I’ll be presenting a two hour live webinar titled “What Real Estate Lawyers Need to Know About the ADA, FHA, and CT Accessibility Laws” for the Connecticut Bar Association on April 4, 2023 at noon Eastern Time. If your clients buy, sell or manage shopping centers, commercial properties, multi-family housing, single family housing developments, or home owners associations you need to understand their obligations under the Americans with Disabilities Act, Fair Housing Act, and Connecticut’s fair housing and public accommodation accessibility laws. Even if you don’t practice in Connecticut you’ll find this presentation helpful because so much of Connecticut law tracks the equivalent federal statutes. Sign up at the link above.
ADA
Hear all about it – Richard discusses ADA website litigation on the ADA Book podcast
Richard was interviewed this week by Kris Rivenburgh on his ADA Book YouTube channel and podcast, which is now streaming at https://www.youtube.com/watch?v=rMwsgy57kC4 and all your major podcast sources. The interview covers the latest legal developments as well as prospects for future regulation and litigation. Businesses concerned with ADA website compliance might want to check out Kris’s ADA Compliance course at https://adacompliance.net.
When it comes to ADA tester standing in the Ninth Circuit, the truth no longer matters.
George Washington famously could not tell a lie – or so the story goes. Not all of us are so honest, and so in matters of litigation we have a method for deciding what is true – a trial. In Langer v. Kiser, 57 F.4th 1085 (9th Cir. 2023) the majority decided that the truth was less important than advancing a policy goal – accessibility for the disabled. I’m sure they wouldn’t agree with that characterization, but it follows naturally from an analysis of the majority opinion and its disregard of the truth-finding purpose of a trial.(4)
The first sign that the Court’s concern is policy rather than the truth is its decision to take up the issue of the plaintiff’s standing in the first place.¹ The trial court, while expressing doubt about the plaintiff’s standing to seek injunctive relief, ultimately found that the plaintiff did have standing and entered judgment for the defendants on grounds unrelated to standing. The Ninth Circuit reversed based on those same grounds. It also agreed that the plaintiff had standing. Its entire discussion of standing was, therefore, irrelevant to its holding. It was an advisory opinion. This is what the Ninth Circuit had to say in a different case where it did not want to give an advisory opinion:
Given the constitutional ban on advisory opinions, there exists a strong judicial aversion to render potentially nondispositive rulings. As Justice Jackson commented in a related context, judicial review serves “to correct wrong judgments, not to revise opinions.” Herb v. Pitcairn, 324 U.S. 117, 126, 65 S.Ct. 459, 89 L.Ed. 789 (1945).
Lanza v. Ashcroft, 389 F.3d 917, 929 (9th Cir. 2004). In Langer v Kiser, the bulk of the Court’s opinion is devoted to doing exactly what the Court is not supposed to do; that is, revising the opinion of the District Court instead of merely reversing a wrong judgment.
The next clue that the opinion is driven by the result rather than the law is the emphasis on public policy. Quoting its earlier opinion in D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031 (9th Cir. 2008) the Court writes:
We commented that it may be “necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA.”
The Court then repeats its reference to a law review article from 2006 as support for the notion that public policy, rather than legal principles, should determine the outcome of ADA lawsuits. Just like the nervous twitch that tells you a gambler is bluffing, citing an old law review article and invoking public policy is a sure sign the Court is about to ignore legal principles to get where it wants to go.
A results driven opinion will also contain misrepresentations of earlier authorities, and Langer v. Kiser is no exception. The Court’s argument concerning the effect filing thousands of lawsuits should have on the factual determination of whether a tester is likely to return to the defendant facility begins with the claim that under earlier Ninth Circuit decisions:
we know that so-called “professional plaintiffs,” “paid testers,” or “serial litigants” can have tester standing to sue for Title III violations because a plaintiff’s motive for going to a place of public accommodation is irrelevant to standing.(5)
Can this be true; that is, is motive really “irrelevant” to standing? The case cited for this proposition, Civ. Rights Educ. and Enf’t Ctr. v. Hosp. Properties Tr., 867 F.3d 1093, 1102 (9th Cir. 2017) doesn’t say this. Instead it says: “a plaintiff’s status as a tester does not deprive her of the right to sue for injunctive relief under § 12182(a).” Now this makes sense – being a “tester” does not necessarily mean the plaintiff will not return to the defendant facility. Thus, motive does not exclude the possibility of future injury. But saying that motive does not exclude the possibility of future injury is not the same thing as saying motive is irrelevant. Indeed, a sincere motive to advance the policy objectives of the ADA would support a finding that the plaintiff does intend to return because only by returning can the plaintiff confirm the property has been fixed. However, by the same toke if the plaintiff’s only motive to make money and there is no money to be gained from returning to the facility, it becomes unlikely the plaintiff really intends to return. Motive may not be determinative, but it is certainly relevant.
After the astonishing claim that evidence of motive is not relevant the Court turns again to D’Lil, a case that also includes an improper advisory opinion. In D’Lil the Court considered a trial court decision that did not attack the credibility of the plaintiff, but instead ruled based on a lack of evidence. The Ninth Circuit recognized this:
The district court explicitly declined to decide the credibility issue, relying instead on the ground that D’Lil did not introduce evidence of her intent to return in December 2002 to find that she lacked standing.
Despite the fact that credibility was not at issue the D’Lil Court plunged ahead with its examination of the credibility of the plaintiff’s intent to return, holding that because “the district court focused on D’Lil’s history of ADA litigation as a basis for questioning the sincerity of her intent to return to the Best Western Encina.” This, it held, was improper.
With the illegitimate advisory opinion in D’Lil as its foundation, the opinion in Langer v. Kiser takes the next logical step; it denies the trial court the right to make any credibility determination based on litigation history that might interfere with use of serial litigation as an ADA policy tool. It begins by holding that:
. . . merely driving around, documenting ADA noncompliance, and filing multiple lawsuits is not in and of itself a basis for being found noncredible.
At first glance this seems to be a step back from “irrelevant.” Facts related to a case generally come in three flavors: Evidence may be sufficient; that is, the truth of the fact is sufficient to determine some element of the case like intent to return. Evidence may only be relevant; that is, the truth of the fact has a bearing on the critical element in the case but has to be supported by other facts, or at least not contradicted by other evidence. Finally, evidence can be irrelevant; that is, the truth of the fact makes no difference at all. Saying that a fact is “not in and of itself a basis” for a finding is merely saying it is not sufficient; it might still be relevant.
But that isn’t what the majority has in mind. The difference between sufficient and relevant is important in pre-trial proceedings where the plaintiff is presumed to be telling the truth, as in a motion to dismiss, or where conflicting evidence prevents a ruling, as in a summary judgment case. But everything changes at trial. At trial the judge or jury has to decide what is true, and this is done based not only on evidence of what the plaintiff did in the past (like file 2000 identical lawsuits) but also on what the plaintiff says and how he says it. Because only those present at the trial can see and hear the tone of voice of the witness the Ninth Circuit (along with every other federal court) has long held that a “reviewing court must respect the exclusive province of the fact finder to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts.” United States v. Hubbard, 96 F.3d 1223, 1226 (9th Cir.1996). At trial evidence of litigation history that might not be “sufficient” by itself is never really by itself, for it is supported (or contradicted) by the testimony of the plaintiff, including the way he testifies.
If “sufficiency” versus “relevance” were the only issue the Langer v Kiser opinion would have nothing to say about the trial court’s observations concerning Langer’s litigation history; after all, that litigation history was only a part of the evidence the trial court considered. However, what the majority has in mind is something more. After giving some some absurd examples of how litigation history might cast standing into doubt the majority announces a rule that strips the judge of the right to determine the credibility of any ADA plaintiff with respect to intent to return.
Nor can district courts use improper adverse credibility determinations to circumvent our holding in CREEC allowing tester standing for ADA plaintiffs.
What does the majority mean by an “improper credibility determination” that might “circumvent hour holding in CREEC allowing tester standing?” It certainly can’t be any single credibility determination. Determining at trial that a particular plaintiff is lying about intent to return doesn’t undermine the principle of tester standing; it is a single decision about a single plaintiff with respect to a single lawsuit. A different plaintiff might persuade a trial judge that he really did intend to return. In fact, the same plaintiff might persuade a different judge that he really did intend to return. A trial that turns on whether the plaintiff is telling the truth is a one off that doesn’t undermine the possibility of “tester standing” in any other case.
What does “improper” mean then? Nothing less than reaching the “wrong” result by finding the plaintiff does not intend to return and therefore does not have standing to sue for injunctive relief. The majority writes:
[W]e accord standing to individuals who sue defendants that fail to provide access to the disabled in public accommodation as required by the Americans with Disabilities Act[ ], even if we suspect that such plaintiffs are hunting for violations just to file lawsuits.
[quoting Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1069 (9th Cir. 2009)]. There it is. “We accord standing . . . ” whether or not the plaintiff is lying about intent to return. The truth doesn’t matter. All that matters is that serial litigants be allowed to sue as often as they want because it supposedly advances the cause of disability access.
This brings us back to the “tells” in the opinion. Before deciding that every serial ADA plaintiff is prima facie telling the truth about intent to return the majority takes a long look at all the facts before the trial court, including the plaintiff’s testimony:
On redirect, Langer affirmed that he would “absolutely” return to the Lobster Shop if they were to “fix the parking and have van-accessible parking” because he loves lobster and “purchase[s] lobster all the time.”
Any lawyer or judge with trial experience has seen a witness whose demeanor alone made it clear they are lying. I had this experience myself when, as a young lawyer, I put my carefully prepared witness on the stand and realized even as I was asking easy questions to make our case everyone else in the courtroom including myself and the judge could tell he was lying. The two judges in the majority in Langer v. Kiser were not in the courtroom when Langer testified. They don’t know if he was calm and collected or sweating, nervous and looking desperately to his lawyers for clues about how to answer the questions. Their review of the evidence at trial – none of which they saw first hand – shows clearly that they are simply substituting their opinion about the evidence for that of the trial judge because his judgment might (on remand) get in the way of victory for the plaintiff.
Of course the judges who wrote the opinion in Kaiser v Langer would say all they are doing is excluding the consideration of litigation history as evidence of intent to return, leaving open the consideration of other evidence. Even that more limited interpretation of the case doesn’t change the fact that the majority has decided the truth is less important than the result. Evidence should be excluded because it might get in the way of discovering the truth, not because it might reveal the truth. Only a fool would believe that the filing of 2000 ADA lawsuits does not reflect something about the likely intent of the plaintiff to return to each and every one of those 2000 businesses. The judges in the majority are not fools; they just don’t want the truth to interfere with serial litigants filing suit under the ADA.
It is possible Kaiser v. Langer will be reversed en banc³ or taken to the Supreme Court, where reversal seems a near certainty. For the present, however, the truth about intent to return is irrelevant in the Ninth Circuit and lawyer driven industrial ADA litigation will no doubt guarantee that the Ninth Circuit continues to lead the nation in ADA lawsuits and settlements that make lawyers rich and do nothing of real value for the disabled.² And that will suit the these judges just fine. After all, they are not interested in the truth about intent to return; they only care that every ADA lawsuit reach the “right” result; that is, the plaintiff wins.
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¹ For those who don’t think standing day in and day out the basics are not complicated. In any action in federal court based on a violation of federal law the plaintiff must have standing to sue, meaning they must have suffered an injury that (a) is intended to be redressed by the statute and (b) meets the minimum requirements of Article III of the Constitution. In ADA lawsuits the plaintiff must also have standing to seek injunctive relief, because that is the only relief available. That means it must be likely the plaintiff will benefit from the injunction sought. The injunction sought is typically an order to make the defendant business accessible, and for that to benefit the plaintiff he must intend to go back. If he never goes back then the accessibility doesn’t matter to him and the injunction does him no good.
² I have observed before that despite the tens of thousands of ADA lawsuits filed in California and elsewhere over the past 20 years the number of filings continues to increase, proof that serial litigation is not accomplishing the goals of the ADA.
³ We have not yet reached the deadline for filing the necessary request.
4 The case was decided over the dissent of Circuit Judge Collins, who examines in more detail than I have space for the errors in legal reasoning of the majority. He does not, however, reach the same conclusion I reach about the concern of the majority for results instead of the truth.
5 It bears remembering that there is no such thing as “tester standing.” Being a tester does not confer standing; it simply does not exclude the possibility of standing. Any court that treats “tester standing” as a concept has already taken a long wrong step in the consideration of standing. I could write an entire blog about the misuse by the Ninth Circuit and others of the Supreme Court’s decision in Havens Realty Corp. v. Coleman; but the analysis can be found in some of my earlier blogs, including:
ADA tester standing – what three cases in four days tell us.
Laufer v Looper – the death of tester standing, and not just in ADA cases.
Quick Hits – ADA and FHA cases of note
Janus, the two headed god that looked to the future and past and gave us the name for January, wouldn’t find much new in the world of disability law if he were contemplating 2023. Cases from the last few weeks look pretty much like cases from the end of 2021 and the end of 2020. Serial ADA litigation is going strong because outcomes depend on the judge assigned rather than the law or the facts. Sober living homes continue to create hostility and litigation as politicians try to balance doing the right thing against the demand of their constituents that they do the wrong thing. And, of course, the cost of victory is often much higher than the value of what the plaintiff or defendant wins. Here’s a roundup of the latest cases.
FHA cases are fact driven
Amber Reineck H. v. City of Howell, 2022 WL 17650471 (E.D. Mich. Dec. 13, 2022) is a meticulously written decision to which I cannot do justice in a quick hits review. There is one global takeaway from various grants and denials of summary judgment: claims for discrimination under the FHA, especially accommodation discrimination, depend very much on the particular facts of the case. A third of the lengthy opinion is devoted to the facts, and the claims on which summary judgment was granted were claims on almost purely legal issues like immunity.
The case does perpetuate an important error in the comparison of single family residences to group homes of any kind. Following the Supreme Court’s lead in Village of Belle Terre the Court assumes that single family zoning promotes various important neighborhood values while avoiding problems associated with groups of unrelated individuals living together. Based on this assumption the Court finds that a single family unit is not properly comparable to the unit make up of unrelated disabled residents of a group home. Instead, the comparator is unrelated non-disabled residents of a boarding house or similar business. In 1974, when Village of Belle Terre was decided, it might have still been arguable that single-family neighborhoods were stable places were neighbors were friends, streets were quiet and two cars was the norm. The fragmentation of family structures, changes in culture that lead to extended families occupying a single residence and increased turnover in traditional neighborhoods have made the stereotype of a single family neighborhood obsolete. It is also far from clear that the values associated with single family neighborhoods are the result of family structure as opposed to low population density. In short, whether single family zoning promotes the various values extolled by Village of Belle Terre is a question of fact, not a matter of law, and cities that zone based on family relationships rather than density should be required to prove that who is related to whom in a home has a rational relationship to any legitimate social value.
Know your judge when it comes to tester standing
For those keeping score motions to dismiss almost identical complaints filed in the Northern and Western Districts of Texas have reached very different results. In Segovia v. Shahrukh & Shahzeb Inc., 2022 WL 17566267 (N.D. Tex. Dec. 9, 2022) Judge Jane Boyle joined Judge Sam Lindsay in finding that the standard form complaint used by a group of lawyers and their clients was inadequate. Judge Boyle granted leave to amend, so the case isn’t over, but in past cases Segovia and his lawyers have not been able to substantively improve their complaint. As I noted in my last blog, the opposite result was reached in Castillo v. Sanchez et al, 2022 WL 1749131 (W.D. Texas, Dec. 6, 2022) based on an almost identical pleading. District Court decisions are not binding on anyone, including the judge who wrote them, so any strategy concerning the defense of a serial ADA case has to start with knowing the judge.
Calcano bears fruit
If you haven’t been thinking every day about the decision in Calcano v. Swarovski North America Limited you’ll find a review at A short sharp shock – the end of the beginning for serial ADA lawsuits? Judge Andrew Carter found the plaintiff’s allegations in Matzura v. Macy’s Inc., 2022 WL 17718335 (S.D.N.Y. Dec. 15, 2022) and Murphy v. Regal Cinemas, Inc., 2022 WL 17821218 (S.D.N.Y. Dec. 20, 2022) were just as deficient as those in the consolidated Calcano cases and dismissed for lack of standing. Judge Laura Swain did the same in a different Calcano lawsuit, Calcano v. Jonathan Adler Enterprises, LLC, 2022 WL 17978906, at *2 (S.D.N.Y. Dec. 28, 2022). ADA claims based on inaccessible gift cards are meritless for other reasons¹ but standing holdings have a broader impact because they can influence all serial ADA claims, making these dismissals significant for other victims of serial litigation, at least in the 2nd Circuit.
The race to the courthouse – the Anti-Injunction act doesn’t help the loser.
James v. Tanigpahoa Parish., 2022 WL 17830464 (E.D. La. Dec. 21, 2022) is a reasonably common kind of case. After some back and forth with a sober living home operator the local government filed suit in state court to enjoin the operation because it did not have required permits. State courts typically favor local government and oppose sober living for political reasons and in this case the court entered the requested injunction. The plaintiffs, who were residents of the sober living home, filed suit in federal court asking that the federal judge enjoin the parish from enforcing its injunction. Enter the Anti-Injunction Act, 22 U.S.C. §2283, which bars federal courts from interfering in state court proceeds except in a few limited situations. None of the exceptions were found to apply, which is the usual outcome in FHA cases of this kind. For FHA plaintiffs dealing with municipalities, HOAs and others the message is clear. File first in federal court or, in all likelihood, lose in state court. For defendants the message is file first and ask questions later.
Pushmi pullyu – when is an accommodation unreasonable?
Speaking of two faced, or two-headed animals, in The Story of Doctor Doolittle the pushmi-pullyu is an animal (a llama it appears) with two heads and no rear that can only go in the direction one head faces if the other head backs up. Because the accommodation provisions of the FHA require preferential treatment to create equality of opportunity pushmi pullyu situations are not unusual. One tenant’s emotional support animal may be an annoyance to the neighbor with allergies, for example. Accessible parking creates exactly this kind of problem, as shown in Hume v. Guardian Mgt. LLC, 2022 WL 17834397 (D. Or. Dec. 21, 2022). An accessible parking space necessarily takes almost two ordinary parking spaces because of the required access aisle. If an apartment building does not have sufficient covered parking for all tenants, and has already allocated accessible spaces to other tenants, creating a new accessible space will come at the expense of the two tenants who already occupy the required spaces or at the expense of another disabled tenant whose accessible parking space is taken away from them. In this case the Court found the requested accommodation was not reasonable because taking away an existing tenant’s parking space was an undue burden on the landlord. If that seems like an easy conclusion remember that many accommodations have some negative impact on other tenants and while the FHA requires that housing providers make accommodations, it doesn’t require other tenants to do so. For more about this you can read my blog The horns of a dilemma – landlords, tenants and emotional support animals under the FHA.The plaintiff who won everything and got nothing
When a defendant defaults the Court can enter judgment for exactly what the plaintiff includes in the prayer for relief in their complaint, but nothing more. In Hull v. Little, 2022 WL 17818065 (9th Cir. Dec. 20, 2022) the Court did just that. The plaintiff asked for an order requiring the defendant to remediate parking and other architectural barriers but did not ask that the court impose any deadline on the work. The district court gave the plaintiff what he asked for in terms of remediation but included no deadline. The plaintiff asked the Ninth Circuit to fix his mistake, which it declined to do, leaving the plaintiff with an meaningless order.²
The defendant who won and had to pay for it
In Simpson v. CHS, Inc., 2022 WL 17986795, (D. Mont. Dec. 29, 2022) the winning defendant in a Title III case was unable to persuade the judge that the plaintiff should pay costs, which are ordinarily granted to the winning party. The opinion explains why, but I looked a little deeper to understand how a case in which the defendant admitted liability and won based on mootness could include depositions and a transcribed video conference. It turns out the victory was in part based on a technicality. The problems identified in the Complaint were fixed and even though others may have existed the plaintiff was limited to those in the Complaint. There was also disagreement about what was fixed and it took a deposition to get the plaintiff to agree that things were fixed. In other words, it was a hard fought case and although it failed it was not without merit when filed. Under the Supreme Court’s decision in Buckhannon Bd. and Care Home, Inc. v. W. Virginia Dept. of Health and Human Resources, 532 U.S. 598, 600 (2001) even if the plaintiff’s lawsuit results in the desired change the court cannot award attorneys’ fees if there is no final judgment in the plaintiff’s favor. The only “reward” the court can give the plaintiff for filing suit is declining to make them pay the defendant’s costs. This gives plaintiffs’ attorneys an incentive to continue litigating even after the defendant has remediated everything in the original complaint. That doesn’t mean that such litigation should be common. Looking from the outside in it seems that a defendant willing to fix everything and a plaintiff who wants it fixed should be able to make a deal early in the lawsuit before either side has spent a lot on lawyers. Maybe that wasn’t possible in this case, but it is worth considering for any defendant who gets to the end of the road with a bunch of fees paid their own attorney and not even the consolation of being reimbursed for costs. In this as in many other cases it looks like the primary beneficiary of the lawsuit was the lawyers; this case was unusual only in that it was only the defendant’s lawyers who benefitted.
A note for website owners: mootness starts before you get sued.
Mootness is the best and strongest defense to a Title III ADA claim because, as described in the entry above, if the facility is made accessible the case must be dismissed and the plaintiff gets no attorneys’ fees. The problem is proving the claim is really moot. Where the change is physical courts generally have no problem finding that the situation isn’t likely to recur, but when the change is to an ever-changing website the burden of showing the fix will last becomes much higher. In Langer v. Home Depot Product Authority, LLC., 2022 WL 17738728 (N.D. Cal. Dec. 16, 2022) Home Depot was able to meet that burden because it had a policy of close captioning all of its videos before it was sued and it quickly fixed the one video that slipped through after it was sued. If the policy had been adopted after the lawsuit was filed or there had been more than one uncaptioned video the result would likely have been different. Now is the time to adopt and implement an accessibility policy for your website – after you are sued it may be too late.
We apply the law, but we don’t have to obey it.
I noted Kulick v. Leisure Village Association, Inc., 2022 WL 17848939, at *4 (Bankr. App. 9th Cir. Dec. 16, 2022) mostly for the following striking statement:
The Americans with Disabilities Act does not apply to the federal courts. See Roman v. Jefferson at Hollywood LP, 495 F. App’x 804, 806 (9th Cir. 2012) (“While the [ADA] requires state courts to make disability accommodations, the ADA does not apply to federal courts.”)
Federal court houses are covered by the Architectural Barriers Act, but the federal courts themselves need not comply with any federal accessibility law.
The cost of default
In Trujillo v. 4B Mkt. Inc., 2022 WL 17667894, (E.D. Cal. Dec. 14, 2022), report and recommendation adopted, 2022 WL 18027841 (E.D. Cal. Dec. 30, 2022) it was about $3700 in fees and costs plus $4000 in damages and an injuction to fix what had to be fixed regardless. It’s hard to imagine a cheaper settlement given the Unruh Act’s statutory damage provision.
No supplemental jurisdiction here
Gilbert v. Bonfare Markets, Inc., 2022 WL 17968629 (E.D. Cal. Dec. 27, 2022) is another example of a judge who is fairly hostile to serial litigants and will not, in all likelihood, exercise supplemental jurisdiction over Unruh Act claims. Great if you are a defendant in this particular court, but remember that other judges take the opposite approach. Know your judge.
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¹ 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 of gift card accessibility litigation.
² I found the appeal puzzling because many ADA plaintiffs show little concern for anything that happens after they get an award of fees. In this case no fees were awarded; in fact, none were requested even though the plaintiff was represented by counsel. Why no request for fees? I couldn’t find a clue in the District Court’s file.
ADA tester standing – what three cases in four days tell us.
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