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.
Owners liability for leased premises – you can’t rely on your tenant.
ADA meets FHA – where does the dwelling end and the public accommodation begin?
Most of the decision in Macias v. KDF Foxdale, L.P., 2020 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 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.
ADA website litigation – have we broken the curve?
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.” 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 cases¹ 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.
ADA gift card litigation.
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 filedº but I’m going to refer to other blogs for an analysis of the most recent developments. See, Braille Gift Cards and Title III by William Goren.
Covid-19, there, I’ve said it.
I’ve tried to avoid blogging about Covid-19 because there are so many other good blogs on the subject² 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:
- Every rule and policy, including those for the protection of public health and safety, is subject to the reasonable modification/accommodation rules in the ADA and FHA. No matter how stupid the request, a request made by a person with a disability must at least be considered rather than rejected out of hand.
- The modification/accommodation requirement never requires permitting a direct threat to persons and property, but if that is a consideration you must look at alternatives that limit the threat while providing access. In other words, you have to think about it.
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.
The New Kids on the Block again.
Just a note for those following the claims once made by Legal Justice Advocates.‡ 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.
Jumping the gun on an ADA defense.
Defendants sued by serial litigants, especially those whose claims are dubious, often cannot wait to attack. That’s what happened in Acosta v. Perez, 2020 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.
Tester standing – a hard look in the 2nd Circuit
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 Laufer v. Laxmi & Sons, LLC, 2020 WL 2200207 (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. The case is 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.
Consent Decrees – do they get you what you want?
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 Guglielmo v. Skinnycorp, LLC, 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 times³ 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 Guiglielmo v Skinnycorp 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† 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.
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.
The cost of default judgment
In Fernandez v. Golen, 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.
In Vickers v. Vallejo Furniture Galleries, Inc., 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?
First fix, then fight – or not.
The decision in Lane v. Landmark Theatre Corp., 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. In any event the decision is worth reading as a compendium of California state law claims and what is or isn’t wrong with them.
Hotel rooms – unique, members of a class, and comparable.
Where disability rights and ethics collide, or at least touch.
No excuse for abuse
Johnson v Starbucks – the never ending tale continues
In his most recent battle against Starbucks Scott Johnson lost, though the outcome of the war remains in doubt. In Johnson v. Starbucks Corp., 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.
Is this what big-time litigation looks like?
Almost an ADA case.
In Bahrakis v. Zimmerman, 2020 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.
The ADA claims did stick in Campos v. HMK Mortg., LLC, 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.
¹ Usablenet also gathers statistics, including state court filings in California. Their blog can be found at Usablenet Blog on ADA Website Filings
† 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 – is there a regulatory fix?