This is a follow up to last week’s blog, “Consolidate and Eliminate.” A magistrate judge in the Western District of Texas seems to be just that in a series of cases (more than 300) filed by Jon Deutsch in Austin, Texas. Deutsch v. Annis Enterprises, Inc., 2016 WL 5317431 (W.D. Tex. Sept. 21, 2016). I won’t provide a detailed analysis of the opinion, which should be read by every lawyer representing defendants in serial litigant cases,* but two points stand out. First, the Court conducted an evidentiary hearing, thus moving past the pleading stage, at which standing depends only on the plaintiff’s willingness to lie. Putting the plaintiff to his proof of standing early in the case is the single most important reason to consolidate and eliminate because it allows the critical fact issue to be resolved early, before the costs of litigation become absurd. More
Meet Iqbal and Twombly.* Pleading an ADA case sometimes seems trivially easy. Allege a disability, allege an encouter with an architectural barrier, claim intent to return or deterrence and any plaintiff should be able to at least avoid dismissal. It appears, however, that some courts are taking a harder look at the kind of vague allegations found in the pleadings of many serial plaintiffs. This gives defendants new opportunities for early dismissal.** More
Some injury or harm is a requisite element of the constitutional requirement that a plaintiff have standing to pursue a claim, and although courts differ in the test that they apply to measure standing in such cases, most assess, in at least some fashion, whether the plaintiff has suffered an injury or harm from a defendant’s alleged failure to comply with Title III of the ADA.
Gilmore v. Lake Charles PC, LP, 2016 WL 3039813, at *4 (E.D. La. May 27, 2016). What the Court did based on this observation was, however, unusual in the ADA context. The Court agreed to allow the defendant in a Title III case to prove that the plaintiff had not really been denied access to the defendant’s shopping center because of minor or technical failures to meet the regulatory standards for accessibility. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation Tags: "drive-by" ADA lawsuits, ada litigation, ADA serial litigation, ADA standing, cheap standing ADA
ADA serial litigation is possible only because of a judicially created doctrine of cheap standing. What do I mean by cheap standing? Standing that can be obtained at minimal expense and inconvenience. Serial litigation is economically feasible only because a plaintiff can obtain standing merely by seeing a non-compliant parking space and then leverage that standing to include still unknown ADA violations inside a business. Cheap standing makes it possible for a few law firms and their pet plaintiffs to file dozens or hundreds of lawsuits in a short period of time with such small expense that they can still make a substantial profit on the modest settlements that are usually demanded. Cheap standing is the foundation on which serial ADA litigation rests. More
By Richard Hunt in Accessibility Litigation Trends, ADA Internet, ADA Internet Web, Internet, Internet Accessibility Tags: ADA Internet, ada litigation, ADA standing, ADA web, Arthur Schwab, Harbor Freight, private lawsuits, private litigants
In a decision issued on April 20, Judge Arthur Schwab of the Western District of Pennsylvania makes it clear that every potential defendant who was sent one of the Carlson Lynch firm’s ADA Internet demand letters will end up in his court, and will have little choice but to settle. Since Carlson Lynch apparently sent hundreds of letters, Judge Schwab has effectively seized control of hundreds of cases that have not yet been filed. Sipe v. Am. Casino & Entm’t Properties, LLC, 2016 WL 1580349 (W.D. Pa. Apr. 20, 2016). More