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Like most of you I’ve been working from home for the last couple of months, meaning primarily that my dogs are getting a lot of exercise. There has been no sign of any slowdown in the ADA and FHA litigation business, so there is plenty to cover in this Quick Hits edition.<\/p>\n
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Most of the decision in Macias v. KDF Foxdale, L.P.,<\/em>\u00a02020 WL 2097607 (N.D. Cal. May 1, 2020) deals with procedural issues concerning amendment that I would say reflect a somewhat over-vigorous defense of an impossible position. The discussion concludes, however, with a good reminder about the interaction of the FHA and the ADA. The ADA generally does not cover FHA dwellings, which includes the common areas of an apartment complex, but “certain portions of a residential building may be covered by the ADA<\/span> if ‘made available to the general public for rental or use.'” Because FHA liability for design\/build flaws rests only with the original owner, finding ADA access barrier removal liability (which applies to all owners) is often important to plaintiffs. In this case the plaintiff alleged that the leasing office, paths of travel around the facility and parking areas were all open to the public and therefore covered by the ADA. That was enough to state a claim and keep the ADA claims alive. For apartment owners this is a reminder that securing the areas that are in theory only for tenants and their guests (tenant parking and walkways between buildings) may be important not only for security but also for ADA liability. And, of course, any facility opened to the public is a public accommodation for as long as it is opened.<\/p>\n Seyfarth Shaw, which meticulously tracks federal ADA website filings, opened a recent blog with this headline: “The Curve Has Flattened for Federal Website Accessibility Lawsuits.<\/a>” The blog provides a good analysis of the likely causes of changes in the previous hockey stick curve that ADA website lawsuits seemed to be on. While the curve may have flattened, it is unlikely it has broken. The number of physical accessibility lawsuits climbed steadily for years before settling down to a more or less constant several thousand a year, and the same pattern seems likely in website litigation. After all, the total number of ADA website cases, even counting California state court cases\u00b9 is in the low tens of thousands, while the number of business websites in the U.S. is certainly in the millions. There are plenty of targets for these lawsuits, and they aren’t likely to go away.<\/p>\n It looks like the creative but ultimately meritless claim that the ADA required braille gift cards may be on its last gasp. A second judge has now rejected this claim, and the reasoning in the decisions is impeccable. I analyzed the issue when the suits were first filed\u00ba but I’m going to refer to other blogs for an analysis of the most recent developments. See, Braille Gift Cards and Title III<\/a>\u00a0by William Goren.<\/p>\n I’ve tried to avoid blogging about Covid-19 because there are so many other good blogs on the subject\u00b2 as well as a very large number of hastily written articles in the pay to play legal press that contain a mixture of good and not very good advice. For businesses of all kinds there are two keys to avoiding problems:<\/p>\n The name of the game in the ADA and FHA modification\/accommodation area is looking at accessibility as a problem to be solved, not a yes\/no proposition. That isn’t easy, but it is the only reasonably safe way to deal with accommodation\/modification requests.<\/p>\n New York governor Cuomo’s Covid-19 press briefings have been available to those who are deaf in several ways. The TV broadcast has closed captioning, but only in English, and there is a live feed with ASL interpretation on the internet. The plaintiffs in\u00a0Martinez v. Cuomo<\/em>, 2020 WL 2393285 (S.D.N.Y. May 12, 2020) claim that neither is adequate because their language skills in English are limited so they can’t read the captions, and they don’t have internet access, so they can’t see the ASL internet feed. ASL interpretation on TV is the obvious answer and the Court had no trouble ordering it on an emergency basis. The key point of law, set out in a footnote, is that doing something is not enough if doing more is not burdensome. Here is what the Court wrote:<\/p>\n His [Governor Cuomo’s] position in this litigation comes down to his view that the law does not require it; he has done other things to accommodate the deaf, and therefore, he will not provide in-frame ASL interpretation. That dismissive attitude towards this segment of his constituency \u2013 beyond being unkind \u2013 runs counter to the law of the land as articulated in the ADA and RA.<\/p>\n Just a note for those following the claims once made by Legal Justice Advocates.\u2021 After the original leaders of this group dropped out of sight late last year a new group of lawyers appeared using the same name. They have now been replaced by The Portello Law Group, which is sending almost identical demands and following up on demands sent last year by Legal Justice Advocates. Their claims suffer the same defects as the original LJA claims – no valid legal theory and a client that is almost certainly fictitious or controlled by the law firm. They haven’t had the nerve to test their case in court, and my guess is that they won’t.<\/p>\n Defendants sued by serial litigants, especially those whose claims are dubious, often cannot wait to attack. That’s what happened in\u00a0Acosta v. Perez,<\/em>\u00a02020 WL 2194001 (E.D. Cal. May 6, 2020) when a shop owner with what may be a good defense on summary judgment filed a Rule 12(b) motion to dismiss instead. The Court had not trouble finding that dismissal was not appropriate at the pleading stage merely because there was evidence the plaintiff’s claims were false. After all, the Court is required in a Rule 12(b) motion to assume the plaintiff’s allegations are true. Defendants determined to fight an ADA lawsuit should usually wait until summary judgment to deal with the merits of the case – a motion to dismiss is usually a waste of money and time.<\/p>\n So called “testers” for hotel website accessibility (that is, professional plaintiffs who work to find lawsuits so their law firm handlers can profit) always tread a fine line between the truth and allegations sufficient to withstand a motion to dismiss. In\u00a0Laufer v. Laxmi & Sons, LLC<\/em>, \u00a02020 WL 2200207 \u00a0(N.D.N.Y. May 6, 2020) the plaintiff couldn’t quite make an adequate case for standing by telling something like the truth and the court denied a motion for default judgment. In another\u00a0Laufer case the Court entered a blanket order for a number of cases questioning standing on the same grounds. \u00a0Laufer v. 1110 W. Albany, LLC<\/em>, 2020 WL 2309083 (N.D.N.Y. May 8, 2020).\u00a0These cases are a reminder that the 2nd Circuit has adopted an analysis of tester standing that requires more specific allegations than are required in the 9th and some other circuits.<\/p>\n The District Court’s decision\u00a0Logerfo v. City of New York<\/em>, \u00a02020 WL 2307649 (E.D.N.Y. May 8, 2020) covers a lot of ground, but a key point is that an ADA plaintiff must establish a past injury to have standing. The plaintiff had tried and failed to use 911 emergency services in two counties, but with respect to New York only alleged that she might need the service in the future. The Court found that without a past injury she had no standing to sue New York and dismissed her claims.<\/p>\n It seems the number of lawsuits settling with a consent decree rather than a private settlement is on the rise. As a typical recent example, see\u00a0Guglielmo v. Skinnycorp, LLC<\/em>, 2020 WL 2215804 (S.D.N.Y. May 7, 2020). For a defendant the hope is that a consent decree will effectively moot any later lawsuits by permitting an argument that once a court has ordered ADA compliance later suits are not required. This strategy has to be carefully implemented though, because otherwise it is likely to fail. I’ve written about this several times\u00b3 but the key points are worth repeating. A private settlement fails to moot future website claims because it doesn’t really insure accessibility and, more important, it provides no relief to a future plaintiff who has no right to enforce the settlement agreement. A consent decree can fix those problems, but it has to be carefully written. The decree in\u00a0Guiglielmo v Skinnycorp\u00a0<\/em>is an example of a consent decree that may fail. The decree does solve the most important problem with a private settlement; it explicitly provides that it can be enforced by 3rd parties. However, it contains the kinds of limits on enforcement that are typical in private settlements but may permit the argument that it doesn’t protect later plaintiffs. It expires in 36 months, meaning that in 37 months it provides no relief at all to a disabled plaintiff. It also includes no ongoing obligation to maintain website accessibility. It appears that once the website meets the standards in the Consent Decree the defendant’s obligations under the Decree terminate. That means it provides no remedy for a future plaintiff who finds the website has fallen out of compliance. Last, but scarcely least, it adopts a more or less objective standard for accessibility, WCAG 2.1 AA\u2020 that has not been universally agreed to be an adequate measure of the accessibility required by the ADA. Later plaintiffs can argue that even if all the terms of the Consent Decree are met the website remains in violation of the ADA.<\/p>\n There are no perfect solutions to these problems, but there are considerable improvements that can be made. Drafting the best consent decree requires thinking not just about the 3rd party enforcement problem, but about all the other reasons a future plaintiff might argue the Consent Decree does not provide a remedy for their alleged problem with accessibility.<\/p>\n In\u00a0Fernandez v. Golen<\/em>, 2020 WL 2113673, (C.D. Cal. May 4, 2020) the Court awarded a grand total of $2466.50 in fees and costs. It was a California case, but the plaintiff did not include any Unruh Act claims, probably to avoid its procedural requirements.<\/p>\n In Vickers v. Vallejo Furniture Galleries, Inc.,<\/em>\u00a0 2020 WL 2300718 (E.D. Cal. May 8, 2020) the cost was a little higher; $7,526.59, but that included $4,000 in Unruh Act damages. Does it seem like the system might be broken when it is cheaper to default than defend a lawsuit?<\/p>\n The decision in\u00a0Lane v. Landmark Theatre Corp.<\/em>, 2020 WL 1976420 (N.D. Cal. Apr. 24, 2020) is long and covers claims under the ADA and a large number of California and local statutes. Eliminating extraneous claims may have been the reason the defendant chose to litigate rather than simply fix the various problems. I can’t second guess the defense without knowing all the details, but in general defendants are better served by first fixing any real problems and then launching a vigorous defense of what remains. \u00a0In any event the decision is worth reading as a compendium of California state law claims and what is or isn’t wrong with them.<\/p>\n In Michalares-Owens v. Greenwood of SC, Inc.\u00a0<\/em>\u00a02020 WL 2494496 (M.D. Fla. May 14, 2020) on the other hand the defendant obtained a dismissal based on mootness by fixing everything alleged to be ADA non-compliant. Why did the plaintiff, who got all she wanted, object to the dismissal? It isn’t explicit, but the answer is certainly that when an ADA claim is moot the court does not have jurisdiction to award attorneys’ fees. ADA plaintiff firms are not working for charity.<\/p>\n In another recent Brooke case the District Court took the opportunity to review the pleading requirements for an ADA claim in the 9th Circuit. Brooke v. Hyatt Corporation,\u00a0<\/em>2020 WL 2474372 (N.D. Cal. May 13, 2020). The Court explained that, “an ADA<\/span> claim is still subject to dismissal where the plaintiff does not allege what \u201cbarriers\u201d exist at the defendant\u2019s place of business and ‘how [her] disability was affected by them.'” Brooke, who presumably never visited the hotel and had no knowledge of real barriers was given a chance to amend.<\/p>\n In his most recent battle against Starbucks Scott Johnson lost, though the outcome of the war remains in doubt. In\u00a0Johnson v. Starbucks Corp.<\/em>, 2020 WL 2039054 (E.D. Cal. Apr. 28, 2020) Johnson asked that the case be stayed pending the outcome of two appeals concerning the obligation to provide accessible transaction counters. As discussed in the opinion, this isn’t the first time Johnson has sought this relief, perhaps because he is now being required to litigate the host of lawsuits he filed in hope of a quick settlement. The Court didn’t buy it, and the case is moving forward.<\/p>\n In\u00a0Bahrakis v. Zimmerman<\/em>, \u00a02020 WL 2062326 (M.D. Fla. Apr. 29, 2020) a group of mobile home park residents and their HOA filed what the court calls a “shotgun” pleading trying to final a legal theory to meet their complaints. The claim under the ADA didn’t stick because the individual plaintiffs failed to allege they were disabled and the HOA failed to show it had associational standing. In cases like this it isn’t surprising to hear that because the complaint was copied from some other case there are references to the other case that were overlooked. It is a little more surprising that the defendants’ lawyers, who apparently also represent defendants in the other lawsuit made the same kinds of mistakes in their papers.<\/p>\n The ADA claims did stick in\u00a0Campos v. HMK Mortg., LLC<\/em>, 2020 WL 2042342 (N.D. Tex. Apr. 28, 2020) and serve as a reminder that while single family rental housing is ordinary excluded from the accessibility requirements of ADA and FHA, offices are not, and a house may become a public accommodation if it is open to the public.<\/p>\n I’ve pointed out before that the ADA may, or may not, be evidence of a failure to meet the standard of care for negligence claims.\u00ba\u00ba Strickler v. Walmart, Inc.<\/em>, 2020 WL 2308306 (M.D. Fla. May 8, 2020) may be saying something interesting about this since it mentions ADA standards in connection with a negligence claim. It isn’t clear just what this means because, as the court observes, the ADA standard in question is identical to \u00a0local building code requirements and an ASTM safety standard, both of which are already likely to establish a standard of care. Why the judge chose to use “ADA standard” for the entire group isn’t clear, but I would say the question of what role ADA standards play in Florida remains unresolved, at least by this case.<\/p>\n <\/p>\n <\/p>\n \u00b9 Usablenet also gathers statistics, including state court filings in California. Their blog can be found at\u00a0Usablenet Blog on ADA Website Filings<\/a><\/p>\n \u00b2 William Goren has covered these subjects at www.williamgoren.com\/blog<\/a> and Seyfarth Shaw has a series of blogs at www.adatitleiiidefense.com<\/a><\/p>\n \u00b3 See, e.g. Beware the ADA settlement that buys a big bag of nothing.<\/a>\u00a0and Haynes v Hooters \u2013 hard lessons about ADA website litigation<\/a><\/p>\n \u2020 I’ve noted before that WCAG 2.1 AA, while purporting to supply testable success criteria, often relies on subjective criteria like “purpose.” See, ADA website litigation \u2013 is there a regulatory fix?<\/a><\/p>\n \u2021 See, Legal Justice Advocates \u2013 a New Kids on the Block Update<\/a>\u00a0and Legal Justice Advocates\u201d the new kids on the block for website access demands.<\/a><\/p>\n \u00ba See, Blogathon \u2013 ADA and FHA cases with a little help from my friends.<\/a><\/p>\n \u00ba\u00ba See, Personal injury and the ADA \u2013 is every violation per se negligence<\/a>? and The ADA and safety \u2013 beyond accessibililty to damages<\/a>.\u00a0as well as many others that can be found by searching for “negligence.”<\/p>\nADA website litigation – have we broken the curve?<\/strong><\/h4>\n
ADA gift card litigation.<\/strong><\/h4>\n
Covid-19, there, I’ve said it.<\/strong><\/h4>\n
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Municipalities must provide access for every disabled citizen.<\/strong><\/h4>\n
The New Kids on the Block again<\/strong>.<\/h4>\n
Jumping the gun on an ADA defense.<\/strong><\/h4>\n
Tester standing – a hard look in the 2nd Circuit<\/strong><\/h4>\n
Past injury – the other side of ADA standing<\/strong><\/h4>\n
Consent Decrees – do they get you what you want?<\/strong><\/h4>\n
The cost of default judgment<\/strong><\/h4>\n
First fix, then fight – or not.<\/strong><\/h4>\n
Hotel rooms – unique, members of a class, and comparable.<\/strong><\/h4>\n
Brooke v. Grand Hyatt SF LLC,<\/em>\u00a02020 WL 2084879 (N.D. Cal. Apr. 30, 2020) is one of several recent cases noting that the ADA’s obligation to have accessible rooms in a hotel does not mean certain unique rooms, like a “Presidential Suite,” must be accessible. The plaintiff’s claims under the ADA were dismissed in part because she alleged only that specific rooms were not accessible, when, as the Court notes, the ADA requires only that accessible rooms be dispersed among the various classes of guests rooms. Brooke v. Grand Hyatt SF LLC<\/em>, 2020 WL 2084879 (N.D. Cal. Apr. 30, 2020). Another Brooke case (and there are many) escaped dismissal with an allegation that there were no accessible rooms “comparable” to the “Premium” and “Signature” suites. Whether either case will survive for long when the facts are in play is hard to know, but hotels with limited numbers of any type of room should consider just what it means to offer something “comparable.”<\/div>\nADA pleading requirements<\/strong><\/h4>\n
Where disability rights and ethics collide, or at least touch.’<\/strong><\/h4>\n
The plaintiff in Straw v. Wolters Kluwer U.S., Inc.<\/em>, 2020 WL 2115177, (S.D.N.Y. May 1, 2020) claimed to be disabled as a result of physical and mental impairments. It appears that among other things those impairments lead to conduct that got his license to practice law suspended in the State of Indiana. The defendant duly reported the case in a publication on legal ethics, which offended the plaintiff because he didn’t agree with the Indiana decision in the first place. Concluding that he had been retaliated against because of his ADA activism (which is what lead to his suspension in the first place) he sued. Unsurprisingly the case was dismissed (although the plaintiff has already filed an appeal.)There isn’t space in this blog to discuss all the ethical and ADA implications of mental illness as an excuse for unprofessional conduct, but ethics experts may find the decision and its predecessors interesting.<\/div>\nNo excuse for abuse<\/strong><\/h4>\n
Waters v. Amtrak\u00a0<\/em>2020 WL 1975119 (E.D. Pa. Apr. 24, 2020) is one of those rare cases alleging what I call “we don’t want your kind around here” discrimination. The plaintiff claimed that having reserved and paid for an accessible seat on an Amtrak train he and his companion were verbally abused by an Amtrak employee and ultimately ordered to move because of their disabilities. Amtrak raised a number of technical arguments, but the bottom line was that allegations of this kind of discrimination state a claim because the right to be free from discrimination is the right the ADA is intended to protect. I wonder if Amtrak would have even had to nerve to argue no claim was stated if the abuse had been directed at a person of color or member of another protected class.<\/div>\nJohnson v Starbucks – the never ending tale continues<\/strong><\/h4>\n
Is this what big-time litigation looks like?<\/strong><\/h4>\n
Licea v. Beshay Foods, Inc.<\/em>, 2020 WL 1975059 (S.D. Cal. Apr. 23, 2020) is a purported class action brought by Carlson Lynch, a well known filer of ADA serial lawsuits, and Beshay Foods, Inc., a major owner\/franchisee of Jack in the Box fast food restaurants. The subject of the lawsuit is accommodations for the blind, who cannot use Coca Cola’s “Freestyle” drink dispensers because they have touchscreen that requires vision. This decision, however, concerns a not-uncommon type of discovery dispute; that is, one involving boilerplate objections to discovery (the Court’s characterization, not mine), a failure of the lawyers to try to find common ground (also the Court’s observation), and a demand for discovery that was probably unnecessary. The defense no doubt believes there is good reason for its attack on all fronts approach, but it appears inevitable that the defendant will have to do what the plaintiffs seem to want, which is have policies and training to make sure blind customers can get the drink of their choice. This may be the wrong the plaintiff and the requested discovery may be burdensome, but the law isn’t going to change no matter what the defendant thinks of the lawyers and their character.<\/div>\nAlmost an ADA case.<\/strong><\/h4>\n
Shaky ground in the measurement of slopes for ADA violations.<\/strong><\/h4>\n
Krauss v. Scurfield Fam. LP<\/em>, 2020 WL 2404797 (E.D. Cal. May 12, 2020) raises, but does not answer, the question of how something as objective as the slope of parking space could be the subject of serious disagreement between experts. The plaintiff’s expert found a slope of 3.4%, while the defendant’s expert found no slope exceeding 2.1% with most of the parking space having slopes of less than 2%. This kind of discrepancy is possible because the ADA and its regulations do not prescribe how slopes are to be measured and perfect flatness is unlikely in any kind of commercial construction. With a short enough level, carefully placed, it is not difficult to find significant variations in the slope over the several hundred square feet of a typical parking place, and that of course is the game of the plaintiff’s expert. There is a solution to this problem because various official sources describe how slopes should be measured for accessibility purposes. It is only necessary for DOJ to adopt such standards by regulation.<\/div>\nFranchising, control and auxiliary aids.<\/strong><\/h4>\n
Sullivan v. Doctor’s Associates LLC<\/em>, 2020 WL 2319295 (S.D.N.Y. May 8, 2020) reviews the basics of franchisor liability for ADA violations by its franchisees. The rule is simple: liability depends on the extent of control with respect to some aspect of ADA compliance. The decision was only slightly complicated by the relief sought. The plaintiff, who is deaf, demanded that Subway restaurants be equipped with touch screen ordering devices so he would never have to interact with any human employee. He claimed that the franchisor controlled in-store technology and therefore controlled the ADA relief he wanted. The Court disagreed, finding that the ADA does not require adoption of any specific technology for effective communication. In this case the problem was that a particular employee was rude to the plaintiff, not that other means of communication were inadequate. For restaurant owners the message is clear – employees need to be polite and helpful to those with disabilities, even when, as may have been the case here, the disabled patron doesn’t exhibit the same courtesy.<\/div>\nThe ADA and negligence.<\/strong><\/h4>\n