Jeremy Horelick of ADA Site Compliance called my attention to a recently filed lawsuit making a novel ADA claim. In Panarra v. HTC Corporation and HTC America, Inc., Case No. 6:20-cv-06991 (W.D.N.Y.) the plaintiff claims that because he is deaf he is denied equal access to the virtual reality games and experiences offered by defendants’ website, https://www.viveport.com/infinity. This, he claims, violates the Americans with Disabilities Act and New York law.² The lawsuit can be seen as just the latest in a line of cases stretching back at least to Arizona ex rel. Goddard v. Harkins Amuse. Enterprises, Inc., 603 F.3d 666 (9th Cir. 2010), a case arguing that a chain of movie theaters was obliged to provide closed captioning for the movies it showed and even to Stoutenborough v. Natl. Football League, Inc., 59 F.3d 580, 582 (6th Cir. 1995), a case claiming that the NFL’s “blackout rule” discriminated against the deaf in violation of the ADA because it meant that for many games the only broadcast available was a radio broadcast. That chain of cases certainly includes Natl. Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012) since at the center of Panarra’s argument is the fact that since Netflix provides captions for its content it must be possible for HTC to do so as well. More
Accessibility Litigation Trends
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet Web, ADA Mootness, ADA Point of Sale, ADA Policies, ADA Web Access
Although you wouldn’t know it from watching the news many of the 677 federal judges in the U.S. are working on cases that don’t deal with how to count votes. Here’s a look at what they’ve been up to.
Eleventh Amendment abrogation for ADA claims
In Natl. Assn. of the Deaf v. Fla., 2020 WL 6575040 (11th Cir. Nov. 10, 2020) the Eleventh Circuit held that Congress validly abrogated 11th Amendment immunity with respect to the State of Florida’s legislature, a holding that may eventually lead to a requirement that public legislative sessions be made accessible to those with hearing disabilities. The arguments are too complex for a Quick Hits blog, but it is notable that the Court found that Congress had the power to abrogate state immunity even when no fundamental right is at issue. The case seems destined for a newly constituted Supreme Court, so stay tuned. More
By Richard Hunt in Accessibility Litigation Trends, ADA, FHA, FHA Emotional Support Animals, FHA Reasonable Accommodation, FHA Regulation Tags: CoreLogic, criminal conviction screening, FHA Defense, HUD discriminatory effect, HUD disparate impact, Inclusive Communities, National Fair Housing Alliance v. Carson, Vanessa Bryant
The recent decision from Judge Vanessa Bryant in Connecticut Fair Housing Center v. CoreLogic Rental Property Solutions, LLC, 2020 WL 4570110 (D.Conn. August 7, 2020) was followed only weeks later by HUD’s final regulation on disparate impact claims, 85 FR at 60288, September 24, 2020.¹ The CoreLogic decision’s most important holding was that a third party tenant screening service could be liable for providing information that had a disparate impact on a protected class, but Judge Bryant’s denial of a slew of defense motions for summary judgment was a reminder of the potential power of disparate impact claims. HUD’s new regulation, titled “HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard” creates a set of landlord friendly rules for disparate impact claims that may make CoreLogic irrelevent.
NOTE: on October 22, 2020 the National Fair Housing Alliance and others filed National Fair Housing Alliance v. Ben Carson, Secretary of the Department of Housing and Urban Development, Case No.3:20-cv-07388 in the United States District Court for the Northern District of California. The lawsuit attacks the legality of the new HUD regulations on numerous grounds. (the Complaint is 66 pages long). It was presumably filed in a plaintiff friendly court, and the Ninth Circuit is a civil rights friendly circuit, but the legality of the rule will ultimately go to a Supreme Court that is far less friendly to civil rights legislation. If there is a change of administration in November this regulation is likely to be short lived, so housing providers should probably not make too much of it until we know where the political winds will decide to blow.
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees Tags: accessible Uber cars, ADA "deterrent effect, ADA arbitration, ADA defense, ADA standing, Naminsnak v Uber
The August 24 decision in Naminsnak et al v. Uber Technologies, Inc. Case No. 18-15860 (9th Cir. August 24, 2020) is interesting for many reasons, so I’m glad my fellow blogger Bill Goren forwarded the opinion.¹ The short version is that Uber was sued because it did not make accessible cars available in New Orleans and failed in its effort to force the case into arbitration. How the case and court got to that conclusion is what’s interesting.
Arbitration agreements can be a very effective tool for reducing the time and money it takes to resolve a dispute, which is why I advocate their use as one tool to reduce exposure to surf-by lawsuits.² They can be good for consumers for the same reason if fairly written. They are not, however, good for plaintiffs’ lawyers in ADA lawsuits. The primary strategic advantage the ADA gives to plaintiffs is the asymmetric rules concerning attorneys’ fees for the winner. A winning plaintiff inevitably has their attorneys’ fees paid by the defendant. A winning defendant almost never does. For an ADA defendant a lawsuit is a lose/lose proposition and so most settle quickly, often regardless of merit.
That is why, I believe, Uber was so anxious to enforce its arbitration provision against the plaintiffs and the plaintiffs’ attorneys were so anxious to make sure it could not be enforced. For Uber arbitration would create a level playing field, or even one tilted in Uber’s favor. For plaintiffs it would take away their strongest strategic advantage.
The plaintiffs attorneys used a clever strategy to avoid arbitration. The Uber app includes an arbitration agreement that is almost unavoidable because once you download the app and create an account you have agreed to arbitrate. California, where this suit originated, recognizes this kind of built in arbitration agreement, so the plaintiffs’ lawyers were faced with a conundrum. How to sue Uber for violating the ADA when your client never downloaded, let alone tried to use the Uber app. The answer was clever. Don’t download the app and claim you didn’t do so because it would be futile. Section 12188(a)(1) of the ADA provides that nothing in it requires that a person with a disability engage in a futile gesture if they have notice the defendant does not intend to comply with the law. In this case the plaintiffs knew that accessible vehicles are not available through Uber in New Orleans. They therefore sued without ever downloading the app; claiming it would be futile to do so.
Futility is not the end of the story though. A plaintiff may not be required to engage in a futile gesture, but they still have to show they suffered a concrete injury as a result of the discrimination they never faced. For this Uber hung its hat on cases that suggested a plaintiff who knew of a discriminatory condition but never tried to face it only suffered an injury from being humiliated. Uber claimed that the plaintiffs never suffered humiliation because they never even tried to get an accessible vehicle. The Ninth Circuit found that humiliation was not required because of its “deterrent effect” doctrine. In the Ninth Circuit a plaintiff who is deterred from trying to gain access to a service or place because they know it is not accessible has already suffered an injury. It is a convenient doctrine for plaintiffs’ lawyers because it means their client can sue based on conditions almost anywhere without ever leaving the comfort of home. After all, once the plaintiff knows about the problem they can claim they were deterred from so much as lifting a finger in pursuit of whatever goods or services they claim they wanted.
But the deterrent effect doctrine doesn’t just apply to an initial injury because it comes in three flavors. In the Uber case it supported the initial injury a plaintiff must suffer to file suit. It can also be used to cover the hypothetical future injury that is necessary for standing because Title III of the ADA provides only for injunctive relief. Finally, it can be used to expand a lawsuit beyond what a plaintiff even knows about if the plaintiffs claim they were deterred from trying to find out by some initial barrier they encountered.
It is most commonly used to create a future injury, and many courts contrast it with the “intent to return” theory that requires proof of an intent to return. Of course this distinction makes no sense at all, and it is surprising that so many cases make it. A plaintiff cannot be deterred from returning to a place they never intended to return to in the first place – to be deterred is to be induced not to do something one intended to do. The “deterrent effect” doctrine should have no practical effect at all on the outcome of an ADA case; it is just a different name for the future injury that accompanies an intent to return that will never be realized.³ The use of the doctrine to expand ADA lawsuits beyond what the plaintiff even knew about is on similar shaky intellectual footing.† It may be futile for a plaintiff to go someplace knowing there are barriers to access, but until a plaintiff knows it is futile the “futile gesture” rule can’t possibly apply.
Is this the end of the story for Uber? Hardly. The decision about whether to send a case to arbitration is made early, and Uber will have plenty of chance to defend the lawsuit on its merits and to attack the standing of the plaintiffs to sue. Alleging that a plaintiff was deterred from downloading the app is easy, proving it may be more difficult. In the rare ADA Title III case that goes to trial plaintiffs not infrequently lose because they can’t persuade the court they really ever intended to buy goods or services and were deterred from doing so. However, no matter what one thinks of the plaintiffs and their lawyers in this case, the question remains: Why doesn’t Uber offer accessible cars in New Orleans? Making its service available to those with disabilities would certainly be the best defense to this and any similar lawsuit. ADA litigation is hugely wasteful in terms of money that goes to lawyers instead of accessibility, but a first step to avoiding that waste is for businesses like Uber to work on making their services available to all.
¹ Bill’s blog is at https://www.understandingtheada.com/
³ A point I have made before. See, ADA and FHA Quick Hits – Great Caesar’s Ghost edition
By Richard Hunt in Accessibility Litigation Trends, ADA - Hotels, ADA - serial litigation, ADA Litigation Procedure, ADA Mootness Tags: ADA defense, Braille gift cards, COVID-19, mootness, negligence and ADA, Readily Achievable, Service Counters, Strojnik, Voting Rights Alabama
Here’s a very unhappy looking King Richard III contemplating the murder of his nephews and possible rivals for the throne, or perhaps the latest headlines. While the latest cases on accessibility law don’t usually look like light reading, right now they are a cheery diversion from the rest of world events. Here we go: