The last six weeks have seen some important or at least interesting decisions under the Fair Housing Act and Title III of the ADA. If there is any common thread, it is that courts in general seem increasingly reluctant to give serial plaintiffs the benefit of the doubt on dubious pleadings while some judges continue to treat private enforcement as a legitimate means to advance the policy goals of these statutes. This is part 1 of a 2 part blog, so stay tuned . . . More
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Quick Hits – St. Patrick’s Day Edition
I’m a day late with the St. Patrick’s Day Edition of Quick Hits but that’s no reason not to raise a toast to the saint who, as my great-grandfather William Mullin said, drove all the snakes out of Ireland except the politicians.
Counter widths and the ADA
Johnson v. Starbucks Corp., 2019 WL 699136 (E.D. Cal. Feb. 20, 2019) confirms what DOJ recently announced* – the ADA standards do not require that a sales counter be of any particular width. This has been an area of disagreement for years and now seems to be resolved.
ADA standing and pleading – common sense from the 8th Circuit
In Davis v. Anthony, Inc., 886 F.3d 674 (8th Cir. 2018) the Eighth Circuit adopted rules concerning standing that place common sense limits on the ability of serial plaintiffs to expand their lawsuits any time they are threatened with mootness. The decision is worth a detailed look because it rejects the “deterrent effect” doctrine created by the Ninth Circuit, refuses to expand the Eighth Circuit’s own precedent in Steger v. Franco, Inc., 228 F.3d 889, 894 (8th Cir. 2000), and carefully limits the plaintiff to her pleaded allegations. In doing this it points the way to a new more positive view of those with disabilities, treating them not as frightened children requiring the protection of the courts and lawyers, but as adults with a right to sue for real injuries, but no need to be patronized by the courts. More
ADA pleading – can a plaintiff give fair notice of an ADA violation if he doesn’t know it exists?
What does it mean when a plaintiff has standing to sue on a claim but cannot give fair notice in his complaint because he isn’t even sure it exists? It means, of course, that you are in the topsy turvey world of ADA standing in the 9th Circuit.
Let’s start with the basics. In Chapman v. Pier 1 Imports, 631 F.3d 939 (9th Cir. en banc 2011) the Court reaffirmed its earlier holding in Doran v. 7-Eleven. Doran held that if a plaintiff had knowledge of at least one architectural barrier and is deterred from visiting a place of public accommodation as a result then he may, in a single suit, challenge all barriers in that public accommodation that are related to his or her specific disability and that he is likely to encounter on future visits. He is not, however, required to have any knowledge of such barriers or even any reason to think such barriers exist beyond his suspicion that where there is one barrier there may be more. More
ADA Standing – in the 9th Circuit all you need is paranoia and the presumption of guilt
In the Ninth Circuit and in courts that follow its holdings ADA standing can be based on nothing more than a paranoid fantasy by the plaintiff or a presumption of guilt by the court. This conclusion follows logically from two decisions that themselves rest on neither logic nor the law.
The first case is Pickern v. Holiday Quality Food, Inc., 293 F.3d 1133 (9th Circ. 2002). In Pickern the Court held that a plaintiff who is “deterred from patronizing a public accomodation” by ADA violates has suffered an actual injury. The Court substituted deterrence for an actual encounter with an architectural barrier. According to Pickern simply by stating that he was “deterred” from trying to go into the store the plaintiff had “stated sufficient facts to show concrete, particularized injury.” Id. at 1137-1138. More