The last six weeks have seen some important or at least interesting decisions under the Fair Housing Act and Title III of the ADA. If there is any common thread, it is that courts in general seem increasingly reluctant to give serial plaintiffs the benefit of the doubt on dubious pleadings while some judges continue to treat private enforcement as a legitimate means to advance the policy goals of these statutes. This is part 1 of a 2 part blog, so stay tuned . . . More
ADA defense
Laufer v Looper – the death of tester standing, and not just in ADA cases.
I’m the last of the ADA bloggers to discuss Laufer v Looper, 21-1031, 2022 WL 39072, at *6 (10th Cir. Jan. 5, 2022) but reading the analysis by Bill Goren (Is Tester Standing a Thing When it Comes to Title III of the ADA) and Seyfarth Shaw (A Status Update on Hotel Reservations Website Lawsuits) has given me some perspective on what the decision means for tester standing in ADA and FHA cases. I think the discussion of tester standing in Laufer v. Looper exposes the fatal flaw in all tester standing cases; that is, testers never suffer the kind of injury that is now required by the Supreme Court to meet the requirements of Article III. Like Yorick, a fellow of infinite jest who bore young Hamlet a thousand times, tester standing should be dead (5).
Looking backward and looking forward – ADA and FHA prognostications
Janus, the Roman god who gave his name to January, famously had two faces, one looking to the future and the other looking back. I’m a little late for the New Years predictions and 2021 wasn’t all that much fun, but as long as we are still in Janus’ month I thought I would briefly provide some observations about what the old man in the beard has seen and what his younger counterpart is likely to see.
There were important decisions about standing from the Fifth Circuit¹ and the Supreme Court² but neither seems to have slowed the pace of ADA filings. A brand new ruling from the 10th Circuit that agrees with the Fifth Circuit that testers do not have standing as such(7) probably won’t have any effect either. This is because ADA lawsuits are filed to be settled, and the cost of settlement is ordinarily lower than the cost of even the cheapest effective defense. I believe the settlement value of ADA website cases has declined because they have always cost more to settle than run-of-the mill drive-by cases, but they are likely to still have a good ROI for plaintiffs’ firms and as long as the business is profitable it will continue. More
Another opportunity to learn about ADA website lawsuits
I’ll be speaking at the Accesibility.com January event “Trends in Digital Accessibility Lawsuits” on January 25, 2022 beginning at 2:45 p.m. ET. The online event begins at 1:00 p.m. ET and will include Ken Nakata of Converge Accessibility and Reeve Segal of Denenberg Tuffley. I’ll outline the current state of website accessibility litigation and discuss the different players on the plaintiffs’ side, including their demands and strategies for early resolution. You can learn more at https://lnkd.in/eEBzk9fe.
Same old wine update – the demand letters keep on coming.
I continue to receive calls from businesses all over the country who have received demand letters from an Alabama lawyer², supposedly on behalf of an individual named Denaryle Williams.¹ As of December 15 it does not appear he has filed a single ADA lawsuit, nor does it appear that Mr. Williams has been a plaintiff in any ADA lawsuit. This is despite the fact that his threatened deadlines to file suit have passed for most of the demands I have seen. Every business has its own tolerance for risk so I’m not going to claim I know what you should do (although you can hire me – see email address at right). What I can say is that making your website accessible is a good idea because it is the right thing to do and helps your customers, not because of these letters, which seem intended only to put money in his pocket.
Many of the calls I receive are from businesses that tell me they have solved their accessibility problem with a plug-in or overlay. That makes it worth repeating that quick fix solutions like plugins, widgets and overlays will almost certainly not make your website accessible no matter what promises the various vendors make. Read the fine print and you’ll see that what the advertising promises the terms of service take away. If you want more details watch the video at:
¹ See my original blog at Same Old Wine
² I have removed the attorney’s name because, he says, he has gotten out of the ADA demand letter business, a move I certainly support.