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
ADA – drive-by litigation
Laufer v Looper – the death of tester standing, and not just in ADA cases.
I’m the last of the ADA bloggers to discuss Laufer v Looper, 21-1031, 2022 WL 39072, at *6 (10th Cir. Jan. 5, 2022) but reading the analysis by Bill Goren (Is Tester Standing a Thing When it Comes to Title III of the ADA) and Seyfarth Shaw (A Status Update on Hotel Reservations Website Lawsuits) has given me some perspective on what the decision means for tester standing in ADA and FHA cases. I think the discussion of tester standing in Laufer v. Looper exposes the fatal flaw in all tester standing cases; that is, testers never suffer the kind of injury that is now required by the Supreme Court to meet the requirements of Article III. Like Yorick, a fellow of infinite jest who bore young Hamlet a thousand times, tester standing should be dead (5).
Laufer v Looper – chapter 2
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.
Same old wine update – the demand letters keep on coming.
I continue to receive calls from businesses all over the country who have received demand letters from an Alabama lawyer², supposedly on behalf of an individual named Denaryle Williams.¹ As of December 15 it does not appear he has filed a single ADA lawsuit, nor does it appear that Mr. Williams has been a plaintiff in any ADA lawsuit. This is despite the fact that his threatened deadlines to file suit have passed for most of the demands I have seen. Every business has its own tolerance for risk so I’m not going to claim I know what you should do (although you can hire me – see email address at right). What I can say is that making your website accessible is a good idea because it is the right thing to do and helps your customers, not because of these letters, which seem intended only to put money in his pocket.
Many of the calls I receive are from businesses that tell me they have solved their accessibility problem with a plug-in or overlay. That makes it worth repeating that quick fix solutions like plugins, widgets and overlays will almost certainly not make your website accessible no matter what promises the various vendors make. Read the fine print and you’ll see that what the advertising promises the terms of service take away. If you want more details watch the video at:
¹ See my original blog at Same Old Wine
² I have removed the attorney’s name because, he says, he has gotten out of the ADA demand letter business, a move I certainly support.
Quick Hits – Who needs the Grinch when you’ve got Bowser?
Almost everyone who ever was, had or has a child probably knows Bowser, the character from many Nintendo games. In Mario Party he often offers “gifts” that don’t always (or ever) turn out to be something you might want. Recent developments in accessibility law are, as usual, a mixed bag. Here’s what I found underneath the tree. Bwahahahaha!
A shiny new article about the ethics of communication.
My partner, Jeanne Huey and I collaborated on an article about ABA Formal Opinion 500 that was published by the American Bar Association Litigation Section Professionalism and Ethics Committee, but is easiest to find at her blog, Legal Ethics Today. Communication with those who are disabled is a statutory obligation under the ADA for all businesses open to the public as well as the Fair Housing Act for housing providers. For lawyers it is an ethical obligation as well. More