Does motive matter in an ADA case? Sometimes.

February 2, 2018 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation Tags: "drive-by", ADA serial litigation, ADA standing, ADA Testers

“Tester standing” is an area of ADA litigation that seems to create a good deal of confusion, so it is worthwhile to take a look at the 4th Circuit’s recent decision in Nanni v. Aberdeen Marketplace, Inc., 2017 WL 6521299 (4th Cir. Dec. 21, 2017). As is often the case, the decision illuminates the requirements for standing but contains the seeds of future confusion.

The Fourth Circuit’s decision concerned a motion to dismiss made at the very beginning of a lawsuit, but it is easier to understand the position of a tester under the ADA by starting at the end of lawsuit – the trial. That is when, as the saying goes, the truth don’t lie.

To prevail in an ADA case based on architectural barriers the plaintiff must prove that he was injured by an ADA violation before he filed suit and that he will likely be injured in the future unless that violation is remediated. Let us suppose that an individual like Mr. Nanni testifies that he went to a mall or store but had some difficulty getting out of his car because the parking space was not properly constructed. He then testifies that he is likely to go back in the future, and if the space is still not corrected he will have the same problem. Perfect. Injury before suit, injury in the future, he has standing.

Now let us suppose the plaintiff admits he went to the mall as a tester looking for ADA violations. He also admits that he has filed many lawsuits against businesses like the mall that are not close to his home. Given a long list of businesses he sued he can’t recall when if ever he returned to any of them. Nonetheless he claims that he will return to the defendants’ business in the future and will therefore be harmed by any barriers to access that are not fixed. The judge looks him in the eye and decides he is lying. This is what happens at trial – the judge or a jury decides who is lying and who is telling the truth. Because the judge doesn’t believes he will return the judge also thinks there is no likelihood of future injury. The plaintiff loses no matter how real the ADA violations might have been because without that future injury he does not have standing to ask for injunctive relief.

Now let’s wind back the clock to the beginning of the lawsuit. Same plaintiff, same history of lawsuits, but this time the judge is not listening to testimony at trial but instead reading the complaint. It says all the same things the plaintiff intends to say at trial. The judge throws the case out, saying that the complaint isn’t sufficiently persuasive to satisfy the requirements of Rule 8 of the Federal Rules of Civil Procedure as interpreted in the Supreme Court’s decisions in Iqbal and Twombly.* That’s the case that went to the Fourth Circuit, which said two uncontroversial things:

Being a tester does not disqualify a plaintiff from filing a lawsuit because you can be a tester and still be injured by an ADA violation. The plaintiff may have been looking for ADA violations, but he still couldn’t get out of his car, and that is precisely the kind of injury the ADA was intended to prevent.
Being a tester didn’t mean the plaintiff did not intend to return. He said in the complaint that he intended to return and at the beginning of the case, before the judge looks the plaintiff in the eye and hears his testimony, the judge has to assume that what the complaint says is true.

The first point is one that is often mis-stated, with plaintiffs and others saying that “testers have standing.” The drive-by litigation boom has been fueled by the notion that claiming to be a tester and seeing a possible violation is sufficient, but there is no rational theory of standing that would allow this. Testers don’t have standing because they are testers, they have standing because they have been injured.

The second point is that while being a tester is not sufficient, but it also doesn’t disqualify the plaintiff. This is something the district court got right and it would have been helpful for the Fourth Circuit to confirm it.

The real controversy about testers is usually not whether there is a past injury, but whether there is going to be a future injury. What the district court said, in essence, was that with Nanni’s litigation history he would have to plead a lot of details to make a plausible case that he would return. The Fourth Circuit rejected this, observing that because being a tester did not disqualify a plaintiff there was no reason to think testers had an extraordinary obligation to provide details at the beginning of the case. This is not by any means a radical view.

Then, unfortunately, the Fourth Circuit says this: “At bottom, we reject the proposition that Nanni’s motivations in pursuing his ADA claim against Aberdeen deprive him of standing to sue in these proceedings.” 2017 WL 6521299, at *8. This is at best only half true. A plaintiff’s motives can deprive him of standing if, based on those motives, the court finds after a trial that there was no intent to return. Motives are important evidence about future behavior and are therefore relevant. What the Fourth Circuit should have said, and perhaps meant to say, is that motive does not necessarily deprive a plaintiff of standing. At the pleading stage a tester has no higher pleading obligation than any other plaintiff, but at trial a tester may have some explaining to do. It’s an important difference, and one that needs to be more clearly recognized.

* See our earlier blog “Iqbal, Twombly and the ADA”

It would be well worthwhile for any reader of this blog or our previous blog on internet accessibility cases to check the latest blog at williamgoren.com, which discusses the same issues from a different perspective.

Websites, the ADA and standing – yes, it matters.

January 27, 2018 By Richard Hunt in Uncategorized

Standing on air

Today’s decision in Carroll v. Northwest Federal Credit Union, 1:17-cv-01205 (E.D. Va. January 26, 2018) is a significant victory for every membership organization with a website.* Judge Claude Hilton found that the plaintiff in this case, a serial filer who has attacked a significant number of credit unions, did not have standing because he did not qualify for membership in the defendant credit union. The Court’s explanation:

“Defendant cannot make this showing because he has not established that is entitled, or would ever be entitled, to utilize any services provided by Northwest FCU.”

Thus, while the website is open to the public, the services it provides are not.

Carroll v. Northwest Federal Credit Union is similar in some ways to the decision in Gomez v. Bang & Olufsen Am., Inc., 2017 WL 1957182 (S.D. Fla. Feb. 2, 2017). In that case the plaintiff’s claims were dismissed based on a lack of standing because he never alleged that he wanted to go to or was hindered from using any of Bang and Olufsen’s physical stores. The website did not provide for on-line purchases, so a denial of access to the website would only harm someone who ultimately intended to go to a physical store.

Not mentioned in either decision, but implicit in both, is a rejection of the notion that a psychic injury of some kind can give standing to sue under the ADA. ADA plaintiffs often plead that they were insulted, demeaned or otherwise traumatized by being confronted by inaccessible websites or physical locations. These cases strengthen the argument that for websites, at least, an intent to use is required for standing, and that psychic injury is not enough.**

*Thanks to Tina Orem of the Credit Union Times for alerting me to this decision.

** Judge Hilton also found that the website was not a place of public accommodation at all. In this respect the decision is an outlier that will probably have little influence on ADA and website jurisprudence. For those who are sued in the Western District of Virginia, however, this will also be an important part of the ruling.

Quick Hits – Polar Vortex edition

January 24, 2018 By Richard Hunt in Accessibility Litigation Trends

After the Great Polar Vortex of 2018 receded to the north we found a number of new cases under the melting snow. Here is the state of ADA litigation in early 2018.

Website lawsuits

We discussed some of the most recent website accessibility cases in our earlier blog, “What is an ADA accessible website.” In some ways Buchholz v. Aventura Beach Associates, Ltd., 2018 WL 318476 (S.D. Fla. Jan. 5, 2018) is another such case, but the Court’s explicit application of 11th Circuit law is illuminating. The plaintiff alleged that a hotel website was not accessible, but did not allege he ever tried to stay or intended to stay at the hotel. Following earlier 11th Circuit authority the Court began with the premise that a website was not by itself a public accommodation, but that it was required to be accessible if it was a service of a public accommodation. This is based on the “gateway” theory that the website is, like a physical front door, the gateway to the physical public accommodation. The Court then took the next logical step – if the plaintiff didn’t care about going to the physical premises then he had not suffered an ADA injury from the inaccessible website. This goes back to the front door idea. If a plaintiff never intends to go into a store then the inaccessibility of the front door has not injured him. As the case law slowly evolves this decision is an important step on the way to defining just what kind of injury must be associated with an inaccessible website.

Presmarita v. Metro-N. Commuter R.R. Co., 2017 WL 6542515 (S.D.N.Y. Dec. 21, 2017) is a case under Part B of Title II to the ADA, which governs public transportation. It illustrates how important regulatory requirements can be in ADA cases. Unlike airlines, commuter railroads are not required by regulation to provide wheelchair service to their patrons. The plaintiff, who was injured because a wheelchair was not available, lost when the court found that the absence of a regulatory requirement meant there was no ADA violation. It would be a stretch, but a similar argument might be made concerning Title III and web accessibility. The federal government has required website accessibility by regulation in some contexts (airlines and government agencies), so perhaps the absence of regulatory requirements for public accommodations and municipalities means by implication website access is not required.

Administrative exhaustion defense – no, it doesn’t exist.

In Brito v. DHCS Associates, LLC, 2017 WL 6405808 (D. Colo. Dec. 15, 2017) the defendants tried a tactic that has not worked for years, a defense of administrative exhaustion. The defense is based on the idea that because the remedies under the ADA come from the Civil Rights Act of 1964 those remedies are limited by its provision requiring 30 days notice before suit is filed. The Court found a split of authority on the issue, but the fact is the only authorities for a notice requirement are decisions from two Colorado district courts. Every appeals court that has considered the issue has rejected the notion that notice is required as have most districts courts, including others in Colorado. Until Congress passes HR 241, which puts an explicit notice requirement in the ADA, businesses should not assume they will get any advance warning of ADA violations. Those who want to avoid a lawsuit will be proactive and get a survey done immediately so they can start fixing the problems that lead to lawsuits.

ADA construction standards and negligence.

Kahn v. Cleveland Clinic Florida Health System Nonprofit Corp., 2017 WL 6415271, at *4 (S.D. Fla. Dec. 14, 2017) is another in the small group of cases touching on whether an ADA violation is evidence of negligence. We’ve blogged about this before* and the answer is, maybe. It depends very much on the particular state and its laws. What is interesting here is that the court seems to have assumed that if a restroom did not meet ADA clearance standards it was at least some evidence of negligence. So, while the result will vary by state and court, businesses should at least consider the possibility that unremediated ADA violations can also give rise to a claim for negligence.

Standing – sometimes the plaintiffs lose.

Kennedy v. New Smyrna ACD LLC, 2017 WL 6560000 (M.D. Fla. Dec. 22, 2017) is a very typical standing case with an unusual outcome. The plaintiff is a serial filer who claims to be a tester. She sued a shopping center more than 200 miles from her home. The defendant claimed that an intent to return was implausible given the distance and her litigation history. Without the intent to return injunctive relief would not redress any future injury, and without the redress of injury there is no Article III standing. The Court agreed, applying 11th Circuit law on determinations of standing. What’s interesting is the Court’s holding that if the only reason the plaintiff intends to return is being a tester then the plaintiff has not sufficiently alleged an intent to return. In many cases the only plausible intent to return is based on tester standing, and if that isn’t enough, then these cases should be dismissed.

Saar v. Tanger Factory Outlet Centers, Inc., 2018 WL 387962 (W.D. Mich. Jan. 12, 2018) is another standing case in which the plaintiff lost. The court found that “boilerplate” allegations of an intent to return to the defendant shopping center were not enough to meet the plausibility requirement created by Twombly.

Shyvers v. WH Virginia Station Shopping Ctr., LLC, 2018 WL 307146 (N.D. Ga. Jan. 5, 2018) is yet another standing case, this one involving a supposed tester and serial filer who live more than 1000 miles away from the defendant shopping center. Looking a the plaintiff’s rather meagre allegations related to an intent to return the Court found that standing had not been plausibly alleged, but gave the plaintiff a chance to re-plead and do a better job. The chance to re-plead is, in many of these cases, the opportunity to lie in a way that is specific enough to result in sanctions, but it keeps the case alive and drives up the legal fees on both sides.

These three cases are part of a mild trend toward greater skepticism about standing allegations by serial filers, especially by federal courts in Georgia and Florida, but for the present they remain the exception in most district courts. Defendants contemplating a motion to dismiss under Rule 12(b) need to know their judge and understand his or her individual views on standing before deciding to spend money on a motion that may prove futile.

See what sticks is not an effective strategy for plaintiffs or defendants.

Mote v. City of Chelsea, 2018 WL 262855 (E.D. Mich. Jan. 2, 2018) is a long opinion that contains a good discussion of the application of the 11th Amendment to ADA claims against state agencies and an equally useful discussion of why sidewalks are covered by the ADA as both “facilities” and “services.” What is most interesting, however, is the failure of a large part of the plaintiffs’ claims because the plaintiffs’ lawyers just didn’t take the time to present them coherently. This is a lesson for both plaintiffs and defendants in complex cases. Given the technical nature of ADA design requirements it takes a lot of work to sufficiently prove (or disprove) a large number of claimed violations.

Bryant v. Yosemite Falls Cafe, Inc., 2018 WL 372704 (E.D. Cal. Jan. 11, 2018) is a kind of fun-house mirror reflection of Mote. The plaintiff’s list of ADA violations was manageable (only 7 violations in a single restaurant) and the defendant seems to have fixed them, but the defendant didn’t take the time to provide admissible evidence that all the violations had been fixed. It is always tempting to save money by ignoring the details, but for reasons the Court explains in this case, it just won’t work where the statute violated has specific technical requirements that must be met.

Mootness

Kennedy v. Omegagas & Oil LLC, 2018 WL 310051 (S.D. Fla. Jan. 3, 2018) is a mootness case, but one in which the defendant did prove mootness for all but one violation. It will be helpful to defendants in small cases because it illustrates how a diligent defendant can win without experts. The owner of the defendant service station waited until he was provided with the report of the plaintiff’s expert. He then used that report as a guide for fixing the various violations, most of them items that any handy individual could manage. His testimony at trial that he did what plaintiff’s expert required was sufficient to establish that most of the ADA violations were moot. The one exception was the size of the restroom, which was just too small. Here the plaintiff presented evidence that because the restroom could be expanded only by moving plumbing and electric connections the cost was so high accessibility was not readily achievable. The plaintiff provided evidence that the work was cheaper, but the court did not buy it. After a bench trial the claims were all dismissed.

This result was possible only because the case went to trial, which allowed the court to make fact findings about what was readily achievable. Trials are rare in this kind of case because the expense of remediation is so much smaller than the cost of defense, but at least one strategy for dealing with a plaintiff whose settlement demands are unreasonable might be to skip the expensive and usually futile efforts to dismiss the lawsuit under Rule 12(b) or obtain a summary judgment and simply get ready for trial.

Ramirez v. Lococo’s Cucina Rustica, 2018 WL 368559 (N.D. Cal. Jan. 10, 2018) is one more mootness case with the defendant winning for the not very complicated reason that it fixed all the issues. It is interesting because of the Court’s rejection of the plaintiff’s lawyer’s opinions about how to fix restrooms that were apparently too small. It is always tempting for lawyers who know a lot about the technical requirements of the ADA to insert themselves into the litigation; the problem is you can’t be a lawyer and an expert in the same case. Mootness done right will require at least one expert.

Outrage is not a defense.

Salinas v. CBC Rest. Corp., Inc., 2018 WL 259311 (9th Cir. Jan. 2, 2018) is an appellate opinion whose very existence seems absurd. The ADA violation at issue appears to have been a single checkout counter. The defendants lost on summary judgment, but instead of appealing directly moved for relief from the judgment under Rule 60(b)(6) and then appealed the denial of that motion. It isn’t surprising that the Ninth Circuit affirmed the lower court’s judgment. It is surprising that the defendants spent the time and money required to appeal the judgment given just how small the underlying problem appears to have been. Somewhere along the line the defendants seem to have forgotten our constant theme, First Fix, Then Fight. Otherwise the litigation process wastes money that could go to remediation.

Neal v. Second Sole of Youngstown, Inc., 2018 WL 340142 (N.D. Ohio Jan. 9, 2018) is a great example of why moral outrage doesn’t provide a real defense to ADA claims from serial filers. The defendants, sick and tired of lawsuits they viewed as meritless by a single serial plaintiff, filed a counterclaim alleging that the plaintiff and attorney were engaged in a conspiracy that violated the RICO anti-racketeering statute. Not surprisingly, the Court dismissed this counterclaim, finding that even filing a frivolous lawsuit would not constitute one of the predicate acts required for a RICO claim. If a lawsuit is meritless the remedy is win the lawsuit and then seek sanctions or file an action for abuse of process. No matter how mad the plaintiff makes the defendant or how “obvious” it is that the plaintiff is abusing the ADA, relief for the defendants depends on proving there are no ADA violations. First Fix, Then Fight is the best strategy for ADA litigation, unless you choose . . .

Surrender as a strategy.

Langer v. Southwest Medical Care, Inc. 2018 WL 456131 (C.D. Cal. Jan. 17, 2018) is representative of a number of default judgment decisions out of California in the last few weeks. In every case the Court reduced the attorneys’ fee claim to an amount lower than is typically demanded to settle these cases. As we’ve observed before,** the absurdity of serial litigation has created a situation in which the least expensive solution to a lawsuit is to simply default because any effort at defense only drives up the total cost. The system is clearly broken when choosing to lose is the best strategy for the defense.

* Personal injury and the ADA – is every violation per se negligence?

** Surrender as a strategy in ADA litigation.

Rental bikes and the ADA – Hunt quoted in Dallas News Article

January 23, 2018 By Richard Hunt in ADA Tags: ADA, Dallas Morning News, Kyle Martin, rental bikes

Richard is quoted the Dallas Morning News article “For disabled people, rent-a-bikes are more than an annoyance, but do they violate the ADA?” an article by Kyle Martin that appeared on January 22, 2018. The problem is simple. Bicycles are rented and then left blocking sidewalks and ramps. The person to blame is the individual who rented the bike, but such individuals are not subject to Title III of the ADA. The rental companies themselves have no control of the bikes other than the ability to engage locks that make them unrideable, and the City has few effective means to police where the bikes are left. It is a reminder that the ADA is not a general “make life better for the disabled” law, but rather a targeted effort to give the disabled equal access to the goods and services of American businesses. Some problems, including people who are just plain rude, can’t be fixed by legislation.*

*For more information about the problem see “What a photographer found on a search for bike-share carnage in Dallas” by Rose Baca of the Dallas News. Thanks to Rose and the Dallas News for use of her photograph.

Hunt quoted on Rehabilitation Act Section 508 provisions for web access

January 18, 2018 By Richard Hunt in Rehabilitation Act, Section 508 Web Access Tags: Rehabilitation Act, Section 508 Refresh

Tooting our own horn as they say, we note that B2B E-Commerce World quoted Richard in a January 17, 2018 article by Paul Demery, “The government’s push to higher web accessibility standards.” For businesses that do business with the federal government the article provides a good overview of the Section 508 “ICT Refresh” that incorporated WCAG 2.0 into the requirements of Section 508. Richard’s observation was simply that litigation under Section 508 is far less common that litigation under Title III of the ADA because the requirements apply primarily to the federal government and some of its technology contractors so disputes are handled directly between the government and those contractors. It should be noted that Title III and Title II lawsuits against entities that receive federal funding frequently include a claim under Section 504 of the Rehabilitation Act, which has only a general non-discrimination provision and whose regulations do not explicitly incorporate a web accessibility standard. DOJ takes the position that both Section 504 and Title III of the ADA require web accessibility.

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