We aren’t quite to Halloween, but the candy is certainly crowding the shelves of local stores, whose owners might want to take a look at Ryan v. Kohls, Inc., discussed below. Beyond that we have the usual roundup of default judgment cases, website accessibility standing cases, and of course some ordinary “drive-by” cases involving physical accessibility mixed in with cases that deserve special attention because they could have a broad impact on ADA and FHA litigation. Here they are.

Rent due dates and the Fair Housing Act

Strategies for dealing with serial litigants

The fundamental economic problem for defendants attacked by serial litigants is that the cost of defense likely exceeds the cost of settlement, even if the defense succeeds. One way to avoid this problem is consolidation of claims to determine standing. It is much more cost effective to write one brief on seventy cases than seventy briefs in seventy cases, especially if the Attorney General joins in. That’s what happened in Zimmerman v. GJS Group, Inc., 2018 WL 4181627 (D. Nev. Aug. 30, 2018). The Defendants were aided by the plaintiff’s own file cheap and settle cheap strategy, which used form pleadings and therefore failed to include the kinds of details needed to withstand a standing challenge. We’ve used the same approach on a smaller scale when dealing with a serial litigant who filed dozens of cases, and it was used to by defense counsel in the Deutsch cases. Any lawyer whose client is a victim of serial filings should get on the phone to the co-defendants’ counsel and talk about a common defense strategy.

Default as a strategy

Brooke v. S.A.V. Texas LLC,  2:18-CV-1252-TLN-EFB, 2018 WL 4907967, at *1 (E.D. Cal. Oct. 10, 2018) is a classic example of default as an effective defense. The plaintiff obtained only $1,200 in attorneys’ fees plus $400 in costs  and an injunction requiring remediation that was necessary regardless. It couldn’t have been answered more cheaply.

Acosta v. Sadik, 117CV01533DADSKO, 2018 WL 4182586, at *4 (E.D. Cal. Aug. 30, 2018) is another case where default turned out to be a great strategy. In this case one defendant settled and two defaulted. After crediting the settlement amount the two defaulting defendants were found jointly and severally liable for about 1/2 the settlement amount. In other words, defaulting was cheaper than even a cheap settlement.

In The Midwest Disability Initiative v. Nelmatt, LLC,  2018 WL 4616455, at *6 (D. Minn. Sept. 26, 2018) the defendant was less successful with its default strategy. The Court cut the claimed fees more or less in half, but still awarded $6,750 based on a billing rate of $300 per hour. The defendant paid its own attorneys to challenge the fee award, so it’s total cost to get out of the case was certainly higher. This is why default can be a risky strategy, and one to be undertaken only if pre-Answer negotiations fail.

Readily achievable can be very expensive

Kreisler v. Humane Socy. of New York, 2018 WL 4778914 (S.D.N.Y. Oct. 3, 2018) illustrates the relationship between costs and assets that influences what is readily achievable. The work needed to make the defendant facility accessible was estimated to cost at least $110,000, take six months and involve problems with government permits. The Court still found that a jury might find the needed remediation was readily achievable given, among other things, that the defendant had cash assets of more than twenty-one million dollars. What is readily achievable depends on what you have, not just the absolute cost.*

Website accessibility cases – standing.

Jones v. Lanier Fed. Credit Union, 2:17-CV-00282-RWS, 2018 WL 4694363 (N.D. Ga. Sept. 26, 2018) and
Jones v. Piedmont Plus Fed. Credit Union, 1:17-CV-5214-RWS, 2018 WL 4694362  (N.D. Ga. Sept. 26, 2018) are, on their face, standard credit union website cases. The Court was unpersuaded by standing arguments based on the plaintiff’s inability to be a member of the credit union, holding as at least one other court has that the issue was not access to the services of the credit union, but to its website. The Court also rejected as well the now standard  “not a public accommodation” and due process arguments.** What makes these two cases unusual is that they are from the 11th Circuit, which has adopted the same “nexus” requirement followed in the next case. Under 11th Circuit law the inability to take advantage of the physical facilities of the credit unions should have resulted in dismissal.

In contrast, Walker v. Sam’s Oyster H., LLC, CV 18-193, 2018 WL 4466076, at *2 (E.D. Pa. Sept. 18, 2018) interprets the Third Circuit’s requirement of a nexus between a website and a physical place to mean that “a mere inability to access information on the Website, without more, is not cognizable under the ADA as a matter of law.” Thus the plaintiff, who did not allege he wanted to visit Sam’s Oyster House or eat its oysters, had not suffered an ADA injury and did not have standing to file suit.

Website accessibility – how do you prove it?

In Gomez v. Gen. Nutrition Corp., 323 F. Supp. 3d 1368 (S.D. Fla. 2018) the District Court took a hard look at the defense expert and excluded his testimony, which was based entirely on using two software systems for checking WCAG 2.0 compliance. The Court found that his expertise in e-commerce did not qualify him as an expert on accessibility. First lesson – hire a real expert when sued about website accessibility.  Equally notable was the testimony of the plaintiff’s expert, who found high error rates for WCAG 2.0 compliance at both the A and AA levels. Assuming his conclusions had any validity, the discrepancy between his conclusions and the results of automated tests proves what every good consultant has told me; automated website accessibility software cannot find all the real accessibility problems. Nothing can replace live user testing from either the standpoint of really making a website accessible or defending a case in court.

Website accessibility – what does accessible mean?

Gomez was a plaintiff victory, but only in part. The Court concluded that it could not grant summary judgment with respect to the remedy for non-compliance because there was no evidence establishing as a matter of law that WCAG 2.0 at any success level is what the ADA requires. This is a critical point because the tendency in web accessibility cases has been to assume at the remedies phase that WCAG 2.0 at success level AA makes a website accessible. Ordering compliance with WCAG 2.0 AA as a remedy raises standing issues because many of the success criteria are for disabilities other than blindness, meaning a blind plaintiff has no standing to demand that those success criteria be met. It also raises questions of standing with respect to barriers encountered by the plaintiff. Not all courts agree with the Ninth Circuit that a plaintiff who encounters a single barrier to access is entitled to relief with respect to all barriers to access related to his disability. A plaintiff who is only interested in a single on-line service may not have standing to complain about accessibility issues for parts of the website he would never use. As we move past the early website focus on standing and theories of liability Courts are going to have to take seriously the question of just what accessibility means and what kind of accessibility a particular plaintiff can demand.

The Defendant’s burden on fees.

One of the principal drivers of ADA settlements is the asymetric standard for awarding fees. Winning plaintiffs always get them, winning defendants almost never do. In Suarez-Torres v. Sandia, LLC 2018 WL 4677667, at *2 (D.P.R. Sept. 26, 2018) the Court reminded the defendant how hard it is for a winning defendant to obtain fees, noting that:

attorney’s fees may not be awarded to a prevailing defendant under the ADA unless the defendant establishes that the plaintiff’s suit was totally unfounded, frivolous, or otherwise unreasonable or that the plaintiff continued the litigation after it clearly became so.

Even after excluding all the evidence that might have supported the plaintiff’s claims the Court was unwilling to find the case had been continued after it clearly became frivolous. The standard for defense attorneys’ fees requires, in practice, that the allegations concerning ADA violations have been false when made. That will rarely be the case.

Mootness is hard but possible.

Winning on standing in the 11th Circuit

Kennedy v. Cape Siesta Motel LLC et al, 2018 WL 4822479 (M.D. Fla. Oct. 4, 2018) shows how helpful the “proximity test” for standing that has been approved by the 11th Circuit can be in combating serial litigants. The Court found in this case that based on the distance of the plaintiff’s two residences from the defendant hotel she had not plausibly alleged an intent to return, one of the fundamental elements of ADA standing.† The Court was likely influenced by contradictions between the plaintiff’s deposition and sworn declaration, as well as the fact that her brief was clearly a cut and paste job from a different case. Defendants in the 11th Circuit have an opportunity to defend if they face a plaintiff with unreasonable settlement demands or just prefer to pay their lawyers instead of the plaintiff’s lawyers.

Plasma Donation centers as public accommodations.

Matheis v. CSL Plasma, Inc.,  2018 WL 4680056,  (M.D. Pa. Sept. 27, 2018) presents an unusual split in the courts about what kind of entity open to the public is a public accommodation. The District Court sided with an earlier Tenth Circuit decision finding that a plasma center was a public accommodation. It rejected cases suggesting that to be a public accommodation an entity must provide services to the public in exchange for compensation. Defense oriented as we are, this seems like the right result. Plasma centers pay donors for plasma, and it hardly seems germane to the purposes of the ADA that the cash for goods exchange is reversed. Under this kind of argument the ADA would not apply to any business that buys goods from the public. It seems likely most courts will agree with the Third Circuit that “Under Title III, “public accommodations” include most places that are generally open to the public.” Berardelli v. Allied Servs. Inst. of Rehab. Med., 900 F.3d 104, 113 n.4 (3d Cir. 2018).

It is worth noting, however, that the defendant won the case despite the public accommodation ruling because it was able to show the plaintiff’s disability – an anxiety disorder – created a sufficient risk of harm to himself and others to justify his exclusion. The court observed, correctly, that the ADA does not require dealing with someone just because they are disabled; a legitimate nondiscriminatory reason for exclusion is sufficient.

Store aisles need to be how wide?

Ryan v. Kohl’s Corp., 17 CV 5854, 2018 WL 4616355 (N.D. Ill. Sept. 26, 2018) is a peculiar case. The opinion indicates that while the defendant opposed summary judgment on the plaintiff’s claims, it did so without trying to disprove them. The plaintiff, for her part, seemed uncertain just what she wanted. The real lesson of the case for retailers is that general accessibility matters if you want to avoid a lawsuit. The decision includes is a long discussion of what the ADA does and does not require with respect to the width between merchandise displays, but at the end of the day the plaintiff prevailed because she testified that because the spaces between displays were too narrow she was simply unable to reach many parts of the store.  This, in the absence of contradictory testimony, was sufficient for a summary judgment on liability. Retailers know that you cannot sell what you do not show, but crowded spaces can easily run afoul of the ADA. If you don’t want to hire a consultant our DIY approach is to rent a wheelchair and see whether you or an employee can easily navigate the entire store. If not, you probably need to make changes.

Landlords and tenants

The importance of attorneys’ fees.

Arbitration of ADA claims.

Natl. Fedn. of the Blind v. The Container Store, Inc., 904 F.3d 70, 75 (1st Cir. 2018) seems to put the last nail in the coffin of The Container Store’s effort to compel arbitration of ADA claims based on the kind of agreement that we all sign every day – one so long and hard to understand that we don’t bother to read it and hope for the best. In this case though the plaintiffs not only did not but could not read the agreement because they were blind and it was presented only on a touch-screen point of sale device. Those interested in arbitration clauses generally will find the discussion enlightening, particularly the section suggesting that very common terms in this kind of click and hope contract make it illusory and therefore unenforceable. Of more immediate importance is the reminder that legal presumptions applied in other contexts may not apply when dealing with those who are disabled.

Expert witnesses

One of the notable characteristics of the ADA construction standards is their objectivity. Once measured a slope should not change. This doesn’t mean there can’t be disagreements, but it undermines arguments about technique when used to exclude evidence. In Hillesheim v. O. J.’s Cafe, Inc., 8:17CV239, 2018 WL 4279674, at *1 (D. Neb. Sept. 6, 2018)‡ the plaintiff sought to exclude an expert report on the grounds that it did not show that it was based on the proper techniques. The Court declined to exclude the report, allowing the plaintiff instead time to do his own survey to see if the results were wrong.

Starbucks fights to the death – and loses

Is a refrigerator a public accommodation?

Yes, according to Moralez v. Power Supply Collective, Inc., 17-CV-00634-CRB, 2018 WL 4257199 (N.D. Cal. Sept. 6, 2018) which rejects the Fifth Circuit’s holding in McGee v. Coca Cola†† that vending machines are not public accommodations. The Court then plunges into the weeds of what constitutes “storage” that must be partially but not completely within reach range for those in wheelchairs, concluding that the shelves in the refrigerator are “storage” rather than the refrigerator itself. Thus, a refrigerator can satisfy the ADA standards if some rather than all shelves are within reach range. None of this was enough to end the lawsuit because the Defendant asserted but failed to produce evidence that it would accommodate those with disabilities by responding to requests to put items on lower shelves. The most important lesson for business is when you see that you need a policy, make a policy, train your employees and implement it. Talking about what you could do won’t create a defense.‡‡

For California Only

California has its own state equivalent of the ADA, the Unruh Act, whose substantial damage provision has fueled the ADA litigation industry there. In the past few years California has tried to tamp down abusive ADA lawsuits, making it harder for plaintiffs to recover in state court. Johnson v. Morn. Star Merced, LLC,  2018 WL 4444961 (E.D. Cal. Sept. 14, 2018) has a thorough discussion of the law of supplemental jurisdiction under 28 USC §1367(c), including cites to the most important cases holding both ways with respect to whether Unruh Act claims predominate over federal claims. It is a valuable resource for California practitioners and might be useful in other states where it would be handy to force the plaintiff back into state court. For those who prefer the opposite result; that is, dismissal of the state law claims, the equally recent decision in Schutza v. Lamden, 2018 WL 4385377, at *5 (S.D. Cal. Sept. 14, 2018) will be helpful. The bottom line given the number of conflicting decisions may be you just need to get the right judge.

Notes.

*The case is also interesting because the defendant made two of the silliest arguments about the definition of “public accommodation” imaginable. It argued first that because the defendant exists primarily to provide aid and protection to animals it is not a facility for people, even though the animals belonged to people and it was those people who needed access. The Court pointed out that by this logic a shoe repair shop would not be a public accommodation because it served shoes, not people. Even more absurd, and in fact offensive, was the claim that disabled individuals shouldn’t be burdened with animals anyway, and therefore shouldn’t need the defendant’s services. This level of cluelessness about the disabled is astonishing.

** On these latter issues we may have guidance at the Circuit level in the near future because oral argument in the 9th Circuit appeal of Robles v. Dominos Pizza LLC was heard last week. For now, the outcome of these cases depends on the judge who hears them.For a discussion of Robles see our blogs “Victory and confusion in ADA internet litigation – what next?” and “Effective defense of ADA website lawsuits – is there such a thing?”

† The intent to return element of standing is one we’ve blogged about often, most recently in “ADA standing and pleading – common sense from the 8th Circuit”

‡ Mr. Hillesheim’s lawsuits have occupied the 8th Circuit quite a bit recently – see our August blog “ADA and FHA Quick Hits – Labor Day edition.”

†† See our earlier blog “Kiosks, Coca Cola and the ADA – What is a public accommodation anyway?”

‡‡ See our blog “ADA Compliance Policies and Procedures – you need them, and now.“