A pair of recent cases, both brought by the same law firm on behalf of different plaintiffs, underscore the importance for every business of having policies and procedures for both ADA compliance and maintenance. This is especially important for businesses with multiple stores because a policy and procedure class action will elevate a single bad parking space to a nationwide class action, making both remediation and settlement or remediation very expensive.* More
ADA Class Action
By Richard Hunt in Accessibility Litigation Trends, ADA Class Actions, ADA Internet, ADA Internet Web, ADA Point of Sale, ADA Web Access, Internet, Internet Accessibility, Retail Tags: ADA arbitration, ADA Class Action, Container Store, National Federation of the Blind, Point of Sale, POS terminal
This week’s decision in Nat’l Fed’n of the Blind v. Container Store, Inc., 2016 WL 4027711 (D. Mass. July 27, 2016) is a call to action for every business that uses a click to accept type license or other agreements. Such agreements may not be enforceable in an ADA context unless special care is taken.
The case involved the Container Store’s loyalty program, which provides various perks and rewards. Customers could sign up when making a purchase at a store or online. In either case the process included clicking an “I Accept” button linked to the usual boilerplate terms and conditions, which included an agreement to arbitrate. The problem? Container Stores use a touchscreen Point of Sale device that is not accessible to the blind because it has no tactile controls. I blogged about the issue here, and the problem hasn’t gone away. The argument is straightforward. Blind customers cannot use the devices without giving personal information about their credit card information and email address to the clerk, while sighted customers can preserve their privacy on these matters. More
This last week a federal district court in Ohio kicked out most of an ADA plaintiff’s claims that were based on the defendant’s lack of an ADA policy. Mark Timoneri v. Speedway, LLC, 2016 WL 2756868 (N.D. Ohio May 12, 2016). Just a few weeks earlier the federal district court for the Western District of Pennsylvania confirmed an earlier magistrate judge’s recommendation to confirm a class under the same facts. Heinzl v. Cracker Barrel Old Country Store, Inc., 2016 WL 1761963 (W.D. Pa. Apr. 29, 2016) adopting the recommendation in Heinzl v. Cracker Barrel Old Country Stores, Inc, 2016 WL 2347367 (W.D. Pa. Jan. 27, 2016). The cases illustrate how different judges can reach very different results on similar facts as well as a fundamental disagreement on whether Title III of the ADA requires ADA compliance policies. More
“How to Lie with Statistics” by Darrell Huff is one of my favorite books, because statistical analysis is often critical in ADA class action and other kinds of civil rights litigation, and statistics are so often abused in these cases. The difference between the manageable defense of one or two properties and an unbelievably expensive defense involving hundreds or thousands can turn on whether a particular class meets the “numerosity” requirement in Rule 23(a)(1) of the Federal Rules of Civil Procedure. That requires the use, and often mis-use, of statistics. More