Last week’s Quick Hits blog got a good response, so we are repeating it this week. Both of this week’s cases concern abusive serial litigation and the efforts of courts and state governments to put an end to it.
ADA – drive-by litigation
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Internet Web Tags: "drive-by" ADA lawsuits, ada litigation, ADA Mootness, deaf access, Fix First then Fight
It has been an eventful three weeks in the world of ADA and FHA litigation. Rather than picking and choosing among the various cases that deserve attention we’ve provided some quick analysis of the cases with immediate relevance to most businesses.
Ford v. H Unit Five, Inc., 2017 WL 4271433 (D. Utah Sept. 25, 2017) illustrates just how low plaintiffs and their counsel will sink to make money on ADA claims, and how courts can eliminate such claims. The plaintiff, a serial filer whose lawsuits were all identical, seems to have cheated when measuring ramp slopes by measuring the “wing” of the ramp rather than the ramp itself. She claimed to be disabled, but the disabling conditions were not obvious and perhaps non-existent. Faced with a defense motion for summary judgment and the risk of perjury she elected not to provide any evidence of her disability or any evidence of alleged accessibility violations beyond pictures taken by her lawyer. The Court had no trouble dismissing her claims. The takeaways for business:
- You can win a dubious ADA lawsuit on summary judgment if you are willing to incur the expense of fighting to that point.
- Some courts will limit ADA surveys to the allegations in the complaint. This thwarts plaintiffs who try to expand their lawsuit after it is filed, but is not common, especially in the Ninth Circuit, where broad standing has just about destroyed the restrictions on discovery in the Federal Rules of Civil Procedure.
Fair Housing Justice Center v. Allure Rehabilitation Services, LLC et al, 2017 WL 4297237, (E.D.N.Y. Sept. 26, 2017) should remind nursing homes and senior communities of all kinds that reasonable accommodation policies for dealing with the deaf must be flexible. The defendants got in trouble because, in response to telephone testing, they said they would not provide American Sign Language interpreters. An outright refusal to provide an auxiliary aid or service in response to a reasonable accommodation request under the ADA or FHA is almost always a mistake. The rules don’t have hard boundaries, but when responding to inquiries about facilities for the deaf the basic policy should be:
- When the need for an interpreter involves medical care and there is time a request to provide an ALS interpreter should be granted at the expense of the business.
- A business that regularly deals with medical problems for deaf clients or residents should invest in video and other alternate means of providing ALS interpreters on short notice.
- If the need for an interpreter is not medical you must balance the complexity of the interaction, the notice given and the cost. If there is sufficient notice, providing at least video ALS is the safest choice.
- MOST IMPORTANT – when you get a phone call about services for the disabled, never say never. The appropriate response is always that you follow HUD guidelines and deal with requests on a case by case basis. Then you can sit back and make a decision on what to do.
Kayla Reed v. CVS Pharm., Inc., 2017 WL 4457508 (C.D. Cal. Oct. 3, 2017) is a web accessibility case with a few important points for businesses operating in the Ninth Circuit, as well as other observations of interest to any business
- Use of “store locator” service, which is almost universal, is sufficient to create the required nexus between the website and a physical location. Because the case was decided on a motion to dismiss the Court does not address the question of whether fixing the store locator would be enough even if the rest of the website remained inaccessible.
- The court rejected the idea that it was a violation of due process to require accessibility when there are no regulations defining accessibility. The specifics of the required remediation were, according to the court, a matter of remedy properly taken up at the end of the case. It distinguished Robles v. Dominos Pizza LLC, 2017 WL 1330216 (C.D. Cal. March 20, 2017)* on the ground that it was decided when the court was trying to fashion a remedy, at which point it was important to know just what the law required. Now that DOJ has abandoned its regulatory efforts** courts will be forced to grapple with how to define the remedy for inaccessible websites. Most will certainly take the easy way out and simply require WCAG 2.0 success level AA.
Guadalupe Adams v. Rohnam Wichita, LLC 2017 WL 4338398, (D. Kan. Sept. 29, 2017) is a default judgment case illustrating why, in some rare circumstances, default may be a good strategy. It is notable that the Court’s judgment does not include specific injunctive relief. The defendant is simply ordered to “alter the motel to make it readily accessible to and useable by individuals with disabilities to the extent required by the ADA.” Figuring out what it means to comply with the ADA usually involves considerable time and expense, which in this case the plaintiff must incur if it is enforce its judgment. It also seems unlikely that this judgment is enforceable by contempt because it is so vague. My suspicion is that after collecting attorneys’ fees the plaintiff will simply move on and the judgment will become a meaningless piece of paper.
Haynes v. Brinker Int’l, Inc. 2017 WL 4347204, (S.D. Fla. Sept. 29, 2017) is one of a series of recent decisions from Florida holding that if a defendant enters into a consent decree or settlement requiring website remediation subsequent claims under the ADA will be moot. When and how non-physical changes moot claims under the ADA is complicated, and these cases seem to reflect a recognition by federal courts that unless mootness is applied with some liberality there will be not end to copy-cat website accessibility lawsuits filed for fun and profit. Our earlier blogs on the risks of settlement discuss some cases that took a different approach.***
*See our blog Victory and confusion in ADA internet litigation – what next? for a discussion of this and other recent cases.
*** Beware the ADA settlement that buys a big bag of nothing, Starbucks and the ADA – more perilous settlements and temporary victories, The yin and yang of ADA defense. Perilous settlements and temporary victories
Courts in Florida, at least, do not appear to be impressed by the Ninth Circuit’s decision in Civil Rights Education and Enforcement Center v. Hospitality Properties Trust, 2017 WL 3401319 (9th Circuit, August 9, 2017).* In Seiger v. M&M Fin. Inv’rs Intl., Inc., 2017 WL 3971451, at *1 (M.D. Fla. Sept. 8, 2017) a District Judge in Florida reviewed the case law in his jurisdiction and concluded that a plaintiff who never personally saw or encountered a barrier to access could not have standing because he had not suffered any injury. Mere knowledge of the barrier to access was not enough. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Attorney's Fees, ADA Litigation Procedure, ADA Mootness Tags: ADA default judgment, ADA defense, ADA surrender
The defendant in Johnson v. Patel, 2017 WL 3953949 (E.D. Cal. Sept. 8, 2017) used an increasingly common strategy to deal with an ADA lawsuit. He gave up. Most lawyers would never recommend complete surrender as a strategy, but in the last two years we have seen a significant number of these cases from California, so it is worth asking whether allowing a default can ever be a good strategy. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Standing, ADA FHA Litigation General, ADA Policies, Hospitality, Hotels Tags: ADA, ada litigation, CREEC, dialing for dollars, drive-by lawsuits, Hospitality Partners, Ninth Circuit, serial ADA litigation
In Civil Rights Education and Enforcement Center v. Hospitality Properties Trust, 2017 WL 3401319 (9th Circuit, August 9, 2017) the Ninth Circuit decided once again to make abusive serial ADA litigation as easy as possible, ignoring both the constitutional limits on standing and the way cheap standing† has created a crisis in ADA litigation that Congress is only now beginning to fix.* The plaintiffs in Hospitality Properties Trust never visited the hotels they sued, relying instead on telephone calls in which they were supposedly told the defendant hotels lacked accessible free shuttle services. Beyond alleging the existence of these calls they included boilerplate allegations that they would have stayed at the hotel if there had been shuttle service and that they would visit in the future but were deterred by the ADA violation. This, they claimed, created an injury sufficient for Article III standing. More