The financial markets are bouncing around like ping pong balls, but there is one financial indicator that is only going up. For website accessibility litigation we have a bull market and no sign of a recession. Based on federal filings alone the number of website accessibility cases almost tripled in 2018, increasing by 181%*. For ordinary serial ADA litigation based on parking and restrooms the market is flat and the cases confirm the general lack of consistent standards across circuits and between judges – know your court is the rule with respect to every strategic decision. The fake service animal businesses online continue to outrage businesses but without much resulting litigation. A few notable serial filing lawyers have gotten trouble, but the 181% increase in federally filed** web access cases has created both the most serious threat to businesses and the most interesting legal developments in Title III litigation. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA Attorney's Fees, ADA Internet, ADA Internet Web, ADA Policies Tags: ADA regulations, ADA website, Department of Justice ADA Regulations, DOJ letter to Congress, Ted Budd
On September 25 the Department of Justice responded to a congressional plea for regulatory guidance with a firm “no.” In its letter to Congressman Ted Budd DOJ made it clear that it had no intention of restarting the regulatory process it abandoned last year and that it did not believe regulations were necessary or desirable. It did say that in the absence of regulation the failure to meet an industry standard like WCAG 2.0 AA is not necessarily proof of an ADA violation. This allows businesses to prove (if they can) that despite not meeting that or some other standard their business websites are accessible.
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Mootness, Animals, FHA Emotional Support Animals Tags: ADA defense, ADA Internet, ADA website, FHA Defense, FHA Guidelines, Glueck v National Conference of Bar Examiners, Hillesheim v Holiday Stationstores, mootness, service animals, Wetzel v Glen St. Andrew
Landlord liability for tenant discrimination
Wetzel v. Glen St. Andrew Living Community, LLC, 2018 WL 4057365 (7th Cir. Aug. 27, 2018) is a critically important decision for landlords because it holds a landlord may be liable for its failure to restrain discriminatory conduct by tenants. The plaintiff is a lesbian who found herself the subject of a “torrent” of abuse from fellow tenants based on her sexual orientation that included both verbal and physical assaults. The rules of the apartment complex were similar to those of most apartments and permitted the landlord to take action against any tenant whose conduct was a threat to the health and safety of others or interfered with the peaceful use and enjoyment of the apartments. The plaintiff reported the abuse to management, who did nothing about it. In fact, they engaged in various kinds of conduct that essentially punished the plaintiff for complaining. When the plaintiff finally sued under the Fair Housing Act the landlord’s defense was that it could not be held liable for discrimination by other tenants. More
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA Internet, ADA Internet Web, Definition of disability, FHA definition of handicap, Internet Accessibility Tags: ADA Internet, ADA website, Groundhog Day, Major life activity, Punxsutawney Phil
It looks like six more weeks of winter based on the reaction of Punxsutawney Phil to the long shadow he casts over weather forecasting. The last week of ADA decisions seems to confirm that it will remain chilly for businesses as well.
If Punxsutawney Phil had seen Robles v. Yum! Brands, Inc., 2018 WL 566781 (C.D. Cal. Jan. 24, 2018) when he popped out of his hole on Groundhog Day he probably would have just given up and stayed inside for the rest of the year. Robles is another web accessibility case in which the district court simultaneously refuses to say just what an accessible website is and requires the defendant to build one. In other words, no summary judgment is possible and the defendant faces an expensive legal battle after which it may be ordered to do something impossible or, worse still, ordered to do something so ill-defined that it will lead to an endless argument about compliance. We discussed this in more detail in our earlier blog “What is an ADA accessible website? Well, it’s complicated.” More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - Hotels, ADA - serial litigation, ADA Attorney's Fees, ADA Internet, ADA Internet Web, Restaurants Tags: ADA hotels, ADA restaurants, ADA website, Serial filers
Brooke v. A-Ventures, LLC, 2:17-CV-2868-HRH, 2017 WL 5624941, at *1 (D. Ariz. Nov. 22, 2017) is a case with an unusual procedural posture and a holding that shows a frightening misunderstanding of issues concerning website development. According to this judge, making a website accessible is an admission of an ADA violation and a business website can never be fixed so well that a case against it is moot. More