three bottles of madeira wineMadeira was traditionally aged in barrels that crossed the equator twice, the heat and time fortifying and sweetening the wine. Like a cask of Madeira the sun will cross the equatorial plane of the earth in a few days, but you won’t have to wait for the next crossing in the fall for a quick hits blog.  Here’s the news.

What if someday never comes?

The classic Creedence Clearwater Revival song asks what will have if someday never comes. The Eighth Circuit had the same question in Smith v. Golden China of Red Wing, Inc., 987 F.3d 1205, 1209 (8th Cir. 2021). Following its earlier decisions involving the same lawyers and plaintiff the Eighth Circuit had little trouble concluding that the plaintiff, who visited the defendant only as a “tester” driven by his attorney and whose return would be as directed by his attorney did not have sufficiently concrete plans to return for there to be a likely future injury that would support standing for injunctive relief. Since the ADA only provides for injunctive relief that was fatal to this claim as it had been to others in the past. The Eighth Circuit has seen dozens, rather than tens of thousands, of ADA lawsuits because the Court takes Article III standing seriously. If the Ninth Circuit ever does the same my blogs will start getting much shorter.

The never ending saga of Peter Strojnik

Peter Strojnik wins some and loses some; with more than a thousand cases filed I couldn’t say which is more likely. In Strojnik v. JW World Enterprises, Inc. Best W. Bakersfield N., 2021 WL 22137, at *7 (E.D. Cal. Jan. 4, 2021) he beat a defendant who didn’t bother to file an answer and got an award of $4,000 plus costs and an injunction requiring remediation.  Could the case have been defended successfully? Strojnik’s history suggests the answer is yes, but winning isn’t always a bargain when remediation is going to be required in any event.

In contrast, the Court deciding Strojnik v. San Diego Farah Partners, L.P.,  2021 WL 778652 (S.D. Cal. Mar. 1, 2021) had no trouble finding that Strojnik’s allegations were implausible and granted a motion to dismiss based on standing. Implausible allegations will not support a default judgment, so there is clearly more than one standard being applied by the various district courts in California. Know your judge is the first rule of ADA defense.

In Arizona, where Strojnik’s luck in federal court has been almost uniformly bad, he tried a new tactic. In
Strojnik v. W2005 New Cent. Hotel Portfolio LP, 2021 WL 763860 (D. Ariz. Feb. 26, 2021) Strojnik filed suit in state court alleging both state law and federal ADA claims. The case was removed to federal court, where the judge promptly found Strojnik lacked standing with respect to the ADA claims. That left the state law claims in the wrong court, so the case was remanded to the state court. Almost all states have their own ADA equivalent that is rarely litigated because federal ADA claims are much better established. California’s Unruh Act, with its bonus provision for plaintiffs is an exception, but any ADA case could be filed under state law in state court if it seemed desirable. It remains to be seen whether Strojnik, who was disbarred in Arizona, will have better luck in its state courts.

Hotel websites – how much detail is enough?

In Love v. Marriott Hotel Services, Inc., 2021 WL 810252  (N.D. Cal. Mar. 3, 2021) and Garcia v. Gateway Hotel L.P., 2021 WL 936176 (C.D. Cal. Feb. 25, 2021) the Court answers the question, “how much accessibility detail is a hotel website required to include to meet ADA requirements?” The answer is not much based on DOJ’s 2010 Guidance titled “Americans with Disabilities Act Title III Regulations: Nondiscrimination on the Basis of Disability by Public Accommodation and in Commercial Facilities.” This is consistent with earlier cases, including the inevitable Strojnik case, but the decision has already been appealed, so in a year or so we’ll find out what the 9th Circuit thinks. One reasonable interpretation of the plaintiff’s strategy in pushing for detailed website descriptions is that as hotel websites come into compliance with the regulations at 28 C.F.R. § 36.302(e) plaintiffs are having a harder and harder time finding lawsuits to file. It is thereforeto their advantage to promote a standard that is difficult if not impossible to meet. The litigation beast must be fed.

Testers, standing, ASL and more. . .

I blogged in February about another S.W. Fair Housing Council lawsuit¹, and it seems likely based on S.W. Fair Hous. Council v. WG Scottsdale LLC, 2021 WL 857372 (D. Ariz. Mar. 8, 2021) there will be more blogs in the future. Like the earlier case, WG Scottsdale grew out of a program run by the plaintiff whose purpose was to see whether various facilities offered ASL interpretation. The Defendant offered other means of communicating with a fictional deaf prospective tenant, but specifically declined to provide ASL interpretation at its own expense.  The Court found the plaintiff had standing based on diversion of resources testimony while apparently assuming that the tester had personally suffered an injury covered by the ADA and FHA. That assumption was probably unwarranted – courts have a tendency to say that testers have standing without actually reading what the Supreme Court has said on the subject. The Court was not willing to make a decision one way or the other on ASL interpretation, finding that the refusals to provide an interpreter were not sufficiently definitive but also rejecting the defendant’s argument that ASL interpretation would never be required. Here there is a very clear message for any landlord or other business confronted by a hypothetical request for ASL interpretation. The answer to “would you provide ASL interpretation?” is always “it depends on the specific circumstances.” You don’t discriminate until you say “no” or something like it. An equally important point – testing for ASL interpretation is a “thing” and whether or not you are in Arizona you need to be ready for tester calls.

Default as a strategy – putting the plaintiffs through their paces.

Weilch v. Lexlux Associates, LP,  2021 WL 873185  (C.D. Cal. Mar. 9, 2021) is one of a number of recent cases in which default judgments were denied because the plaintiff’s generic pleadings were not sufficiently specific to support a judgment.² Leave to amend was granted, but it is clear some courts in California are becoming disenchanted with cookie cutter pleadings that lead to meaningless³ default judgments.

I say “some” because in Kraus v. Ding Chaun Chen,  2021 WL 856425 (E.D. Cal. Mar. 8, 2021) the Court granted a default judgment based on pleadings that were not much more specific than the pleadings in Weilch. I often write that you should know your judge. It is also a good idea to know the plaintiff’s law firm. The cases I found in which default was denied were brought by the “So Cal Equal Access Group” while the Kraus case was brought by the “Center for Disability Access.” California permits law firms to practice under a trade name, so these should not be confused with disability rights organizations. As for the cost of default, in Kraus the plaintiff was awarded $6355.32 in statutory damages and attorneys’ fees. If remediation is inevitable (which it should be since the ADA is the law) the total cost is, if not a bargain, certainly less than the cost of any defense.

Once you leave California, default starts to look like an even better strategy, as shown in Caplan v. Mallory,  2021 WL 883493, at *6 (S.D. Fla. Feb. 26, 2021), report and recommendation adopted,  2021 WL 879198 (S.D. Fla. Mar. 9, 2021). Without the Unruh Act’s statutory damages the total award in this case was only  $2,057.88. There is one important caveat in all default cases – remediation will be ordered and by defaulting the defendant loses any ability to control the scope of required remediation. If the only allegation concerns a parking space this may not matter; if there are allegations including difficult to remediate spaces like kitchens and restrooms a defense may be worthwhile.

What, there are still gift card cases?

Lopez v. Arby’s Franchisor, LLC,  2021 WL 878735 (S.D.N.Y. Mar. 8, 2021), Dominguez v. Athleta LLC, 2021 WL 918314, (S.D.N.Y. Mar. 10, 2021), and Calcano v. Cole Haan LLC, 2021 WL 849434, (S.D.N.Y. Mar. 5, 2021), are stragglers in the dozens of dismissals of gift card cases. The dismissals aren’t news, but reading these cases I was reminded that a consolidated appeal of gift card cases is pending in the 2nd Circuit. Oral argument was in January, so there may be a definitive ruling for good or ill in the near future.(4)

More on “informational injury.” 

In Laufer v. Surf Hotel Investments, L.L.C., 2021 WL 809732 (N.D. Ill. Mar. 3, 2021) well known serial filer Deborah Laufer persuaded the Court that merely by visiting an inadequate hotel website (inadequate in its provision of information about accessible rooms) she suffered an injury cognizable under the ADA. “Informational injury” is not, as the Court recognizes, universally regarded as sufficient to give rise to standing. The level of analysis devoted to the question in Surf Hotel is typical. Step one – testers don’t have to be customers based on Martin v. PGA. Step two – deprivation of statutorily required information is itself an injury based on Carello v. Aurora Policemen Credit Union. This is often (though not in this case) backed up by the observation that Congress intended that the ADA would be enforced through private litigation.

In contrast, the Court found in Laufer v. Patel, 2021 WL 796163 (W.D. Tex. Mar. 2, 2021) that Laufer did not have standing. The opinion has a more thorough discussion of the standing issue than Surf Hotel and recognizes that more is at stake that simply “do testers have standing.” Lawyers in courts that have supported Laufer’s standing in the past should carefully study this decision and the briefing to see whether there are arguments available that simply were not raised in those earlier cases.

Patel quotes another court in observing that in ADA website cases “courts nationwide are trying to fit the square peg of an online injury into the round hole of traditional standing analysis.” Part of the problem is that when considering whom the ADA was trying to protect from what Courts fail to ask about the relevant intent; that is, did Congress intend to create the serial litigation industry that we have today by making the mere observation of an ADA violation actionable by any person with a disability.  A related problem is the unwillingness of many courts to apply the Iqbal / Twombly plausibility standard to serial litigants in the same way they might apply it to other facially unbelievable allegations. It seems unlikely that a law intended to provide access for the disabled was intended to create an industry that enriches lawyers while providing few if any real benefit for those it was intended to protect.

Mootness can be harder than you think

I could have discussed Johnson v. JKLM Properties, L.L.C.,  2021 WL 796274 (N.D. Cal. Mar. 2, 2021) as one more in the long line of cases filed by Scott Johnson in which the Court found he had standing in the early stages of a lawsuit despite it being unlikely that his pleadings were entirely honest. A more important lesson from this decision concerns the detail needed to prove a claim is moot. The defendant’s expert apparently looked at the remediated parking, measured it, and opined that it complied with the ADA. This was not enough for the Court, which found the declaration “conclusory.” This sets an absurdly high bar considering that a plaintiff can prove a parking space does not meet ADA requirements by simply stating that based on their observation it is not accessible. However, instead of arguing with the court defendants should have their experts specify that each slope and dimension meets the specific ADA requirement, which should be identified by its section number in the 2010 ADA Standards for Accessible Design.
The decision in Simpson v. CHS, Inc., 2021 WL 763883 (D. Mont. Feb. 26, 2021) seems more reasonable. In Simpson the defendant closed its store for renovations and the claimed, based on its future plans, that claims concerning accessible parking and various interior violations were moot. The Court found that without knowing more about the completed work the mootness claim was premature. It denied the plaintiff’s motion for summary judgment for the same reason. The problem with the Court’s analysis is that once the store was closed and gutted the ADA claims were moot – none of the barriers to access that gave rise to the complaint existed at all. It is possible, of course, that the new structure will violate the ADA, but if it does so the violations will be new and different ones. It does not appear this argument was made, but it has worked in the past with respect to a website that was simply replaced rather than being remediated.(5)

The critical importance of making strategic decisions early

In Block v. SmileMart, Inc., 2021 WL 764041 (N.D. Cal. Feb. 26, 2021) the defendants ultimately agreed to settle the case, but only after what look like some negotiation twists and turns that took time and ultimately required them to pay more than should have been necessary in attorneys’ fees. The final tab, $27, 570.49 was probably $20,000 more than if they had simply agreed at the beginning to fully remediate the property, which is of course what had to be done in any case. In ADA litigation you generally have to fight to the death or settle at the beginning; any middle course is likely to cost more money without likely gaining any benefit. Sometimes the plaintiff won’t cooperate in getting the case resolved, but usually an early decision to settle will pay off in the end.

Supplemental jurisdiction of Unruh Act claims

Fernandez v. O’Reilly Auto Enterprises, LLC, 2021 WL 826406 (C.D. Cal. Mar. 4, 2021), Bouyer v. Santa Susana GRF2, LLC,  2021 WL 812184 (C.D. Cal. Feb. 10, 2021), and Whitaker v. 360 Perspectives, Inc., 2021 WL 829736 (C.D. Cal. Feb. 19, 2021) are among a growing number of cases in which federal courts in California decline to exercise supplemental jurisdiction over Unruh Act claims. This forces the plaintiff to choose between state court, where the pleading requirements have been enhanced as a way to cut down on serial litigation, and federal court, where damages are not available.
²See Bailey v. HVSN Enterprises Inc, 2021 WL 794501, (C.D. Cal. Mar. 2, 2021), Marsh v. MGP X Properties LLC, 2021 WL 794503, at *2 (C.D. Cal. Mar. 2, 2021), Grigsby v. Tecomate Corp., 2021 WL 134583 (C.D. Cal. Jan. 14, 2021) Marsh v. MGP X Properties LLC, 2021 WL 794503 (C.D. Cal. Mar. 2, 2021) and others, including the case cited in the Hearts and Flowers blog.
³ Because the judgment for injunctive relief will never be enforced.