ADA defense

Quick Hits – ADA and FHA cases of note

By in Accessibility Litigation Trends, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet Web, ADA Mootness, FHA Emotional Support Animals, FHA Policies Tags: , , , , , ,

scupture of Janus, the Roman godJanus, the two headed god that looked to the future and past and gave us the name for January, wouldn’t find much new in the world of disability law if he were contemplating 2023. Cases from the last few weeks look pretty much like cases from the end of 2021 and the end of 2020. Serial ADA litigation is going strong because outcomes depend on the judge assigned rather than the law or the facts. Sober living homes continue to create hostility and litigation as politicians try to balance doing the right thing against the demand of their constituents that they do the wrong thing. And, of course, the cost of victory is often much higher than the value of what the plaintiff or defendant wins. Here’s a roundup of the latest cases.

FHA cases are fact driven

Amber Reineck H. v. City of Howell, 2022 WL 17650471 (E.D. Mich. Dec. 13, 2022) is a meticulously written decision to which I cannot do justice in a quick hits review. There is one global takeaway from various grants and denials of summary judgment: claims for discrimination under the FHA, especially accommodation discrimination, depend very much on the particular facts of the case. A third of the lengthy opinion is devoted to the facts, and the claims on which summary judgment was granted were claims on almost purely legal issues like immunity.
The case does perpetuate an important error in the comparison of single family residences to group homes of any kind. Following the Supreme Court’s lead in Village of Belle Terre the Court assumes that single family zoning promotes various important neighborhood values while avoiding problems associated with groups of unrelated individuals living together. Based on this assumption the Court finds that a single family unit is not properly comparable to the unit make up of unrelated disabled residents of a group home. Instead, the comparator is unrelated non-disabled residents of a boarding house or similar business. In 1974, when Village of Belle Terre was decided, it might have still been arguable that single-family neighborhoods were stable places were neighbors were friends, streets were quiet and two cars was the norm. The fragmentation of family structures, changes in culture that lead to extended families occupying a single residence and increased turnover in traditional neighborhoods have made the stereotype of a single family neighborhood obsolete. It is also far from clear that the values associated with single family neighborhoods are the result of family structure as opposed to low population density. In short, whether single family zoning promotes the various values extolled by Village of Belle Terre is a question of fact, not a matter of law, and cities that zone based on family relationships rather than density should be required to prove that who is related to whom in a home has a rational relationship to any legitimate social value.

Know your judge when it comes to tester standing

For those keeping score motions to dismiss almost identical complaints filed in the Northern and Western Districts of Texas have reached very different results. In Segovia v. Shahrukh & Shahzeb Inc.,  2022 WL 17566267 (N.D. Tex. Dec. 9, 2022) Judge Jane Boyle joined Judge Sam Lindsay in finding that the standard form complaint used by a group of lawyers and their clients was inadequate. Judge Boyle granted leave to amend, so the case isn’t over, but in past cases Segovia and his lawyers have not been able to substantively improve their complaint. As I noted in my last blog, the opposite result was reached in Castillo v. Sanchez et al, 2022 WL 1749131 (W.D. Texas, Dec. 6, 2022) based on an almost identical pleading. District Court decisions are not binding on anyone, including the judge who wrote them, so any strategy concerning the defense of a serial ADA case has to start with knowing the judge.

Calcano bears fruit

If you haven’t been thinking every day about the decision in Calcano v. Swarovski North America Limited you’ll find a review at A short sharp shock – the end of the beginning for serial ADA lawsuits? Judge Andrew Carter found the plaintiff’s allegations in Matzura v. Macy’s Inc., 2022 WL 17718335 (S.D.N.Y. Dec. 15, 2022) and Murphy v. Regal Cinemas, Inc., 2022 WL 17821218 (S.D.N.Y. Dec. 20, 2022) were just as deficient as those in the consolidated Calcano cases and dismissed for lack of standing. Judge Laura Swain did the same in a different Calcano lawsuit, Calcano v. Jonathan Adler Enterprises, LLC, 2022 WL 17978906, at *2 (S.D.N.Y. Dec. 28, 2022). ADA claims based on inaccessible gift cards are meritless for other reasons¹ but standing holdings have a broader impact because they can influence all serial ADA claims, making these dismissals significant for other victims of serial litigation, at least in the 2nd Circuit.

The race to the courthouse – the Anti-Injunction act doesn’t help the loser.

James v. Tanigpahoa Parish., 2022 WL 17830464 (E.D. La. Dec. 21, 2022) is a reasonably common kind of case. After some back and forth with a sober living home operator the local government filed suit in state court to enjoin the operation  because it did not have required permits. State courts typically favor local government and oppose sober living for political reasons and in this case the court entered the requested injunction. The plaintiffs, who were residents of the sober living home, filed suit in federal court asking that the federal judge enjoin the parish from enforcing its injunction. Enter the Anti-Injunction Act, 22 U.S.C. §2283, which bars federal courts from interfering in state court proceeds except in a few limited situations. None of the exceptions were found to apply, which is the usual outcome in FHA cases of this kind. For FHA plaintiffs dealing with municipalities, HOAs and others the message is clear. File first in federal court or, in all likelihood, lose in state court. For defendants the message is file first and ask questions later.

Pushmi pullyu – when is an accommodation unreasonable?

pushmi-pullyu animal from Dr. Doolittle movieSpeaking of two faced, or two-headed animals, in The Story of Doctor Doolittle the pushmi-pullyu is an animal (a llama it appears) with two heads and no rear that can only go in the direction one head faces if the other head backs up. Because the accommodation provisions of the FHA require preferential treatment to create equality of opportunity pushmi pullyu situations are not unusual. One tenant’s emotional support animal may be an annoyance to the neighbor with allergies, for example. Accessible parking creates exactly this kind of problem, as shown in Hume v. Guardian Mgt. LLC, 2022 WL 17834397 (D. Or. Dec. 21, 2022). An accessible parking space necessarily takes almost two ordinary parking spaces because of the required access aisle. If an apartment building does not have sufficient covered parking for all tenants, and has already allocated accessible spaces to other tenants, creating a new accessible space will come at the expense of the two tenants who already occupy the required spaces or at the expense of another disabled tenant whose accessible parking space is taken away from them. In this case the Court found the requested accommodation was not reasonable because taking away an existing tenant’s parking space was an undue burden on the landlord. If that seems like an easy conclusion remember that many accommodations have some negative impact on other tenants and while the FHA requires that housing providers make accommodations, it doesn’t require other tenants to do so. For more about this you can read my blog The horns of a dilemma – landlords, tenants and emotional support animals under the FHA.

The plaintiff who won everything and got nothing

When a defendant defaults the Court can enter judgment for exactly what the plaintiff includes in the prayer for relief in their complaint, but nothing more. In Hull v. Little, 2022 WL 17818065 (9th Cir. Dec. 20, 2022) the Court did just that. The plaintiff asked for an order requiring the defendant to remediate parking and other architectural barriers but did not ask that the court impose any deadline on the work. The district court gave the plaintiff what he asked for in terms of remediation but included no deadline. The plaintiff asked the Ninth Circuit to fix his mistake, which it declined to do, leaving the plaintiff with an  meaningless order.²

The defendant who won and had to pay for it

In Simpson v. CHS, Inc., 2022 WL 17986795, (D. Mont. Dec. 29, 2022) the winning defendant in a Title III case was unable to persuade the judge that the plaintiff should pay costs, which are ordinarily granted to the winning party. The opinion explains why, but I looked a little deeper to understand how a case in which the defendant admitted liability and won based on mootness could include depositions and a transcribed video conference. It turns out the victory was in part based on a technicality. The problems identified in the Complaint were fixed and even though others may have existed the plaintiff was limited to those in the Complaint. There was also disagreement about what was fixed and it took a deposition to get the plaintiff to agree that things were fixed. In other words, it was a hard fought case and although it failed it was not without merit when filed. Under the Supreme Court’s decision in Buckhannon Bd. and Care Home, Inc. v. W. Virginia Dept. of Health and Human Resources, 532 U.S. 598, 600 (2001) even if the plaintiff’s lawsuit results in the desired change the court cannot award attorneys’ fees if there is no final judgment in the plaintiff’s favor. The only “reward” the court can give the plaintiff for filing suit is declining to make them pay the defendant’s costs. This gives plaintiffs’ attorneys an incentive to continue litigating even after the defendant has remediated everything in the original complaint. That doesn’t mean that such litigation should be common. Looking from the outside in it seems that a defendant willing to fix everything and a plaintiff who wants it fixed should be able to make a deal early in the lawsuit before either side has spent a lot on lawyers. Maybe that wasn’t possible in this case, but it is worth considering for any defendant who gets to the end of the road with a bunch of fees paid their own attorney and not even the consolation of being reimbursed for costs. In this as in many other cases it looks like the primary beneficiary of the lawsuit was the lawyers; this case was unusual only in that it was only the defendant’s lawyers who benefitted.

A note for website owners: mootness starts before you get sued.

Mootness is the best and strongest defense to a Title III ADA claim because, as described in the entry above,  if the facility is made accessible the case must be dismissed and the plaintiff gets no attorneys’ fees. The problem is proving the claim is really moot. Where the change is physical courts generally have no problem finding that the situation isn’t likely to recur, but when the change is to an ever-changing website the burden of showing the fix will last becomes much higher. In Langer v. Home Depot Product Authority, LLC., 2022 WL 17738728 (N.D. Cal. Dec. 16, 2022) Home Depot was able to meet that burden because it had a policy of close captioning all of its videos before it was sued and it quickly fixed the one video that slipped through after it was sued. If the policy had been adopted after the lawsuit was filed or there had been more than one uncaptioned video the result would likely have been different. Now is the time to adopt and implement an accessibility policy for your website – after you are sued it may be too late.

We apply the law, but we don’t have to obey it.

I noted Kulick v. Leisure Village Association, Inc., 2022 WL 17848939, at *4 (Bankr. App. 9th Cir. Dec. 16, 2022) mostly for the following striking statement:

The Americans with Disabilities Act does not apply to the federal courts. See Roman v. Jefferson at Hollywood LP, 495 F. App’x 804, 806 (9th Cir. 2012) (“While the [ADA] requires state courts to make disability accommodations, the ADA does not apply to federal courts.”)
Federal court houses are covered by the Architectural Barriers Act, but the federal courts themselves need not comply with any federal accessibility law.

The cost of default

In Trujillo v. 4B Mkt. Inc., 2022 WL 17667894, (E.D. Cal. Dec. 14, 2022), report and recommendation adopted, 2022 WL 18027841 (E.D. Cal. Dec. 30, 2022) it was about $3700 in fees and costs plus $4000 in damages and an injuction to fix what had to be fixed regardless. It’s hard to imagine a cheaper settlement given the Unruh Act’s statutory damage provision.

No supplemental jurisdiction here

Gilbert v. Bonfare Markets, Inc., 2022 WL 17968629 (E.D. Cal. Dec. 27, 2022) is another example of a judge who is fairly hostile to serial litigants and will not, in all likelihood, exercise supplemental jurisdiction over Unruh Act claims.  Great if you are a defendant in this particular court, but remember that other judges take the opposite approach. Know your judge.

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¹ See my blogs Blogathon – ADA and FHA cases with a little help from my friends. and Quick Hits – Vernal Equinox edition for a very brief history of gift card accessibility litigation.

² I found the appeal puzzling because many ADA plaintiffs show little concern for anything that happens after they get an award of fees. In this case no fees were awarded; in fact, none were requested even though the plaintiff was represented by counsel. Why no request for fees? I couldn’t find a clue in the District Court’s file.


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ADA tester standing – what three cases in four days tell us.

By in ADA, ADA - drive-by litigation, ADA - Standing Tags: , , , , ,

In the space of three days in early December four different courts took very different approaches to standing allegations by serial ADA litigants. A comparison shows there is no certainty in how the law will be applied in ADA cases at the District Court level because neither the Constitution nor the pronouncements of the Supreme Court appear to matter when it comes to standing decisions. More


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Quick Hits, Happy Holidays edition – ADA website litigation.

By in Accessibility Litigation Trends, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Website Accessibility, Uncategorized Tags: , , , , , , ,

I’ve been busy in the last few months putting what I learn from reading new decisions about the ADA and FHA to use for my clients; hence this delayed blog. A number of interesting decisions concerning ADA website litigation came out while I was busy on my day job, and I hope you don’t mind the delay in getting them to you.

Let’s just review the website as public accommodation issue.

It has now been more than 20 years since the Department of Justice first announced that in its view every business website was a public accommodation, even if the business was entirely on line. After all that time DOJ has still not been able to adopt regulations supporting its opinion and the courts remain deeply divided. A thorough discussion of the issue has been very helpfully provided by Judge Garaufis from the Eastern District of New York. I recommend reading the entire discussion, which is too long to repeat here, but his most useful observation occurs at the beginning of the discussion:

The sheer number of judges who, when presented with this statute, have diverged in their interpretations, tells this court that the plain language of Title III of the ADA is ambiguous as to whether standalone websites are covered entities under the statute.

Martinez v. Gutsy LLC., 2022 WL 17303830, at *3 (E.D.N.Y. Nov. 29, 2022). Without putting too fine a point on it, the split between the Circuits and the split between individual judges in different Circuits is something only Congress can really fix. Whether the next session of Congress will see action on legislation intended to clarify these issues is, of course, anyone’s guess.¹

My 2022 update on website accessibility litigation, which will be available here in a few weeks, has a complete summary of the agreements and disagreements, but the simple takeaway is that if you are defending a website accessibility lawsuit outside the Ninth Circuit you need to review the assigned judge’s opinions to know which way they are likely to rule.  Know your judge before you make any strategic decisions on settlement or litigation.

And the Circuits remain split on tester standing in hotel website cases.

In Laufer v. Acheson Hotels, LLC, 50 F.4th 259, 271 (1st Cir. 2022) the First Circuit has given us the most thorough discussion of tester standing since the Supreme Court’s decision in Transunion.(4) The Court recognized what I pointed out in my blog about Transunion; that is, that Transunion at least implicitly limits or even overrules Havens Realty. Unfortunatley, the First Circuit declined to go beyond recognizing the possibility, instead claiming that it was bound by Havens Realty as it interpreted it. The  Court interpreted Havens Realty an holding that a denial of information to which one had a statutory right was sufficient to create Article III standing. Here is the  Court’s summary of its thinking:

Under Laufer’s theory, she had a right to the information that she alleges Acheson didn’t give her. And the statute makes that denial of information discrimination against disabled persons and gives Laufer the right to sue in response. That Laufer had no intent to use the information for anything but a lawsuit doesn’t change things — she was still injured in precisely the way the statute was designed to protect.

(emphasis added) The First Circuit’s mistake is in the highlighted words above. Havens Realty was not a case about a right to information; it was a case about discrimination in the form of giving false information to someone based on race. In Havens Realty a black tester was given false information about the availability of an apartment. That violated the very specific provision in 42 U.S.C. §3604(d), which makes it unlawful:

(d) To represent to any person because of race, color, religion, sex, handicap, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.

Being lied to because of race is different from simply not finding information on the internet that DOJ regulations require to be present. It is discrimination based on race, the kind of discrimination the Fair Housing Act was intended to make illegal. Not finding information on a website is not discriminatory because everyone, disabled or not, has a right to the same information. Ms. Laufer happens to be disabled, but there is nothing she claims that could not equally be claimed by a person who has no disability, and allowing non-disabled individuals to sue because they cannot find information about disability access to which they have no need is absurd. The ADA is not a statute that requires information, it is a statute that forbids discrimination. The black tester in Havens Realty was discriminated against because of his race. Ms. Laufer was not discriminated against at all, for she was treated the same as every other website use. Because the ADA forbids discrimination rather than requiring information she was not “injured in precisely the way the statute was designed to protect.”

The case will be taken to the Supreme Court, which can resolve what is now a split between the First and Eleventh Circuits on the pro-tester side and the Fifth and Tenth Circuits on the strict interpretation of standing side. It will almost certainly agree that testers like Laufer do not have standing while preserving its holding in Havens Realty that suffering from discrimination is in fact a concrete injury sufficient to satisfy Article III.

Franchise operations and the “nexus” requirement

Courts holding that Title III of the ADA does not apply to internet only businesses nonetheless recognize that Title III may apply to a website that has a “nexus” to a physical place of business. The nature of the required nexus isn’t perfectly clear, especially in the Eleventh Circuit, where the recent dismissal of the Winn-Dixie case as moot took away the most complete explanation of the doctrine. In Ariza v. Coffee Beanery, Ltd., 2022 WL 17333106 (S.D. Fla. Nov. 29, 2022) Judge Dimitrouleas considered the issue in the context of a franchisor operating a website that served a variety of functions for the chain of physical stores operated by its franchisees. The Court first noted that unlike other franchise cases this one did not consider whether the franchisor might be liable for ADA violations of its franchisees. Control of physical places of business was not the issue, “nexus” was. The Court then considered both why Winn-Dixie, considered as persuasive if not authoritative, and the Eleventh Circuit’s decision in Haynes v. Dunkin’ Donuts LLC, 741 F. App’x 752 (11th Cir. 2018) indicated the website might create “intangible barriers” to accessing the physical stores.

Because the case was decided on a Motion to Dismiss and the discussion does not go item by item through the plaintiff’s allegations it isn’t clear whether this decision will stand up to an exploration of the facts. The allegations discussed in the opinion all concern on-line shopping, and while the website offers the same goods as on-line stores it isn’t clear that overlapping inventory is the kind of nexus that creates an intangible barrier to access to a physical store. There did not seem to be any claim that features allowing a customer to find a local store or with information about local stores was missing.  If the case does not settle it may provide some additional insight into when a franchisor website has the necessary nexus to franchisee physical stores.

Nexus is a real requirement

Langer v. Am. Automobile Assn., Inc., 2022 WL 16838795 (S.D. Cal. Nov. 9, 2022) stands for the simple proposition that where a “nexus” is required between a website and a physical place of business as it is in the Ninth Circuit that “nexus” is more than mere common ownership. The Court dismissed the case because the plaintiff did not allege that the deficiencies in the website somehow affected his access to physical AAA locations. The case is also interesting because it was brought entirely under California state law. California courts have confirmed that California’s accessibility laws incorporate the same limitation as Title III of the ADA as interpreted by the Ninth Circuit; that is, there must be a nexus to a physical place of business.²

There are more ordinary standing issues that arise in ADA litigation as well.

Credible standing is a problem in litigation over accessible websites. Most commercial websites are in the online commerce business, and so anyone anywhere might plausibly be interested in their goods and services even if that person claims to be interested in an implausible variety of goods sold by other websites. If the allegations of standing survive a motion to dismiss most defendants will be compelled by economics to settle because the cost of litigating website accessibility is high. One solution is to stay all discovery except standing discovery as Judge Caproni did in Tavarez v. Moo Organic Chocolates, LLC,  2022 WL 17094631, (S.D.N.Y. Nov. 21, 2022). She wrote:

Granting Plaintiff leave to amend would not necessarily be futile because the facts contained in the PSAC, if accurate, establish standing. That said, the Court finds Plaintiff’s allegations, while not quite the “mad-lib” allegations that were present in Calcano, not to be particularly plausible. Accordingly, the Court will grant Plaintiff’s motion to amend the Complaint but will also stay all discovery other than jurisdictional discovery directed to whether Plaintiff has Article III standing.

It is easy to read the skepticisim in this opinion, and requesting a stay often, in my experience, fails to resonate with judges who have no objection to serial litigation or have not experienced the volume needed to generate skepticism about the motives of the plaintiffs and their lawyers. Still, this case can be a model for how to attack standing before litigation expenses are completely out of hand.³

Litigating the hell out of a website accessibility case.

Valerie Brooks is a serial filer of website accessibility lawsuits. Boiling Crab Franchise Co. LLC is a defendant that apparently decided enough is enough and is putting Ms. Brooks to the test rather than paying what was probably a relatively modest amount to settle. Their disputes concerning discovery are discussed in Brooks v. Boiling Crab Fran. Co., LLC, 2022 WL 16856257 (E.D. Cal. Nov. 10, 2022). Defendants with the will and financial resources to fight will find in the decision a useful outline of the discovery that might help defend this kind of suit:

  • A demand to examine the computer and software allegedly used to access the website in order to test the claim that the software could not read the website
  • A demand to depose the plaintiff’s expert to determine what is supposedly wrong with the website
  • Early retention of defense experts both to consult and ultimately testify for the defense.

It is notable that the Court was not willing to force Ms. Brooks to respond to interrogatories detailing the specific problems she supposedly encountered on the ground that she lacked the necessary technical expertise. She will presumably be deposed on these issues and may ultimately be found not to be credible, but the underlying problem is signficant. A plaintiff who is not a serial filer isn’t likely to take notes about each accessibility problem they encounter and be able to explain it months or years later. On the other hand, it appears some serial filers visit websites only briefly and then let their lawyers commission a report on supposed WCAG 2.x deficiencies that then form the basis for the complaint. Until credibility is a real issue; that is, until trial, the legitimacy of the complaint is unlikely to be resolved. That means that winning will always be far more expensive than settlement.

A sensible analysis of a nonsensical lawsuit.

Andres Gomez is a serial ADA litigant who files suits claiming that websites are not accessible to him because he uses a screen reader. In Gomez v. Trinitas Cellars, LLC,  2022 WL 2194658, at *1 (N.D. Cal. June 17, 2022) the Court granted a summary judgment in favor of the Defendant that should provide a guide for any defendant willing to spend the time and money required to win this kind of lawsuit.

The court began with a very sensible question – when does the inability for a screen reader to identify an image really matter? The defendant’s website had a logo that was not identified in a useful way for a screen reader. The court found that this was not a violation of the ADA because Gomez could not explain why not having a useful description denied him the equal use and enjoyment of the website or deterred him from visiting again. The same analysis applied to social media logos because not knowing where those links lead had nothing to do with Gomez’ ability to access the winery and its goods and services.

Gomez’ complaints about low contrast text in the website presented a similar problem. Screen reader software does not care about contrast – it only looks at the code for the text, not its color. As a user of screen reader software Mr. Gomez was unaffected by low contrast text.

There were more substantive issues concerning menus that Gomez claimed could not be read by a screen reader. Here the defendant adopted the kind of approach necessary to defeat technical claims. The defendant’s expert not only opined that the supposed defects did not exist, they also produced a video showing how screen reading software could in fact identify and make the menus usable.

I’m confident the defendant could have settled this lawsuit for far less than it cost to win it, but the only way the end abusive serial litigation is for defendants like this one to invest in victory. Those who are tired of paying off plaintiffs and lawyers who abuse the ADA will find in this decision an excellent guide to how these cases can be won.

Personal jurisdiction over website operators.

Crouch v. Ruby Corp., 2022 WL 16747282, at *7 (S.D. Cal. Nov. 7, 2022) is not a Title III case, but has an excellent discussion of personal jurisdiction over website operators whose websites are “present” everywhere in the world but may not do business everywhere in the  world. Defendants wanting to raise a personal jurisdiction defense will find it useful, but most commercial websites do enough business in all 50 states to satisfy the famous International Shoe requirements. In this case the defendants won what looks like a temporary victory since it appears the plaintiff will be allowed to conduct jurisdictional discovery and is likely to find out that the website, which matches individuals with a mutual interest in sex, has plenty of customers in California.

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¹ For more information about the pending legislation that will certainly be re-introduced in the next session of Congress as it has been for the last three see https://www.duckworth.senate.gov/news/press-releases/duckworth-sarbanes-introduce-bicameral-legislation-to-help-make-websites-and-software-applications-accessible-for-americans-with-disabilities

² See, Martinez v Cot’n Wash, Inc., 297 Cal. Rptr. 3d 712, 715 (Cal. App. 2d Dist. 2022), review denied (Nov. 9, 2022)

³ For an example of an even more skeptical judge see Velazquez v. Everlast Worldwide, Inc.,  2022 WL 16745767 (S.D.N.Y. Nov. 7, 2022) in which the Court raised the standing issue sua sponte before the defendant had even answered. Finding the allegations deficient the Court ordered the plaintiff to file an amended complaint curing the defects to avoid dismissal.

(4) Those interested in an analysis of the relevant cases can review my blogs:


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Quick Hits – fall color edition.

By in Accessibility Litigation Trends, ADA, ADA - serial litigation, FHA Reasonable Accommodation, Internet Accessibility Tags: , , , ,

red mushroom on background of rocks

Fall mushrooms are beautiful, but also potentially poisonous, which is a real stretch for an analogy to the disability protection provisions of the ADA and FHA. Here’s a roundup of the latest decisions.

Website accessibility – let’s review

Roman v. Greenwich Village Dental Arts P.C., 2022 WL 4226026 (S.D.N.Y. Sept. 13, 2022) isn’t an extraordinary case, but it is a reminder that the law of website accessibility remains fractured. In this case the plaintiff’s only claim was that as a blind person he could not use the website of defendant dental office. He does not appear to have alleged he wanted to actually have work done on his teeth, just that he wanted to use the website. The Court recognized that some 2nd Circuit courts require that a website have a nexus with a physical business to be covered by Title III of the ADA, but held that because this website was associated with a physical business there was no doubt about coverage.  With that we can consider the various views:
  • Websites are covered by Title III of the ADA only as a service or means of communication for a physical place of business. That nexus requirement implies that to suffer an ADA injury from an inaccessible website the plaintiff must be seeking the goods and services offered by the physical business.
  • Websites are covered by Title III of the ADA when associated with a physical place of business, but a plaintiff can suffer an ADA injury from being denied access to the website regardless of whether they seek the goods and services of the physical business.
  • Websites are public accommodations covered by Title III of the ADA regardless of whether they are associated with a physical place of business, so a denial of access necessarily causes the plaintiff to suffer an ADA injury.

The first and third choices have their own logic, but the middle one makes no sense at all. An ADA injury arises when the plaintiff is denied access to the goods and services of a public accommodation. If the plaintiff has no interest in those goods and services then a denial of access causes no injury.² Decisions like  Roman v Greenwich Village Dental do nothing to help those with disabilities who might need access to the goods and services of a business but do help lawyers get rich and create the legal atmosphere in which some plaintiffs’ lawyers don’t bother with having a real plaintiff (see Antonini v. Nieves below). After all, if you don’t need a real injury to maintain a suit under Title III of the ADA why bother having a real person as plaintiff?

Speaking of fees . . . 

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FHA and ADA Quick Hits – afternoon showers edition

By in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Internet Web, ADA Litigation Procedure, FHA, FHA design/build litigation, Internet Accessibility Tags: , , , , ,

August is (in Texas at least) the month of afternoon thunderstorms. It’s a good metaphor for running a business subject to the ADA or FHA. Everything’s sunny and warm one minute then suddenly the wind is blowing and you are soaking wet. But the plants need the rain, so as usual there’s good and bad in ADA and FHA developments.

Unruh Act and the Internet – half a loaf is better than none.

You can read a detailed analysis of Matinez v. Cot’n Wash in Bill Goren’s blog “Gateway is Everything in California” so I’ll just hit the highlights. There is an ongoing controversy about whether the Americans with Disabilities Act applies to the websites of businesses with no physical facility open to the public. Some courts say yes and some say no. The Ninth Circuit, which covers federal courts in California, says “no.” As result the most prolific serial ADA filers, including the Pacific Trial Group and Apex Trial Law¹ turned in recent years to California’s Unruh Act and the California state courts, arguing that the Unruh Act does cover online only businesses. At least some lower California courts have agreed, but in Martinez v. Cot’n Wash one California Appeals court (there are six in all) said no, holding that the Unruh Act does not apply to the websites of online only businesses. This is big news coming from a state where thousands of serial ADA lawsuits and even more demand letters are sent every year. It isn’t the end of the road. While the decision is binding on lower courts, it isn’t binding on other California appellate courts or on the California Supreme Court, to which Marinez v. Cot’n Wash is likely headed. It also doesn’t apply to websites associated with physical facilities open to the public so it is not likely to lead to an immediate end of demand letters and lawsuits. California’s ADA litigation industry relies more on the threat of costly litigation than on the reality of winning and losing so until making a threat is sanctionable (which will require that the California Supreme Court speak) they probably won’t slow down. It likely though that the price of settlement will go down as it already has in face of other less dramatic losses in the last couple of years.

And for a different view of website accessibility.

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