The blog a day pace I thought I might hit hasn’t happened but I’m not giving up. Here is the first of several Quick Hits on recent ADA and FHA developments.
ADA standing – aiming to high leads to a crash and burn.
It appears the plaintiff in Rizzi v. Hilton Dom. Operating Co., Inc., 2019 WL 4744209 (E.D.N.Y. Sept. 30, 2019) decided to attack not one, but all of the websites operated by the defendant hotel company. Unfortunately, this meant the plaintiff could not identify any single website to which he plausibly intended to return. Litigation filed in the public interest rather than to alleviate an individual harm is the proper business of the Department of Justice, which has no similar limits on standing to sue.
Mootness done right
Dispersed dining and the 5% rule.
One of the plaintiff’s complaints in Theodore v. 99 Restaurants, LLC was that accessible seating was not provided in the “bar area.” The factual response was that 9 accessible seating spots were available with lines of sight to the television sets above the bar – which is really the only feature most bars offer that differs from ordinary dining. The Court nonetheless discussed the ADA’s dispersal requirement, finding that:
Nevertheless, the caselaw on this issue supports defendants’ view that the ADA and applicable regulations do not require the restaurant to have accessible seating in every area of the facility. Rather, accessible seating must be “dispersed throughout the space or facility.”
Declining supplemental jurisdiction in California.
The court in Whitaker v. Mac, 2019 WL 4849199 (C.D. Cal. Oct. 1, 2019) joined a growing number of California federal courts that will not consider Unruh Act claims along with an ADA claim. The argument is simple: California has decided to control abusive litigation under the Unruh Act with heightened pleading and other requirements that don’t apply in federal court. Plaintiffs seek to get the benefit of the Unruh Act (damages) without the detriments by adding an Unruh Act claim to their ADA claim. That, according to this court, permits it to decline supplemental jurisdiction in order to be a tool for avoiding state law. Other district courts have rejected this argument*, so in California the rule for a motion to dismiss remains “know your judge.”
Default as a strategy
The defendant in Smith v. Hartmann’s Moonshine Shoppe, LLC, 2019 WL 4888996 (D. Minn. Oct. 3, 2019) did reasonably well by choosing default, ending up with an order to remediate that was inevitable and a bill for the plaintiff’s fees and costs of less than $6,000. I don’t believe I’ve seen default as a strategy outside of California, so this may be a spreading trend. The danger, of course, is that the plaintiff will get more and more expensive injunctive relief than they may have been entitled to. In my view negotiating the terms of remediation and then settling is worth the money spent on defense counsel. Of course I am defense counsel, so my interests are clear.
Outside food and disabilities.
Like the case from Colonial Williamsburg I blogged about earlier this year** Castillo v. Hudson Theatre, LLC, 2019 WL 4805648 (S.D.N.Y. Sept. 30, 2019) deals with the obligation of public accommodations that serve food to allow outside food for those with disabilities. In this case, however, the plaintiff jumped the gun and filed suit without first requesting that the defendants accommodate her need to bring in outside food. Unlike cases involving physical barriers in which the ADA violation is the mere existence of the barrier cases involving policies and procedures require that an accommodation be requested and denied before there is an ADA violation.
Limits on expert testimony in ADA cases.
As the parties gear up for trial in Landis v. Washington State Major League Baseball Stadium Pub. Facilities Dist., 2019 WL 4735403 (W.D. Wash. Sept. 27, 2019) the Court is taking a look at just what the plaintiff’s expert can and cannot say. Because the expert identified accessibility problems but not specific solutions in this decision the Court limits his testimony to problems and “general solutions” that apply elsewhere. It isn’t clear how the plaintiff will put on evidence that would let the Court enter an injunction specific enough to be enforced, and at least one possibility is an order requiring the parties to figure it out after judgment. That is often the approach in FHA cases where remediation is complex. In any case the trial is bound to be an interesting affair with broad implications for all stadiums and sports arenas.†
* See “Sixth Circuit Affirms . . . ” and “Quick Hits – Dog Days of Summer” for some of the contrary cases.
** See ADA policy modifications – does my fear makes your modification necessary?
† See Stadium Sightlines under the ADA – the winner is . . .
I’ve been posting a lot of blogs in the last few days in an effort to catch up with a backlog of important or at least interesting cases. Just as I was wrapping up this Quick Hits blog the Sixth Circuit handed down its decision in Brintley v. Aeroquip Credit Union, precipitating the blog’s publication. Subscribers who feel they are being spammed can rest assured the pace of posts will slacken – assuming the pace of ADA and FHA accessibility developments slackens, of course. 
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. 
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.
It’s been a year and 43 blogs since last President’s Day and like Yosemite falls, the broad picture of ADA and FHA litigation in America remains about the same despite the passage of time. A huge majority of the cases filed are from serial litigants operating as part of a lawyer sponsored litigation machine whose goals have nothing to do with accessibility and everything to do with making money. Congressional action aimed at serial litigation was misguided and is now doomed. Individual judges are taking important stances against abusive litigation, but the overall landscape remains about the same.