Valentines Day, which has been in the stores since December 26, has finally arrived in reality. Since I last blogged a few weeks ago the courts have continued to decide cases and the blogosphere has continued to cover, or mis-cover, accessibility related news. Here’s a sweet collection of matters to read after you’ve finished your celebration of the day.

WCAG 3.0 – Will it really matter at all?

The preliminary draft of WCAG 3.0 has generated a lot of attention. From a litigation defense standpoint the possible new standards are irrelevant, as is compliance with existing standards. Lawsuits are not filed to make the web more accessible; they are filed to make lawyers rich (or richer). As long as it is cheaper to settle than fight most businesses will continue to pay off the plaintiffs lawyers regardless of how accessible their websites might be. For those who do care about accessibility the new standard adopts a different approach that is focused less on specific technical requirements and more on the actual experience of the disabled user. Lawyers will recognize this as similar (though with much more detail) to the meaningful access standard required by Title II of the ADA. It remains to be seen whether DOJ, which will almost certainly restart the regulatory process under the Biden administration, can balance the certainty of strictly technical standards against the purpose of the ADA, which is meaningful access. That balance and the courts’ willingness to require plausible allegations concerning web access in order to meet the Iqbal / Twombly pleading standard will determine the future of website accessibility litigation. If courts are willing to require plaintiffs to plead facially credible claims that they were denied meaningful access to the content of a website than a new regulatory standard based on meaningful access could slow down the litigation industry and help businesses make their websites accessible in a meaningful way. If not the abuse of the ADA for the benefit of lawyers will continue unabated.

Hotel and motel website litigation heats up

The number of decisions in cases involving claims that hotel and motel booking websites fail to comply with the requirements of 28 C.F.R. § 36.302(e)(1) seem to be increasing and there is no real end in sight. On February 5 the Judicial Panel on Multidistrict Litigation found that centralization of claims brought by Deborah Laufer was not “necessary for the convenience of the parties and witnesses or to further the just and efficient conduct of this litigation” In re Hotel Booking Access for Individuals With Disabilities Litig., MDL 2978, 2021 WL 409560, at *1 (U.S. Jud. Pan. Mult. Lit. Feb. 5, 2021) in part because despite the cut and paste pleadings every website at issue was in fact different and, perhaps more important, the cases tend to settle rapidly and therefore do not burden the courts. What stands out in the more recent decisions is the choice by defendants to default. In Shumway v. Devashree Inv. Inc., 2021 WL 463228 (N.D. Ohio Feb. 9, 2021) the Court granted a default judgment and entered a broad injunction requiring that the defendant comply with 28 C.F.R. § 36.302(e)(1). The opposite result was reached in Laufer v AARK Hospitality Holding, LLC, 2021 WL 486902, at *5 (D.N.J. Feb. 10, 2021) with the Court holding that the allegation of intent to return to the website was in adequate to support a finding the plaintiff had standing:

This is a “some day” allegation. It is conclusory and vague and does not provide enough factual context to create the reasonable inference that Plaintiff intended to return to the website to check for compliance or to book a room and use Defendant’s services

An more comprehensive rejection Laufer’s standing is in Laufer v. Looper, 2021 WL 330566, at *4 (D. Colo. Jan. 11, 2021). This magistrate judge’s decision has been appealed to the district judge, but is well worth reading for its explanation of why Laufer cannot rely on dignitary harm or intangible harm to overcome the constitutional requirement of a concrete injury.

As is often the case in ADA serial litigation the low rate of contested cases and appeals means the law is made by individual district judges whose opinions are not binding on any other judge or even on the same judge in a later case. A defendant thinking about default as a strategy needs to know the individual judge assigned to the case – no conclusions about what one judge will do can be drawn from knowing what other judges have done.

Default as a strategy in physical access cases.

In Langer v. 314 North Brand Boulevard LLC, 2021 WL 462728 (C.D. Cal. Feb. 9, 2021) the court took a hard look at the Complaint and denied a motion for default judgment, finding that the plaintiff had failed to adequately plead that the defendant owned the property he visited or that it provided public parking, which is what triggers the obligation to provide accessible parking. The same judge had earlier dismissed Unruh Act claims for lack of supplemental jurisdiction. The case is typical of a strand of cases from federal courts in California that apply pleading and jurisdiction rules in ways that make life harder for serial litigants. Not all courts agree with this approach. Did I mention “know your judge?”

No, that won’t work

In Rutherford v. Kelly, 2021 WL 488342, at *5 (S.D. Cal. Feb. 9, 2021) the defendant failed to obtain dismissal of either ADA or Unruh Act claims. The Court had no problem with supplemental jurisdiction of state law claims and accepted minimal but sufficient allegations of intent to return. Plaintiffs, especially serial plaintiffs, know how to plead standing and this court illustrates the usual result of a motion to dismiss under Rule 12(b)(6). Money spent on a motion to dismiss will almost always be better spent elsewhere.

The defendant lost a somewhat similar motion to dismiss in  Ariza v. Walters & Mason Retail, Inc.,  2021 WL 354187  (S.D. Fla. Feb. 1, 2021). The Eleventh Circuit, like the Ninth, seems to require a nexus between a website and a physical place of business for Title III of the ADA to apply.¹ Parsing the Complaint the court found that a relevant nexus was alleged and that the other elements of standing – injury and intent to return – were also adequately alleged. The opinion cites a case that was dismissed for lack of nexus, but the defense is one that needs to be carefully analyzed before spending time and money on a motion to dismiss.

Deterrence and intent to return – two sides of the same coin.

In Theresa Brooke v. CSP Hosp. LLC, 2021 WL 401990, at *5 (C.D. Cal. Feb. 2, 2021) the plaintiff succeeded on a motion to dismiss based on inadequately pleaded standing, and in particular inadequately pleaded intent to return. Brooke is a serial plaintiff specializing in hotels, and although the Court’s decision formally turned on her failure to allege any specific intent to return the fact that she had alleged she was going back to 31 other nearby hotels during the same time period must have had an effect. Since deterrence – the alternate standing theory often advanced in the Ninth Circuit – can only exist where there is an intent to return the lack of adequately pleaded intent was fatal.

There is a cautionary lesson in the decision for defendants who don’t want to waste money on attorneys’ fees. Fact driven arguments about the existence of a loading zone resulted in the failure of a motion to dismiss claiming that without a loading zone there was no ADA violation. If you can’t make your case without a declaration it’s usually better to save it for summary judgment.

“Stacking” damages under the Unruh Act.

In the inevitable Scott Johnson case the court found both that Johnson’s claims were moot and that he could not stack his $4,000 per visit Unruh Act damages by repeat visits to the defendants’ place of business. Johnson v. Reimal Family Limited Partnership, 2021 WL 428631 (N.D. Cal. Feb. 8, 2021). Defense counsel will find the discussion of mootness and stacking useful should they choose to defend a Johnson or other serial filer case. I will simply note that almost no defense to an ADA case will work without developing facts concerning mootness or standing.

When an ADA case goes to trial.

Langer v. Kiser, 2021 WL 321972 (S.D. Cal. Feb. 1, 2021) is a rarity, a serial filer case that went to trial. The plaintiff lost, with the court finding that the parking lot in question was not a public accommodation because it was not open to the public and that the witness was not credible concerning his supposed intent to return or anything else for that matter. Defendants will enjoy reading the decision, but it is unlikely Mr. Langer, who has filed more than a thousand lawsuits, will be deterred by a single loss.

The critical importance of the interactive process.

S.W. Fair Hous. Council v. WG Campana del Rio SH LLC, 2021 WL 321895, at *11 (D. Ariz. Feb. 1, 2021) is worth a hard look by any attorney representing multi-family and other housing providers. The plaintiff engaged in a testing program to see whether an assisted living facility would provide an ASL interpreter on request for a fiction future deaf tenant. The defendant never quite said no and never quite said yes while the plaintiff sued before responding to offers to communicate by handwritten notes.  The Court denied cross-motions for summary judgment, finding there was an issue of fact with respect to whether the defendant really denied the request for an ASL interpreter as well as an  issue of fact concerning whether an ASL interpreter was needed.
Knowing how to respond to requests for an ASL interpreter is difficult because there is no bright line test for when a housing provider can rely on written notes or other forms of communication. Where fast and accurate communication is important, as in a hospital emergency room, ASL is almost certainly required. Ordinary interactions between a landlord and tenant probably do not require ASL, but that may depend on the complexity of the transaction. What can landlords do given this uncertainty? Keeping in mind that most real tenants or prospective tenants with a hearing disability will probably be solution oriented instead of litigation oriented the question can be more narrowly focused: How do you deal with testers who claim a need for some kind of accommodation? There is no one size fits all answer, but in general a landlord faced with a request that is hard to evaluate because it is hypothetical should be careful not to turn down the request but instead to ask the person seeking an ASL interpreter to explain the need. If the need is uncertain the landlord’s best response will always be something like “we will do whatever is necessary to effectively communicate under the particular circumstances.” You will have put yourself on the hook for knowing how to find an ASL interpreter or video service, but you  should find those resources regardless because you don’t know when you’ll need them, and you know that if you need them the matter is serious.

Causation and discrimination – a Title II and Rehabilitation Act analysis.

In Bone v. U. of N. Carolina Health Care System, 2021 WL 395547, at *12 (M.D.N.C. Feb. 4, 2021) the Court confronted and rejected a superficially appealing causation argument. The plaintiff had a vision impairment but his request for records in a format he could read was denied. The defendant argued that this did not violate Title II or the Rehabilitation Act because the plaintiff was not treated differently because of his disability:

the Amended Complaint fails to allege that UNC[ ] would have responded differently to requests from sighted individuals for alternative format documents such as large print.

The case has a complex procedural background, but the motion at issue in this decision was prompted by the Supreme Court’s decision in Comcast Corp. v. National Ass’n of African American-Owned Media, ___ U.S. ___, 140 S. Ct. 1009 (2020), which the defendants said required but-for causation in a disability discrimination claim; that is, but for the disability the plaintiff would have been treated like non-disabled persons.

The decision is long and worth reading, but near the conclusion the Court succinctly explains the difference between disability discrimination and more “traditional” kinds of bigotry:

Unlike Section 1981, designed to remedy “blatant deprivations of civil rights” that “oppress[ed] the former slaves,” . . . shortly after the Civil War, the Rehabilitation Act and ADA — modern statutes passed more than 100 years after the Civil Rights Act of 1866 — target discrimination that usually arises not from “invidious animus, but rather [from] thoughtlessness and indifference – [from] benign neglect,” . . . , or, stated differently, discrimination that primarily results from “apathetic attitudes rather than affirmative animus. . . .”

Put another way, the ADA, Rehabilitation Act and similar statutes are affirmative action statutes recognizing that equality of treatment inevitably deprives those with disabilities of equality of opportunity. It is a point worth remembering businesses and cities that think treating everyone the same will satisfy their statutory obligations.

DOJ v DOT – who is in charge of subway accessibility.

In West v. Metro. Transportation Auth.,  2021 WL 327606 (E.D.N.Y. Feb. 1, 2021) the Court, joining others, found that where a Title II entity is subject to and follows DOT regulations it does not have any additional ADA accessibility obligation. This is not a surprising result since Title II itself includes an exclusive delegation of rule making authority to DOT for public transportation services. Mind the gap.

Supplemental jurisdiction over Unruh Acts declined.

Perri v. Brentwood Dev. Co., LLC, 2021 WL 356843 (C.D. Cal. Jan. 12, 2021) has a good exposition of the law concerning supplemental jurisdiction that will persuade those judges who grant motions to dismiss Unruh Act claims and not persuade those who do not. Know your judge.
¹ The District Court regards as unsettled whether the Eleventh Circuit will hold that a website is itself a public accommodation.

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