Happy Valentine’s Day. The last few weeks have brought the usual assortment of cases, some of more interest than others. I’ll lead with a personal jurisdiction case that has the potential to be important for website accessibility lawsuits.

ADA Website Litigation – an important personal jurisdiction case.

Mercer v. Rampart Hotel Ventures, LLC, 2020 WL 236843 (S.D.N.Y. Jan. 16, 2020) presents a familiar fact pattern. The disabled plaintiff purportedly visited the hotel website for a hotel in Louisiana. She was unable to find information about accessible rooms and therefore exited without trying to book a room. She then sued based on a violation of the ADA, whose regulations require such information, and under New York Law. The Court’s discussion of long arm jurisdiction should be immensely helpful to out-of-state defendants in website cases. The Court first rejected long arm jurisdiction based on a transaction between the plaintiff and defendant because defendant never tried to book a room. It then rejected an argument that other transactions between the hotel and citizens of New York were relevant, finding they were unconnected to the plaintiff’s claims. The next round of briefing in this case will be crucial, for the plaintiff was granted leave to amend to add a claim for personal jurisdiction based on the commission of tortious acts in New York. Courts commonly analogize ADA Title III claims when choosing a statute of limitations: “because most discrimination claims involve “injury to the individual rights of a person” and are analogous to personal injury tort claims. Meriwether v. ABC Training/Safety Council Texas Gulf Coast Chapter, 2016 WL 8711726, at *2 (N.D. Tex. Oct. 24, 2016), report and recommendation adopted, 2016 WL 8711279 (N.D. Tex. Nov. 18, 2016), but to say an ADA claim is analogous to a tort is not the same as saying it is a tort. Indeed, if it were, ADA violations could give rise to a state law action in tort. If the court rejects that notion that an ADA violation constitutes “tortious conduct” under the New York Long Arm Statute it may well become impossible for serial plaintiffs to fuel the ADA litigation machine with casual visits to websites of out-of-state hotels and other businesses.

East versus West – are websites places of public accommodation?

Any website owner sued by the Carlson Lynch firm is aware that Judge Schwab of the Western District of Pennsylvania has found that public websites are places of public accommodation even if there is no nexus to a place of public accommodation. The holding is trumpeted in every Carlson Lynch demand. In Mahoney v. Bittrex, Inc., 2020 WL 212010 (E.D. Pa. Jan. 14, 2020) Judge Kenney of the Eastern District of Pennsylvania declined to ignore existing Third Circuit precedent and found that a plaintiff suing a website without any nexus to a physical place failed to state a claim under Title III of the ADA. The holding is correct, and Judge Schwab’s decision could be viewed as a quaint aberration but for the fact that Carlson Lynch and others file many cases in the Western District of Pennsylvania and they are all assigned to Judge Schwab, who has set himself up to wield unusual power for a single District Judge, at least in the world of ADA litigation.

ADA Website Litigation – Consent Decrees

Mendez v. Galerie Eva Presenhuber Corp., 2020 WL 550288 (S.D.N.Y. Feb. 4, 2020) and Mendez v. Kasmin Gallery, Inc., 2020 WL 598936, at *1 (S.D.N.Y. Feb. 7, 2020) simply adopts a Consent Decree settling a website accessibility case. The consent decree strategy is one I’ve long advocated as a way to get some finality in an ADA settlement. If properly written it may preclude later litigation by a different plaintiff.* Defendants interested in this strategy will find this decree a useful model.¹

Point of Sale Devices – the never-ending story.

The National Federation for the Blind first sued the Container Store claiming that its point of sale devices violated the ADA in 2015.† After a trip to the First Circuit to decide whether the Container Store’s arbitration provision was enforceable‡ the case came back to the District Court, where after a nine months delay the NFB asked for leave to amend its complaint a third and then fourth time. In Natl. Fedn. of the Blind v. Container Store, 2020 WL 533022 (D. Mass. Feb. 3, 2020) the Magistrate Judge recommended that both motions for leave be denied, finding that NFB had waited far too long to add the new claims. It is difficult as an outsider to see why a case in which the underlying issue is straightforward should remain unresolved after five years, but perhaps some kind of end is near.

Mootness done right – fix first then fight

In Villegas v. Villa Plaza Partn., L.P. 2020 WL 70831 (C.D. Cal. Jan. 6, 2020) the defendant did exactly what you need to do to prevail on a mootness defense in a Title III action. After the plaintiff’s expert surveyed the property the defendant fixed all the alleged defects and then had a certified accessibility specialist survey the property and confirm everything had indeed been fixed. The result was summary judgment and a take nothing judgment.

If nobody can use it excluding the disabled is not discrimination.

In Marasek v. 206 Courthouse Lane, 2020 WL 70926 (D.N.J. Jan. 7, 2020) the court found, under somewhat unusual circumstances, that a tenant had no ADA obligation to the public when its subtenant made parking unavailable to the public. The Defendant leased three parking spaces from the owner of a lot adjacent to the county courthouse, apparently as part of a lease of the courthouse itself. Its tenant, the county, assigned those spaces to a judge and two assistants. The disabled Plaintiff complained that she was excluded from those spaces, which were apparently the most convenient to the courthouse. The District Court rejected the claim on the principle that a disabled plaintiff has no right to a facility that non-disabled users are also excluded from. It’s a good reminder that the ADA is an anti-discrimination statute, not a statute intended to grant special privileges to the disabled. While the physical access requirements of the ADA have a necessary affirmative action component its heart is a requirement of equal, not special, treatment for the disabled.

ADA standing – what will the Fifth Circuit say?

In Mosley v. Midas Worthington, LLC, 2020 WL 113350 (M.D. La. Jan. 9, 2020) the Court denied a motion to dismiss based on standing because, as is often the case, the plaintiff knew what to plead. The case is interesting because it recognizes that the Fifth Circuit has not directly addressed “deterrent effect” as an injury that gives rise to standing for future injunctive relief. “Deterrent effect” is often contrasted with “intent to return,” which requires an actual intent to return in order for a plaintiff to be entitled to injunctive relief. It is puzzling that neither this court, nor the Ninth Circuit, where deterrent effect was invented, has considered the self evident fact that one cannot be deterred from returning to a place they never intended to return to. A plaintiff may argue that they are deterred from formulating a specific plan to return, but if the plaintiff never intended to return at all deterrence is impossible. With any luck the Fifth Circuit will have the chance to explain there is only one kind of future injury that satisfies the constitution, and that is a future injury based on a real intent to return.

ADA pleading – bare allegations are not enough.

In Whitaker v. Ohanessian, 2020 WL 95644, at *1 (N.D. Cal. Jan. 8, 2020) the court granted a defense motion to dismiss a claim based on the naked allegation that defendant failed to provide accessible dining surfaces. The court observed that:

Plaintiff fails to allege where the purported barrier is located, in what manner the surface is inaccessible, and how Plaintiff was denied full and complete access to the restaurant’s services.

Without that detail the complaint failed to meet the pleading standards under Iqbal and Twombly. The plaintiff was granted leave to amend, and if there are continuing ADA violations the pleading defect will no doubt be cured. This kind of attack on the pleadings should only be made in conjunction with fixing any real accessibility issues.

Default as a strategy – here are the stats

Johnson v. Patel,  2020 WL 550194 (E.D. Cal. Feb. 4, 2020) – after default the Plaintiff was awarded  $7,360 in damages and attorneys fees plus an injunction requiring remediation.

Kraus v. Rattu,  2020 WL 526105 (E.D. Cal. Feb. 3, 2020) – after default the Plaintiff was awarded $8,255 in damages and attorneys fees plus an injunction requiring remediation.

Johnson v. Ballew,  2020 WL 589192 (E.D. Cal. Feb. 6, 2020) – after default the Plaintiff was awarded $8,000 in damages plus an injunction for remediation. (Johnson files pro se and so does not get attorneys fees).

Johnson v. Atwal,  2020 WL 487414 (E.D. Cal. Jan. 30, 2020) – after default the Plaintiff was awarded $7,980 in damages and attorneys fees plus an injunction for remediation.

Ariza v. Untuckit, LLC, 2020 WL 408241 (S.D. Fla. Jan. 24, 2020) – in this ADA only case the plaintiff recovered about $10,000 in fees, costs and expenses along with an injunction requiring remediation of the defendant website. This Court treated the plaintiff and his lawyers as ADA heroes, perhaps because despite being a hotbed of conventional ADA lawsuits Florida lags behind in ADA website lawsuits.

Strojnik cases

As noted in Strojnik v. Bakersfield Conv. Hotel I, LLC, 2020 WL 509156 (E.D. Cal. Jan. 31, 2020) Peter Strojnik has filed more than 1700 ADA cases pro se. Strojnik was once a prolific plaintiffs’ lawyer, but was disbarred in May of 2019.** That and other disciplinary actions forced him to go into business as a pro se litigator, a business in which he has had some success. In this case he lost a motion to dismiss because his pleadings were inadequate, making the case worth study for the many defendants he continues to sue.

The role of experts in ADA litigation

Gustafson v. BI-State Dev. Agency of the Missouri-Illinois Metro. Dist.,  2020 WL 409011 (E.D. Mo. Jan. 24, 2020) is a title II website accessibility case in which the defendant sought to exclude the plaintiff’s expert, who had conducted a survey of various problems with access to the defendant’s transit system. The Court allowed the testimony concerning observations, but not legal conclusions. The opinion has a useful discussion of survey evidence should be treated and the limits of its use to force specific legal conclusions.

Teaser – 11th Amendment and the ADA

The 11th Circuit’s recent extensive discussion of 11th Amendment immunity in Natl. Assn. of the Deaf v. Fla., 945 F.3d 1339 (11th Cir. 2020) deserves more time and space than this Quick Hits blog can give it. Look for a longer discussion in the next few weeks.

* See our discussion in Haynes v Hooters – hard lessons about ADA website litigation

** See, “Attorney Peter Strojnik Disbarred”

† I blogged about the case in 2016, when the issue at hand was the effectiveness of an arbitration agreement blind customers could not read. See, “You can’t agree to what you can’t read.” Point of Sale devices have been the subject of ADA litigation since 2014. See, “The Next Wave – ADA Lawsuits against POS devices”

‡ The answer was yes and no, depending. See, “Quick Hits, Recent ADA and FHA Cases”

1. These are the most recent of a number of essentially identical consent decrees entered in the Southern District of New York to resolve class action ADA website claims.


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