In the space of three days in early December four different courts took very different approaches to standing allegations by serial ADA litigants. A comparison shows there is no certainty in how the law will be applied in ADA cases at the District Court level because neither the Constitution nor the pronouncements of the Supreme Court appear to matter when it comes to standing decisions. More
ADA – drive-by litigation
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Internet Web, ADA Litigation Procedure, FHA, FHA design/build litigation, Internet Accessibility Tags: ADA defense, Apex Trial Law, FHA Defense, Martinez v Cot'n Wash, Pacific Trial Group, Red Rocks
August is (in Texas at least) the month of afternoon thunderstorms. It’s a good metaphor for running a business subject to the ADA or FHA. Everything’s sunny and warm one minute then suddenly the wind is blowing and you are soaking wet. But the plants need the rain, so as usual there’s good and bad in ADA and FHA developments.
Unruh Act and the Internet – half a loaf is better than none.
You can read a detailed analysis of Matinez v. Cot’n Wash in Bill Goren’s blog “Gateway is Everything in California” so I’ll just hit the highlights. There is an ongoing controversy about whether the Americans with Disabilities Act applies to the websites of businesses with no physical facility open to the public. Some courts say yes and some say no. The Ninth Circuit, which covers federal courts in California, says “no.” As result the most prolific serial ADA filers, including the Pacific Trial Group and Apex Trial Law¹ turned in recent years to California’s Unruh Act and the California state courts, arguing that the Unruh Act does cover online only businesses. At least some lower California courts have agreed, but in Martinez v. Cot’n Wash one California Appeals court (there are six in all) said no, holding that the Unruh Act does not apply to the websites of online only businesses. This is big news coming from a state where thousands of serial ADA lawsuits and even more demand letters are sent every year. It isn’t the end of the road. While the decision is binding on lower courts, it isn’t binding on other California appellate courts or on the California Supreme Court, to which Marinez v. Cot’n Wash is likely headed. It also doesn’t apply to websites associated with physical facilities open to the public so it is not likely to lead to an immediate end of demand letters and lawsuits. California’s ADA litigation industry relies more on the threat of costly litigation than on the reality of winning and losing so until making a threat is sanctionable (which will require that the California Supreme Court speak) they probably won’t slow down. It likely though that the price of settlement will go down as it already has in face of other less dramatic losses in the last couple of years.
And for a different view of website accessibility.
I’m not above patting myself on the back, and today Judge Sam Lindsay granted a Motion to Dismiss I filed for the defendant in Segovia v. Admiral Realty, Inc., Case No. 3:21-cv-2478 (N.D. Texas August 4, 2022). Judge Lindsay found, correctly, that Segovia had failed to plead the concrete and particularized injury and imminent threat of future harm required to maintain an action under Title III of the Americans with Disabilities Act. Segovia and his lawyers¹ have filed the same form complaint in at least 31 lawsuits in the Northern District of Texas, and every single one of those cases that is still open should be subject to dismissal based on the same reasoning used by Judge Lindsay.² This isn’t, by the way, Segovia’s first setback. In June he voluntarily dismissed a lawsuit against another of my clients because he had made a fatal error when amending his complaint to avoid my original motion to dismiss. In July his attorneys voluntarily dismissed an almost identical complaint against one of my clients (though filed by a different serial ADA filer) rather than face the possibility of losing on summary judgment.
The conventional wisdom in the kind of serial ADA case filed by Segovia is that a quick settlement is the cheapest way out, but with Judge Lindsay’s opinion clients willing to take some risk could well decide they are not interested in paying off plaintiffs like Segovia whose industrial approach to litigation seems to be more about making money than helping those with disabilities.
¹ He was represented in this case by William Strickland. He is represented in others by Matthew Sapp and Michael Sturgill of the Sapp Sturgill firm.
² Other District Judges are not obligated to agree with their colleagues, so other judges in the Northern District might reach a different result, but it is reasonable to hope other judges will appreciate the value of consistency among different courts when confronted with identical claims.
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
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.
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
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/
(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.
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