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. More
I blogged about the 10th Circuit’s decision in Hamer v City of Trinidad earlier this year.* The City has now filed a Petition for Certiorari that may well take the case to the Supreme Court because the issues and conflict between the Circuits are well defined.**
As I predicted, the United States Supreme Court denied Domino’s Petition for Certiorari today. It did so without any formal explanation – the case is simply listed as one of many for which cert was denied. I’m sure the blogosphere and many business groups will decry the lost opportunity for a ruling that might limit ADA website litigation, but after thinking it over I don’t think there was ever much the Supreme Court could have done that would deter ADA website filers. The split in the circuits that was used to justify the Supreme Court’s interest only concerned whether websites with no affiliated physical place of business are covered by the ADA. A favorable decision would have still left the vast majority of businesses at risk. Equally important, the U.S. Supreme Court has no jurisdiction over state versions of the ADA, meaning that plaintiffs in two of the hottest states for these lawsuits, California and New York, could keep filing under state law. Finally, and most important, almost all ADA website cases are filed only to get money for the lawyers who file them. The settlement dynamics are simple – a business pays the lawyers less than the cost of a basic defense and agrees to fix its website because it makes economic sense to do so. No matter what the Supreme Court might have done it could not have significantly changed that settlement dynamic, for even the most business friendly decision could only give defendants a reasonable chance of success on a Rule 12(b)(6) motion. The Supreme Court could not make that motion cheap enough to beat the certainty of settlement because the cost of such a motion is deeply embedded in the structure of the Rules of Federal Procedure. Even more important, the heads I win, tails you still lose advantage on recovery of attorneys fees for plaintiff’s is one fundamental driver of all ADA litigation and the Supreme Court can’t do anything about that without overturning decades of civil rights precedent. The Supreme Court could favorably rule on standing issues in a case I’ll blog about tomorrow, but the refusal of cert. in Domino’s is only a mild disappointment because the real solution remains with Congress.
Halloween is a month away, but the candy is on the shelves at our local grocery stores and the courts are already delivering tricks and treats for those of us concerned with accessibility lawsuits.