“Don’t fire till you see the whites of their eyes” was William Prescott’s famous advice to the colonial soldiers defending Bunker Hill, and that kind of patience can be important to ADA defendants as well. Property owners and operators sued under the Americans with Disabilities Act always face a strategic choice: Should they simply remediate and settle, or should they attack the plaintiff’s standing to bring the lawsuit, which is frequently dubious at best. In most cases remediation and settlement is the best choice because the cost of defending the lawsuit and winning is more than the cost of remediation. Sometimes, though, a plaintiff just won’t settle. He or she may insist on work that the ADA doesn’t require or attorneys’ fees that are too high for the settlement to be reasonable. When that happens, and a legal battle is inevitable, choosing the right strategy is the key to minimizing expense while achieving a good outcome. A California case, Feezor v Patterson, 896 F.Supp.2d 895 (E.D.Cal. 2012) shows how patience worked to the defendant’s advantage and lead to a complete win without unnecessary expense. More
A couple of recent cases caught my eye because they serve as reminders of the persistence of certain strategic considerations in ADA defense. The first, Taylor v. Wing It Two, Inc., 2013 WL 3778315 (S.D. Fla. 2013) demonstrates the perils of a settlement that isn’t followed by complete remediation. The defendant had settled a previous ADA lawsuit but had not, it appears, actually remediated every ADA violation. The Court rejected the argument that this settlement bound the new and different plaintiff in part because the new plaintiff sued for violations that were not part of the earlier settlement. A settlement without full remediation is a flimsy shield against later lawsuits. More
Starbucks has a long history of litigation about the height of its pickup counters. In 2003 Starbucks settled a claim by a California disabilities rights group concerning the height of its pickup counters. In 2011 Starbucks obtained the dismissal of another pickup counter height lawsuit, Chapman v. Starbucks, 2011 WL 66823 (E.D.Cal. 1022) based on mootness. The counter had been lowered to comply with the ADA requirements. In 2012 Starbucks settled a case that included counter height allegations in the Southern District of Florida. Access 4 All, Inc. v. Starbucks, Case No. 0:11-cv-61010 (S.D. Fla.). The settlement terms do not appear in the record, but most ADA settlements include remediation plus attorney’s fees, so it is a reasonable guess that Starbucks had to lower the counters in the 4 stores at issue. Just a few days ago, on June 5, 2013, a different District Court awarded Robert Cruz some $145,960.07 in attorney’s fees for his successful action against Starbucks concerning one Starbucks store. The Consent Decree in that case called for lowering the pickup counter. Cruz v. Starbucks Corporation, 2013 WL 2447862 (N.D. Cal. 2013) and see Docket 29-1 in the underlying case, 3:10-cv-01868. More
The liberal standing rules in the Ninth Circuit seems to benefit advocates for those with disabilities by allowing them to file suits that go far beyond any actual discrimination experienced by the plaintiff. However, this comes at a real cost because this kind of lawsuit encourages the courts and business owners to view “the disabled” as stereotypes rather than individuals. When the law treats everyone with a disability as an abstraction, it isn’t surprising if ordinary business people view the disabled in the same way.
The Ninth Circuit and some other circuits say that when a person with a mobility disability encounters a ramp that does not comply with the ADAAG standards he has suffered the discrimination that the ADA forbids, regardless of whether the steepness of the ramp actually interferes with his ability to use and enjoy the premises. Once he has encountered the non-compliant ramp it is presumed that any other failure to comply with the ADAAG in the same facility would also interfere with his use and enjoyment, at least if they violate guidelines related to mobility disabilities. The plaintiff is not treated as a person: He is treated as a “person with a mobility disability” whose relationship to architectural barriers is completely abstract. Is he proud of his strength and fitness, which makes a ramp that is slightly too steep irrelevant? It doesn’t matter. For purposes of the ADA the court will treat him as if he were weak. Has he developed strategies for overcoming things that might be barriers to others? It doesn’t matter. For purposes of the ADA the court will treat him as if he were completely helpless. More
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Professional services, Public Facilities, Residential Development, Restaurants Tags: ada litigation, ADA pleading, ADA standing, private lawsuits, private litigants
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