Several colleagues shared Judge Paul C. Huck’s August 23, 2019 sanctions order in Johnson v. Ocaris Management Group, Inc., Case No. 1:18-cv-24586 (S.D. Fla. August 23, 2019), and it provides a good counterpoint to the cases discussed in my last Sea to Shining Sea blog. The short sweet news is that Scott Dinan, Florida attorney, and his partner in the ADA business, Alexander Johnson were sanctioned by the court and required to disgorge certain fees (amounting to $59,900) and to pay a penalty in the same amount as well as notify other courts of the sanction. However, it is worth taking a closer look at the legal grounds on which the sanction rests because those grounds may apply to other serial litigants even if their conduct is not quite as outrageous as that of Dinan and Johnson. More
By Richard Hunt in Accessibility Litigation Trends, ADA Litigation Procedure, ADA regulations, Movies, Public Facilities, Stadiums Tags: ADA defense, Seattle Mariners, Stadium accessible seating, Stadium Sightlines, T-Mobile Stadium
Nobody knows. The August 19, 2020 decision in Landis v. Washington State Major League Baseball Stadium Pub. Facilities Dist., 2019 WL 3891566 (W.D. Wash. Aug. 19, 2019) is thoughtful, thorough, and from the standpoint of those looking for certainty concerning the stadium sightlines argument inconclusive. The Court denied the plaintiffs’ request for a ruling that as a matter of law the T-Mobile Stadium at which the Seattle Mariners play failed to meet ADA requirements, but the Court found it could not do so without a trial. This is the inevitable result of the complexity of stadium design and impossibility of promulgating regulations concerning the location of wheelchair accessible seating that are both specific and cover every possibility. At trial the Court will hear more evidence and make fact findings about just what comparable sightlines means in this particular stadium, but that result will likely cover only the single stadium at issue, leaving other courts and other cases to determine on a stadium by stadium basis what is good enough. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Web Access, ADA Website Accessibility Tags: ADA defense, ADA drive-by, ADA serial litigation, ADA standing, ADA website, Maximilian Travis, Vaughn & Associates
Today’s blog concerns a couple of cases reported to me by colleagues in California and New York. They give a snapshot of how courts at both ends of the country are thinking about ADA lawsuits. The snapshot at left is pretty much in the middle, near Telluride Colorado.
Welcome to the Hotel California
I was alerted to the California case, Whitaker v. ARS REI USA Corp., by Vaughn & Associates, who represent the defendant. The case illustrates the odd yin and yang of litigation in California, where the shifting tides of state law have altered the litigation landscape in recent years. To understand why requires a little background. California’s Unruh Act parallels the ADA but provides for statutory damages of $4,000 per violation. The ADA does not provide for damages, so an Unruh Act claim is better for the plaintiff. That damage remedy has driven ADA litigation at volumes that make California a clear leader in the number of ADA lawsuits filed if state and federal court cases are counted. More
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA - Standing, ADA Class Actions, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Mootness, ADA Web Access, ADA Website Accessibility Tags: ADA defense, ADA injunctive relief, ADA Mootness, ADA standing, Diaz v Kroger, Diaz v Lobel's, website accessibility
I’m not Maimonides, but I do think we need a Guide for the Perplexed concerning ADA website litigation because it seems that in many cases both courts and litigants have mistakenly treated websites as if they were buildings. Websites are not buildings, and recognition of that fact would do a great deal to eliminate or slow down abusive website lawsuits. If you are a defendant in such a suit or think you might be, this blog is for you and your lawyers. There is no silver bullet, but there are approaches to defense with real promise. More
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA Class Actions, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Point of Sale, ADA regulations, ADA rulemaking, ADA Web Access, ADA Website Accessibility Tags: ADA defense, Arbitration, Browsewrap, Clickwrap, Container Store, FHA Defense, Point of Sale, website accessibility
In the last two years the federal courts have had a number of opportunities to find that Title III claims under the ADA are not arbitrable and have declined the invitation. That doesn’t mean these cases are in fact going to arbitration. In every case I found the arbitration agreement was found to be unenforceable on state law grounds, leaving open the possibility of a public policy argument. Nonetheless, I think that a properly written and implemented arbitration clause can force a Title III case into arbitration and give defendants a chance to avoid much of the unnecessary cost of litigation. Here’s why.
The starting point in a discussion of arbitration for civil rights statutes has to be Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647 (1991). In Gilmer the Supreme Court found that claims under the Age Discrimination in Employment Act could be made subject to a valid arbitration agreement, rejecting claims that it was somehow inconsistent with public policy. A few months later Congress passed the Civil Rights Act of 1991, in which, among other things, it affirmed that More