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. More
ADA – serial litigation
ADA and FHA Quick Hits – Not quite President’s Day edition part 1
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, FHA, Uncategorized Tags: ADA defense, ADA intent to return, ADA Mootness, ADA standing, ADA website nexus, FHA Defense, unruh act, website accessibility
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 . . . More
Laufer v Looper – chapter 2
By Richard Hunt in ADA, ADA - drive-by litigation, ADA - serial litigation, ADA Internet Web, ADA Web Access
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.
Whether any Circuit, or even the Supreme Court, is willing to pursue Transunion to its logical conclusion and simply declare that Havens Realty has been overruled remains to be seen. In this blog I am going to assume that no court will be willing to declare tester standing dead, and instead consider the effect of Transunion and earlier cases requiring a “particularized” injury on the kinds of serial lawsuits that dominate litigation under Title III of the ADA, followed by an inquiry as to whether a tester can somehow particularize their injury by seeking to patronize the facility they sue.
Looking backward and looking forward – ADA and FHA prognostications
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA Internet Web, ADA Website Accessibility, FHA Tags: ADA defense, Denaryle Williams, FHA Defense, Pursuit of Justice, Pursuit of Respect, Transunion v Ramirez, Winn-Dixie
Janus, the Roman god who gave his name to January, famously had two faces, one looking to the future and the other looking back. I’m a little late for the New Years predictions and 2021 wasn’t all that much fun, but as long as we are still in Janus’ month I thought I would briefly provide some observations about what the old man in the beard has seen and what his younger counterpart is likely to see.
There were important decisions about standing from the Fifth Circuit¹ and the Supreme Court² but neither seems to have slowed the pace of ADA filings. A brand new ruling from the 10th Circuit that agrees with the Fifth Circuit that testers do not have standing as such(7) probably won’t have any effect either. This is because ADA lawsuits are filed to be settled, and the cost of settlement is ordinarily lower than the cost of even the cheapest effective defense. I believe the settlement value of ADA website cases has declined because they have always cost more to settle than run-of-the mill drive-by cases, but they are likely to still have a good ROI for plaintiffs’ firms and as long as the business is profitable it will continue. More
Another opportunity to learn about ADA website lawsuits
By Richard Hunt in ADA - serial litigation, ADA Internet Web, ADA Website Accessibility Tags: Accessibility.com, ADA defense, ADA website defense
I’ll be speaking at the Accesibility.com January event “Trends in Digital Accessibility Lawsuits” on January 25, 2022 beginning at 2:45 p.m. ET. The online event begins at 1:00 p.m. ET and will include Ken Nakata of Converge Accessibility and Reeve Segal of Denenberg Tuffley. I’ll outline the current state of website accessibility litigation and discuss the different players on the plaintiffs’ side, including their demands and strategies for early resolution. You can learn more at https://lnkd.in/eEBzk9fe.