Halloween is a month away, but the candy is on the shelves at our local grocery stores and the courts are already delivering tricks and treats for those of us concerned with accessibility lawsuits.
The complexities of accessibility in federal programs.
Ramos v. Raritan Valley Habitat for Humanity, 2019 WL 4316575 (D.N.J. Sept. 12, 2019) contains more law than can be easily summarized, covering:
- HUD and federal sovereign immunity under the ADA, FHA and Rehabilitation Act
- Standing for complaints of administrative action where federal sovereign immunity is waived.
- State sovereign immunity under the ADA and FHA
- The elements of a failure to accommodate claim
- And of intentional discrimination claims.
The most interesting thing to me about the case is the facts that gave rise to it, for the complaints that will ultimately go forward seem to reflect the state agency’s stubborn refusal to be helpful to a disabled couple. If the allegations are true the state would not provide forms and letters with a font big enough for the vision disabled plaintiffs to read them and refused to meet either at their residence or by video conference to accommodate their inability to travel. This, by the way, was after the parties had reached a conciliation agreement that supposedly resolved the matter. Agencies, landlords and others who want to stay out of court should think of the accommodation process as a shared effort to solve a problem, not an adversary proceeding to be won or lost.
Bone v. U. of N. Carolina Health Care System, 2019 WL 4393531 (M.D.N.C. Sept. 13, 2019), like Ramos, has a complicated set of facts and an equally complicated series of rulings on issues that include associational standing and liability for the acts of contractors. It also shares the appearance that nobody associated with the defendants was really paying attention, which is always a problem in a bureaucracy. It’s quite possible the low level employee charged with delivering braille invoices to the plaintiffs thought a few months was reasonable turn around time given the seemingly eternal delays associated with hospital billing and reimbursement, but from the plaintiff’s standpoint getting collection notices for invoices he couldn’t read was disturbing. One question, however, is never raised or answered. There are a large number of handheld text reading devices available for the blind, and it would seem such devices could be a reasonable substitute for braille. At what point does the refusal of a disabled person to take advantage of new technologies make his or her request for accommodation unreasonable?
Default as a strategy
Strojnik v. Victus Group, Inc., 2019 WL 4254666 (E.D. Cal. Sept. 9, 2019) is a typical strategic default case. The plaintiff recovered $4,000 in statutory damages, $447 in costs and no attorneys’ fees because he was pro se. There is an injunction as well, but it simply orders the defendant to comply with the law, so the defendant could not have done better had it defended the lawsuit.
Hopson v. Singh, 2019 WL 4298040 (E.D. Cal. Sept. 11, 2019) is another default case in which no defense resulted in a reasonable outcome for the defense. The plaintiff got $4,000 in statutory damages, an injunction requiring compliance with the law, and a bit more than $2,000 in attorneys’ fees.
Cohan v. MMP (Detroit Livonia) Propco, LLC, 2019 WL 4439521 (E.D. Mich. Sept. 16, 2019) proves that default may be an even better strategy outside of California. The defendant’s default cost less than $2,000 in fees and costs though at the price of an order requiring that the facility comply with the ADA’s design/build requirements. The alleged failures appear to be easily fixable at modest expense, so this defendant may have made a wise decision by giving up the ability to either fight or negotiate the extent of remediation.
ADA website litigation
Gustafson v. Bi-State Dev. Agency of Missouri-Illinois Metro. Dist., 2019 WL 4260308 (E.D. Mo. Sept. 9, 2019) is more than a website case, but the interesting part of this opinion is the discussion of a discovery dispute concerning the defendant’s website. The defendant asked for detail about the plaintiff’s problems using the website, including specific URL’s and inaccessible pdf documents. The plaintiff provided a general description and an expert report, which the Court found sufficient given the plaintiff’s inability to see and therefore easily identify the requested information. The Court did not address an important underlying issue; that is, whether the plaintiff has standing to sue for remediation of defects he did not encounter or would not likely encounter in the future. It is convenient to allow a plaintiff to seek relief for every accessibility problem in a website, but it flies in the face of the constitutional requirement that the plaintiff suffer both a past and likely future real rather than hypothetical injury. It would be helpful if early cases like this one carefully considered the difference between what a particular plaintiff is likely to encounter and what a paid expert can discover. If the plaintiff is incapable of explaining where in the website he or she encountered a problem is it reasonable to expect the defendant to be able to defend the case?
In Bryan v. Florencia Park LLC, 2019 WL 4394002 (M.D. Fla. Sept. 13, 2019) the plaintiff’s claims concerning the defendant’s website were dismissed under Rule 12(b)(6) because she was unwilling or unable to say just what was wrong with the website as it related to visiting the owner’s physical hotel. The case is a little different from Gustafson because the plaintiff provided no expert report, but it touches on the same problem. The 11th Circuit is a “nexus” Circuit that requires websites to be accessible only when the website has some relation to use and enjoyment of a physical public accommodation.* Here the plaintiff alleged in general terms that she could not use the website and even added some specific WCAG failures, but did not provide enough detail to get over the requirement that allegations be more than conclusory. Even worse, she joined the defendant in encouraging the court to examine the website, which confirmed to the court that many of her allegations were false. Website accessibility claims are perhaps unique in the ADA world because the truth of the claims can often be determined by the court without leaving chambers. Whether this kind of judicial analysis is proper is an open question.
Speaking of nexus, Poschmann v. Fountain Tn, LLC 2019 WL 4540438 (M.D. Fla. Sept. 19, 2019) is a reminder that while general claims about website accessibility are subject to all kinds of legal issues, including the requirement of nexus, claims about hotel websites can be based on a specific regulation at 28 C.F.R. § 36.302. For claims based on violations of this regulation the interesting theoretical issues related to nexus disappear and the plaintiff need only allege the website’s failure to meet the regulatory requirements and an intent to return to the website, regardless of Circuit or district.
Stick to your guns.
Standing for serial litigants
Bryan v. Florencia Park LLC, 2019 WL 4394002 (M.D. Fla. Sept. 13, 2019) contains an interesting and as far I know unique argument for ADA standing by a serial litigant. In Florida and other 11th Circuit courts a Motion to Dismiss based on a failure to credibly allege an intent to return can be based in part on geographic distance. A plaintiff who lives far away may find it hard to credibly allege an intent to return. Here the plaintiff lived more than 400 miles away, but alleged she intended to return to meet her lawyers and work on other cases in the same area. The court found this was enough to overcome the distance problem:
If Plaintiff is a serial litigant as Defendant argues then it seems certain she will be returning frequently to visit her Pinellas County based attorneys, and attend to her many lawsuits in the area.
Just as jackels may travel great distances if they find a particularly good hunting ground, so a plaintiff with no good reason to visit a distant city or county can bootstrap standing by filing a bunch of lawsuits and therefore having a reason to return. In this case the plaintiff’s victory lasted only a few paragraphs – as discussed above she lost on the 12(b)(6) component of the defendants’ motion to dismiss because her allegations were insufficiently specific.
Causation and intent in Title II discrimination cases.
Whoops, maybe that wasn’t a good idea.
Trevino v. Steinreal 1 Fam. LP, 2019 WL 4409975 (W.D. Tex. Sept. 16, 2019) includes a good deal of procedural confusion, but it appears the plaintiff in a personal injury case decided at some point to add a claim under the ADA, possibly in order to obtain attorneys’ fees that are not usually available under Texas law. The defendants promptly removed the case to federal court, which is a much more defendant friendly forum for personal injury cases in the Western District. The plaintiff somewhat less promptly amended to drop all the ADA and other federal law claims. The end result was a remand to state court, with the federal court declining to force the plaintiff to remain in the federal system without any federal claims. It only took six amendments to make the round trip to federal court, suggesting someone didn’t think through their strategy in advance.
Who chooses the accommodation?
E.F. by Fry v. Napoleon Community Schools, 2019 WL 4670738 (E.D. Mich. Sept. 25, 2019) provides a tidy follow up to my last blog “Is economic discrimination disability discrimination” The case I discussed, Shaw v. Habitat for Humanity, rejected the idea that the defendant granting an accommodation had the right to determine what the accommodation would be. Napoleon Community Schools applies the same rule in a Title II context, with the court finding:
A public school is bound by the provisions of the ADA and does not have carte blanche to accommodate in any way it chooses when a covered individual has requested another accommodation.
The Court also discusses the difference between Title II intentional discrimination claims and failure to accommodate claims, a difference that did not seem to be obvious to the defendants. It is a good outline of the law in this area.
Counter-clutter and the ADA
Courts addressing this issue routinely find that the lack of clear space or the placement of merchandise on transaction counters violates neither the 2010 Standards nor the ADA.
Brian Whitaker, Pl., v. ELC Beauty LLC, Def., 2019 WL 4690202, at *2 (C.D. Cal. Sept. 25, 2019). Case dismissed.
* There isn’t time enough to refer to all my past blogs on this issue, but some of the most recent discussions are at “ADA Website litigation may get Supreme Court review” and “Websites and Coke Machines“. Those really interested in the details concerning nexus should check out “ADA ‘Accessible’ Websites: What Attorneys Need to Know” available at Mylaw CLE or “Website Accessibility Lawsuits” from the University of Texas CLE website. The former was a two hour presentation by Bill Goren and myself, the latter a one hour look at litigation only by myself.