Madeira 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?
Testers, standing, ASL and more. . .
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.
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
The critical importance of making strategic decisions early
Supplemental jurisdiction of Unruh Act claims
³ Because the judgment for injunctive relief will never be enforced.