The ADA and FHA decisions handed down in the last few weeks share a common theme: technicalities matter. Sometimes the lack of technical standards increases the time and money spent in litigation, as in the first entry below, but more often technical matters of procedure and expert testimony determine the outcome of a case. The ancient Greek dramatist Aeschylus famously said “wrong must not win by technicalities,” but it is easier to sort out right and wrong when you get to write the play and decide who says and does what. When people don’t agree they go to court, and a commitment to the rule of law is a commitment to deciding disputes based on technicalities instead of fluctuating political and individual notions of what is right and wrong. More
ADA Internet Web
I’m re-cycling a picture from April because there’s another lawyer recycling a money-making strategy that’s been in use for quite a while. I’ve been hired in the last few weeks by four clients who received demand letters from a freshly minted one year lawyer in Alabama³ who claims to represent a vision impaired gentleman named Donald Wilson. He claims Mr. Wilson is prepared to file suit in the Eastern District of New York against businesses with websites that are not accessible. We’ve seen this before.¹ The demand letters seem to be cut and paste copies of demands from various serial filers, as is the draft complaint that accompany his letters. Although he was only admitted to the bar in 2020 and he does not appear to be a member of the New York bar the draft complaints are captioned to be filed in the Eastern District of New York. In addition to my own clients I have fielded calls from lawyers and businesses all over the country who received such demand letters, so he seems to regard the entire U.S. as his territory. I could find no record of him having filed a lawsuit in federal court anywhere in the United States. The letters do not suggest any in-depth knowledge of what website accessibility means or of the law concerning website accessibility.
There is no doubt that under one theory or another most websites associated with a physical place of business are required by the ADA to be accessible. At the same time, recent decisions in the Supreme Court, Fifth Circuit and other courts make it clear that serial plaintiffs are unlikely to have standing to sue or seek injunctive relief.² This is especially true of a plaintiff like Mr. Wilson who presumably lives in Alabama and cannot plausibly claim he wanted t0 buy furniture from stores that sell only locally. Serving customers with disabilities is a good practical reason to make your website accessible. Doing the right thing is a good moral reason to make your website accessible. Responding to a demand from someone like this lawyer is not.
¹ See my blogs Same old wine in a brand new bottle, Legal Justice Advocates – a New Kids on the Block Update and others that these link to.
² See my blogs Transunion v Ramirez – has the Supreme Court put an end to cheap standing in ADA litigation?, and the other blogs referred to in the footnotes.
³ I have removed the name from this blog because the attorney tells me that as of September 2022 he has gotten out of the ADA demand business and is pursuing other areas of practice.
By Richard Hunt in Accessibility Litigation Trends, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Bars, ADA Internet, ADA Internet Web, ADA Mootness, ADA Website Accessibility Tags: accessible bar seating, ADA defense, ADA Mootness, FHA Defense, Robles v Dominos, Strojnik
The constellation Canis Major rises and falls with the sun during the hottest part July and August; hence the “dog days of summer.” Although only mad dogs and Englishmen go out in the midday sun* the courts have been busy working in air conditioned chambers on ADA and FHA matters:
Just what is an accessible website?
The first sentence of this injunction seems to violate the general rule against injunctions that simply order compliance with the law. See, e.g., E.E.O.C. v. AutoZone, Inc., 707 F.3d 824, 842 (7th Cir. 2013). As the Court observes, there are no regulatory requirements for websites, so the first sentence is just an order to follow the ADA. More
By Richard Hunt in Accessibility Litigation Trends, ADA - Hotels, ADA Internet, ADA Internet Web, ADA regulations, ADA rulemaking, Hospitality, Hotels, Inventory requirements Tags: accessible beds., ADA defense, FHA Defense, Hotel beds, Migyanko v. Aimbridge
Early last month the Department of Justice filed a “Statement of Interest” in Migyanko v. Aimbridge Hospitality LLC¹ that should give pause to every business subject to Title III of the ADA; that is, every business. Two sentences from the Statement of Interest are of particular concern:
“The ADA Standards do not address every aspect of physical accessibility.”
“Of course, in the absence of specific requirements for bed height, hotels have some degree of flexibility in making reasonable modifications to provide usable beds for a person with a disability. This flexible standard is inherently fact-specific.”
To understand why these innocuous statements are of such concern requires a look at this case and the problems created when DOJ declares that something is discriminatory without defining what discrimination means. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - Hotels, ADA - serial litigation, ADA Class Actions, ADA Internet Web, ADA Litigation Procedure, Internet Accessibility Tags: ADA defense, ADA standing, FHA Defense, hotel accessibility information
Serial litigators file lots of cases and that means lots of decisions, sometimes coming in batches. I’ve omitted a few decisions that say nothing more than the cases I have reviewed just to keep this blog manageable. If there is a theme, it is simply that despite very clear trends toward limiting serial litigation by paying more attention to standing, the outcome of any given case depends very much on the judge because there is still relatively little Circuit court guidance on some issues. Like Delacroix’s inspirational painting of Liberty Leading the People, celebrations of freedom from abusive ADA and FHA litigation may be premature. Before making any strategic decision you need to research the specific decisions of the judge who will hear your case because the ancien régime isn’t gone yet. More