There has been a lot of ADA and FHA news in the last 10 days, so in an effort to catch up I’m going to aim for a blog a day over the next few days. Today’s is dedicated to cases reported to me by colleagues and subscribers, some of which have not yet appeared in official court reports.
Standing is the Achilles heel of serial plaintiffs
Maximilian Travis of Muchmore & Associates PLLC in Brooklyn told me about a result that confirms what we all know – a serial plaintiff’s greatest weakness is standing. You can allege anything to get past a motion to dismiss, but when the truth don’t lie, as they say, the standing claims of most serial litigants won’t stand up to the slightest scrutiny. That is no doubt why the plaintiff in Wu v. Jensen-Lewis, Case No. 1:17-cv-06534-34, (EDNY)* decided to voluntarily dismiss all her claims shortly before a status conference that would have likely required her deposition and browser history. This isn’t surprising – serial plaintiffs often lose on standing when they push through to trial. The fact that defendants have to spend a of money to win on an issue that deprives the court of jurisdiction is a weakness in the ADA as interpreted by the courts.
Robert Taft sent me the decision in Crawford v. Hines Cty., Case No. 3:17CV118TSL-RHW (SD Miss. Oct. 8, 2019), in which the plaintiff also ran into a standing problem. There was no doubt the plaintiff was disabled and that the county was covered by Title II of the ADA. The issue was whether the plaintiff was likely to suffer a future harm that would give him standing to seek injunctive relief with respect to inaccessible features of the county courthouse. He had visited the courthouse for various reasons over several years but had no specific plans to return except as a “tester” looking for ADA compliance problems. The court found as a matter of fact that the plaintiff was not likely to return as a “tester” based on his failure to return to the courthouse to check on accessibility at any time after he first complained to the county about accessibility. This is reminder that “tester” status does not exclude ADA standing, but does not guarantee it either. Many plaintiffs allege an intent to return based on their desire to see whether the property is ADA compliant, but in most cases this allegation is not supported by the facts for serial plaintiffs rarely bother to return to the same place twice. The only surprising thing is that Crawford relied only on tester status. As a county resident he was very likely to have other business at the courthouse in the future, and while the future dates would not be known, the probability of a return trip was high.
Robert Taft also called to my attention the decision in Hernandez v. Caesars License Co., LLC, Case No. 19-06090 (DNJ Oct. 4, 2019). While the application of the ADA to most websites is a matter of controversy there is no doubt hotel websites are obliged to provided certain information about handicap accessible facilities to potential patrons. This plaintiff, like others, spends his days checking out hotel websites to see if they comply with DOJ regulations concerning this information, suing those who don’t. The court analyzed his standing claim by asking first what kind of injury he might have suffered. He did not claim he was prevented from visiting the hotel by the lack of information, presumably because he doesn’t intend to visit any hotel whose website he visits. His injury was instead that he could not “independently determine whether he could stay” at the hotel. The court characterized this as an “informational injury” that occurs when the plaintiff is not given legally required information or cannot access information to which he is entitled. However, inability to access information is not in and of itself an injury. To show real harm the plaintiff must show that because he didn’t have the information he was unable to do something he wanted to do. Because the plaintiff never wanted to stay at the hotel, his inability to obtain information caused him no harm. Other courts have disagreed with the position, recognizing the inability to use the website as an independent injury. See, Poschmann v. Coral Reef of Key Biscayne Developers, Inc., 2018 WL 3387679, at *3 (S.D. Fla. May 23, 2018). In a larger context this case is part of a trend in which federal courts refuse to recognize dignitary harms to those who test websites without any intent to take advantage of the underlying goods and services. That gets back to the most fundamental question about Title III of ADA itself. Was it intended to make the world a happier place in general for those with disabilities or only to guarantee equal participation in economic and social life.
Braille gift cards? A novel theory being pursued by serial litigants.
Stephen Meyer of Meyer Inspection Services was the first of several correspondents to point out news articles concerning a set of new lawsuits filed by Gottlieb and Associates, a well know serial filer of website accessibility lawsuits. These new suits claim that stores violate the ADA by not making gift cards available in braille or with braille packaging. The Complaint has a lot of information about the gift card market and retailers who voluntarily provide gift cards and other goods with braille packaging but does not address the very specific ADA regulations concerning goods sold. 28 CFR §36.307(a) provides that Title III does not require a public accommodation “alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities.” Gottlieb alleges that gift cards are a service of the issuing retailer in an effort to avoid this regulation, but as a matter of fact gift cards are sold like other goods in a store’s inventory, usually in a display by the checkout counter next to the gum and lip balm. This is especially true of retailers who sell not their own gift cards, but gift cards of other stores. It is also far from clear how the lack of braille gift cards would ever deter the plaintiff from buying goods and services. After all, if you can buy a gift card then you can buy the goods and services directly. It would be foolish to predict the outcome of these cases, particularly since the retailers may decide the cost of braille gift cards or braille packaged gift cards is not high enough to be worth fighting over. I don’t think, however, that the claims made in these lawsuits would be found compelling by the Supreme Court if the cases ever got that far.
Gender issues and disability
I learned about the October 22, 2019 decision in Doe v. Northrop Grumman Systems Corp., Case No. 5:19-CV-00991-CLS (ND AL), from Robert Taft and William Goren, whose blog on the case at williamgoren.com is worth reading. This is one of several cases in the last year dealing with gender dysphoria and transgender individuals. The ADA excludes from the definition of disability “transsexualism” and “gender identity disorders not resulting from physical impairments.” The Northrop Grumman court found this unequivocally excluded Doe’s transsexual gender identity. Earlier cases like Doe v. Mass. Dept. Corrections, 17-12255-RGS (D. Mass, June 14, 2018) have recognized gender dysphoria as a disability, citing evidence of a physical cause (“diagnoses have a physical etiology, namely hormonal and genetic drivers contributing to the in utero development of dysphoria.”) as well as arguing that gender dysphoria is just not covered by the phrase “gender identity disorder” because it is a diagnosis developed long after the passage of the ADA. At the heart of this dispute is the far deeper (and more ancient) question of what constitutes an impairment. The brain is a physical organ, and gender identity arises from that organ and its interaction with other parts of the body. When reproductive organs line up with gender identity we consider gender identity inevitable. When gender identity and reproductive organs don’t line up the cause is certainly physical (the brain is an organ like any other) but we have to confront the question of whether this difference between a less common kind of brain and other more common kinds is an “impairment.” Transsexual individuals generally do not like to consider themselves impaired because the problems that arise from gender identity issues are social, not physical. It is the reaction of others to transsexual gender identity that makes life difficult, not the gender identity itself. At the same time, existing laws forbidding gender discrimination may not apply to non-traditional gender identities, an issue before the Supreme Court right now. This makes the ADA an attractive way to fight against discrimination based on gender identity. Treating gender identity as arising from an impairment may help transgender individuals in the short term, but the real solution lies in understanding that the case in which gender identity does not line up with reproductive organs is fundamentally the same as the case in which gender identity does line up with reproductive organs. It is the identity, not the reproductive organs that matters.**
Personal jurisdiction as a limit on ADA website complaints.
The internet is everywhere, but long before plaintiffs’ lawyers decided to get rich suing websites under the ADA courts recognized that just because a business website could be accessed from anywhere in the world did not mean it met constitutional fairness requirements to sue the business anywhere in the world. I blogged about the Kroger case in this regard† and Robert Taft has provided two additional examples of courts refusing to exercise personal jurisdiction over defendants with no real ties to the jurisdiction in which they were sued. In Comacho v. Northeastern University, 2019 U.S. Dist. LEXIS 178306 (SDNY Oct. 15, 2019) the Court described three categories of website; those that were purely passive, permitting no user interaction, those that permitted the completion of transactions by a user, and those that permitted some interaction with the user but without permitting the completion of a transaction. The first does not support personal jurisdiction, the second can certainly support personal jurisdiction, and the third may or may not support personal jurisdiction. Placing the defendant’s website in the third category the Court found the degree and nature of the interactions permitted did not satisfy the constitutional fairness requirement first described long before the internet in International Shoe v. Washington. Camacho v. Emerson Coll., 2019 U.S. Dist. LEXIS 178354 (SDNY Oct. 15, 2019) reached the same result. While larger online retailers will rarely benefit from a personal jurisdiction defense, smaller retailers and others who do not sell goods or services nationwide may find that lack of in personam jurisdiction is a valid defense that can be raised early enough in the case to save money on settlement and legal fees.
Owning a tape measure isn’t enough.
Another case reported by Robert Taft, Hillery v. Sun City Anthem Cmty. Ass’n, Inc., 2019 U.S. Dist. LEXIS 177313 (D. Nev. Oct. 11, 2019), explicates the difference between physical access discrimination and operational discrimination as well as the difference between expert opinions and legal conclusions. Although the claimed discrimination did not involve the physical characteristics of the defendant’s facilities the plaintiff retained an architect as expert witness. The court first rejected the expert’s opinion to the effect that the facility was a “public accommodation” covered by the ADA, finding that this was a legal conclusion that the Court could determine without expert assistance. Expert reports that leap from facts to a violation of the law will often be subject to the same objection. The Court also rejected the expert’s opinion that the plaintiff was disabled, finding in essence that doctors, not architects, were required to reach such a conclusion. His opinions concerning the sufficiency of accommodations offered by the defendant and whether a requested accommodation would have fundamentally altered or created an undue burden were rejected because he merely restated the facts and then gave his opinion on the legal conclusion to be reached without additional explanation. The same was true of his opinion that the defendant harassed the defendant, which was not based on any particular expertise he had. The court did allow his opinion that the defendant did not “meaningfully” comply with the ADA’s accommodation requirement but found it “shaky.” The takeaway from the court’s extensive discussion of the expert’s testimony is simple – you can’t prosecute or defend an ADA accommodation case with a single expert, especially an expert whose training is limited to physical accommodation. The existence of a disability requires medical evidence and the existence of undue burden or fundamental alteration requires someone with operational and financial expertise. This makes these cases harder to prosecute and defend but is a natural result of the law’s complexity.
* See our earlier blogs about this case at The role of experts in Title III website litigation
† See, Quick Hits – serial filer edition
