GingermanCongress and the President are taking a break, but the ADA and FHA cases keep coming. It has been an unusual few weeks because we have two circuit court opinions to discuss, though neither breaks much new ground. A third circuit court decision – Mielo v. Steak and Shake Operations – will get a blog of its own.

Temporary obstructions under the ADA

One of the circuit court decisions is Hillesheim v. Myron’s Cards and Gifts, Inc., 17-1408, 2018 WL 3602372 (8th Cir. July 27, 2018), which deals with problem of aisles blocked by “temporary” obstructions. We’ve blogged about this before* and the law really hasn’t changed. DOJ’s regulations acknowledge that aisles that are required to be 36″ wide will from time to time be blocked when shelves are being re-stocked or perhaps repaired. This doesn’t excuse the case in which the aisles are always blocked with something temporary.  The line between temporary obstructions and permanent clutter can be hard to draw, and early in a lawsuit is not when hard lines are drawn. In this case the District Court dismissed a claim based on clutter in the aisles, applying an absolute rule that temporary obstructions could not violate the ADA. The Eighth Circuit disagreed, finding that the issue required factual development to decide whether the temporary obstructions were really temporary. This put it in line with the earlier cases cited in our past blogs.

The case is also a good reminder that while most ADA public accommodation litigation focuses on architectural barriers there is a more general prohibition against discrimination that can include things like a failure to maintain the premises or a failure to make sure temporary obstructions are temporary. Our blog “ADA Compliance Policies and Procedures – you need them, and now” explains why with appropriate tales of horror.

Websites and the ADA

Suchenko v. ECCO USA, Inc., 18CV0562, 2018 WL 3660117 (W.D. Pa. Aug. 2, 2018) is only the latest in a long series of decisions by Judge Schwab of the Western District of Pennsylvania in which he has denied Motions to Dismiss in website accessibility cases. In this and many other decisions he has followed the substantial number of courts holding that a website is a place of public accommodation governed by the ADA. Unless the defendants in this case have already decided to push the case through to the Court of Appeals this Motion to Dismiss was a waste of time and money because it was doomed from the start. The lesson to be learned is not legal but practical – case strategy in ADA litigation must be based on knowledge of the individual judge and his or her earlier decisions because there is relatively little circuit court authority.

Haynes v. Dunkin’ Donuts LLC, 18-10373, 2018 WL 3634720 (11th Cir. July 31, 2018) is the other recent circuit court decision on ADA matters. For an in-depth discussion you cannot do better than William Goren’s recent blog “11th Circuit speaks on Website Accessibility and the ADA.” He points out the plain truth: this isn’t really that interesting a case. It simply follows the 11th Circuit’s long-standing holding that if a website or other service is connected to accessing a physical place of business then it must be accessible as a service or facility of the public accommodation. Bill also points out the missing discussion of the far more interesting problem of websites operated by a franchisor that does not own any physical places of business but serves franchisees that do operate physical places of business. There is a reasonably consistent body of law concerning when a franchisor tips over into being an “operator” of the facilities of its franchisees.** We also have cases like the one discussed in the next section below that distinguish between those who have some relationship to a physical place of business but don’t actually own or control it. What happens though to a company that provides a service on behalf of a public accommodation it does not control? In Circuits like the 9th and 11th that reject the idea of websites themselves being public accommodations it remains unclear whether a website provider is liable along with the public accommodation for which it provides a website.

Brintley v. Aeroquip Credit Union, 17-13912, 2018 WL 3497139, at *1 (E.D. Mich. July 20, 2018) and Brintley v. Belle River Community Credit Union, 17-13915, 2018 WL 3497142, at *3 (E.D. Mich. July 20, 2018) are among the few credit union cases in which a motion to dismiss was denied despite a claim that the plaintiff lacked standing because she could not qualify to join the credit union. The Court rejected this defense because, it held, the injury to the plaintiff was not denial of the services of the credit union, but denial of the use of the website itself. The Court goes on to find that whether or not the website is a place of public accommodation, its nexus to the physical credit union facility is sufficient to bring it under the requirements of the ADA. The disconnect between these two parts of the Court’s decision is obvious. If a website standing alone is a public accommodation then it makes some sense to argue that being denied access to the website is an ADA injury. On the other hand, if the website is covered by the ADA only because of its connection to a physical credit union, and the plaintiff could never use the physical credit union because she didn’t qualify as a member, it doesn’t make much sense to say that inability to access the website caused her any real injury. This isn’t the only logical flaw in the decision. The court also declined to consider intent to return and redressability as elements of standing because under the applicable state law the plaintiff was entitled to money damages. Almost all federal courts decline to exercise jurisdiction over a pendant state claim when they have no jurisdiction over the federal claim, and standing is, of course, jurisdictional. This would be a perfect case to appeal if the economics made sense.

Fuller v. Mazal Group LLC, 18-CV-60456-BB, 2018 WL 3584700, at *5 (S.D. Fla. July 25, 2018) is notable only because it correctly summarizes and applies the prevailing Eleventh Circuit law on website accessibility; that is, a website must be accessible if it offers services related to those offered in physical stores.

“Operator,” “Nexus” and “Public Accommodation” explained

Huzar v. Groupon, Inc., 17 C 05383, 2018 WL 3619388 (N.D. Ill. July 30, 2018) is a case about a website user that is not a website case. For lawyers and others interested in clear thinking about the ADA the case has good elementary explanations of important concepts. The Plaintiff has spinal bifida and requires an accessible hotel room and accessible seating at events. He tried to use Groupon to find these things but was told in each case none were available from the respective hotel and arena. Instead of suing the businesses whose services he wanted to buy, he sued Groupon, claiming it violated the ADA by not providing what he needed. The Court granted Groupon’s motion to dismiss, explaining simply that a third party reservation or ticket agency was not the “operator” of the public accommodation whose services it sold, that the “nexus” theory between services and public accommodations used in web cases only concerned a nexus between the services of the public accommodation and the accommodation itself, not services of a third party, and finally that ADA regulations requiring that tickets be made available to those with disabilities applied only to the public accommodation, not third party re-sellers like Groupon. It’s a straight forward decision but since Mr. Huzar won’t be the last to file this kind of suit a very useful one.

And then there is Long v. Live Nation Worldwide, Inc., C16-1961 TSZ, 2018 WL 3533338 (W.D. Wash. July 23, 2018), a case holding that the “nexus” requirement is met when a third party ticket seller offers tickets to events at a public accommodation without, however, discussing the fact that the nexus requirement is justified by treating the web site at issue as a service of the public accommodation. Long makes it clear that although the nexus concept originated in the Ninth Circuit more than a decade ago‡ there is still a lack of clarity in the concept.

ADA Pleading the “readily achievable” standard

Dytch v. Bermudez, 17-CV-02714-EMC, 2018 WL 3643702 (N.D. Cal. Aug. 1, 2018) is worth reading just to wonder how a plaintiff could fail three times in a row to obtain a default judgement. There is also, however, an important legal point, for the third attempt failed in part because the plaintiff failed to allege facts (as opposed to conclusions) about the age of the facility or whether the demanded modifications were readily achievable. The date of construction matters because pre-ADA buildings are required to remove architectural barriers only if it is readily achievable. To plead a case for absolute liability for failure to meet ADA standards it is necessary to allege that the building was constructed after the ADA came into effect and that the defendant owned it at the time of construction. If was a pre-ADA building or there is a subsequent owner then the readily achievable standard applies. If the readily achievable standard applies, this court at least requires facts showing that the remediation is readily achievable. It does not seem to be a high bar,† but it requires more than a “formulaic” recitation. This matters in serial ADA litigation because the business model of most plaintiffs’ attorneys in these cases requires that they devote little or no time to investigation and pleading – the goal is file quick and settle cheap in order to avoid the time and effort of a real fight. Demanding facts instead of a mere repetition of the statutory standing interferes with the profitability of these cases. Defendants’ counsel can add Dytch v. Bermudez to their arsenal of cases to use in those rare cases when it makes sense to fight instead of settle.

ADA “intent to return” v. “deterrent effect”

Van Winkle v. Houcon Partners L.P. 2018 WL 3543908 (S.D. Tex. July 3, 2018), report and recommendation adopted sub nom. Van Winkle v. Houcon Partners L.P., 2018 WL 3535300 (S.D. Tex. July 23, 2018) is a more or less standard denial of a motion to dismiss for lack of standing. The Court implicitly imposes a modest standard on pleading specific barriers to access and rejects the notion that “tester” status or serial filing disqualifies a plaintiff or makes a pleading suspect. The most interesting part of the case is the discussion of the “deterrent effect” doctrine that originated in the Ninth Circuit. This doctrine holds that an ADA plaintiff need not plead or prove an intent to return if he or she pleads he or she is deterred from returning by knowledge of the alleged violations. It takes only a moment of clear thinking to see that unless the plaintiff originally intended multiple visits to the location he or she cannot plausibly allege deterrence. You cannot be deterred from doing something you never intended to do in the first place. A claim of deterrence demands an allegation of an original intent to return or it is not plausible. This and many other courts that treat the deterrent effect doctrine as somehow meaningfully distinct from the intent to return requirement need to give a moment’s though to what deterrence is.

Mootness done right and amendment denied.

Langer v. Chavez, 2:17-CV-4034-ODW-AS, 2018 WL 3524583, at *4 (C.D. Cal. July 20, 2018) is another example of how to moot an ADA case. The Defendant prevailed because he had a certified expert list each of the items identified in the complaint and state that it was compliant with the relevant ADA standard because of specific measurements taken. No blanket “its all o.k.” kind of statement. The Defendant also waited until summary judgment, thus taking away any reliance on the allegations in the complaint and making it too late for the plaintiff to amend to add new claims. This is how to do it when fighting makes sense.

* See, “Get it right the first time – the problem with “temporary” obstructions” “Counter clutter – Is it a barrier or a bad policy under the ADA?” and “The aisles are overflowing – which may violate the ADA

** See, Neff v. Am. Dairy Queen Corp., 58 F.3d 1063, 1066 (5th Cir. 1995) and similar cases.

† See, “Who’s on first? Shifting burdens in ADA accessibility litigation

‡ See, Natl. Fedn. of the Blind v. Target Corp., 452 F. Supp. 2d 946, 953 (N.D. Cal. 2006)