Once upon a time lawyers marketed their services by sitting in private clubs drinking martinis. These days a more public approach is required, so I’m letting my subscribers know I was interviewed earlier this week by thewirecutter.com, a New York Times publication that reviews all kinds of products. I was asked about handicap accessible trashcans, a subject that I’ve never seen a lawsuit about. If you’re interested I’m sure the interview will be online soon. For what it is worth the arguments for requiring accessible trashcans under Titles II and III of the ADA are pretty weak, but if you doesn’t want paper towels on the floor in the public restrooms they would seem to be a good idea.
ADA and FHA Quick Hits – Day that will live in infamy edition
Before delving into the fascinating details of ADA and FHA legal developments it doesn’t hurt to remember that in the larger scheme of things the day-to-day problems caused by flaws in the ADA and FHA are not as earth shattering as we like to imagine.
Cities may be responsible for the carelessness of the public
More than a year ago I was interviewed for a local Dallas paper about complaints that rental bicycles were making sidewalks inaccessible for the disabled.‡ I rather blithely opined that the City of Dallas could not be responsible for the carelessness of people who rent bicycles. In Evans v. Bird Rides, Inc., 2019 WL 5864583 (N.D. Cal. Nov. 8, 2019) a District Judge in California disagrees, finding that blind plaintiffs unhappy with electric scooters stated a plausible claim under Title II of the ADA because “[i]t was predictable, not just foreseeable, that the scooters would sometimes be parked carelessly and block” the path of the disabled. Given the many companies now in the scooter business and the number of scooters on the streets of any major city this kind of claim is likely to become more common. Cities that license the scooter providers need to carefully consider the terms of their license and the extent to which they can limit their liability for Title II claims. Having said that, I still don’t believe Title II of the ADA obliges cities to manage the lack of courtesy of their citizens. Among other problems is the inability of the city to police the problem or the court to grant meaningful relief because the barrier encountered by any individual one day is unlikely to be present the next, and just where any individual plaintiff might next encounter a similar barrier is impossible to know. Managing the necessarily complex response of a city to this kind of problem is not the kind of work courts are suited for.
“Legal Justice Advocates” the new kids on the block for website access demands.
There’s a new kid on the block in the world of serial accessibility demands.** It’s not a boy band, its “Legal Justice Advocates.” They’ve been sending demand letters to apartment owners, mortgage lenders and real estate agents claiming to represent an outfit called “Victims Awareness, Inc.” which, they claim, is a “national not-for-profit” with disabled members “throughout the nation.” Victims Awareness, Inc., they claim, uses experienced testers (who are not claimed to be disabled) to check on the accessibility of websites. The firm then sends a demand requiring remediation of unspecified defects and money for the lawyers. After seeing a few of these and getting calls from lawyers who saw more I thought it would be worthwhile to take a longer look at the firm and its supposed client. More
More lawyers behaving badly – ADA litigation abuse
Just a brief note about another alleged abuse of the ADA. According to a press release from the Department of Justice an attorney living in Florida filed hundreds of lawsuits naming as plaintiff individuals whose identities he stole. You can read the press release at this link. If you take the nearly 1000 cases filed by Mr. Finkelstein and add them to the lawsuits filed by Oscar Rosales, Peter Strojnik Sr., and Scott Dinan it starts to become clear that a significant percentage of ADA Title III lawsuits are filed solely to enrich a lawyer and often without any substantive merit. While some commentators say the ADA needs to be scrapped, the real solution is simply to provide a procedure for early dismissal with minimum expenditure of defense attorneys’ fees. Some courts have instituted mandatory mediation programs with this goal, but in many cases the cost of mediation alone makes defense impractical. The real solution is simply a heightened standard for standing that requires plaintiffs to have suffered a real injury and a heightened standard for pleading that requires plaintiffs to identify specifically the ADA violations they claim to have encountered. With that and a program of referring every Title III complaint to a magistrate judge for examination (similar to the way most courts handle pro se complaints) abusive lawsuits could be substantially reduced. The goal is not to make it impossible for plaintiffs to file ADA lawsuits, but rather to limit such lawsuits to those who have suffered a real injury.
ADA and FHA Blogathon – tortoise and the hare edition
Being slow but steady the tortoise, as we all know, won the race. The picture on the left tells you the strategy I ended up using. In any case the news is current as of November 14, the last day I checked for new ADA and FHA decisions. There’s plenty of interest, as usual.
A pre-emptive strike on website accessibility succeeds.
The plaintiff in Expensify, Inc. v. White, 2019 WL 5295064 (N.D. Cal. Oct. 18, 2019) sought to take matters into its own hands and local court by suing a pair of serial website filers for a declaratory judgment that its website was not in violations of the ADA. The defendants almost immediately agreed to waive their claims, presumably because they did not want to litigate without the home field advantage they command in the Western District of Pennsylvania. The plaintiff was not content and tried to keep the case alive, but the Court found the waivers mooted its claims. The key finding is that there was a dispute justifying the complaint for declaratory relief. It is only a district court decision, but Defendants who receive a demand letter without a lawsuit should consider this kind of pre-emptive strike as a good way to avoid an unfriendly jurisdiction. More