The title of today’s blog recognizes the gift bestowed by Judge Nannette Brown on everyone interested in the ADA in all its many details. Bailey v. Bd. of Commissioners of Louisiana Stadium and Exposition Dist., 2020 WL 5309962 (E.D. La. Sept. 4, 2020) is the latest of Judge Brown’s decisions concerning the dispute over stadium seating in the Superdome. Written after trial, the 64 page decision methodically dissects the law concerning concerning which standards apply to what parts of a facility after alterations, what the sight-line requirements for stadiums are under the various standards, including an exposition of the law concerning Auer deference and the effect of Kisor v. Wilke, how Title II program accessibility requirements fit into design/build standards, what kind of control is required for a person to be an “operator” of a public accommodation, when and how the “reasonable modification” requirement in Title III of the ADA applies to Title II entities, and last but not least the extent to which Title I’s “interactive process” requirement might apply to Titles II and III. The Fifth Circuit, and maybe the Supreme Court, will have the last word in this case, but if you are looking for a quick reference to almost every issue that comes up in a case involving altered facilities you can find it in this decision.¹

Burden shifting for the “readily achievable” standard.

In Lopez v. Catalina Channel Express, Inc., 2020 WL 5405677 (9th Cir. Sept. 9, 2020) the Ninth Circuit adopts the “plausibly show” standard for a plaintiff’s initial burden on whether removal of an architectural barrier is readily achievable. This brings it line with the Second Circuit’s standard while rejecting the more difficult burden imposed by the Tenth Circuit, which requires that a plaintiff provide precise cost estimates and a specific design in order to shift the burden of proof to the defendant. Despite his failure to meet even the lower standard the plaintiff’s claims survived because the district court never evaluated the plaintiff’s claim that the defendant failed to offer some alternative method of access. What I find interesting is the relatively sloppy work by the plaintiff’s expert, who seemed content to show that the restroom door at issue was too narrow. This seems common in ADA cases and may result from the lack of a damage remedy. In a personal injury case the plaintiff’s attorneys are often willing to come out of pocket for substantial expert witness fees in the hope of a large payoff in damages. The ADA provides no such incentive. It is equally noteworthy that the parties and lower court didn’t quite get the alternate method claim resolved at summary judgment. As the Bailey v Bd. of Commissioners case illustrates, the ADA has a labyrinthine quality that makes it easy to get lost among the different possible claims and defenses when the lawsuit seems straight forward. Before embarking on the prosecution or defense of an ADA claim it is worth remembering that beyond Titles II and III themselves there are numerous regulations, guidances, and technical standards running to hundreds (or even thousands) of printed pages, along with a large and often inconsistent body of case law.²

Disability rights and voting rights.

I blogged in August on the 11th Circuit’s decision in People First of Alabama v. Merrill,³ a decision that was promptly made meaningless when the Supreme Court stayed the effect of the District Court’s preliminary injunction.  Now the District Court has determined that fact issues preclude summary judgment in favor of the plaintiffs, who sought a permanent injuction requiring curbside voting.  People First of Alabama v. Merrill, 2020 WL 5370227 (N.D. Ala. Sept. 8, 2020). It seems likely that even under the most pessimistic assumptions about the Covid-19 pandemic this case will be moot before there is a final judgment and that the 2020 elections will be unaffected.

Next door in Louisiana a second attempt to require changes in voting procedures due to Covid-19 has survived a Motion to Dismiss. Harding v. Edwards, 2020 WL 5371350, at *1 (M.D. La. Sept. 7, 2020). Though the lawsuit survived, the ADA claims did not, taking the decision outside the scope of this blog.

In my home state, Texas, disabled plaintiffs have prevailed on summary judgment in a Covid-19 voting case. Richardson v. Texas Sec. of State, 2020 WL 5367216 (W.D. Tex. Sept. 8, 2020). The lawsuit includes ADA claims and the decision addresses all the standing issues common in ADA lawsuits, but the final decision is based on constitutional rather than statutory claims. Anyone interested in democracy will find it interesting reading, but it is outside the scope of this blog. It may also have only a brief effect as a Fifth Circuit appeal has already been filed.

Supplemental Jurisdiction over Unruh Act claims

Federal courts in California continue to take different positions on whether supplemental jurisdiction over Unruh Act claims is appropriate. In Rutherford v. Leal et al, 2020 WL 5544204 (S.D. Cal. Sept. 16, 2020) the Court declined to allow the plaintiff to use the federal courts to evade state efforts to end abusive Unruh Act litigation. Other courts disagree, so as is often the case in ADA cases, knowing your judge is critical to strategic decision making.

Tester standing

Johnson v. JKLM Properties, L.L.C., 2020 WL 5517234 (N.D. Cal. Sept. 14, 2020) make a critical point concerning the standing of “testers” in ADA litigation. Plaintiffs often assert that “testers have standing” to bring ADA claims despite the fact that they do not intend to purchase goods or services. In JKLM Properties the Court points out that while being a tester does not preclude standing it also does not guarantee it. This isn’t a surprising result since it is precisely the result reached by the Supreme Court in Havens Development Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114 (1982). Nonetheless, the misconception persists and finds its way into lower court decisions. The clear discussion in JKLM Properties could be helpful in beating it back.

Another nail in the coffin of gift card litigation.

“The Court finds that Defendant is not obligated to modify its gift cards to include braille because its gift cards are not a financial service—they are goods.” Delacruz v. Ruby Tuesday, Inc., 2020 WL 5440576 (S.D.N.Y. Sept. 8, 2020). That about sums it up – any claim that a public accommodation is required to provide braille gift cards should be subject to dismissal at the pleading stage because public accommodations are not required by the ADA to modify the goods they sell.

Default as a strategy.

The Court’s award of $8,632.90 in damages, fees and costs to a plaintiff taking a default judgment in
Spikes v. Mann, 2020 WL 5408942 (S.D. Cal. Sept. 9, 2020) is a little above market, but cheaper than the cost of defending and then losing the same case, or even negotiating a settlement. The attorney’s fee and cost portion of the award – $4,632.90 – is only $132.90 more than a typical settlement with a serial filer in North Texas. I don’t recommend default as a strategy because settlement permits the defendant to control the extent and pace of remediation, but most ADA serial cases can be resolved cheaply if the defendant’s lawyer works at it.

Choose your battles – money isn’t cheap.

I just watched the new Tom Hanks movie, Greyhound, which follows the first battle experiences of the new commander of a World War II destroyer. Early in the combat he commands several “full patterns” of depth charges in an effort to sink a German submarine. Later, when the ship is running out of depth charges and badly needs them he agrees with his second-in-command that in the future he’ll be more frugal with ammunition at the beginning of a battle. The same principle applies in litigation. Most clients have limited resources, and starting an ADA lawsuit with all guns blazing may mean there isn’t money for a fight when it is most needed. A few recent cases give examples of this.

In Chavez v. Arias, 2020 WL 5502326 (E.D. Cal. Sept. 11, 2020) the defendant decided to stand and fight over whether the plaintiff should be permitted to amend to add additional architectural barriers not in the original Complaint. The arguments are clever but failed because the sufficiency of pleadings isn’t the primary issue when leave is sought to amend. Waiting until summary judgment, when the plaintiff’s burden is higher, usually results in a more efficient use of client resources.

The same lesson is found in Kennedy v. Nisha, Inc., 2020 WL 5569509 (M.D. Fla. Sept. 17, 2020). After an initial lawsuit alleging ADA website violations was dismissed on venue grounds the Defendant claimed to have fixed the website. However, when the suit was refiled in the correct venue the plaintiff alleged there were still violations. The Court denied a 12(b)(6) based on mootness because it found it could not decide the factual dispute at the pleading stage. The Court also denied a motion to dismiss based on standing. The discussion of the issue is interesting because the Court recognizes the problem of applying traditional standing principles to website testers who only intend to visit a hotel website, not to visit the hotel. The Court was not daring enough to move the law forward, but at least discussed the direction in which it should be headed. Either motion would have been far more likely to succeed at the summary judgment stage. Motions to dismiss sometimes succeed in ADA cases, but not often enough to make it a good bet when spending client money.

An early Motion to Dismiss in Strojnik v. 8757 Rio San Diego Mission Valley Owner, LLC,  2020 WL 5544220 (S.D. Cal. Sept. 16, 2020) succeeded because the defendant leveled a factual as well as a facial challenge to the pleadings. Strojnik is a notorious serial filer who, as the Court notes, has been found to be a vexatious litigant in the Northern and Central Districts of California. The facial challenge to the pleadings failed, as one would expect. With more than a thousand lawsuits under his belt Strojnik knows how to plead standing. The factual challenge succeeded because the defendant took the time to accumulate evidence showing that some of the crucial allegations were not credible or absolutely false. This kind of factual challenge is essentially an early summary judgment motion, which is the earliest point in an ADA lawsuit a standing challenge is likely to succeed.

Johnson v. JKLM Properties, L.L.C., 2020 WL 5517234 (N.D. Cal. Sept. 14, 2020), cited above, succeeded with a facial attack on the pleadings because the defendants found evidence of which the Court could take judicial notice, thus avoiding the limit on the Court’s ability to go outside the pleadings. After taking judicial notice of Johnson’s more than 3600 ADA lawsuits and geographic facts concerning where Johnson lived and where the defendant was located the Court had no trouble determining that allegations of likely future injury did not meet the Iqbal / Twombly plausibility standard. The discussion is thorough and should inform any standing attack in an ADA case. As for broader strategic principles, the key to success here was the defendant’s meticulous accumulation of evidence to support their motion and the Court’s willingness to take Iqbal and Twombly seriously. Not all courts do this, so knowing your judge is critical before deciding to spend money on a motion to dismiss.

Unreasonable is o.k. if there is no reasonable alternative.

Scalercio-Isenberg v Port Authority of New York and New Jersey, 2020 WL 5578504 (S.D.N.Y. Sept. 17, 2020) presents an interesting conundrum. Is an unreasonable accommodation acceptable if the plaintiff can’t think of a reasonable alternative? The plaintiff was a disabled bus passenger who could not board her bus at its usual gate and was instead required either to cross active bus lanes, which is both illegal and dangerous, or to use a cumbersome call ahead procedure to meet her bus at the only accessible gate. The Court found the call ahead procedure offered as an accommodation by the defendant was not reasonable, but nonetheless dismissed the plaintiff’s claims because she could not come up with a reasonable alternative. This is a stark reminder of the limits on what the ADA can do for those with disabilities when their needs cannot be met without extraordinary efforts. At the same time, one wonders if the outcome would have been different if the plaintiff had not been pro se and could have more effectively attacked the Port Authority’s arguments.

Was this lawsuit really necessary?

It is hard not to sympathize with the defendant in Brooks v. City of Carmel, 2020 WL 5544007 (S.D. Ind. Sept. 15, 2020). The plaintiff is 80 years old, has memory problems, likes to conduct his business with the City in person, and video records his activities so he can remember them later. Reading between the lines in the long descriptions of events it is evident he would be called “crochety” in novel by Dickens. Unfortunately, his inflexible insistence on using his video camera as a memory aid ran headlong into the City’s policy against using cameras in some of its private offices. For reasons that are not clear a relatively new City officer decided it was time to draw the line on recording in its offices and after a couple of confrontations with Brooks, Brooks filed suit making claims under Title II of the ADA and for various other alleged interferences with his rights. The City won because it had offered Brooks any number of reasonable ways to do business without recording in private offices. It appears, however, that just a little give by the City would have avoided a lawsuit without seriously compromising its need to keep private offices private. The law is a clumsy and expensive instrument for regulating the way people interact, and sometimes it is better, or at least cheaper, to be nice than to be right.

Losing is free – cheating is expensive.

The plaintiffs in Borum v. Brentwood Village, LLC, 2020 WL 5291982 (D.D.C. Sept. 4, 2020) lost their lawsuit on the merits. In most FHA cases such a loss is disappointing but not devastating because while the FHA permits an award of attorneys’ fees to the prevailing party, a prevailing defendant must prove the lawsuit was brought in bad faith in order to recover. (Prevailing defendants just have to prevail). Unfortunately, while on the way to losing one of the plaintiffs deleted relevant electronic data. The Court granted a spoliation motion by the defense and, in this latest opinion, awards the defense more than $60,000 in attorneys’ fees as a sanction. Plaintiffs have a huge advantage in ADA and FHA cases because of the asymetric application of the prevailing parties attorneys’ fee provisions in the two statutes. However, being on the side of the angels won’t protect a plaintiff who acts like the devil.


¹ I considered devoting an entire blog to the case, but its value is less in some individual pronouncements of the law than in the scope of the discussion. For those who want a simple takeaway it might be this: The plaintiff lost because the ADA does not require perfect equality of access, but only as much equality as is possible within the limits of the existing physical condition of a facility. With respect to the more narrow issue of sightlines for the disabled my favorite holding is the Court’s ruling that the “playing field” that must be equally visible to the disabled includes the air above the field because spectators come to watch the passing and kicking plays as well as the running plays in a football game.

² Since this is a fairly obvious plug for hiring a lawyer who is an expert and has a blog I should note in accordance with the Texas Disciplinary Rules of Professional Conduct that this blog may contain advertising materials.

³ See Disabilities, voting and the ADA.