There is only one prediction that can be made with complete certainty about ADA and FHA litigation in 2019: Lawyers will continue to make money exploiting these laws for profit in the name of accessibility. The number of lawsuits continues to climb, and with Congress and regulators unwilling to do anything this exploitation will continue. However, before we face the new challenges of a new year it is time for a final look backward at the recent decisions concerning accessibility for the disabled.

Standing in website accessibility cases.

Price v. Orlando Health, Inc.,  2018 WL 6434519, at *4 (M.D. Fla. Dec. 7, 2018) shows just how important theories about why the ADA covers websites can be to standing in such cases. Courts in the 11th Circuit have adopted the theory that a website is covered by the ADA only if it has a nexus to a physical public accommodation. Because this relationship is required, the ADA injury giving rise to standing must be some inability to use the physical accommodation. The plaintiff in this case had no plausible intent to use the defendant’s facilities so he could not establish an ADA injury and did not have standing to sue.  This is one of many reasons there is a widening gap between the Circuits with respect to how website cases can be effectively defended.

Staying ADA website cases pending ongoing appeals.

In Fuller v. Steps Clothing, Inc., 2018 WL 6818733 (S.D. Fla. Dec. 28, 2018) the Defendant tried without success to stay the lawsuit based on the idea that the appeal of Winn Dixie Stores v. Gil‡ might resolve the plaintiff’s claimsUnfortunately the issues on appeal in Winn Dixie were not relevant to the defenses in Fuller. Nonetheless, the strategy of seeking a stay based on existing appeals is probably a good way to delay the expense of litigation and therefore improve the defendants’ settlement position where the case really would be determined by a pending appeal.

 FHA problems are usually just bad management.

Green v. Mercy Housing, Inc. et al, 2018 WL 6704185, at *4 (N.D. Cal. Dec. 20, 2018) could have been a defense victory except for what appears to have been a bad attitude from the property manager. The Court dismissed a host of claims against the defendants, but let stand claims under the Fair Housing Act based on a failure to accommodate the disabled tenant’s request for an accessible parking space close to his apartment. Because the case was decided on a motion to dismiss it isn’t clear whether the plaintiff’s claims are true – the Court is procedurally required to assume they are true in the early stages of the lawsuit. Nonetheless, speaking as one who has seen plenty of similar cases, they do have the ring of truth. A problem tenant meets a stubborn manager and pretty soon any notion of carefully thinking through all the legal ramifications of a management action is gone. I won’t claim that every FHA issue requires consulting a lawyer, but it is certainly true that when dealing with disabled tenants managers need to be very careful to think through the possible consequences of their actions.

Ride sharing – Lyft and Uber take different routes to nowhere.

Lowell v. Lyft, Inc., 2018 WL 6250661 (S.D.N.Y. Nov. 29, 2018) is typical of the cases in which the plaintiff beats a motion to dismiss by refusing to say just what it wants. The disabled plaintiff in Lowell couldn’t use Lyft’s ride sharing app because Lyft did not provide accessible vehicles where the plaintiff lived. The Court denied a motion to dismiss that argued Lyft could not be required to provide wheelchair accessible vehicles (WAV’s) as a matter of law. Instead of considering whether an injunction to require WAVs was available, the Court held it could certainly order Lyft to “develop and implement a remedial plan to ensure full and equal access to its services.” The problem, of course, is that this kind of order is merely an invitation to another lawsuit as the plaintiff and defendant disagree on just what “full and equal access” means. We have seen exactly the same thing in web access cases where the plaintiff refuses to say just what an accessible website is but the court is willing to proceed in the hope that it will eventually figure it out. In either case the defendant is denied the fundamental right to know what is at stake from the beginning of the lawsuit, a right embodied in Rule 54(c) and recognized in cases like Silge v. Merz, 510 F.3d 157 (2nd Cir. 2007). Unfortunately, only a few courts have been willing to require plaintiffs to explain their claims before they can exploit the cost and uncertainty of litigation to coerce a settlement.

In Access Living et al v. Uber Technologies et al, 2018 WL 6603633, at *6 (N.D. Ill. Dec. 17, 2018) Uber made a comprehensive set of arguments against claims that it violated the ADA by failing to provide accessible rides. The Court was willing to find that Uber was a public accommodation despite its lack of a physical presence, finding no such presence was required. It denied Uber’s claim that as a transportation provider it was subject only to the requirements in Section 12184 of the ADA rather than the more general anti-discrimination provisions in Section 12182. With respect to Section 12182 the Court followed an approach very much like that in the Lyft case above. Since at the motion to dismiss stage Uber couldn’t prove it had no control over its drivers and because it wasn’t clear whether Uber might be able to do something about its drivers, the Court allowed the lawsuit to continue. What the Court will ultimately order Uber to do when it becomes clear Uber cannot coerce its drivers into buying WAV’s is anybody’s guess, a situation that very clearly violates Uber’s due process right to know what risk it faces.

ADA Class Actions

In Dieter v. Aldi, Inc., 2018 WL 6191586 (W.D. Pa. Nov. 28, 2018) the Court rejected an effort to strike class action allegations, finding in essence that whether a class could be certified was better left to the class certification stage. The case is notable for the way it distinguishes the Third Circuit’s recent decision in Mielo v. Steak ‘n Shake Operations, Inc., 897 F.3d 467 (3d Cir. 2018). The plaintiff’s lawyers had clearly studied Steak ‘n Shake carefully and tailored their allegations to language in a footnote from Mielo suggesting the kind of class that might be possible. The case is worth careful study because it includes language suggesting that a slightly different strategy might have succeeded with respect to certain policy and procedure allegations, allegations that were required to make any kind of nationwide class plausible.

Not just abusive, but cheap as well.

Reyes v. A&J Gaslamp LLC, 2018 WL 6326374, (S.D. Cal. Dec. 4, 2018) is worth reading for the very mild consequences imposed on a plaintiff and his lawyer who abused the in forma pauperis procedure for avoiding filing fees. It seems clear the plaintiff and attorney made hundreds of thousands of dollars from serial filings but apparently asserted in every case there was no money to pay filing fees. The court found the in forma pauperis allegations to be not credible. What is really incredible is that lawyers and clients like this continue to exploit the ADA for profit.

Franchisor liability under the ADA.

Johnson v. Winchester Campbell Properties, LLC, 2018 WL 6619940, at *4 (N.D. Cal. Dec. 18, 2018) reaffirms the widely accepted rule that whether a franchisor is an “operator” with ADA liability depends on its level of control over those aspects of a facility relevant to claims of ADA non-compliance.† The Court denied a defense motion to dismiss resting on the premise that franchisors had no liability as a matter of law, finding that the facts would determine whether there was enough control for the franchisor to be an operator. The ruling is not surprising, but the opinion helpfully collects the relevant earlier cases.

Speaking of control . . .

In Langer v. Kamad LLC, 2018 WL 6651536 (S.D. Cal. Dec. 18, 2018) the Court denied a motion to dismiss that probably never should have been filed. The defendant property owner sought dismissal based on a lack of allegations that it controlled the parking lot used by its tenant. The Court correctly points out that the ADA imposes liability on owners as well as operators and that the owner’s obligations cannot be avoided by ceding control to a tenant. Although the landlord may have a right against the tenant based on a contractual transfer of control, that is between the landlord and tenant. With respect to a disabled plaintiff the property owner will almost always be liable for parking and similar ADA obligations.

Merely alleging a bad policy cannot avoid mootness.

Ordinarily policy claims are raised by plaintiffs to avoid mootness, for it is much more difficult to prove policy changes are permanent than to prove physical changes are permanent. Two recent cases illustrate the limits on this strategy. In Burningham v. Teton Toys Lehi, Inc., 2018 WL 6267310, (D. Utah Nov. 30, 2018) the defendant cured the problems specifically alleged in the complaint and obtained a dismissal for mootness. The Court dealt with policy claims in an very interesting manner. The defendants claimed to have instituted new policies to insure store aisles were the proper width. In response the plaintiff argued that a mere policy could be so easily changed that there was no reason to think the supposed misconduct would not occur in the future. The court disagreed, nothing that the plaintiff had alleged an intent to return. The court found that because the plaintiff had said he would return it was not likely  the defendant would risk future litigation by failing to comply with its policies. Touché, as they say. The intent to return allegation is necessary for plaintiff standing, but also undermines the theory under which policy claims cannot be mooted.**
The plaintiff in Boitnott v. TCF Banking & Sav., F.A., 018 WL 6727067 (D. Minn. Dec. 21, 2018) tried the same strategy after the defendant fixed all of the physical barriers to access at issue, arguing that his claim for an injunction based on a defective policy had not been mooted. The Court, citing earlier decisions, found that the absence of an ADA compliance policy “does not … seriously undermine a finding of mootness when considering the uncontroverted evidence that the conduct complained of has been remedied.” The Court’s willingness to consider the policy relief unnecessary was based in part on the prompt way in which the defendant remediated the alleged barriers to access. Defendants should take note that in both of these cases the decision to remediate instead of fight played an important rule in persuading the Court the lawsuit really was moot. As a defense mootness works best when the work begins immediately and is completed promptly. Hesitation in remediation is evidence that the solutions are only temporary because the defendant is not truly interested in ADA compliance.

Hotel Reservation systems.

Honeywell v. Harihar Inc, 2018 WL 6304839, (M.D. Fla. Dec. 3, 2018) is one of an increasing number of cases against hotels based on the lack of information on their reservations website about accessible rooms. The court denied an early motion to dismiss based on a supposed lack of standing, a result that was not surprising even in the 11th Circuit, whose courts apply a stricter pleading standard than those in other circuits. Typical ADA plaintiffs have standing problems because they cannot plausibly allege an intent to return to a facility that is distant from their home. That problem doesn’t exist in hotel cases because, of course, most people only use hotels that are distant from their homes and so a plausible intent to return is easier to plead. More important, where the claim arises from a lack of information on a website it is not the hotel itself, but the website, to which the plaintiff must claim an intent to return. That is even easier to allege. A final note: While we do not have website accessibility regulations there is a specific regulation requiring that information about accessible rooms be available in a hotel reservation system. Hotel owners and operators don’t really have any choice about providing the required information online.

Asymetric warfare and the ADA.

I’ve observed before that defending ADA lawsuits is often a lose-lose proposition because while a successful plaintiff always recovers attorneys’ fees a successful defendant almost never does. Kennedy v. Solano, 2018 WL 6202260,(M.D. Fla. Nov. 9, 2018), report and recommendation adopted, 2018 WL 6192188 (M.D. Fla. Nov. 27, 2018) illustrates the problem. The plaintiff’s case was dismissed for lack of standing and on appeal the dismissal was sustained. The defendant then moved for an award of attorneys’ fees based on this complete victory and the fact that the plaintiff had suffered similar dismissals in similar cases. Even that, however, was not enough for the court to find the plaintiff’s claims were “frivolous, unreasonable or groundless,” which is the standard for defense attorneys’ fees in ADA cases. There may be many good reasons to vigorously defend an ADA case, but hoping for attorneys’ fees is not one of them.

A city’s duty to upgrade.

Lewis v. Powers,  2018 WL 6268419 (D. Colo. Nov. 30, 2018) follows the weight of authority in concluding that entities covered by Title II of the ADA (state and local governments) are not required to make sidewalks accessible except in connection with renovation or new construction. This is in contrast to Title III entities (public accommodations) that are required to make existing facilities accessible if it is readily achievable to do so whether or not there is renovation.

Discovery disputes

Rutherford v. Evans Hotels, LLC, 2018 WL 6246516 (S.D. Cal. Nov. 29, 2018) is part of a small trend in which defendants choose to defend an ADA lawsuit rather than settle even though it is likely settlement would be far cheaper. The decision concerns details about discovery disputes that are not especially enlightening, but the trend toward putting plaintiffs to their proof is an encouraging one.

Who is responsible for an inaccessible program?

In Ashby v. Warrick County Sch. Corp., 908 F.3d 225, 231 (7th Cir. 2018) the Seventh Circuit affirmed a lower court ruling I blogged about earlier this year.* It found that when a private museum that was not accessible put on a Christmas program in which local schools were invited to participate it was the museum, not the schools, that was responsible for accessibility. Thus the schools had not violated the ADA by failing to make the progra accessible. It appears the schools were sued as a strategy that sought to avoid the limits on remediation possible in the historical building in which the museum was located.

Default as a strategy.

These cases are now so common the only real news is statistical. In Spikes v. Shoshani, 2018 WL 6305767,  (S.D. Cal. Nov. 30, 2018) the plaintiff got $4000 in statutory damages under California law, $5,482.50 in attorneys fees based on a $425 per hour billing rate, along with various costs and partial injunctive relief for ADA violations. It would be hard to do better with any kind of defense.

Just because you are disabled. . .

Wight v. D’Amante Pellerin Associates, 2018 WL 6188363 (D.N.H. Nov. 27, 2018) is one of those cases reminding us that being disabled is not sufficient to sustain a claim under the ADA unless the defendants’ misconduct is the cause of some loss. The plaintiff claimed to suffer from bi-polar disorder, which can be a disability. He sued a slew of state and private agencies that he claimed were responsible for various business failures. He did not, however, explain how their purported misconduct was tied to his supposed disability. The ADA is intended to prevent injuries caused by a disability, not every injury that happens to be suffered by a disabled person.

*See, “Quick Hits – Presidents’ Day Edition

** The Court may have been influenced by the serial nature of the lawsuit.

† Our blog “ADA and FHA Quick Hits – Dog Days of Summer Edition

‡ See our blog “Baby Steps, the first post-trial decision on the ADA and the internet.” for a discussion of the original trial court decision.