On October 2, while the news covered President Trump’s admission to Walter Reed for treatment of Covid-19, Congressmen Lou Correa (D-CA) and Ted Budd (R-NC) introduced the bipartisan Online Accessibility Act, which they claim will “increase website accessibility and reduce predatory lawsuits filed against businesses.”¹ Will it work? That’s a reasonable question.
ADA Litigation Procedure
Quick Hits – Christmas in September
The title of today’s blog recognizes the gift bestowed by Judge Nannette Brown on everyone interested in the ADA in all its many details. Bailey v. Bd. of Commissioners of Louisiana Stadium and Exposition Dist., 2020 WL 5309962 (E.D. La. Sept. 4, 2020) is the latest of Judge Brown’s decisions concerning the dispute over stadium seating in the Superdome. Written after trial, the 64 page decision methodically dissects the law concerning concerning which standards apply to what parts of a facility after alterations, what the sight-line requirements for stadiums are under the various standards, including an exposition of the law concerning Auer deference and the effect of Kisor v. Wilke, how Title II program accessibility requirements fit into design/build standards, what kind of control is required for a person to be an “operator” of a public accommodation, when and how the “reasonable modification” requirement in Title III of the ADA applies to Title II entities, and last but not least the extent to which Title I’s “interactive process” requirement might apply to Titles II and III. The Fifth Circuit, and maybe the Supreme Court, will have the last word in this case, but if you are looking for a quick reference to almost every issue that comes up in a case involving altered facilities you can find it in this decision.¹ More
Quick Hits – Now is the summer of our discontent edition
Here’s a very unhappy looking King Richard III contemplating the murder of his nephews and possible rivals for the throne, or perhaps the latest headlines. While the latest cases on accessibility law don’t usually look like light reading, right now they are a cheery diversion from the rest of world events. Here we go:
Voting Rights and the ADA
People First of Alabama v. Merrill, 2020 WL 3207824 (N.D. Ala. June 15, 2020) deserves its own blog, but illustrates how the reach of the ADA is sufficient to touch every aspect of public life. In People First the plaintiffs were elderly and disabled, suffering as a result from an enhanced risk of significant illness or death from Covid-19. They claimed that Alabama’s restrictive absentee voting laws violated Title II of the ADA by depriving them of access to voting, which is for ADA purposes a state program for which the ADA requires equality of access. The Court agreed in most respects and entered a preliminary injunction requiring the state to make absentee voting easier in several respects. The case is on appeal, so the outcome remains uncertain, but it illustrates how the provisions of Title II of the ADA can affect every state and local government program, including those usually thought of as purely political.
Mootness done right, eventually
Johnson v. Montpelier One LLC, 2020 WL 3268613 (N.D. Cal. June 17, 2020) appears to be on the way to dismissal for mootness, but only after a false start with an affidavit that did not state in sufficient detail how the alleged architectural barriers had been remediated. Mootness is the best defense to a physical access case under the ADA, but cutting corners with a conclusory affidavit won’t get you there.
Accessible counters – a Ninth Circuit victory for common sense.
Kong v. Mana Inv. Co., LLC, 2020 WL 3265179 (9th Cir. June 17, 2020), Johnson v. Starbucks Corp., 2020 WL 3265063, at *1 (9th Cir. June 17, 2020) and Lindsay v. Starbucks Corp., 19-55738, 2020 WL 3265180, at *2 (9th Cir. June 17, 2020). Are a trio of Ninth Circuit rulings on an issue that has been litigated frequently: Does the counter length requirement in the ADA require that the counter be free of clutter? The answer is a definitive no, at least in the 9th Circuit. *
Braille gift cards and the ADA – the answer is no.
Dominguez v. Taco Bell Corp., 2020 WL 3263258 (S.D.N.Y. June 17, 2020), Mendez v. BG Retail LLC et al 2020 WL 3318293 (S.D.N.Y. June 18, 2020) and Delacruz v. Jamba Juice Co., 2020 WL 3250392, at *1 (S.D.N.Y. June 16, 2020) are among a growing number of cases (at least 10 decisions this week alone) holding that the ADA does not require braille gift cards because it does not require modification of products. This is now a predictable result, but it is bothersome that dozens of lawsuits making a patently absurd claim were filed in the first place, that who knows how much money and judicial resources have been wasted on attorneys’ fees defending them, and that it appears the lawyers for the plaintiffs who filed the lawsuits will suffer no consequences.
Another federal court declines supplemental jurisdiction over Unruh Act claims
In Schutza v. Enniss Family Realty LLC et al 2020 WL 3316969 (S.D. Cal. June 18, 2020) another federal judge in California declined to exercise supplemental jurisdiction over an Unruh Act claim, depriving the plaintiff of the damage remedy that drivers higher settlements in California. The decision is not unique* but other courts disagree with the arguments for declining supplemental jurisdiction. Until the 9th Circuit rules on this issue the rule will be to know your judge because these decisions are being made on a court by court level.
Negligence and the ADA
Strojnik v. Braemar Partn., 2020 WL 3250184 (S.D. Cal. June 16, 2020) adopts the majority view that the ADA is not a safety statute and that ADA accessibility violations do not automatically give rise to a claim for negligence. I’ve blogged about this before, as has William Goren. See,Personal injury and the ADA – is every violation per se negligence? ADA and FHA Quick Hits – is it safe to come out yet edition. and Goren’s blog at Negligence/negligence per se and title III of the ADA: Opportunity for personal injury attorneys to expand their practice. As is often the case in ADA matters, you need to know your court and state law to know whether the ADA plays a role in negligence claims.
Strojnik again – and perhaps in real trouble.
Peter Strojnik is a prolific litigator who does not always lose, but may have pushed his luck too far. In Strojnik v. Village 1017 Coronado, Inc., 2020 WL 3250608 (S.D. Cal. June 16, 2020) his claims were dismissed for lack of standing because he never visited the defendant hotel, but in its discussion the Court noted that in another case:
the Court has an evidentiary hearing scheduled for July 24, 2020 on the issue of whether Plaintiff should be declared a vexatious litigant in part for misrepresenting his disability status in that complaint.
Strojnik has already been declared a vexatious litigant by another Federal Court in California and was disbarred in his home state of Arizona. See, Strojnik v. IA Lodging Napa First LLC, 2020 WL 2838814 (N.D. Cal. June 1, 2020). He remains unrepentant and undeterred because there are few effective remedies against those who abuse the legal system and even fewer judges willing to take strong action against lawyers and non-lawyers who use the system to wreck legal and economic havoc on the lives of innocent business owners.
Pleading the “readily achievable” standard.
Girotto v. LXC, Inc. et al, 2020 WL 3318275 (S.D.N.Y. June 18, 2020) includes a number of little lessons. For example, it is not basis for early dismissal to call the plaintiff a liar because the Court assumes the allegations in the complaint are true. It does touch on an issue on which not all courts agree; that is, whether the plaintiff must plead that removal of architectural barriers is readily achievable. This Court says no; the plaintiff must prove the remediation is readily achievable at trial, but does not need to plead it. Other courts have disagreed**, so know your court and judge is, as usual, the rule.
The danger of being the enforcer
The plaintiff in Sullivan v. Storer Transit Sys., 2020 WL 3254400 (N.D. Cal. June 16, 2020) has a physical disability that is not apparent. When she tried to sit in the rows of a casino bus reserved for the disabled she was (she claims) yelled at by the driver and told to sit elsewhere. After a failed original complaint the beefed up allegations in her amended complaints were sufficient to state a cause of action. Sometimes it is necessary to make sure that those without disabilities don’t take advantage of disabled seating or parking, but businesses that choose to judge need to have policies to prevent hasty action. Legitimate resentment against those who abuse the disability rights laws has to be tempered with the understanding that not all disabilities are obvious.
Advocacy or idiocy? A blogger prevails
Straw v. Dentons US LLP, 2020 WL 3182775 (S.D.N.Y. June 11, 2020) is only tangentially an ADA case although an ADA claim was made. The Plaintiff, who was suspended from the practice of law in Indiana, sued a blogger and a legal publisher for reporting on his difficulties. The Court had little trouble finding the claims should be dismissed, but did make an argument that seems likely to be wrong. Based on a 2nd Circuit decision in an employment case the Court held that the ADA anti-retaliation provision does not give rise to individual liability and dismissed the claims against the blogger sued by Mr. Straw. It makes sense in an employment context to hold only the employer, not individual agents of the employer, liable for retaliation against a disabled person. In this case, however, it appears that the blogger was acting as an individual rather than merely as an agent of his employer. To say that no individual can be liable for retaliating against a person advocating for the disabled doesn’t really make sense. A more pertinent problem with the plaintiff’s claim here is that the ADA’s anti-retaliation provision prohibits “discrimination,” which implies disparate treatment of some kind. Those who criticize the ADA plaintiffs’ bar² are not discriminating against them in any meaningful sense of the word.
* I have blogged about this trend several times, most recently in Blogathon – not so quick hits on the ADA and FHA.
** See, “Readily Achievable” – It’s as easy as pie – maybe.
¹ See, for example, Quick Hits – Halloween Candy edition. Quick Hits – Tax Day Edition and Counter clutter – Is it a barrier or a bad policy under the ADA?
² I should say I have a personal interest in this, having been threatened many times with suits for defamation based on my blogs. So far no one has had the nerve to follow through on those threats, but there is clearly a segment of the ADA plaintiffs’ bar that doesn’t like those who tell the truth about their business.
Quick Hits – Making a list and checking it twice edition
Christmas is over with lumps of coal and sugar plums distributed in ways that often seem unrelated to who has been naughty or nice. Regular readers will see just how little has changed in the course of 2019 despite some important defense victories in the Sixth and Eight Circuits. With most ADA litigation centered in New York, California and Florida the serial litigation business will almost certainly continue to thrive in 2020.
Personal jurisdiction over website owners
Camacho v. Vanderbilt U., 2019 WL 6528974 (S.D.N.Y. Dec. 4, 2019) is another case looking at the relationship between what a website does for the residents of a state and personal jurisdiction over claims related to that website. The Court applies the 2nd Circuit’s spectrum analysis to the website in a detailed way that is beyond the scope of a Quick Hits blog, concluding in the end that the presence of tools aimed at helping college prospects decide whether to apply were sufficient to find the required minimum contacts with the state of New York. The Court also finds that the plaintiff has standing despite having filed 50 similar lawsuits against other universities. While this might suggest the allegation about intending to utilize the website in the future is unlikely to withstand close scrutiny, college websites are used by a particular class of individual who is likely to do a lot of online shopping for a place to go to school, making the allegations at least plausible.
Another ADA case heads to the Supreme Court – City of Trinidad v Hamer
I blogged about the 10th Circuit’s decision in Hamer v City of Trinidad earlier this year.* The City has now filed a Petition for Certiorari that may well take the case to the Supreme Court because the issues and conflict between the Circuits are well defined.**
The heart of the dispute concerns a novel doctrine invented by the Tenth Circuit, the “repeated violations doctrine.” Under this doctrine every Title II entity has an immediate obligation to fix every problem with accessibility everywhere, and its failure to do so constitutes a new ADA violation every day. The age of the facility doesn’t matter because the obligation is to fix things regardless of when they were built. A sidewalk built a century before passage of the ADA must be fixed in the same way a sidewalk built last week must be fixed. Other Circuits have refused to impose this kind of endless liability, tying the limitations period either to the when the facility was built or renovated or to the date the plaintiff first suffered an injury, and refusing to find a generalized obligation to fix things that did not violate the law when they were built. More