb. 21, 2018), ECF No. 19, appeal docketed, No. 18-1312 (4th Cir. Mar. 20, 2018). Indeed, this is precisely what Carroll argues that the law should permit him to do—sue each and every website of a public accommodation that has a barrier to accessibility. I do not agree. Injury in fact is not automatically satisfied “whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016). Allowing Carroll’s claim to proceed based on dignitary harm alone would undermine the notion that “standing requires a concrete injury even in the context of a statutory violation.” Id.
The notion of dignitary harm is critical to the cheap standing that drives serial ADA litigation, and particularly important for serial website filers who often have no connection to the business whose website they peruse. Merely encountering an ADA violation should never be enough to confer standing on a plaintiff who suffers no other injury.
Wright v. RL Liquor, 887 F.3d 361 (8th Cir. 2018) confirms in the Eighth Circuit what other circuit courts have found concerning physical remediation. Once a business makes physical changes to its premises that are unlikely to be changed claims based on the remediated barriers are moot. This is why plaintiffs always add policy and procedure claims and why having policies and procedures is so critical to an ADA defense.**
Johnson v. Young, 217CV01642KJMKJN, 2018 WL 1875698, at *3 (E.D. Cal. Apr. 19, 2018) demonstrates the importance of policies and procedures. Defendants remediated all the barriers to access claimed by the plaintiff, but the Court declined to dismiss the case because parts of the remediation involved merely painting the parking lot and the plaintiff alleged that in the past striping had faded to the point of being useless. Without a policy to show the violations were unlikely to recur the defendant failed to meet its burden on mootness.
In Arroyo v. Vovos, 2:17-CV-4032 DDP-AFM, 2018 WL 1870412, at *3 (C.D. Cal. Apr. 17, 2018) the defendant won a mootness battle, but only after a struggle that involved first fixing everything the plaintiff’s expert could find and then re-fixing things that the plaintiff’s expert still criticized. The ability of the plaintiff to keep the case alive points to a significant problem with the ADA’s technical standards: They are so numerous and precise that it is easy to miss something, and on thing is all a plaintiff needs to keep his case alive long enough to use economic coercion to force a settlement.
Readily Achievable standard
Two new Eighth Circuit cases address the burden of proof for the “readily achievable” standard in barrier removal cases under the ADA. In Wright v. RL Liquor, 887 F.3d 361 (8th Cir. 2018) the Court found that the plaintiff had the initial obligation to present evidence “tending to show” that removal of the barrier was readily achievable and suggested this required the plaintiff offer a plausible modification, probably with expert testimony. In Disability Support All. v. Heartwood Enterprises, LLC, 885 F.3d 543, 547 (8th Cir. 2018) the Court affirmed a defense summary judgment where the defense presented expert testimony and the plaintiff “failed to any specific plans, cost estimates, or evidence regarding Heartwood’s financial position or the effects that the modifications might have on Heartwood’s operations.” These cases will be helpful to defendants faced with a plaintiff demanding unreasonable remediation but unwilling to invest in expert help.
Neal v. Second Sole of Youngstown, Inc., 1:17-CV-1625, 2018 WL 1740140, at *1 (N.D. Ohio Apr. 11, 2018) has a useful explanation of what is and is not expert testimony from a typical ADA expert. Measurements are not expert testimony because a lay person can use a tape measure or level. Testimony about whether something is “readily achievable” is not admissible because it is a legal conclusion. Testimony from a disabled witness about what would be helpful to those with the same disability is admissible. Testimony about the cost of remediation may or may not be admissible depending on its credibility and the expert’s qualifications. No surprises, but a good case to cite.
Default Judgments – when no defense is the best defense.
Brooke v. C & S Chong Inv. Corp., 117CV01583LJOJLT, 2018 WL 1704628, at *9 (E.D. Cal. Apr. 9, 2018) is another in a long line of default judgment cases from California showing why the best defense may be no defense at all. The Court granted a default judgment that awarded the plaintiff the full amount of statutory damages under California law – $5,000 – along with $1,500 in attorneys fees and an injunction requiring remediation of an absent pool lift. The injunctive relief was inevitable, and it is hard to imagine how any defense attorney could have reduced the total monetary award of $6,500. When the case is a loser, the quicker you lose the less it costs.
Although no defense may be the best defense in some cases, a half defense is probably a mistake, as illustrated by Johnson v. Elk Horn Gas Inc., 2:14-CV-00798-MCE-DB, 2018 WL 2047260, at *1 (E.D. Cal. May 2, 2018). In Elk Horn the defendant apparently answered but did not then oppose the plaintiff’s motion for summary judgment or its request for attorneys’ fees. Instead of the $1500 recovered in C& S Chong Inv. Corp. the plaintiff’s attorneys were awarded $12,630. ADA lawsuits require a decision at the very outset on a defense strategy that minimizes legal fees, meaning in most cases surrender immediately or create a strong mootness defense. The strategy of doing nothing and letting the case string out is common in other kinds of litigation, but always a bad idea in ADA cases.
ADA Class Actions
Vondersaar v. Starbucks Corp., 719 Fed. Appx. 657 (9th Cir. 2018)(unpublished) is not, strictly speaking, an ADA case because the ADA claims had been dismissed before the appeal and the remaining question concerned class actions under California’s Unruh Act. Nonetheless, the Court’s list of individual fact questions applicable to an accessibility claim points to some of the reasons class actions may not be suitable for ADA claims. Here is the relevant language:
Here, however, class-wide issues do not predominate over the numerous individual questions posed by plaintiffs’ Unruh Act claims, including whether a class member is disabled, which Starbucks store or stores he visited, how many visits he made, how high the handoff counter was at the time he visited, whether he presented himself with the intent of purchasing a product, what that product was and whether it would normally have been served via the handoff counter, and whether the class member was actually denied full and equal access.
Many of these issues go to damages – allowed by the Unruh Act but not by the ADA, but some would apply to any ADA claim.
Closed and open captioning for those with hearing disabilities
Childress v. Fox Associates, LLC, 4:16 CV 931 CDP, 2018 WL 1858157, at *6 (E.D. Mo. Apr. 18, 2018) is a peculiar case in a couple of ways. First, the defendant did not appear to understand the difference between accommodation and discrimination claims, a difference explained by the Court. More peculiar is the specific limits on their obligations the defendant chose to defend. The theatre shows live performances and was prepared to offer a captioning device to individuals with hearing disabilities, but only for some shows and only for one matinée in the run of each show. There is an expense associated with captioning when it is done live, but the defendant argue it was an undue burden to provide the captioning, only that it was entitled to choose when and how to provide it. The court rejected this argument, which has no support in the statute or case law. The lesson for theater owners – if you provide captioning for some performances you will probably need to provide it for all, at least if given advance notice.
FHA Limitations and continuing violations.
Francis v. Accessible Space, Inc. 2:16-CV-1016-JAM-GGH, 2018 WL 2002443, at *1 (E.D. Cal. Apr. 30, 2018) is a combination FHA, breach of contract and personal injury case arising out of disputes between a disabled subsidized tenant and her landlord. It was decided on a multi-point motion to dismiss, but the only really interesting part of the decision is the discussion of limitations and the continuing violation doctrine. Landlords should note that a condition that is not repaired constitutes a continuing violation, meaning that limitations will never run.
Defense attorneys fees in ADA actions.
McGee v. Winn-Dixie Stores, Inc., CV 17-8063, 2018 WL 2065579, at *2 (E.D. La. May 3, 2018) is the last gasp of Mr. McGee’s lawsuits concerning whether a retailer is required to provide accessible vending machines; in this case for filtered water.† It is a reminder of just how hard it is for victorious defendants to obtain attorneys’ fees as a prevailing party. ADA litigation is a form of asymetric warfare – the plaintiff has nothing to lose and everything to gain while the defendant has nothing to gain and everything to lose.
Maintenance failures as an ADA violation
Straw v. Village of Streamwood, Illinois, 17-1867, 2018 WL 2068695, at *1 (7th Cir. May 3, 2018) is, as the Court of Appeals writes, “the latest in a barrage of cases” brought by the plaintiff alleging that local municipalities did not remove snow quickly enough to give him unimpeded access to public facilities. It is interesting because the Court rejects the notion of dignitary standing when it describes as “meritless” the “argument that the mere existence of an ADA violation constitutes an Article III injury-in-fact.” This seems obvious, but the notion of dignitary harm rests on the idea that the mere existence of an ADA violation injures a disabled person regardless of whether it interferes with his or her use and enjoyment of the facility. The Court also points out that conditions affecting all citizens are not discriminatory, a helpful reminder that the heart of the ADA is discrimination.
‡ Our previous blog, “ADA standing and pleading – common sense from the 8th Circuit.” discusses this issue in detail.
* A number of courts have dismissed claims against credit unions with restricted memberships because the plaintiff did not qualify to be a member as described in our blog: “Credit Union victories in ADA website litigation: an opportunity for all defendants.”
** See our earlier blog, “ADA Compliance Policies and Procedures – you need them, and now.”
† See our earlier blog “Kiosks, Coca Cola and the ADA – What is a public accommodation anyway?“