ADA – drive-by litigation

ADA regulations and the reality of website accessibility

July 22, 2022 By Richard Hunt in ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Website Accessibility Tags: ADA defense, Gomez, Judge William Orrick, Laufer, Trinitas Cellars, WCAG, website accessibility

Trinitas Cellars Logo

It has long seemed that the best way to both create accessibility for websites and to tame the industrial ADA litigation monster is to have a technical regulatory standard. Most recently a group of U.S. Senators has written to the Attorney General urging a resumption of the regulatory process that was ended under President Trump.¹ Before the process was ended the proposed regulations were essentially the familiar Web Content Accessibility Guidelines 2.0; the same guidelines that have been adopted as regulations for government websites under Section 508 of the Rehabilitation Act. Another group of members of Congress tried to accomplish the same thing with legislation that would have added a new title to the ADA and require this kind of regulation.²

I thought for a long time that some kind of regulatory solution was needed, but my experience defending lawsuits concerning physical accessibility ADA suits has persuaded me that a regulatory approach that essentially makes some version of the Web Content Accessibility Guidelines legally binding – which is what the abandoned DOJ regulations did – will neither improve website accessibility nor tame the beast.³ Instead we need regulations that adopt a functional approach to accessibility – the kind of approach used by Judge William Orrick in the recent decision in Gomez v. Trinitas Cellars, LLC, 2022 WL 2194658 (N.D. Cal. June 17, 2022).

Judge Orrick was considering a Motion to Dismiss that he had converted to a motion for summary judgment, a procedure that allows consideration of evidence beyond the words of the Complaint. The defendant attacked the plaintiff’s standing to sue, which is a real issue for this plaintiff (4), but the most interesting part of the decision concerns the defendant’s claim that the website was in fact accessible. Judge Orrick’s approach to that question shows just how similar issues should be approached in every ADA lawsuit.

Mr. Gomez’s first claim was that some of the images on the website did not have a meaingful text equivalent and could not be “seen” by a visually impaired user with screen reading software (SRS). The first such image was the logo of the business, which the defendant admitted had a meaningless text label. Judge Orrick found that this did not violate the ADA because the plaintiff could not explain how the lack of a label would deny him the full and equal enjoyment of the business or deter him from visiting it. As Judge Orrick observes, “it may have been ideal for that banner to be readable, but that does not mean it shows a cognizable injury or violates the ADA.” He applied the same analysis to social media logos that were not SRS readable: “neither Gomez’s opposition nor his supplemental brief draws even an arguable connection between this lack of readability and a barrier that would matter to the ADA.” This is how the ADA should be applied to technical accessibility issues. The ADA’s guaranty is that no person will be denied: “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” (5) Symbols and logos that have no functional purpose cannot be fit within the kind of things whose enjoyment the ADA protects.

This was not a blanket finding that every technical problem was not a violation. The Court recognized that menu items had to be accessible for the website to be usable at all, but it found as a matter of fact that the menus were accessible and could be read by SRS. Gomez’s last claim, concerning the contrast between text and background, was rejected because contrast does not matter to SRS, which is reading code, not visible text. Gomez was not blind – he only suffers from very poor vision – but his testimony was that he used SRS to navigate websites, so low contrast did not matter to him even though it might matter to a plaintiff with poor vision who did not rely on SRS.

Two principles can be found in Judge Orrick’s opinion. First, Title III of the ADA is violated only if some element of the website interferes with its practical use by a person with a disability. Second, an individual does not have standing to sue unless they were personally hindered in their use of the website even though some defective element is connected to their kind of disability. Any new regulations from DOJ should follow these principles and look at accessibility in practical rather than technical terms.(6) Instead of a “gotcha” list of technical requirements that no complex website can possibly meet, regulations should emphasize the purpose of the website, what users expect from it, and whether those expectations are met for individuals with a disability. For most commercial websites the purpose is to sell or rent something, and the question should be whether a person with a disability can accomplish that purpose with reasonable facility. From a litigation standpoint the plaintiff’s burden should be to plead the existence of a problem with the function of the website, not merely that logo or image lacks meaningful alternative text.

And while DOJ is thinking about meaningful regulations directed toward improving accessibility rather than generating meaningless litigation the courts might consider adopting Judge Orrick’s approach to cases involving physical accessibility. I’ve already pointed out the absurdity of so called “stigmatic injury” in Title III ADA cases.(7) Purely objective standards for accessibility have the advantage of being objective, but they suffer the disadvantage of being unachievable in practice. Plaintiffs should be required to plead and prove not just a technical violation, but also that they were personally suffered some kind of excessive inconvenience (8) in their full and equal enjoyment of a facility in order to plead or prove a Title III violation. This is the direction courts seem to be moving; it just needs to be incorporated in any new regulations defining accessibility.

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¹ See, letter dated June 10, 2022 from Senators Tammy Duckworth and Richard J. Durbin to Attorney General Merrick Garland. https://www.judiciary.senate.gov/imo/media/doc/22.06.10%20-%20LETTER%20-%20Duckworth-Durbin%20letter%20to%20DOJ%20on%20web%20accessibility%20-%20FINAL.pdf

² See my blog The Online Accessibility Act of 2020 – does it do what it needs to do?

³ Seyfarth Shaw recently reported that ADA filings are down by 22% in the first half of 2022. 2022 ADA Title III Mid-Year Federal Lawsuit Filings Drop 22% Compared to 2021. The most likely explanation is that recent prosecutions of some of the most notorious ADA serial filers and the Laufer standing decisions from the 5th and 10th Circuits have discouraged new filings. See, A short sharp shock – the end of the beginning for serial ADA lawsuits? and Laufer v Looper – the death of tester standing, and not just in ADA cases. This does not mean that misuse of the ADA no longer exists. Some law firms that engage in serial filing have now lowered their monetary demands and are sending demand letters before filing suit in an effort to make a quick settlement more attractive to defendants who would otherwise be tempted to fight back. The most extreme versions of this kind of ADA exploitation have criminal consequences, see https://www.justice.gov/usao-sdny/pr/attorney-pleads-guilty-filing-fraudulent-lawsuits-under-americans-disabilities-act. It is worth noting that the firms now sending demand letters instead of filing suit will generally not name their supposed client. This avoids criminal conduct like that prosecuted by DOJ, which involved using names without permission, but leaves open the question of whether the firm has a client at all. In the 40+ years I have been a litigator I have had thousands of clients receive demand letters, but the only times I’ve seen a demand letter that did not name a plaintiff have been demand letters concerning ADA website accessibility.

(4) A number of cases filed by Mr. Gomez have been dismissed just based on a lack of standing. See, e.g.,
Gomez v. Wunderlich, 2022 WL 2119120, at *1 (N.D. Cal. June 13, 2022) and Gomez v. Tribecca, Inc., 2022 WL 1469504, at *4 (C.D. Cal. May 10, 2022).

(5) 42 U.S.C. §12182(a).

(6) This kind of functional analysis will be incorporated in the upcoming version of the WCAG, version 3.0, which will measure conformance based more on practical effect than strict technical compliance. See, https://www.w3.org/TR/wcag-3.0-explainer/

(7) See, Stigmatic injury and how the 11th Circuit got in wrong in Laufer v Arpan

(8) Excessive inconvenience is an appropriate standard because disability by definition imposes some limits on the full and equal enjoyment of a facility. Even with perfect technical compliance a facility will be less convenient for a person with a disability than for a person without any disability.

Quick Hits – If you’re going through hell edition.

June 17, 2022 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA Attorney's Fees, ADA Internet Web, ADA Litigation Procedure, ADA service animals, ADA Vending Machines, ADA Web Access, FHA Emotional Support Animals, HOA, Public Facilities, Reasonable accommodation, Rehabilitation Act Tags: ADA class actions, ADA defense, ADA Mootness, FHA Defense, nexus requirements, self-service kiosks, standing to sue, William Goren

Dante’s hell was a complicated place, as this map by Botticelli suggests. Although Rodney Atkins’ advice “if you’re going through hell, keep on going” appears sound, winding through all the complexities of the ADA and FHA can seem like descending through all nine levels of hell. Nonetheless, I’m happy to act on a temporary basis as Virgil and see how far we can get. No promise about whether we’ll find a Beatrice to take you to Paradise. More

A short sharp shock – the end of the beginning for serial ADA lawsuits?

June 6, 2022 By Richard Hunt in ADA, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Internet Web, ADA Litigation Procedure, Uncategorized Tags: ADA defense, Braille gift cards, Calcano v Swarovski, Transunion v Ramirez

Painting of Queen Mary I of England “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)).

quoting Kennedy v. Floridian Hotel, Inc., 998 F.3d 1221, 1233 (11th Cir. 2021). It did not adopt the 11th Circuit’s explicit four factor analysis concerning intent to return³ instead sticking to its own earlier and more general description of the needed analysis: “we must refer to a complaint’s “factual context” to discern whether to accept “a complaint’s conclusory statements.”” quoting Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 148 (2d Cir. 2011), which in turned quoted Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

With its framework for analysis in place the Court’s next step was a crucial one, for it rejected the idea that quoting or paraphrasing language from its own cases was sufficient. The reasoning is crucial and worth quoting:

Here, each Plaintiff pleads the identical assertion that he resides “in close proximity to” Defendants’ businesses, has been a “customer at Defendant’s [location] on prior occasions,” and “intends to immediately purchase at least one store gift card from the Defendant as soon as the Defendant sells store gift cards that are accessible to the blind.” . . . . These allegations parrot the court’s language in Kreisler, see 731 F.3d at 188, and Plaintiffs characterize them as factual assertions that we must presume as true. But these assertions are nothing more than “legal conclusion[s] couched as … factual allegation[s].

It would have been helpful if the Court had told us a little more about the difference between the allegations in Calcano and the allegations in Kreisler. Where the plaintiffs in Calcano pled “close proximity,” Mr. Kreisler pled “within several blocks,” and where the plaintiffs in Calcano pled “prior occasions” Mr. Kreisler pled that he passed by “three or four times a week.” The reason the allegations in Calcano were conclusory is that the words came not from Mr. Kreisler’s allegations, but rather from what the Court calls the Camarillo test after its decision in Camarillo v. Carrols Corp., 518 F.3d 153, 158 (2d Cir.2008). A description of a legal test is a conclusion that could apply to many different allegations. Facts, the court seems to be saying, won’t usually be alleged in words that quote a legal test.

Far more important than this distinction is, however, the Court’s willingness to compare the allegations in the various Complaints to facts that could only have come from outside the Complaint. The Court notes that one plaintiff claims he lived near a store that doesn’t exist, and that another used “close proximity” to refer to a location in Manhattan when he lived in the Bronx. Phrases like “close proximity” are used by serial litigants to avoid facts because facts are their enemy. A willingness to test such allegations against facts that cannot be disputed is the first step to early dismissal of these claims.

A second important fact is the Court’s willingness to insist on details. It describes the failings in the complaints like this:

Calcano, Dominguez, and Thorne fail to provide any details about their past visits or the frequency of such visits. They do not specify which stores they visited or what items they purchased. And they do not say why they want to purchase braille gift cards—for their own use or as gifts—so urgently that they intend to do so “immediately … as soon as the Defendant[s] sell[ ] store gift cards that are accessible to the blind.” . . . Without such basic information, Plaintiffs cannot possibly show that they have suffered an injury that is “concrete and particularized.”

This is a standard that is almost never imposed on plaintiffs in ADA cases, especially in the Ninth Circuit, which only reluctantly acknowledges the possibility that plaintiffs might routinely file lawsuits that have no merit and is the reason why eliminating ADA litigation abuse has been left in the hands of the prosecutors.(4) Applying the Second Circuit’s insistence on details to ADA suits generally would make the suits almost impossible to plead.

Finally, and most important of all, the Second Circuit was willing to consider these lawsuits in the larger context of hundreds of lawsuits filed by the same law firms and plaintiffs. “Third, we cannot ignore the broader context of Plaintiffs’ transparent cut-and-paste and fill-in-the-blank pleadings.” Too many district judges bury their head in the sand and refuse to consider that the plaintiff’s actions in other lawsuits reflect on the credibility of allegations in the suit before them. Some recognize that multiple filings of almost identical filings are relevant (5) but this is not universal at the motion to dismiss stage.

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.

Industrial ADA litigation – “roll me baby, just like a tumbling dice.”

April 27, 2022 By Richard Hunt in ADA, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Litigation Procedure, ADA Mootness, Uncategorized Tags: ADA defense, Judge Beth Labson Freeman, Judge Vince Chhabria, Los Angeles district attorney, Potter Handy, San Francisco district attorney

Tumbling dice - album cover for Rolling Stones 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. More

ADA and FHA Quick Hits – it could be worse edition

March 10, 2022 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - Standing, FHA, FHA definition of handicap, FHA Emotional Support Animals, HOA, Uncategorized Tags: ADA defense, Emotional Support Animal, FHA Defense, serial litigation

Pictures of bombed out buildings and civilian casualty counts are a reminder that aggravating and expensive as ADA and FHA lawsuits can be, taking these disputes to court is a luxury most people in the world do not enjoy. For those of us who can engage in a civilized discussion of legal issues, here are the latest cases and other news. You’ll see where I think the courts and administration have gone wrong, but I’d rather be here than most of places in the news these days.

HUD and DOJ pushing hard on ESA cases.

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