Today’s Google news brought another batch of outraged articles about serial ADA plaintiffs and legislators looking for solutions to the ADA litigation epidemic. The serial filer was in the Wichita, Kansas area, and the legislators were in Colorado, but otherwise the stories were pretty much the same as the stories last week, and the week before, and the week before that. Business owners say they were surprised to find that they were not ADA compliant, and lawmakers say the law should require a pre-suit demand so businesses have a chance to fix their problems before they get sued. The plaintiff, or his lawyer, always points out that the ADA has been in effect for 25 years, so it shouldn’t really be news. More
Counter clutter – Is it a barrier or a bad policy under the ADA?
By Richard Hunt in ADA, ADA Point of Sale, Restaurants, Retail Tags: ADA Policies, Point of Sale, POS clutter, POS Marketing, Reasonable modification, Starbucks
Point of sale merchandising has ADA implications that many retailers overlook. POS devices that are not accessible by the blind are claimed to violate the ADA and have attracted the attention of major disabilities rights groups.* A recent case from California, Johnson v. Lababedy, 2016 WL 4087061 (E.D. Cal. Aug. 2, 2016) serves as a reminder of how more mundane sales efforts also have ADA implications, and that just how the ADA applies may require some careful analysis for both plaintiffs and businesses. More
You can’t agree to what you can’t read – the perils of clickwrap when the ADA is involved.
By Richard Hunt in Accessibility Litigation Trends, ADA Class Actions, ADA Internet, ADA Internet Web, ADA Point of Sale, ADA Web Access, Internet, Internet Accessibility, Retail Tags: ADA arbitration, ADA Class Action, Container Store, National Federation of the Blind, Point of Sale, POS terminal
This week’s decision in Nat’l Fed’n of the Blind v. Container Store, Inc., 2016 WL 4027711 (D. Mass. July 27, 2016) is a call to action for every business that uses a click to accept type license or other agreements. Such agreements may not be enforceable in an ADA context unless special care is taken.
The case involved the Container Store’s loyalty program, which provides various perks and rewards. Customers could sign up when making a purchase at a store or online. In either case the process included clicking an “I Accept” button linked to the usual boilerplate terms and conditions, which included an agreement to arbitrate. The problem? Container Stores use a touchscreen Point of Sale device that is not accessible to the blind because it has no tactile controls. I blogged about the issue here, and the problem hasn’t gone away. The argument is straightforward. Blind customers cannot use the devices without giving personal information about their credit card information and email address to the clerk, while sighted customers can preserve their privacy on these matters. More
Temporary profits can mean a permanent problem under the ADA
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA Policies, Apartments, Condominiums, Public Facilities, Restaurants, Retail, Shopping Centers Tags: accessible parking, ada litigation, parking lots, Public accommodation
What’s wrong with this picture? You can be excused if you don’t immediately think, “no accessible parking,” but that might be the first thing that would come to mind for the defendant in Langer v. G.W. Properties, L.P., , 2016 WL 3419299, (S.D. Cal. June 21, 2016). Langer serves as a reminder that a business not usually covered by the ADA can become a “public accommodation” based on temporary use, and that this may lead to requirements for permanent changes. Commercial enterprises and apartment complexes should pay attention, as should any owner of raw land that allows it to be used for parking from time to time.
The Economist covers serial ADA litigation – Hunt quoted.
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA FHA Litigation General, Restaurants, Retail, Shopping Centers Tags: ADA drive-by litigation, ADA serial litigation, frequent filers, Strojnik, The Economist
This is a bit of tooting our own horn. In an article published in the May 28 edition of The Economist, and available on-line at the following link (“Frequent Filers”) Richard is quoted concerning the serial litigation epidemic. This followed several hours of interviews with reporter Benjamin Sutherland in which Richard provided background information on the ADA and so-called “drive-by” litigation. You don’t have to wait for The Economist to publish another article, or wonder how much information was left out because of format restrictions. Just subscribe to our blog for frequent updates on the ADA and FHA.
As an aside, the Arizona attorney quoted in the article, Peter J. Strojnik, should not be confused with his son P. Kristofer Strojnik, (also sometimes referred to as Peter K. Strojnik), who was the subject of a May 13, 2016 ruling from the Central District of California. In Brooke v. Clay Andro Peterson, 2016 WL 2851440 (C.D.Cal. May 13, 2016) the District Judge dismissed three lawsuits filed by P. Kristofer Strojnik that were based solely on telephone calls to various hotels by the plaintiff. The reasoning will apply to many of P. Kristofer Strojnik’s cases, and should be studied by any lawyer representing clients sued by the plaintiff, Ms. Brooke, or by P. Kristofer Strojnik’s firm. For more detail, see tomorrow’s blog – “Dialing for Dollars Revisited.” You will find more information on P. Kristofer Strojnik at the State Bar of Arizona website: Phoenix Attorney Peter K. Strojnik Suspended
for Threatening Opposing Party with Public Shaming.