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 – serial litigation
ADA website demands – same old wine in the same old bottle again. . .
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 Aluko Collins Sr., a freshly minted one year lawyer in Alabama who claims to represent a vision impaired gentleman named Donald Wilson. Mr. Colllins 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 Collins’ 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 Mr. Collins 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 Mr. Collins’ demand letters, so he seems to regard the entire U.S. as his territory. I could find no record of Mr. Collins 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 Mr. Collins is not.
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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.
ADA Title III and Point of Sale Devices – technology, regulation and changing expectations
*In just the last 10 days two different courts have taken completely different approaches to Point of Sale (POS) terminals commonly used for self checkout lines. In the more recent decision, National Federation of the Blind, Inc. v. Wal-Mart Associates, Inc. 2021 WL 4750521 (D. Md. Oct. 12, 2021) a carefully reasoned opinion rejects the notion that because these devices require assistance in selecting a cash back amount they violate Title III of the ADA. A much briefer opinion issued a week earlier reached the opposite conclusion. Dalton v. Kwik Trip, Inc. 2021 WL 4554362 (D. Minn. Oct. 5, 2021). The cases are the latest in a line of cases concerning touch-screen POS terminals that goes back at least as far as 2014’s New v. Lucky Brand Dungarees Stores, Inc., 51 F. Supp. 3d 1284 (S.D. Fla. 2014).¹ These cases raise, but do not resolve important issues concerning the ADA, technology, and regulation. More
FHA and ADA Odds and Ends
“Odd and Ends” is the title of a Bob Dylan concert compilation film that was recently released in digital format.³ My odds and ends are probably not as interesting, but I’ve been busy for the last month litigating claims under the FHA and ADA, so this blog is part one of a two part effort to catch up. I’m hoping to release a “greatest hits” blog in the near future.
Pursuit of Respect keeps sending demands
I’ve gotten a dozen calls in the last few weeks from businesses in Pennsylvania, California and Florida who got demand letters from one attorney or another claiming to represent Pursuit of Respect. When I last checked none of those lawyers had filed a lawsuit, which I believe is because their client is fictitious and they’d rather not expose themselves to any kind of judicial inquiry. They will, however, keep harassing businesses that don’t respond with calls and additional letters. If anyone reading this knows of a lawsuit filed on behalf of POR I would be very interested in hearing about.¹ More
ADA and FHA Quick Hits – dog days of summer edition
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?
Wright v. Thread Experiment, LLC, 2021 WL 243604, at *4 (S.D. Ind., Jan. 22, 2021) is a default judgment case, but it remains interesting because the Court expressly declined to order compliance with any version of WCAG, choosing instead to enter a much less specific permanent injunction ordering that the Defendant be enjoined:
from operating, utilizing, or maintaining www.threadexperiment.com unless and until it fully complies with the requirements of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq., and its implementing regulations, 28 CFR § 36.302 et seq. Defendant is ORDERED to modify the existing features of www.threadexperiment.com and to remove barriers that prevent this website’s compatibility with screen reading technology so that it is accessible to blind or low-vision individuals utilizing screen reading technology.
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