Cooking hotdogs with 100 billsIn some ways the 9th Circuit’s recent decision in Kalani v. Starbucks Coffee Co., 2017 WL 2813864, at *1 (9th Cir. June 28, 2017) is one of the saddest in the long history of ADA litigation. Robert Kalani was a mild kind of serial plaintiff who filed 15 cases in the Northern District of California over a period of several years. The most seriously litigated was his lawsuit against Starbucks, which claimed in part that point of sale displays encroached on the clear counter space required by the ADA. Now it is almost over,  revealing both the minimal impact that individual lawsuits have on accessibility and the incredible waste of money involved in defending such cases.

We’ve written a couple of times about Starbucks’ determined defense of its point of sale displays.* It has a short but uniform record of losing these cases in the trial court, but with the newest decision can claim a kind of meaningless victory. During the course of the lawsuit brought by Robert Kalani he passed away, leaving only his estate to prosecute the claims. The District Court, after finding that the point of sale displays violated the ADA, entered an injunction requiring Starbucks to comply with the ADA’s requirements for clear space at service counters. Starbucks appealed, and the Ninth Circuit reversed the District Court’s grant of an injunction. It found that since Mr. Kalani was dead, injunctive relief would do him no good, and therefore his claims under the ADA were moot. His estate was still entitled to damages and attorneys’ fees, so the case was remanded for the District Court to determine what those would be. Starbucks, however, is free (at least with respect to this case) to do whatever it wants with its point of sale displays.

Why is this sad? The case, though it was fiercely litigated, involved a single point of sale display at a single Starbucks store. Kalani’s original victory provided only a little bit of accessibility, and the ultimate loss on injunctive relief does not protect Starbucks from claims related to any other stores. Tens of thousands of dollars were spent on legal fees over an issue that is, in the grand scheme of things, trivial. If we look at the other recently decided Starbucks case, Crandall v. Starbucks Corp., 2017 WL 1246749 (N.D. Cal. Apr. 5, 2017) we see the same thing. Mr. Crandall has sued Starbucks three times in the Northern District of California, the most recent lawsuit having been filed on June 27, 2017. The earliest case, No. 3:15-cv-01828-JSC is the subject of the April 5, 2017 decision. The court has ordered a settlement conference to take place July 27, 2017. The next case, No. 5:14-cv-5316 settled on terms that are not public. The most recent is barely underway, but settlement seems the likely outcome. At the end of the day, four lawsuits against Starbucks will result in a great deal of money paid to lawyers and some kind of minor changes to point of sale displays and seating arrangements at three Starbucks stores. Given that Starbucks has more than 13,000 stores in the United States this isn’t exactly a victory for the disabled.

There are procedures, including class actions, that allow private litigants to obtain more widespread relief, but these are not generally used by serial litigants because after a certain point settlement becomes subject to court approval, and the business model for serial litigants requires that they settle early with a minimal investment of time.

It is also sad, and puzzling, that Starbucks was willing to invest so much time and money in trying to defeat the claims filed by Kalani and Crandall. I don’t know how unreasonable the plaintiffs were about settlement, but the principle Starbucks was defending amounted to its right to block its service counters until it was caught. No business wants limits placed on its marketing strategies, but unless Starbucks is selling a lot of gum and truffle almonds it hardly seems likely that the POS displays generated more revenue than it spent on lawyers. Starbucks is a frequent victim of serial litigants (I found 10 lawsuits in the Northern District of California and a half dozen in the Central District), so its strategy may reflect a desire to discourage lawsuits by making them difficult. It might be asked if a better strategy would be to invest in compliance.

Regardless of these considerations, it is impossible to escape the conclusion that the private litigation model for ADA enforcement has been a complete and utter failure, with tens of millions (maybe more) spent on lawyers and only trivial benefits for the disabled. Efforts to simply kill enforcement may appeal to business, but what we really need is a rational program to improve compliance in meaningful ways that doesn’t make lawyers rich while doing nothing for the disabled.

*See, “Get it right the first time” and “POS Marketing