Quick Hits – Hearts and Flowers Edition

February 14, 2021 By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Mootness, ADA Public Accommodation, ADA Web Access, FHA, FHA Reasonable Accommodation, Interactive Process Tags: ADA defense, ADA Multidistrict Litigation, FHA Defense, Hotel accessibility litigation, WCAG 3.0

Valentines Day, which has been in the stores since December 26, has finally arrived in reality. Since I last blogged a few weeks ago the courts have continued to decide cases and the blogosphere has continued to cover, or mis-cover, accessibility related news. Here’s a sweet collection of matters to read after you’ve finished your celebration of the day.

WCAG 3.0 – Will it really matter at all?

The preliminary draft of WCAG 3.0 has generated a lot of attention. From a litigation defense standpoint the possible new standards are irrelevant, as is compliance with existing standards. Lawsuits are not filed to make the web more accessible; they are filed to make lawyers rich (or richer). As long as it is cheaper to settle than fight most businesses will continue to pay off the plaintiffs lawyers regardless of how accessible their websites might be. For those who do care about accessibility the new standard adopts a different approach that is focused less on specific technical requirements and more on the actual experience of the disabled user. Lawyers will recognize this as similar (though with much more detail) to the meaningful access standard required by Title II of the ADA. It remains to be seen whether DOJ, which will almost certainly restart the regulatory process under the Biden administration, can balance the certainty of strictly technical standards against the purpose of the ADA, which is meaningful access. That balance and the courts’ willingness to require plausible allegations concerning web access in order to meet the Iqbal / Twombly pleading standard will determine the future of website accessibility litigation. If courts are willing to require plaintiffs to plead facially credible claims that they were denied meaningful access to the content of a website than a new regulatory standard based on meaningful access could slow down the litigation industry and help businesses make their websites accessible in a meaningful way. If not the abuse of the ADA for the benefit of lawyers will continue unabated. More

Quick Hits – Christmas in September

September 23, 2020 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

The interactive process under ADA Title III – maybe not the law, but a good idea anyway.

June 12, 2017 By Richard Hunt in Accessibility Litigation Trends, ADA Litigation Procedure, Interactive Process Tags: 8th Circuit, ada litigation, interactive process, Koester

In its May 2, 2017 decision in Koester v. Young Men’s Christian Assn. of Greater St. Louis, 855 F.3d 908, 909 (8th Cir. 2017) the Eighth Circuit casually suggested that the “interactive process” does not apply to accommodation requests under Title III of the ADA. It sidestepped the issue in the end, but wrote that it approached a claim based on a failure of the process with a “a healthy dose of skepticism that these concepts are applicable in this Title III case.” As authority it dropped a footnote to its earlier decision, Mershon v. St. Louis U., 442 F.3d 1069, 1078 (8th Cir. 2006). In Mershon the Court expressed doubt that the interactive process applied to a claim in an academic setting, referring in turn to the decision in Stern v. U. of Osteopathic Med. and Health Scis., 220 F.3d 906, 909 (8th Cir. 2000). The Stern case did not include any expression of doubt; only a recognition that the question was unresolved: “Even if such an interactive process is required in an academic setting. . . .” This time the authority cited was a lower court decision, Guckenberger v. Boston U., 974 F. Supp. 106, 142 (D. Mass. 1997). In Guckenberger, oddly enough, the Court assumed that an interactive process was required by Title III, but found that the system in place at the defendant university was sufficiently interactive.