Quick Hits – Serial filer edition

This is a bad pun. Sorry.

All but two of today’s cases are from serial filers, and 7 of 17 are from a single serial filer, Scott Johnson. The fact that serial filers dominate the world of ADA litigation is hardly news; in fact, it would news if an ordinary disabled individual who suffered a real ADA injury filed suit. It is also news that federal judges in the mid-west are showing an increased reluctance to keep cases alive based on dubious standing claims. As Bradley Cooper sings in the latest version of A Star if Born, “Maybe it’s time to let the old ways die.”

More good news on standing.

Smith v. Bradley Pizza, Inc., 2019 WL 2448575 (D. Minn. June 12, 2019) shows that in the Eighth Circuit, at least, standing is treated with the significance it deserves. Unlike the Ninth Circuit, where merely seeing a purported ADA violation is enough to give rise to standing, courts in the Eighth Circuit require that plaintiffs prove an injury more substantial than feeling bad. In Smith v Bradley Pizza, the plaintiff’s failure to tie the supposed ADA violations to any interference with his patronage of the restaurant doomed his claim because “the law is clear that an individual’s frustrations with widespread non-adherence to the law are not injury-in-fact.” The Court also declined to accept vague allegations about an intent to return, finding there was also no proof of a likely future injury. This is good news for businesses in the Eighth Circuit for it should reduce the possibility of abusive serial litigation.

The decision in Harty v. Grand-Sasso, Inc., 2019 WL 2423095, (E.D. Pa. June 7, 2019) is not quite as favorable as that in Smith v. Bradley Pizza, but it shows a court taking standing seriously enough to want some facts instead of vague allegations. Faced with a Rule 12 Motion to Dismiss the Court gave the parties 60 days to take discovery concerning standing and the nature of the vaguely alleged ADA violations. The standing allegations of serial plaintiffs like Harty can rarely withstand any kind of close scrutiny, so discovery may be sufficient to obtain dismissal of the case and, hopefully, a finding that would put Harty out of business entirely. Defendants’ counsel should take note. Early discovery on standing may be a reasonably cost effective way to win an ADA lawsuit if for some reason and early settlement is not acceptable.

You still lose. . .

The plaintiff in Hillesheim v. O. J.’s Cafe, Inc., 2019 WL 2513675, at *2 (D. Neb. June 18, 2019) is a serial filer case demonstrating again that courts in the Midwest are more skeptical of this kind of lawsuit than those on the coasts. In this case Hillesheim lost on a motion to dismiss filed after the only ADA violation he identified was remediated. Hillesheim moved to set the judgment aside because the court’s original reasoning was wrong. The court agreed but after it applied the correct analysis, concluded that Hillesheim would still lose. The most interesting part of the court’s discussion is the rejection of the notion that an ADA plaintiff who sees one violation has standing to sue for all ADA violations related to his disability.ª In this case the Court found that once the specific alleged violation was remediated the possibility of other violations was irrelevant. The plaintiff’s claim was limited to his pleadings, not everything he might find later, so regardless of which analytic road was taken he lost.

Just how silly can serial litigation be?

Estrada v. Sun Fam. Properties, LLC, 2019 WL 2424101 (C.D. Cal. June 10, 2019) shows just how silly serial litigation can be. The plaintiff found two supposed ADA violations in the defendant store – a bag dispenser and a ticket dispenser more than 48″ above the ground. The defendants fixed both and moved for summary judgment. The plaintiff opposed the motion, trying to keep the case alive with a policy and procedures claim that in theory was not mooted by fixing the problem. He lost and the case was dismissed. Why did the plaintiff fight on after the problem was fixed? Certainly not because of any real belief that an injunction against future violations was needed to protect those with disabilities. No, it is clear (to me at least) that the battle continued only because the plaintiff’s attorneys wanted to get paid, meaning that a few thousand dollars worth of attorney time on both sides was multiplied many times for a reason unrelated to accessibility. This also meant the Court had to waste time on an issue unrelated to access for the disabled.

First Fix, Then Fight

Johnson v. Siu Keung Chan, 2019 WL 2448443, (E.D. Cal. June 12, 2019) shows why. The plaintiff claimed a number of supposed ADA violations that were not in fact violations, but prevailed with respect to restroom problems that it appears could have been easily and cheaply fixed. The Defendants opted to cut off their attorneys’ fee expense by not opposing summary judgment; however, failing to fix the problems early in the case almost certainly guaranteed a much larger attorneys’ fee award in favor of Johnson’s attorneys. The key strategic decision in ADA serial cases is whether to surrender or fight, and it must be made before an answer is filed in order to minimize the total cost of litigation. The choice to fight, even to the extent of filing an answer, has to be accompanied by a decision to fix all legitimate ADA violations because otherwise the plaintiff will be able to justify their own continued fees. First Fix, Then Fight.

ADA retaliation claims against public accommodations – yes they do exist.

Most ADA lawsuits against public accommodations arise out of a single encounter by a serial plaintiff with some alleged architectural barrier or an inaccessible website. The plaintiff never goes back, so there isn’t an opportunity for the owner to retaliate. Wolpert v. Starbucks Corp., 2019 WL 2369906, at *4 (E.D. Cal. June 5, 2019) may be one of those rare public accommodation cases that invokes Article V of the ADA, which prohibits retaliation against those who complaint about ADA violations.º The facts are hazy because the pro se plaintiff did not do a good job of pleading them, but it is a good reminder that Article V is always lurking in the background to provide a claim against public accommodations who decide to take out their frustration on individuals who complain about ADA violations.

Default as a strategy

Johnson v. Ramirez LP, 2019 WL 2315290 (E.D. Cal. May 31, 2019) is a typical ADA default judgment case. The Court reviewed the complaint and found it sufficient, granted injunctive relief, awarded the minimum statutory damages under California’s Unruh Act, and awarded less than 4,000 in attorneys’ fees to the plaintiff’s lawyers. It is hard to imagine how the defendant could have gotten a better result by mounting a defense. Default remains a viable strategy for small businesses if the alleged ADA violations can be fixed at a reasonable cost and no “readily achievable” defense is available.

Johnson v. Pizano, 2019 WL 2499188, (E.D. Cal. June 17, 2019) is so similar to Johnson v Ramirez that there is no point in providing details.

And in Johnson v. VN All. LLC, 2019 WL 2515749, (N.D. Cal. June 18, 2019) Johnson’s lawyers got about $4500 in attorneys fees, but the results were otherwise the same.

If you’re going to lose anyway . . .

In Johnson v. Powers, 2019 WL 2386063 (E.D. Cal. June 6, 2019) the plaintiff obtained a summary judgment against the defendant and then sought legal fees. The total award was a little more than $10,000. That is not extraordinarily high but it is more than twice what Mr. Johnson’s lawyers got in the Ramirez case above. Again, the key strategic decision in ADA litigation must be made as soon as the suit is served. Will you fight to the bitter end and hope to prove the plaintiff does not have standing (assuming the ADA violations are true) or will you surrender immediately and minimize attorneys’ fees. Deferring this decision until after an answer is filed or the case is referred to mediation is likely to do no more than increase the total cost of the lawsuit with no corresponding savings in the cost of remediation.

Johnson v. AutoZone, Inc., 2019 WL 2288111 (N.D. Cal. May 29, 2019) shows the cost of failing to properly make a Rule 68 offer of judgment. The defendant admitted early in the lawsuit that it needed to remediate its parking and made a Rule 68 offer of judgment that proposed an injunction to fix the parking and the maximum damages available under state law. After two years of additional litigation the plaintiff won exactly what had been offered – plus costs of court. The Court cut the plaintiff’s claimed attorneys fees by 75% but it was not willing to limit the fees to those incurred before the offer of judgment. Why not? Because the offer did not include court costs and therefore did not offer more than the plaintiff ultimately won. Surrender in the form of a Rule 68 offer can be an effective way to cut-off the plaintiff’s attorneys’ fees, but only if it is done right.

Arbitration of Title III ADA claims

In Cheshire v. Fitness & Sports Clubs, LLC, 2019 WL 2537386 (S.D. Fla. June 19, 2019) the Court engaged in a standard analysis to conclude that ADA claims brought by the plaintiff were required by contract to be arbitrated. This is not an unusual result, but it is one businesses should remember if they have the opportunity to obtain an arbitration agreement and feel arbitration will be a better forum for a challenge to the plaintiff’s claims.

Outrage as a defense – not likely to work.

This most recent iteration of the perpetual battle between Scott Johnson and Starbucks, Scott Johnson v. Starbucks Corp., 2019 WL 2299954 (N.D. Cal. May 30, 2019) amounts to a routine application of the newly discovered evidence rule (FRCP 60(b)) but has an important lesson for any defendant. Starbucks obtained significant evidence in this and other cases that Mr. Johnson was not in fact visiting some of the restaurants he sued. Based on that evidence it argued that an earlier summary judgment in Mr. Johnson’s favor should be overturned. The Court denied the motion because the evidence was not directly applicable to this particular case. Starbucks seemed to be arguing, in essence, that Mr. Johnson was a bad person and therefore his earlier affidavits were not reliable. Whether or not Mr. Johnson is a bad person* remains to be seen, but if there is an admitted ADA violation (as there was in this case) character is unlikely to be relevant.

Natalia Juscinska is a serial filer of ADA lawsuits who seems to specialize in lawsuits based on the failure of hotels to have accessibility information on their websites. In Juscinska v. Paper Factory Hotel, LLC, 2019 WL 2343306 (S.D.N.Y. June 3, 2019) she defeated a defense Motion to Dismiss predicated on the availability of a 24 hour telephone help line that offered the information the website did not. The Court observed that in the earliest stages of a case it had to assume the plaintiff’s allegation that she suffered from differential treatment was true, precluding a finding that the telephone alternative was sufficient. This is not surprising since the Ninth Circuit recently expressed doubt that a telephone hotline was a sufficient alternative in Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 904 n. 4 (9th Cir. 2019) as did another lower case involving pizza ordering on line. Robles v. Yum! Brands, Inc., 2018 WL 566781 (C.D. Cal. Jan. 24, 2018). The defense seemed to think the weakness in its motion to dismiss could be overcome by outrage, claiming the plaintiff “would rather file dozens of lawsuits than pick up [ ] the phone once.” I’m not a fan of serial filers, but outrage is simply not a defense recognized by any court.**

Personal jurisdiction in ADA website cases – there are limits.

Diaz v. Kroger Co., 2019 WL 2357531 (S.D.N.Y. June 4, 2019) is a case notable primarily for its finding that a website claim could be mooted by remediation.† It also applies a standard personal jurisdiction analysis to find that a company doing no business in a state cannot be sued in that state. While ADA website litigation is a relatively new phenomenon, personal jurisdiction based on the “presence” of a company through its website has been litigated many times. This is still an important decision, for it rejects the idea that merely operating a website that is “present” in a state and allows some customer interaction is sufficient to sustain personal jurisdiction.

ADA liability follows control of third party applications.

Gustafson v. Bi-State Dev. Agency of Missouri-Illinois Metro. Dist., 2019 WL 2342434 (E.D. Mo. May 31, 2019) shows just how hard it is to obtain an early dismissal when the plaintiff’s allegations are assumed to be true. The plaintiff was seeking to file a 4th amended complaint adding allegations that would keep his Title II ADA claims alive. Although it seemed unlikely he had standing on some of these claims there was some doubt and that was enough for the Court to conclude the amendment was not futile. The most interesting part of the Court’s ruling concerns the defendant’s responsibility for a third party mobile application that was alleged not to be accessible. The Court rejected an argument that the defendant had no responsibility, finding that the defendant might be responsible for making sure the third party application was accessible. As a rule, ADA liability follows control, and if a government entity or public accommodation has sufficient control to require that a third party application be accessible it will be liable for any inaccessibility.

The ADA as a safety standard.

It’s always gratifying to have a Court agree with your advice, and that makes Samuels v. Safeway, Inc., 2019 WL 2372983, at *4 (D.D.C. June 5, 2019) one of my favorite recent cases. I read this case a few days after I told a lawyer in another state it was unlikely an ADA violation would be considered per se evidence of negligence, and it turns out the District Court for the District of Columbia agrees. It dismissed a per se negligence claim based on an alleged ADA violation and, in the discussion, and seems to have foreclosed an argument that the ADA is any evidence at all of negligence. The relationship of the ADA and negligence claims has been litigated with different results in different courts, so other jurisdictions may disagree.‡

Obesity, disability and standing

In Velez v. Cloghan Concepts, LLC, 2019 WL 2423145 (S.D. Cal. June 10, 2019) the Court takes on obesity as a disability, concluding that morbid obesity, regardless of its cause, is a disability when related symptoms (difficulty breathing, walking and standing) substantially limit major life activities.†† It then goes on to take a hard look at the relationship between that disability and alleged ADA violations. The plaintiff alleged the usual ADA violations – counter tops too high, accessible seating not dispersed, – but did not tie these violations to his particular disability. Because he failed to link his obesity to the specific ADA violations he failed to state a claim and the lawsuit was dismissed. This is not ground-breaking law, but it is a reminder that even the 9th Circuit’s liberal standing standard has limits.

Impairment and disability are not the same.

It is unwise to draw too many conclusions from a case like Frogge v. Fox, 2019 WL 2418749 (N.D.W. Va. June 10, 2019) with a pro se plaintiff. Who knows how the plaintiff might have fared with competent counsel. Still the discussion of the difference between impairment and disability is a good review of the distinction and its importance.

In other news . . .

Usablenet, a major web accessibility contractor and consultantºº has published its latest report on web accessibility lawsuits. It shows that the current rate of lawsuit filings has hit one an hour (during business hours). “MIDYEAR ADA WEB & APP ACCESSIBILITY LAWSUIT REPORT [BLOG].” A similarly frightening statistic – almost half of the top 500 retailers in the U.S. have been sued. That’s a lot, but when you consider that thousands of ADA website lawsuits have been filed it means that many of the lawsuits are directed at smaller businesses with less money and less ability either to defend themselves or remediate their websites. A likely result will be that small e-commerce sites associated with individual stores and small chains will simply disappear as their owners move their on-line sales to behemoths like Amazon or Ebay. An online world full of experimentation and small business opportunities will inevitably be turned into an online mall dominated by a few mega-stores and the largest independent retailers. It seems unlikely that’s what Congress intended when it passed the ADA.

A now long-standing racketeering lawsuit against one of the most prolific serial filers, Ronald Moore, and his law firm took a new twist last week when the Court struck the answers of two defendants and entered default’s against them as a sanction for perjury. Rather than re-count the blow-by-blow I’ll refer you to a good article by Jenna Greene explaining the case and most recent ruling. “A San Jose Law Firm Has Filed 1,400 ADA Suits. But Is That Racketeering?”

ª See our blogs “ADA standing and pleading – common sense from the 8th Circuit” and “ADA pleading – can a plaintiff give fair notice of an ADA violation if he doesn’t know it exists?”

° Retaliation claims are common in Article I employment actions where the employee and employer have a relationship that goes on long enough fo”r retaliation to occur.

* See “Pushing the Needle Too Far” in my Memorial Day Quick Hits blog.

** See “Outrage is not a defense” in my Tax Day blog, or just search accessdefense.com for more examples of the failure of outrage to get any positive result.

† See, “Accessibility moots a website accessibility claim – a surprising decision that shouldn’t surprise anyone.”

‡ See, “Personal injury and the ADA” along with other Accessibility Defense blogs with the word “negligence.” William Goren’s ADA blog also has several discussions of this issue.

ºº In the interest of full disclosure I work with Usablenet from time to time.

†† Just two days later the Seventh Circuit disagreed, holding that obesity is a disability only if caused by an underlying physiological condition. Richardson v. Chicago Transit Auth., 2019 WL 2442786 (7th Cir. June 12, 2019). Whether it makes sense to distinguish between physiological and psychological causes of obesity and whether there is any real difference given the fact that the brain is a physical organ is a discussion for another day, as is the question of whether the ADA should distinguish, as it sometimes does, between conditions that were the result of accident or heredity and conditions that were arguably the result of bad choices.