bunnies2Along with the crocus and narcissus we’ve got a bunch of new ADA and FHA cases, each with some interest for those in business concerned with disability law.

Website Accessibility

In Gathers v. 1-800-Flowers.com, Inc., 17-CV-10273-IT, 2018 WL 839381, at *1 (D. Mass. Feb. 12, 2018) the defendant raised just about as many legal defenses as might be available in a motion to dismiss, but they all failed. Behind the failure is the difficulty present in all ADA cases; that is, the plaintiff’s allegations are really all that matters at the beginning of the case. In many cases the most cost-effective strategy is to remediate as needed to meet the plaintiff’s claims and then file a Motion for Summary Judgment. First Fix, Then Fight is our motto and the best game plan in most ADA cases.

Castillo v. Jo-Ann Stores, LLC, 5:17CV2110, 2018 WL 838771, at *2 (N.D. Ohio Feb. 13, 2018) presents similar website accessibility issues, with the defendant once again failing to obtain an early dismissal. This case illustrates the dilemma faced by businesses as a result of the Trump administration’s refusal to issue website accessibility regulations. The court held that the ADA was sufficiently specific to not violate the defendant’s due process rights although there is no regulation or statute that would define just what the defendant must do to have an accessible website. The situation is ideal for plaintiffs, because it leaves them able to claim that nothing is sufficient. The best solution for businesses is to adopt WCAG 2.0 Level AA as the de facto standard approved by the federal government in Section 508 regulations. It’s not perfect, but for now it is all we have.

Carroll v. ABNB Federal Credit Union, 2:17CV521, 2018 WL 1180317 (E.D. Va. Mar. 5, 2018) is one of several recent successes by defending credit unions who argue that the plaintiff does not have standing because he or she does not qualify to join the credit union in the first place and therefore cannot be injured by defects in its website access. While this might appear to be a defense limited to a few special cases, there is room to argue that the underlying principle has broader application. Typical website access plaintiffs, like typical serial plaintiffs of all kinds, visit a website only once and without any intent to purchase goods or services. There is no reason to treat such plaintiffs differently than their wheelchair using counterparts – unless they show an intent to buy goods or services, or to visit again in the future, they cannot show the injury required for Article III standing. Cheap standing is the bane of businesses and the root cause of the current ADA litigation crisis.*

Mootness done right.

Johnson v. 1082 El Camino Real, L.P.  5:17-CV-01391-EJD, 2018 WL 1091267 (N.D. Cal. Feb. 28, 2018)  is a useful reminder that mootness can be effective when it is done right. The defendant not only got an accessibility study showing where there were problems, it also fixed them all and produced an expert report before going to court with a motion for summary judgment. This is how mootness must be done – good intentions are never enough.

Mootness done wrong.

Reading the Court’s opinion in Trujillo v. Gonzalez, 17-CV-00137-BLF, 2018 WL 1035797 (N.D. Cal. Feb. 23, 2018) it is easy to feel the defendant’s frustration. According to his motion to dismiss, the ADA barriers at issue had been fixed as the result of a prior settlement agreement. Unfortunately, he appears to have appeared pro se and naturally failed to meet the technical requirements for a Rule 12 (b)(6) motion based on mootness. It seems an obvious lesson, but the defense of ADA lawsuits requires a lawyer, no matter how right the defendant may be.

Mootness in the middle.

In Wagner v. Nason, 617CV1863ORL31DCI, 2018 WL 1243039 (M.D. Fla. Mar. 9, 2018) the defendants did everything right but didn’t quite get out because the Court decided to give the plaintiff a chance to inspect the property to confirm the remediation. This presents a new risk because the plaintiff will be looking for new problems. There may be strategic reasons to delay a summary judgment on mootness until after the amendment deadline and to be prepared to explain why Rule 8 does not permit wide open pleadings of possible ADA violations.

Actual damages in Title III cases? No.

“A plaintiff asserting a private cause of action for violations of the ADA may recover compensatory damages only in cases of intentional discrimination.” This quote from Sonier v. Winn-Dixie Montgomery, LLC, CV 16-17289, 2018 WL 950353 (E.D. La. Feb. 20, 2018) is similar to many others I see in ADA decisions at the district court level. The error stems from a failure to distinguish between Title I and Title III claims. I have not seen any cases where the confusion mattered in the end, but it should remind counsel for defendants that except in the states where serial litigation is frequent many federal district judges will not have much experience with ADA Title III cases – they are far fewer in number than Title I cases. Don’t presume your judge knows all that you know.

ADA standing issues.
Twede v. University of Washington C16-1761JLR, 2018 WL 835705, at *8 (W.D. Wash. Feb. 13, 2018) is a very helpful case on ADA standing. The plaintiffs, as plaintiffs like to do, filed a lawsuit that sought to challenge ADA compliance on every parking lot at the University of Washington although they themselves never visited most of them and had no plans to visit most of them. The Court held that they had standing only with respect to parking lots they had visited and would return to visit in the future. This was only a partial victory, but it could have importance for lawsuits against businesses with multiple locations.
Maurer v. HMS Associates of New Jersey, CV 17-3560 (JBS/JS), 2018 WL 915123 (D.N.J. Feb. 15, 2018) should remind defense attorneys that money spent on a motion to dismiss is wasted when the plaintiff has pleaded intent to return. There are several different standards applied in different circuits for pleading standing, but a plaintiff who pleads multiple visits to the defendant’s property and an intent to return will almost certainly defeat a motion to dismiss in any circuit.
Indep. Project Inc. v. Dierbergs Four Seasons, Inc., 4:17CV02767 ERW, 2018 WL 1069951 (E.D. Mo. Feb. 27, 2018) contains the same message. The individual plaintiff, a serial filer and self proclaimed “tester” lived a thousand miles away from the defendant’s business, enough for the the defendant to believe he was unlikely to return and therefore not entitled to injunctive relief. Unfortunately, the plaintiff’s pleadings had every necessary allegation, including specifics of both when and why he intended to return. A plaintiff who is willing to say what must be said will always be able to defeat a motion to dismiss based on the pleadings, because in ruling on such motions the court must accept the pleadings as true.
On the other hand, Feltzin v. Stone Equities, LLC, CV166457SJFAKT, 2018 WL 1115135 (E.D.N.Y. Feb. 8, 2018), report and recommendation adopted sub nom. Feltzin v. Stone Equities, LLC, 16CV6457SJFAKT, 2018 WL 1114682 (E.D.N.Y. Feb. 26, 2018) demonstrates that a plaintiff filing a generic pleading as part of a typical drive-by campaign may find the court so skeptical that the complaint is dismissed. For defendants and their attorneys the Court’s analysis of the complaint will be especially interesting because the complaint is similar to those filed by most serial plaintiffs – long on conclusions and short on facts. Despite the long list of supposed ADA violations, the Court found that there was not any sufficiently specific allegation of injury. I particularly appreciated this line from the Defendant’s motion to dismiss: “plaintiff plays coy word games which dance around the central requirement – that he personally suffered a ‘concrete’ and ‘actual,’ ‘particularized’ ‘injury in fact.’”  This is, of course, a description of most pleadings by those in the serial litigation business as they try to be specific enough to get past a motion to dismiss while remaining sufficiently vague to avoid sanctions based on false statements in the pleading.
In a second case filed by Feltzin, Feltzin v. Clocktower Plaza Properties, Ltd., 216CV4329DRHAYS, 2018 WL 1221153 (E.D.N.Y. Mar. 8, 2018), a different judge reaches the same result but for a different reason. In this case the Court finds that some of the allegations of injury are sufficient, but finds that the allegation of intent to return is not based on the distance from the plaintiff’s residence to the shopping center in question (more than a thousand miles) and the lack of specificity about when he might return. The Court asks this question that every court should ask:
the Court questions whether this lawsuit is part of a plan by Plaintiff to visit a host of shopping centers for the purpose of discovering ADA violations, commencing suits when deemed appropriate, and then settling most absent any intent to revisit the sites of non-settling defendants. While such a plan would be beneficial in the sense it would advance ADA compliance, it is fundamentally at odds with the declaratory and injunctive relief sought by Plaintiff.
The standing requirement in Article III of the Constitution really is more fundamental to the administration of justice than the supposed policy benefits of serial litigation, especially when obtaining those supposed benefits is based on a lie about the plaintiff’s intent.
In Longhini v. J.U.T.A., Inc. et al,  6:17-CV-987ORL40KRS, 2018 WL 1305909 (M.D. Fla. Mar. 13, 2018) the defendant prevailed on a motion to dismiss in the 11th Circuit, which has adopted a 4 point test for plausibility of intent to return. In this case the plaintiff lived more than 200 miles from the defendant shopping center, had visited only once, and had no more specific plan to return than sometime in the next four months. In the Ninth Circuit the defendant probably would have lost – whether a motion to dismiss succeeds depends very much on the Court.
Organizational standing under the FHA
Miami Valley Fair Hous. Ctr. Inc. v. Metro Dev. LLC, 2:16-CV-607, 2018 WL 1229841 (S.D. Ohio Mar. 7, 2018) is an FHA case in which the defendants sought to defeat organizational standing. It helpfully outlines a couple of basic rules that apply in the Sixth Circuit:
  • Just because an organization receives grants to investigate FHA violations does not mean it lacks standing based on diversion of resources and
  • Investigation costs incurred before but independent of a lawsuit can support diversion of resources standing.

Basic organizational standing requirements have been set by the Supreme Court, but in individual cases looking at local circuit authority is critical. The case is also notable for the violations that triggered it, which we have found to be at issue in every case we defend; that is:

  • Refrigerators that narrow the required clearance in a galley kitchen. Standard refrigerators protrude several inches beyond a standard depth countertop, so a galley kitchen specified with the minimum allowable clearance between counters will never have the required clearance at the refrigerator. There are good legal arguments for why this doesn’t matter, but it would be simpler if architects would figure this out.
  • Lack of accessible parking with appropriate paths to covered apartments.
  • Bathrooms without sufficient clear floor space.

These are almost always design defects and stem from the architect’s failure to pay attention to the details of building code and FHA requirements. Unfortunately it is owners, rather than their architects, who bear the brunt of FHA accessibility litigation.

Outrage is not a defense to disabilities claims.
Bowman v. Bella Estancias LLC et al, 3:17-CV-0091-KC, 2018 WL 1115202 (W.D. Tex. Feb. 15, 2018) should remind lawyers and defendants that outrage at serial litigants is not a good FHA defense. Dana Bowman has filed dozens of FHA and ADA lawsuits in Texas and other states.  Apartment owners and developers often have a low opinion of such serial plaintiffs, and in this case that low opinion spilled over into a motion to dismiss that claimed Bowman was not disabled, despite the fact he lost the bottom half of both legs while serving in the U.S. Army. The defendants also tried to create leverage by filing declaratory judgment counterclaims intended to permit them to recover attorneys fees; something that is almost impossible under the FHA itself. The Court made short work of the defense and counterclaims, noting correctly that to claim a man who lost the bottom halves of his legs is not disabled is both “offensive and patently absurd.” Effective defense of disability discrimination claims requires a rigorous separation of emotion and rational analysis because no matter how offensive the litigation tactics of a disabled plaintiff may be, it is likely the disability is real and at least some of the alleged violations exist. These leaves room for real defenses, but not for defenses based on nothing but outrage.
Outrage when it is deserved.
Mize v. Kai, Inc., 17-CV-00915-NYW, 2018 WL 1035084 (D. Colo. Feb. 23, 2018) is another decision involving the now notorious funder of ADA litigation, Litigation Management. In an admirably restrained opinion the Court declined to immediately sanction the plaintiff or her counsel, but required her to appear for deposition and produce documents concerning her arrangements with Litigation Management despite an obviously meritless claim of privilege. Members of the disabilities rights community who continue to assert that serial litigation is an appropriate means to create accessibility might consider how the public is likely to view a community some of whose members are willing to sell their disability and their integrity as a means to make their lawyers wealthy.
Just because we like it.
Trujillo v. Orozco, 5:17-CV-00566-EJD, 2018 WL 1142311 (N.D. Cal. Mar. 2, 2018) is an ordinary serial litigant case in which the defendants agreed immediately to remediate and have the Court determine a reasonable fee for the plaintiff’s attorneys. Analyzing the request for fees the Court reduced it by about half. There was the usual inflation of hours and duplicate billing, but in addition the plaintiffs spent a large amount of time on the request for fees itself. This, the Court found, was unnecessary given the simplicity of the case. It observed that:
simply because Plaintiff took it upon himself to purchase a BMW does not mean that Defendants must pay for it; the law only contemplates a Ford.
Defense counsel will want to save this quote for their next opposition to a fee request.
** Our recent blog on the importance of policies and procedures is worth a second read after considering the Mellenthin case. ADA Compliance Policies and Procedures – you need them, and now.