Touchscreen point-of-sale devices are ubiquitous, and the next wave of ADA lawsuits will undoubtedly be against businesses that use them. This is easy to predict because on April 10 the DOJ filed a “Statement of Interest” supporting the claims of the plaintiff in New v. Lucky Brand Dungarees Stores, Inc. (Case No. 14-CV-20574 in the Southern District of Florida). New has filed several lawsuits making essentially the same claim; that is, that a touch screen point of sale device violates the ADA because a blind user cannot input his or her PIN when using a debit card. Unlike a traditional keypad, the touchscreen has no tactile clues as to where to push for the PIN numbers, forcing a blind person to rely on the sales clerk or a third party to input the PIN. This, of course, compromises the security of the debit card. More
Have you ever wondered just why certain kinds of ADA lawsuits recur so often, while others are rare? Or how a business owner can be proactive in avoiding ADA and FHA Litigation? On Thursday, March 13, at 1:00 Eastern Time I’ll be presenting a webinar for the TASA Group on “Understanding, Avoiding and Defending Accessibility Lawsuits.” You can register at http://www.tasanet.com/forAttorneys.aspx.
Like most lawsuits of all kinds, ADA cases almost always settle, usually sooner rather than later. Except where damages are an issue, as in California, the settlement has only three components: what ADA violations will be fixed, when will they be fixed, and how much money will the plaintiff and plaintiff’s attorneys get. The presence or absence of a violation of the ADA Standards is usually not subject to dispute, and the readily achievable standard is heavily weighted against the defendant, so the when and where of remediation are generally not hard to resolve. The hard bargaining comes when the plaintiff makes his demand for fees. ADA plaintiffs and their lawyers have been thoroughly demonized in some parts of the press and blogosphere, but even if you think the plaintiff is the devil, it is useful to know how to calculate his price.
Defendants have an important advantage in settlement negotiations thanks to the Supreme Court’s holding in Buckhannon Board & Care Home v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) that a plaintiff cannot recover attorneys fees unless there is a “court ordered change in the legal relationship between the plaintiff and defendant” that favors the plaintiff. If the defendant moots the case by remediating before the case comes to judgment the plaintiff will not recover fees. See, Rush v. General Growth Properties, Inc., 2012 WL 1115518 (C.D. Cal. 2012). This is a key point that defense counsel sometimes overlook. The defendant can always win by remediating, just as the defendant will always lose if it refuses to remediate indisputable violations of the ADA. Because of this, plaintiff’s counsel can only make money in most ADA cases if he settles early, before remediation is complete.
Plaintiffs like to settle early, but they won’t usually settle for free. How much does settlement cost over and above remediation? Smart defendants will agree to pay attorneys fees to the plaintiff as long as the settlement cost is less than the cost of winning. Experienced ADA defense counsel can file a Motion to Dismiss or Motion for Summary Judgment based on mootness for a reasonably low price because he or she will not have to charge for the basic research; however, a “reasonably low price” in federal court is certainly thousands of dollars. Plaintiffs know this, and their demands are usually set at a level low enough to tempt the defendant to give up winning and settle instead.
The settlement dynamic can be more complex if there are real issues about what remediation is required or the defendant simply cannot get the work done fast enough to avoid the expense of litigating the case to some extent. In the end, however, remediation is an unavoidable cost and the issue is how much the defendant pays its counsel to win versus how much it pays the plaintiff’s counsel to settle.
Defendants find this equation aggravating, just as they find lawsuits about what they think are unimportant discrepancies to be aggravating. That aggravation can be turned to profit by defense counsel, but the wise defendant will do the math and take the reasonable settlement that is almost always available when the remediation work is done or is being done. It may feel like paying the devil, but sometimes its cheaper than paying the angels.
It is universally agreed that the ADA does not create a private cause of action for damages, but that doesn’t mean an ADA violation won’t result in a judgment for damages. I was reminded of this by the November 4, 2013 decision in Christian v. United States, 2013 WL 5913845 (N.D.W. Va. 2013). In Christian the plaintiff was injured when she stepped into a storm drain which, she claimed, constituted a violation of the ADA accessibility requirements. She argued that this violation was prima facie evidence of negligence under West Virginia law. The District Court disagreed. It found that using ADA violations as prima facie evidence of negligence would in effect create a implied cause of action for damages that contradicted the ADA’s own provisions. More
Are you saying these guys couldn’t deal with a 1:15 slope? Just what is an “architectural barrier” under the ADA
By richardhunt in ADA FHA General, ADA FHA Litigation General, DOJ, Hospitality, Hotels, Retail, Shopping Centers Tags: ada litigation, ADA pleading, ADA standing, ada violation, FHA ADA litigation "statute of limitations" strategy DOJ "attorney general" enforcement, private lawsuits, private litigants
Just a few weeks ago I wrote about what seems to be a pervasive though obvious problem with the analysis of standing for ADA accessibility plaintiffs. (“Oops! – Can a plaintiff suffer an ADA injury if he gets exactly what he wants?” Oct. 4, 2013). The 11th Circuit apparently overlooked my critique when it decided Houston v. Marod Supermarkets, Inc., 2013 WL 5859575 (11th Cir. 2013) on November 1. Nonetheless, the case is worth examining as an example of the kind of slippery reasoning that usually covers up a logical fallacy.
The majority’s analysis of the “injury” suffered by an ADA plaintiff perfectly illustrates the way important problems are simply ignored. First, the Court writes: “The invasion of Houston’s statutory right in §12182(a) [to the full and equal enjoyment of the . . . facilities] occurs when he encounters architectural barriers that discriminate against him on the basis of his disability.” Packed into this statement are two enormous assumptions, neither of which was supported by the pleadings or by the logic of the statute. First, the opinion assumes that every architectural feature that does not comply with ADA Standards is an architectural barrier. More