g_shipping_749a_RancilioMost of the 37 ATM lawsuits filed in Texas since June of 2012 have been dismissed or settled, but two have just moved past the motion to dismiss phase and may become significant as models for later class actions concerning ATMs and other facilities. The decisions denying the defendants’ motions to dismiss point to some of the problems with this kind of case and suggest strategies for dealing effectively with them.

The decisions in question are almost identical magistrate judge recommendations in Davis v. First National Bank of Trenton and Davis v. American National Bank of Texas, both of which are pending in the Eastern District of Texas.  The defendants attacked the standing of both the individual plaintiff and an affiliated disability rights organization (“DRO”). The magistrate judge recommended denial of the motions to dismiss, but on rather narrow grounds. He found that the plaintiff had standing to sue with respect to accessibility issues for the single ATM the plaintiff actually tried to use. The magistrate judge rejected organizational standing for the DRO, but found that it had representational standing based on the individual plaintiff’s membership. Finally, the magistrate judge found that whether such narrow claims could support a much broader class action was question to be deferred to the certification stage.

Reading these recommendations immediately suggests that a strategy based on fixing the ATM in question and moving for summary judgment based on mootness can still be effective, and might have been appropriate earlier. Mootness, as I have observed before, is the atomic bomb of ADA defenses because without an ADA violation there isn’t anything to litigate. Mootness isn’t a perfect defense because some courts have held that a party that fixes one problem may still decline to fix others, but it is a very good one. In addition, mootness claims are usually appropriate for early summary judgment because whether a particular condition violates the ADA Standards is objectively determinable and does not require discovery by either party. There may be good strategic reasons to defer a mootness argument at the beginning of a case, but it is certainly a very attractive defense if standing fails, particularly in this kind of case where standing is narrow and fixing the alleged violation is therefore relatively inexpensive.

Because the cases will proceed to a certification hearing, there is a real risk the lawsuits will spiral out of control. Both contain allegations that the defendant had a program or policy that was discriminatory.  The plaintiff also already announced its intention to pursue a class that includes all of the defendants’ ATMs, including those the plaintiff will never visit. Class actions have been certified under similar circumstances even after the Duke v. Wal-Mart Stores, Inc.. See, Gray v. Golden Gate National Recreation Area, 279 F.R.D. 501 (N.D. Ca. 2012).  There are important differences between Gray and the ATM cases, including, in that case and others, the existence of extensive documentation of other violations. Nonetheless, Gray and similar cases provide a roadmap for plaintiffs who want to use a single violation as the thin end of a wedge that pries open a Pandora’s box of possible violations. They also show that some courts, at least, are willing to very narrowly interpret Duke v. Wal-Mart Stores, Inc. in order to continue certifying classes whose members have little or nothing in common with the class representatives.

These are not final decisions, of course, but they do point out how dangerous an ADA claim can be. A thin pleading may just be the sharp end of a crowbar used to pry open a Pandora’s box of claims.