Fist with label Quick HitsI’ve been posting a lot of blogs in the last few days in an effort to catch up with a backlog of important or at least interesting cases. Just as I was wrapping up this Quick Hits blog the Sixth Circuit handed down its decision in Brintley v. Aeroquip Credit Union, precipitating the blog’s publication. Subscribers who feel they are being spammed can rest assured the pace of posts will slacken – assuming the pace of ADA and FHA accessibility developments slackens, of course.

ADA website litigation – Sixth Circuit affirms constitution

Yesterday, in what can only be called a breezy opinion by Judge Sutton the Sixth Circuit followed the Fourth and Seventh Circuits in finding that an individual who is legally barred from joining a credit union cannot suffer a Title III injury as a result of finding the credit union’s website inaccessible. Brintley v. Aeroquip Credit Union et al, Case No. 18-2326 (6th Cir. August 27, 2019). Although this opinion follows the earlier decisions from other Circuits it has special value because the Court analyzes the ins and outs of constitutional standing in a manner that makes the broader application of the opinion clear. The Court confirms, for example, that regardless of the intent of Congress as to who might be a plaintiff under a particular statute the Constitutional requirement of a concrete and particularized injury remains a foundational requirement. This lays to rest arguments that Congress intended that private attorneys general would enforce the ADA and that such vigilantes therefore need not prove an injury. Equally important is the Court’s refusal to allow speculations outside the pleadings to affect the outcome. What the plaintiff did not plead could not be used to support a claim of injury. The Court also rejects a vague “feel good” notion of dignitary harm, writing:

The internet is a vast and often unpleasant place. It contains plenty that may offend, and those who set out looking for dignitary slights won’t be disappointed.

This could apply to almost every ADA serial plaintiff, for they are always looking for trouble, never for real access. I’m confident that any time Ms. Brintley finds an accessible website she is secretly disappointed that she wasted her time looking.

The short concurrence from Judge White is worth noting because she rejects a per se rule that someone barred from membership cannot suffer an injury, agreeing only that in this case the plaintiff failed to allege an injury. This is an important point, because it make this decision broader than the Fourth and Seventh Circuit opinions that were specifically limited to the “can’t be a member” argument. Judge White’s concurrence confirms what the majority opinion suggests; that is, that ADA website visitors must allege an injury beyond having encountered some accessibility problem. Serial plaintiffs face a very real problem when they file suit. They cannot honestly allege that they intended to do anything while visiting the website but look for accessibility problems, and if that is all they allege they will have failed to allege the injury required for standing. Putting serial plaintiffs to the test; that is, requiring them to lie if they are to withstand a motion to dismiss, would have a salutary effect on this kind of litigation by creating a real threat of sanctions against them and their attorneys under Rule 11 that might deter them from filing suit when they have no standing to do so.

The District Court decision in Mitchell v. DayMet Credit Union, 2019 WL 3536578 (S.D. Ohio Aug. 2, 2019) is not longer of great importance, but is still worth reading. The opinion begins as if the Court intended to find the plaintiff lacked standing because he could not join the credit union, but ends up with a dismissal based on a simple failure to adequately plead intent to return. Along the way the Court says that Congress intended that the ADA protect against dignitary harm, citing Congressional findings of past discrimination in Section 12101(a)(2) and (a)(7), along with an Eighth Circuit case, Shaver v. Independent Stave Co., which relied in turn on Kyles v J.K. Guardian Sec. Services, Inc. With all due respect, none of these authorities justify finding an ADA injury based on harm to dignity. Both cases involved testers who suffered a harm – discrimination – that was defined by the statute. As Havens Realty Corp. taught, a statutorily defined harm is actionable as such, regardless of whether it made the plaintiff feel bad. That is the basis of tester standing. In fact, as the Sixth Circuit explained, dignitary harm cannot justify tester standing because testers are looking for discrimination and can hardly complain that they found it. Nothing in the ADA suggests its purpose was to preserve the dignity of those with disabilities in the abstract; rather, it was intended to provide broad but specifically defined benefits with respect to participation in the social and economic life of the nation.

How did it ever get so far?

It took three years, but the plaintiff in Dytch v. Lazy Dog Restaurants, LLC, 2019 WL 3928752 (N.D. Cal. Aug. 16, 2019) ultimately won on all his claims but one, which was settled. This opinion is the finale in which the Court awards attorneys’ fees. Although the Court did not grant all the fees requested, finding the hourly rate a little high and the hours excessive, the final award was $331,674.35. This in a case involving one plaintiff and a single restaurant with what do not appear to have been especially unusual accessibility issues. It is difficult to escape the conclusion that the case was over-defended. Whether the lawyers encouraged it or the client demanded it I can’t tell, but the big winners were the lawyers on both sides.

ADA Standing

In Dalton v. NPC Intl., Inc., 2019 WL 3432474 (8th Cir. July 31, 2019) the Eighth Circuit continued the sensible holding that an ADA plaintiff does not have standing to sue concerning ADA violations he never encountered because he cannot have suffered an injury from an unencountered violation. This is an issue ripe for a Supreme Court ruling, for it contradicts theSecond and Ninth Circuit’s long-standing belief that a plaintiff should be able to sue for every ADA violation related to his or her disability after encountering any one violation.

Dalton, v. JJSC Properties, LLC,  2019 WL 3802893 (D. Minn. Aug. 13, 2019) applies the ruling in Dalton v. NPC Intl to a suit against a service station. Dalton’s claim there was no accessible parking spot was mooted by remediation, and claims about other barriers failed because he had not seen them at the time he filed suit. Minnesota is a good place to be an ADA defendant, though the money wasted on lawyers could certainly have been better spent.

Open Access for All, Inc. v. Town of Juno Beach, Fla., 2019 WL 3425090 (S.D. Fla. July 30, 2019) is another example of how hard it is to obtain dismissal based on standing when the plaintiff is willing to make the necessary allegations. I’ve discussed an earlier Florida case, Price v. City of Ocala in which the defendant succeeded in obtaining dismissal of claims by a non-resident who had no plausible reason to access the city website.* The plaintiff in this case took the lesson of that case to heart an alleged he was thinking of moving to the defendant city and therefore had a real interest in the materials on its website. Open Access for All and its affiliated plaintiff Andres Gomez have filed dozens, or perhaps hundreds of lawsuits, but only a few against municipalities. It will be interesting to see, as time goes on, how may cities Mr. Gomez is interested in moving to.

Feltenstein v. City of New Rochelle, 2019 WL 3543246 (S.D.N.Y. Aug. 5, 2019) is of technical interest because it discusses what may seem like an odd set of rules for parking spaces. While ordinary accessible spaces are required to be disbursed throughout a parking facility, all the van accessible places can be clustered together. Of more general interest is the Court’s rejection of a standing argument that lumps all persons with disabilities together. The plaintiff required a wheelchair and appropriately equipped van for travel. When she filed suit the City’s parking violated the requirement that accessible parking spaces be disbursed, but did have the correct number and layout of van accessible spaces. The Court found the plaintiff suffered no injury from the failure to disburse because she had to have a van accessible space and those spaces were not in violation of the relevant rules. Those with disabilities are individuals, not mere members of some class like the “mobility impaired.” Standing rules like those in the 2nd and 9th Circuits that allow a single plaintiff to sue on all barriers to access related to his or her disability are convenient for plaintiffs and the courts, but engage in the very stereotyping that the ADA was supposed to avoid.
Hart v. Kennedy, 2019 WL 3767005 (D. Ariz. Aug. 9, 2019) is a straightforward application of the redressibility requirement for standing. The plaintiff was serious injured by scalding water in a shower that lacked the required accessibility features. She did not try allege an intent to return or future deterrence, which under the circumstances would have been implausible. As a result her ADA claims were dismissed because injunctive relief would not address any injury she might sustain in the future. Like the “why” case discussed below, this is really an ADA add-on to what is at heart a personal injury claim. The likely reason was the ADA’s attorney fee remedy, for most state law negligence claims do not allow for the recovery of attorneys’ fees.

Closed captioning of live theatrical performances

Childress v. Fox Associates, LLC Childress, 2019 WL 3642999 (8th Cir. Aug. 7, 2019) is a case with the potential to create real economic problems for live theater, for the Court of Appeals affirmed a District Court decision‡ requiring that all live performances of theatrical performances at the Fabulous Fox Theatre in St. Louis, Missouri. Unfortunately the economics of live captioning were never discussed because the defendant gave up the “undue burden” defense that would have taken cost into account. It is noteworthy however that in its regulations concerning captioning for movie theaters the DOJ exempted those theaters that do not show digital versions of movies because older movies do not include the necessary code for closed captioning. It also declined to impose a requirement that digital movies without closed captions be captioned by the theater itself. This strongly suggests that DOJ found live captioning of theatrical performances unduly burdensome, at least as an across the board requirement. At the same time, live captioning services are becoming less expensive, so the undue burden defense is one that is likely to evolve with time.

Proof of the readily achievable standard

In Neal v. Divya Jyoti Ltd., 2019 WL 3416255 (S.D. Ohio July 29, 2019) the District Court anticipated that the Sixth Circuit would adopt the Tenth Circuit’s burden shifting analysis of the readily achievable element of claims for ADA remediation. Under this analysis the defendant was able to avoid summary judgment by producing evidence that the various ADA defects might be more than the business could afford. The most notable ruling is the Court’s holding than an expert qualified to identify ADA architectural barriers and estimate the price of remediation was not qualified to opine on whether the remediation was readily achievable without expertise in finance, despite the fact that many items are among those listed in the regulations as typically readily achievable. No matter what DOJ thinks should be easy to accomplish it is always a fact intensive inquiry.

Ngoc Lam Che v. Boatman-Jacklin, Inc., 2019 WL 3767451 (N.D. Cal. Aug. 9, 2019) reached the same result although the evidence was less detailed. An employee of the Defendant testified that the remediation required would cost more than $38,000 based on the best bid received for the work and that this amount was “substantial” compared to the Defendant’s financial resources. This was sufficient to create a triable issue of fact as to whether the remediation was readily achievable. Of course at least two lawyers are spending substantial time on the case, and I wonder whether, if their fees were available for remediation, the work would not be affordable.

California dreaming

On Friday I blogged about the federal courts in California concerned with forum shopping by plaintiffs seeking to avoid the procedural barriers created by the “high frequency litigator” rules for cases under the Unruh Act. This followed a note about an earlier decision on the issue in a Quick Hits blog.**  In Mason v. Irish Times LLC, 2019 WL 3459019 (S.D. Cal. July 31, 2019) the District Court declined to exercise supplemental jurisdiction over state law claims, forcing the plaintiff to either re-file in state court or abandon the damage claims available under state law. Whether or not it is appropriate to dismiss pendent state law claims under California law is an issue before the Ninth Circuit, and it will be interesting to see how the Court of Appeals weighs state law against federal claims to determine which “predominates.”

Kidkul v. News, Inc.,  2019 WL 3526340 (C.D. Cal. Aug. 1, 2019) is the flip side of Mason v Irish Times. For website accessibility cases California state courts appear to be a better venue for plaintiffs; so much so that they usually do what this plaintiff did and specifically plead a low enough claim to avoid removal to federal court based on diversity jurisdiction. While it might seem odd for a plaintiff to limit themselves to $74,999 in total recovery the strategy makes sense when you realize that California’s statutory damages are limited anyway, and fifty thousand dollars or more in attorneys’ fees is a good payday. The only thing that suffers is remediation, for the plaintiffs expressly limit the dollar value of remediation in order to stay under the diversity jurisdiction limit. That’s right, these advocates for the disabled give up the one thing that might help those with disabilities in order to make sure the plaintiff and the lawyers get their money. If it sounds like a travesty of justice it is.Plaintiff notified the Court

Johnson v. Brunk, 2019 WL 3778711 (E.D. Cal. Aug. 12, 2019) presents an even more dramatic example of the complete hypocrisy of a supposed advocate for the disabled. After obtaining a judgment for damages under the Unruh Act Johnson abandoned his claims for injunctive relief under the ADA, seeking instead only money for his lawyers. The net result, it appears, will be that Johnson gets money, his lawyers get money, and disabled Californians get no relief at all.

In Johnson v. Cala Stevens Creek/Monroe, LLC, 2019 WL 3859032, (N.D. Cal. Aug. 16, 2019) the Court, somewhat unusually, retained jurisdiction over Unruh Act claims even after dismissing federal law claims. The reason, it appears, was simply that because the case could be decided in the plaintiff’s favor on summary judgment by applying only the ADA standards the federal issues continued to predominate. This is not the first time this judge has followed this path and serves as a reminder that because so few ADA cases are decided on appeal the district judges have a good deal of freedom in their interpretation of the law. Know your judge is a fundamental rule of ADA defense.


Cuadra v. George Brown Sports Club, 2019 WL 3817595 (E.D. Cal. Aug. 14, 2019) ultimately stands for the not very surprising rule that if the seat required for an accessible shower collapses and injures a disabled patron the shower violates the accessibility requirements of the ADA. The arguments are fancier of course, but in my mind the question is why the defendants thought the ADA claims were worth trying to dismiss. The only relief available is an injunction to fix the shower seat, and they are presumably going to do that anyway, which would give rise to a mootness defense. I suspect that the personal injury claims do not permit attorneys’ fees as a form of relief, so the ADA claims were added mostly to benefit the lawyers.

MacDonald v. Cape Cod Central Railroad, Inc., 2019 WL 3818298 (D. Mass. Aug. 14, 2019) contains a similarly odd attack on an ADA claim. The plaintiff, who is confined to a wheelchair, was told he could not board the Cape Cod Coastal Excursion Train because it was not accessible. He filed suit, alleging that he was excluded from the train because it was not accessible and that he would use it in the future if it were. There may be a “readily achievable” defense for a case like this, but to attack the plaintiff’s standing was pretty clearly a waste of time and money.

Default as a strategy

Johnson v. Kohanbash Cent. Plaza, LLC, 2019 WL 3564167 (E.D. Cal. Aug. 6, 2019) and Johnson v. Vintage Ctr. LLC, 2019 WL 3714748 (E.D. Cal. Aug. 7, 2019) are puzzling cases. The defendants evidently filed an answer to Johnson’s lawsuits, but then did not bother to oppose his later motion for summary judgment. The not surprising result is that Johnson won. It isn’t clear why this is a better way to not defend a case than simply defaulting in the first place since the attorneys’ fees likely to be awarded will be higher than in a default situation. Defendant businesses need to understand, if their lawyers don’t, that strategic decisions in this kind of drive-by case must be made before an answer is filed to achieve the desired goal of getting out as cheaply as possible.
Johnson v. Ajay Oil Inc., 2019 WL 3729813 (E.D. Cal. Aug. 8, 2019) will be of interest to those tracking the market cost of default. The Court awarded, in addition to statutory damages, a little less than $4,000 in attorneys fees and costs. That seems to be the going rate in the Eastern District.
In the Northern District of California, the default rate seems to be a little higher. In Johnson v Rocklin of California LLC, 2019 WL 3854308 (N.D. Cal. Aug. 16, 2019) the attorneys fee and cost award was almost $5,000.

Olmstead – it’s complicated

The DC Circuit’s decision Brown v. D.C., 928 F.3d 1070 (D.C. Cir. 2019) was scarcely a month old when it was briefly examined in another Olmstead decision, City of Springfield, Parent/Prof. Advoc. League v. City of Springfield, Massachusetts, 2019 WL 3729033 (1st Cir. Aug. 8, 2019). Both decisions are far more complex than a Quick Hits blog can cover, but show how hard it can be for a municipality to develop a suitable plan for insuring the disabled both adequate care and the right to live in an integrated environment, and how hard it can be for the courts to determine whether the very personal situations of different disabled individuals are suitable for class resolution.

Mootness done wrong

The following description of the defendants’ summary judgment evidence in Sutton v. 626 Emmut Properties, Ltd., 2019 WL 3531564 (S.D.N.Y. Aug. 2, 2019) says all you need to know about how not to prove an ADA claim is moot:

vague statements about increased accessibility, taken together with photographs that lack context or precise measurements, are insufficient to resolve all “genuine issues of material fact about each barrier’s compliance with the ADA.

The defendants beefed up their evidence in a reply brief, but that just prompted the Court to give the plaintiff time to see whether the remediation had in fact taken place. A mootness defense requires precise and thorough testimony, often from an expert. Less just won’t do.

A dangerous strategy fails.

In Chapman v. NJ Properties Inc., 2019 WL 3718585 (N.D. Cal. Aug. 7, 2019) the defendants settled on the eve of trial, then tried to avoid paying attorneys’ fees to the plaintiff based on the Supreme Court’s decision in Buckhannon Bd. and CareHome, Inc. v. W. Va. Dept. of Health and Human Res.† The strategy failed because the District Court found that under the Ninth Circuit’s view of Buckhannon an enforceable settlement agreement created the change in legal relationship required by Buckhannon. This is one of those times when it looks like somebody, or maybe several somebody’s, didn’t carefully understand the relevant precedents. The Ninth Circuit recently affirmed that:

the cases reviewed here uniformly require that a plaintiff receive some form of judicially-sanctioned relief, as a “judicial imprimatur ” is necessary to achieve the “corresponding alteration in the legal relationship of the parties” that the Supreme Court has identified as a pre-requisite for prevailing party status.

Citizens For Better Forestry v. U.S. Dept. of Agr., 567 F.3d 1128, 1132–33 (9th Cir. 2009). In other words, a bare settlement is not enough. In the earlier precedents referred to the District Court retained jurisdiction to enforce the settlement agreement or exercise some similar oversight even after the settlement was signed.
Although the District Court in Chapman v. NJ Properties seems to have overlooked Citizens for Better Forestry, the decision was probably correct because the settlement agreement permitted the plaintiffs to enter what was apparently an agreed default judgment in the event the settlement agreement was violated. That tie back to the Court was probably sufficient to satisfy the “judicial imprimatur” requirement. I don’t know what the settlement dynamics were when this case was first filed, but it seems odd that the case was settled for what looks like very ordinary remediation only after the completion of discovery and on the eve of trial. (See discussion of defaults above).

A worried plaintiff escapes with his skin intact.

Traynor v. Hereafter, Inc., 2019 WL 3940128 (S.D.N.Y. July 31, 2019) could be a typical web accessibility case if more judges were as active as Judge Daniels. When the defendant moved to dismiss the Court ordered a demonstration of the website so that its accessibility failures could be shown (or not shown). The plaintiff immediately dismissed the lawsuit voluntarily, presumably because he could not show the website was not accessible. The defendant moved for sanctions, but the inference I’ve drawn from the plaintiff’s dismissal wasn’t enough to justify sanctions for filing a frivolous lawsuit. A clear win for the defense in any event.

The Rehabilitation Act can bite.

A narrow trial court victory was reversed on appeal in Biondo v. Kaledia Health, 2019 WL 3884242 (2d Cir. Aug. 19, 2019), leaving the door open to a trial and an award of damages under the Rehabilitation Act. Unlike the ADA, whose requirements for the treatment of deaf patients are similar, the Rehabilitation Act permits the recovery of damages in cases of deliberate indifference. Who has to be deliberately indifferent depends on each individual employee’s authority in an organization. In this case the trial court found that none of the individuals who knew of Ms. Biodo’s problems had the authority to correct them. The Court of Appeals disagreed, finding there was enough evidence of authority for the issue to go to a jury. Hospitals and others that receive federal funds and are covered by the RA need to have very clear policies and procedures for dealing with accessibility issues so that authority is not in doubt.


* See, “Quick Hits – Memorial Day Edition

** See, “Quick Hits – Dog Days of Summer Edition

† I’ve blogged about Buckhannon before. See, “The Devil to Pay: ADA Litigation Settlement Dynamics” and more recently in Quick Hits – Memorial Day Edition

‡ I blogged about the District Court decision in “Quick Hits – All the news for April 2018