If you’re not all in, you need to get out quickly. That seems to be a theme that runs through many of this week’s roundup of recent decisions. As we will see several times below, ADA lawsuits generally require a decision to surrender or fight to the death at the beginning of the case. Anything usually results in money wasted on attorneys’ fees. That said, defendants continue to succeed in some cases, justifying a close look at the particular court and its history before making a decision on how to proceed. More
Point of Sale
In some ways the 9th Circuit’s recent decision in Kalani v. Starbucks Coffee Co., 2017 WL 2813864, at *1 (9th Cir. June 28, 2017) is one of the saddest in the long history of ADA litigation. Robert Kalani was a mild kind of serial plaintiff who filed 15 cases in the Northern District of California over a period of several years. The most seriously litigated was his lawsuit against Starbucks, which claimed in part that point of sale displays encroached on the clear counter space required by the ADA. Now it is almost over, revealing both the minimal impact that individual lawsuits have on accessibility and the incredible waste of money involved in defending such cases. More
Point of sale merchandising has ADA implications that many retailers overlook. POS devices that are not accessible by the blind are claimed to violate the ADA and have attracted the attention of major disabilities rights groups.* A recent case from California, Johnson v. Lababedy, 2016 WL 4087061 (E.D. Cal. Aug. 2, 2016) serves as a reminder of how more mundane sales efforts also have ADA implications, and that just how the ADA applies may require some careful analysis for both plaintiffs and businesses. More
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
By Richard Hunt in Accessibility Litigation Trends, ADA Point of Sale, ADA Vending Machines, Hospitality, Public Facilities Tags: ADA, NAMA, National Automatic Merchandising Association, Point of Sale, Vending Machines
Even after 25 years of regulation and litigation ADA obligations are still often uncertain. Does the ADA require that vending machines be accessible to the blind and if so what does that mean? It really isn’t clear at all.
In McGee v. Coca Cola Refreshments USA, Inc., 2015 WL 6620959 (E.D. La. 2015) the court held definitively that a Coca Cola vending machine is not, by itself, a place of public accommodation covered by the ADA. It noted, however, that the bus station in which the machine was located was a place of public accommodation and might well be obligated to provide accessible vending machines. The case was decided early, so there is no guidance as to what accessible means. More