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 Litigation Procedure
Quick Hits – almost Bastille Day edition
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - Hotels, ADA - serial litigation, ADA Class Actions, ADA Internet Web, ADA Litigation Procedure, Internet Accessibility Tags: ADA defense, ADA standing, FHA Defense, hotel accessibility information
Serial litigators file lots of cases and that means lots of decisions, sometimes coming in batches. I’ve omitted a few decisions that say nothing more than the cases I have reviewed just to keep this blog manageable. If there is a theme, it is simply that despite very clear trends toward limiting serial litigation by paying more attention to standing, the outcome of any given case depends very much on the judge because there is still relatively little Circuit court guidance on some issues. Like Delacroix’s inspirational painting of Liberty Leading the People, celebrations of freedom from abusive ADA and FHA litigation may be premature. Before making any strategic decision you need to research the specific decisions of the judge who will hear your case because the ancien régime isn’t gone yet. More
Quick Hits – assembly line edition.
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Mootness, ADA Web Access, ADA Website Accessibility, Reasonable accommodation, Title II Tags: ADA arbitration, ADA defense, ADA Negligence, ADA supplemental jurisdiction, Center for Disability Access, COVID-19, Deborah Laufer, FHA Defense, Judge Olguin, Model Home Sales Offices, nexus requirement, unruh act
With more than 40 new decisions in the last two weeks it hasn’t been easy getting this blog out. I’m not the only lawyer with too much to do too fast, as the following cases demonstrate.
The problem with industrial litigation
In a classic episode of “I Love Lucy” she and her friend Ethel get a job in a chocolate factory but find they can’t keep up with the assembly line and have to resort to stuffing chocolates in their mouths and shirts.³ I thought of their predicament when I read Garcia v. Hwangbo, 2021 WL 149086 (C.D. Cal. Jan. 15, 2021), one of hundreds of cases filed on behalf of Orlando Garcia by the “Center for Disability Access.” The problem with an assembly line practice is keeping up with the speed of the line, and Garcia’s lawyers found they couldn’t keep up on January 15 when Judge Olguin dismissed the Hwangbo case under the terms of a docket control order that required the defendants be served within 90 days of filing. More
The Online Accessibility Act of 2020 – does it do what it needs to do?
By Richard Hunt in ADA, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Litigation Procedure, Rehabilitation Act, Section 508 Web Access Tags: ADA defense, ADA website accessibility, ADA Website Litigation, Online Accessibility Act, Representative Lou Correa, Representative Ted Budd
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.
Quick Hits – Christmas in September
By Richard Hunt in ADA, ADA - drive-by litigation, ADA - Hotels, ADA - Standing, ADA Internet Web, ADA Litigation Procedure, ADA Voting Rights, FHA, Interactive Process, Internet Accessibility, Public Facilities, Reasonable accommodation, Stadiums Tags: ADA defense, ADA standing, Braille gift cards, Catalina Express, FHA Defense, Greyhound, Nanette Brown, Peter Strojnik, Scott Johnson, Stadium Sightlines, Tom Hanks, voting rights
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