“Short sharp shock” is too good a phrase not to re-use, as proved by the fact that after its first use by Mary I of England to describe her hope that burning a few protestants would bring others back into the fold and its popularization by Gilbert and Sullivan it turned up in a song by Pink Floyd and as the title of Michelle Shocked’s first album. My use probably won’t get added to the Wikipedia page on the phrase (7) but it suits a discussion of braille gift card litigation and the effect of TransUnion v. Ramirez in ADA litigation.
A few days after the Supreme Court issued its opinion in TransUnion v. Ramirez I predicted that it would have an effect on ADA industrial litigation.¹ I’m happy to report that this particular prediction seems to be coming true.² The latest example is Calcano v. Swarovski N.A. Ltd., 2022 WL 1788305, at *1 (2d Cir. June 2, 2022) a case dealing with the sudden rise and fall of ADA lawsuits demanding braille gift cards.(6) The Second Circuit took its own 2013 holding on ADA standing, boosted it with the holding in TransUnion, and threw out five lawsuits with typical industrial boilerplate allegations. The Court’s reasoning deserves some attention because it will be useful for defense counsel in any typical ADA lawsuit.
The standing related allegations were identical in all five lawsuits:
- Plaintiff “telephoned Defendant’s customer service office in an attempt to purchase a store gift card from the Defendant and inquired if Defendant sold store gift cards containing Braille.”
- Plaintiffs state that they live near their respective Defendants’ stores and have been customers “on prior occasions.”
- Plaintiffs also claim that they “intend[ ] to immediately purchase at least one store gift card from the Defendant[s] as soon as the Defendant[s] sell[ ] store gift cards that are accessible to the blind.”
Beyond this they alleged in conclusory fashion that they were unable to equally use and enjoy the goods and services of the defendant businesses because they were blind and needed braille gift cards.
The Second Circuit began its analysis with its own 2013 decision in Kreisler v. Second Ave. Diner Corp., 731 F.3d 184 (2d Cir. 2013). In Kreisler the Court held that a plaintiff alleged the injury in fact and necessary likelihood of future injury if:
“(1) the plaintiff alleged past injury under the ADA; (2) it was reasonable to infer that the discriminatory treatment would continue; and (3) it was reasonable to infer, based on the past frequency of plaintiff’s visits and the proximity of defendants’ [businesses] to plaintiff’s home, that plaintiff intended to return to the subject location.”
Kreisler, 731 F.3d at 187–88. Projecting its own test onto the later TransUnion decision the Court held that third requirement, a reasonable inference of intent to return, was intended to make sure the “’the risk of harm is sufficiently imminent and substantial’ to establish standing,” quoting TransUnion, 141 S. Ct. at 2210. It went on to adopt the 11th Circuit’s standing analysis, which it describes this way:
Thus, the central inquiry is not whether a complaint pleads the magic words that a plaintiff “intends to return,” but if, “examined under the ‘totality of all relevant facts,’ ” the plaintiff plausibly alleges “a real and immediate threat of future injury.” . . . (including “definiteness of the plaintiff’s plan to return” and “frequency of the plaintiff’s travel near the defendant’s business” as factors to consider in assessing whether a plaintiff “faces a real and immediate threat of future injury” (cleaned up)).
Except for the decision in TransUnion nothing really changed between the earlier Second Circuit decisions and Calcano. I’m sure the Court would say it would have reached the same result regardless, but I think TransUnion has reminded this and other Courts that standing is an important concept that, among other things, takes the federal courts out of the business of aiding and abetting get rich quick schemes based on finding a pet plaintiff to file multiple lawsuits. To quote Winston Churchill, “This is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”
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¹ See Transunion v Ramirez – has the Supreme Court put an end to cheap standing in ADA litigation?
² Circuit Court decisions in ADA serial filer cases that cite TransUnion include Laufer v. Arpan LLC, 29 F.4th 1268 (11th Cir. 2022) (which got it wrong for reasons I explain in Stigmatic injury and how the 11th Circuit got in wrong in Laufer v Arpan), Harty v. W. Point Realty, Inc., 28 F.4th 435, 438 (2d Cir. 2022) and Laufer v. Looper, 22 F.4th 871, 877 (10th Cir. 2022) (both of which got it right).
³ We have previously considered four factors relevant to this analysis: “(1) the proximity of the defendant’s business to the plaintiff’s residence; (2) the plaintiff’s past patronage of the defendant’s business; (3) the definiteness of the plaintiff’s plan to return; and (4) the frequency of the plaintiff’s travel near the defendant’s business.” Kennedy v. Floridian Hotel, Inc., 998 F.3d 1221, 1233 (11th Cir. 2021).
(4) On April 11, 2022 the District Attorneys for San Francisco and Los Angeles County filed a civil action against the Potter Handy law firm and its partners claiming that it had filed numerous fraudulent ADA lawsuits. On May 19 a grand jury in San Francisco indicted Kousha Berokim, a Beverly Hills attorney, for grand theft by false pretense for ADA filings targeting small businesses. I think most ADA defense attorneys would agree these represent only the tip of the iceberg in terms of filings that are based on misrepresentations about the plaintiff’s standing to sue.
(5) See, Hunter v. Branch Banking and Tr. Co., 2013 WL 4052411, at *5 (N.D. Tex. Aug. 12, 2013), citing Norkunas v. Wynn Resorts Holdings, LLC, 2007 WL 2949569, at *4 (D.Nev. Oct.10, 2007) (stating that “a plaintiff’s litigation history can undercut the sincerity of his or her expressed intent to return”); Brother v. Tiger Partner, LLC, 331 F.Supp.2d 1368, 1374–75 (M.D.Fla.2004) (similar).
(6) See my blogs Blogathon – ADA and FHA cases with a little help from my friends. and Quick Hits – Vernal Equinox edition for a very brief history that will, we can only hope, end with Calcano.
(7) Wikipedia will confirm these facts. I only knew of its use in Gilbert and Sullivan’s Mikado and as Michelle Shocked’s album title. Mary I and burning protestants was a surprise, as was its use as the name of a “crossover thrash band” from Liverpool. Now I have to go look up “crossover thrash” music.
The Rolling Stones famously asked that they be rolled like a pair of tumbling dice, and looking at recent Title III ADA headlines reminded me of just what a crapshoot ADA litigation can be. The good news for businesses is that the district attorneys of San Francisco and Los Angeles have filed suit against the Potter Handy firm and its partners alleging that the firm filed false lawsuits under the ADA.¹ Hard on the heels of the action by the local authorities a federal judge in San Francisco, Vince Chhabria, entered a series of show cause orders requiring the Potter Handy firm and its clients to file sworn declarations providing factual support for their allegations concerning having visited and intending to visit ADA defendants in the future.² I don’t know how Potter Handy and its clients will respond to these orders, or what Judge Chhabria will do with those responses, but within days of these actions a federal judge in San Jose entered an all too typical order allowing a case to proceed despite being more or less identical to those being handled by Judge Chhabria. Sevens or snake eyes, in ADA Title III matters defendants and plaintiffs are at the mercy of the random assignment of judges done with each federal lawsuit filed. 
Can the 11th Circuit hold back the tide as King Cnut famously failed to do?² In Laufer v. Arpan LLC, 2022 WL 906511 (11th Cir. Mar. 29, 2022) the 11th Circuit disagreed with the Fifth, Tenth and Second Circuits concerning the injury sufficient to satisfy the standing requirements in Article III of the Constitution. If the case goes to the Supreme Court the 11th Circuit is likely to get its feet wet on Article III standing, but of more interest is the Court’s failure to consider whether the plaintiff had even suffered a statutory injury; that is, did she suffer the kind of injury Title III of the ADA was intended to prevent? If there was no statutory injury then the question of constitutional injury never arises. 
The last six weeks have seen some important or at least interesting decisions under the Fair Housing Act and Title III of the ADA. If there is any common thread, it is that courts in general seem increasingly reluctant to give serial plaintiffs the benefit of the doubt on dubious pleadings while some judges continue to treat private enforcement as a legitimate means to advance the policy goals of these statutes. This is part 1 of a 2 part blog, so stay tuned . . . 
In my last blog I explained why the 10th Circuit was mistaken when it distinguished Ms. Laufer, the tester plaintiff in Laufer v. Looper, from Ms. Coleman, the tester plaintiff in Havens Realty v. Coleman. If the Constitutional standard for injury is that there be “downstream consequences,” as indicated in Transunion, no tester will ever suffer the kind of concrete injury required, whether they are subjected to personal discrimination like Ms. Coleman or generic discrimination like Ms. Laufer.