hot dogs cooking over burning 100 dollar bilsOnce again – as in past Memorial Day editions – I’m firing up the grill with hundred dollar bills in honor of the money wasted on lawyers, who are the only ones who really benefit from most ADA and FHA litigation. There are, however, some cases dealing addressing important substantive issues, and few in which Courts seem ready to turn the ADA and FHA into laws to help people instead of laws to make lawyers rich.

Homeowners Associations and the FHA

As a purely legal matter, HOA Boards and their managers should take note of McGrath v. Dunecrest Condominium Ass’n, 2021 WL 1930052 (N.D. Ind. May 13, 2021). One of the most common misunderstandings about the FHA is that it does not control matters of internal governance for an HOA or association managers. This is simply wrong. As the Court wrote,

However, the Association’s position does not acknowledge the breadth of the FHA’s reach. Matters of condominium association governance are no less subject to the FHA’s nondiscrimination demands than other forms of housing provision.

HOA rules and regulations may have an impact on what is reasonable for an accommodation or modification, but they can never simply preempt the  FHA.³

This confusion, and a clearly changed approach to enforcement, is why I am seeing an increased number of HUD actions against HOA’s arising out of refusals to accommodate those with disabilities (Five so far in May). A typical press release was the one issued on May 7, 2021 announcing an enforcement action against an HOA that refused to permit an elderly resident to expand her front sidewalk to make it safer. The key sentence from the press release is this: “HUD’s charge alleges that Apollo Gardens HOA required association members who sought a modification or accommodation due to a disability to follow the same process as members who sought to remodel a residence for aesthetic reasons.” That’s right – an HOA cannot simply require compliance with its usual variance procedure as a condition to granting an accommodation or modification under the FHA. It must accept any reasonable form of request and it must recognize that the criteria for granting or refusing an accommodation or modification are completely independent of whatever its rules and regulations provide. HOA’s and managers who are too in love with their forms and procedures are likely to end up facing just this kind of enforcement action.

Apartment managers and the FHA

The same principle that applies to owners associations applies to apartment managers. In Beverly v. Gateshudson, 2021 WL 1842706, (E.D. Va. May 6, 2021) the lease manager declined to assign a parking spot closer to her apartment for a woman with respiratory illness. The lease manager’s response to the request was that the apartment complex would “not get into the business of reassigning spaces for anyone.” The Court denied a motion to dismiss and the prospects for the defense do not look good.

Website accessibility experts

The discussion of website accessibility expertise in Meyer v. Sullivan, 2021 WL 1923791, at *5 (S.D. Ind. May 13, 2021) is not lengthy, but it is informative concerning how courts are likely to approache expert testimony in website accessibility cases. The plaintiff’s expert reviewed the defendant’s main website but refused to test the “Browse Aloud” feature that provided a text only view for screen reader users. Her reason was that such alternates were inherently unable to provide full accessibility. The defendant argued that the expert’s conclusions were not reliable since she did not fully test the website. The Court pushed the issue off to trial, stating:

The Court does not have extensive and specialized knowledge regarding the website accessibility issues that will be key to resolving this lawsuit. It finds that Ms. Youngblood Savage’s expert testimony – including her explanation for why she found that BrowseAloud did not enhance the accessibility of Defendants’ websites – will be helpful at trial. Again, Defendants will have ample opportunity to cross-examine Ms. Youngblood Savage regarding BrowseAloud and all of her opinions.

Lawyers and experts who live in the world of website accessibility issues should take note that a trial court judge is unlikely to take a position one way or the other on theoretical issues about alternative websites, alternative views or built in accessibility tools because with no regulatory definition of “accessible” only a trial will give them enough information to decide whether a particular website is accessible. Except in rare cases the choice is settlement or trial – there is no likely middle solution.

Proof of mootness for accessibility claims

Proving that a website accessibility claim is moot requires more than just conclusions, as demonstrated by Poschmann v. Resort at Canopy Oaks, LLC, 2021 WL 1854656, at *1 (M.D. Fla. May 10, 2021). Denying a Motion to Dismiss, the Court wrote:

Instead of providing screenshots of the website or specific language or information that complied with regulations, Defendant provided an affidavit attesting only that “the Website was updated to address all violations alleged by Plaintiff” and “now provides detailed information concerning the accessible features of the resort’s accessible cottage, and allows for the booking of the accessible cottage.”

Defendants interested in establishing mootness for a website accessibility claim should study the decision in Diaz v. Kroger² and the two pronged approach to proving accessibility used by the defendant in that case.

Hotel websites – could we do this for websites as well?

DOJ has still never issued regulations defining what “accessible” means for a website or mobile application although it consistently says title III of the ADA covers websites and mobile apps. It has, however, issued technical guidance for what is sufficient with respect to the obligation that hotel reservation websites describe the accessibility of their rooms. Love v. CCMH Fisherman’s Wharf LLC, 2021 WL 1734924 (N.D. Cal. May 3, 2021) is one of many recent cases(4) dismissing a claim under the reservations rule because the hotel website met the standards in the DOJ’s technical guidance. Although the guidance is not binding on the courts in the way a regulation would be the court declined to engage in a “free-ranging, case-specific inquiry into what information a guest might reasonably need to make a reservation” because it  “would invite the sort of inconsistency and uncertainty that the DOJ presumably sought to dispel by providing some degree of additional guidance as an appendix to the regulation.” In Garcia v. RPC Old Town Ave. Owner, LLC, 2021 WL 1733388 (S.D. Cal. May 3, 2021) the court took a similar approach, observing that DOJ guidance was entitled to “great deference.” DOJ could sidestep the regulatory process and perhaps do everyone a favor by choosing to provide technical guidance on website accessibility instead of a regulation. After all, while the failed regulations from the last decade were unreasonably burdensome, at least they set a standard the courts could use to measure the accessibility of a website without having to take every case to trial.

Hotel websites – hitting the pause button

In Gilbert Salinas v. SHC Laguna Niguel I, LLC et al, 2021 WL 2165208 (C.D. Cal. May 27, 2021) the Court points out that there are now four appeals pending before the Ninth Circuit that will determine whether the DOJ’s regulations and technical guidance really do limit what kind of information about accessibility is required for a hotel website. With some kind of definitive answer presumably on its way the Court asks the parties to explain why it shouldn’t just wait before the litigation proceeds.

Tester Standing

As a follow up to my May 23, 2021 blog on this issue(9), other lower courts have adopted the Fifth Circuit’s approach to “informational injury” either before or after the Mann Hosp. decision. A useful string cite is in the footnotes for lawyers wanting authority relevant to their particular case.(6)

In the meantime, the Eleventh Circuit wrote a short but useful treatise on tester standing in Kennedy v. Floridian Hotel, Inc., 2021 WL 2149361 (11th Cir. May 27, 2021). As a matter of procedure the Court found that the standing of a person claiming to be a tester could be considered as a Rule 12(b)(1) Motion to Dismiss even when the court considered evidence in the form of depositions and declarations. This is important because when a district court considers such evidence in a Motion to Dismiss under Rule 12(b)(1) it can make some credibility determinations that might require denial of a Rule 56 Motion for Summary Judgment. It’s a fine line, as the Court’s discussion of other cases shows, but it will help an ADA defendant in the 11th Circuit.

The 11th Circuit also confirmed its adoption and application of a set of four factors to evaluate tester standing under the ADA:

(1) the proximity of the defendant’s business to the plaintiff’s residence; (2) the plaintiff’s past patronage of the defendant’s business; (3) the definiteness of the plaintiff’s plan to return; and (4) the frequency of the plaintiff’s travel near the defendant’s business.

The Court emphasized that these are “not dispositive” but as a practical matter district courts in the 11th Circuit use them to dispose of cases in which allegations related to standing are implausible and therefore fail the Iqbal/Twombly requirement for credible pleadings. Other Circuits, especially the Ninth, do not recognize this kind of analysis, which was clearly developed as a means of dealing with so-called “testers” who are really just cogs in the ADA litigation money machine. It’s an ad hoc and only partly effective solution to a problem that Congress could solve if both parties would recognize that the no-fault requirements of the ADA cannot be compared to other forms of discrimination that are by definition intentional.

Are B2B websites places of public accommodation?

In Kolesar et al v Dripdrop Hydration, Inc. et al, 2021 WL 2021471 (W.D. Pa. May 20, 2021) Judge Schwab in the Western District of Pennsylvania denied a defense motion for summary judgment claiming that its B2B only website was not covered by the ADA. Judge Schwab, unlike other federal district courts in Pennsylvania, believes that stand alone websites are places of public accommodation.(8) That left the owner of this stand-alone website with only the argument that its B2B business was not covered by the ADA because it did not provide goods or services to the public. The Court found there were unresolved fact issues and sent the parties back to discovery. I wonder whether treating B2B websites differently than those selling goods or services to the public really makes sense. After all, the ADA definition of “public accommodation” includes any “sales or rental establishment” without distinguishing wholesale from retail. While the prohibition against discrimination in Title III applies only to an individual, a B2B website is not used by “businesses;” it is used by individuals who work for businesses and whose ability to do their jobs may depend on whether it is accessible. Could an “open to the trade” showroom argue that it was not a public accommodation because although the doors were open to anyone purchasers were required to provide a business tax i.d. before buying goods? It is also notable that “commercial facilities” are required to meet physical accessibility standards even though they are not public accommodations. Once you leap from physical to virtual places does it make sense to distinguish commercial from retail websites?

This leads back to the Laufer cases. The real problem, it would seem, is one of standing. If a member of the public cannot buy goods or services from a website then they cannot suffer a real injury just because the website is not accessible. But that leads back to the many cases holding that a person with no intent to use goods or services can nonetheless suffer a dignitary harm by merely knowing an inaccessible facility of some kind exists. In short, in many Circuits the analysis of ADA standing in incoherent because it does not rest on a requirement that the supposed barriers to access, whether physical or electronic, actually hinder the plaintiff’s ability to take advantage of the goods and services offered.

Negligence and the ADA

Whether violating the physical access standards of the ADA constitutes negligence is a question whose answer depends on state law, and therefore varies from state to state.(7) Kasilus v. Astor Crowne Plaza LLC, 2021 WL 2018076 (E.D. La. May 20, 2021) asks and answers the inverse question – is negligence an ADA violation? The Court says no, creating a clear line between physical accessibility and conditions that would be dangerous to anyone, even if perhaps more dangerous to a person with a disability.

Perfection is not required

I do not ordinarily blog about the ADA as applied to academic institutions or employers³ but I think the Seventh Circuit’s decision in Gilfillan v. Bradley U., 2021 WL 1808599 (7th Cir. May 6, 2021) has applications outside of academia. Some accommodations, like those sought by the student in this case, involve an ongoing series of actions or transactions. Bradley University was clearly trying to accommodate the plaintiff through its office of accommodation, but that office failed to do what it promised on a few occasions. The plaintiff had her own problems taking advantage of the accommodation offered and some of the conditions attached. The net result was the plaintiff’s case was dismissed because she did not claim each individual failure was a failure to accommodate, but rather that there was a general failure to accommodate. The case is highly fact driven, but I think it can be said to stand for the fact that where ongoing actions are required, perfection is not.

The Unruh Act and sua sponte federal court questions about supplemental jurisdiction

I’ve blogged before about the trend in federal courts declining to exercise supplemental jurisdiction over Unruh Act claims because the federal courts are being used to avoid the state law restrictions on such claims.¹ In Garcia v. Gutierrez,  2021 WL 1907786 (C.D. Cal. May 12, 2021) and Garcia v. Crossley, 2021 WL 1907785, at *2 (C.D. Cal. May 12, 2021) it appears the Court raised the issue sua sponte and issued a show cause order to the plaintiff to show why it should exercise such jurisdiction.  Every recognition of the essentially abusive nature of serial litigation is a positive step for defendants.

Strojnik

What would a Quick Hits blog be without another lawsuit by Peter Strojnik? Much shorter. Here are a couple of the most recent dismissals for failure to adequately allege standing. Strojnik v. Capitol Regency, LLC, 2021 WL 1721682 (E.D. Cal. Apr. 30, 2021), and Peter Strojnik, Pl., v. Forest Villas Inn II LLC, Def, 2021 WL 2138797 (D. Ariz. May 26, 2021). The latter will be helpful to lawyers looking for a succinct explanation of why Strojnik and his ilk cannot meet even the very liberal pleading standards of the Ninth Circuit.

Johnson

Like Strojnik and Thanos from the Marvel Avengers movies, Johnson is inevitable but beatable.  Johnson v. Little Orchard Bus. Park Owners Assn., 2021 WL 1734923 (N.D. Cal. May 3, 2021) illustrates one problem with mass filings – sometimes it takes some research to find the right person to sue. Johnson didn’t bother and if he doesn’t again the case will be finally dismissed.

Industrial scale ADA litigation

Speaking of mass filings, Neal v. Ven Hoover, LLC, 2021 WL 2074162 (C.D. Cal. May 24, 2021) illustrates one of the problems faced by lawyers engaged in industrial scale litigation. Like any business that expands to rapidly they may not be able to meet all their customer’s demands. In this case the demand was the Court’s requirement that defendants be served within 90 days, something that is hard to do only when you are filing suits so fast you can’t keep up with the requirements for service.(5) The case was dismissed though the plaintiffs were given the option of filing a new lawsuit against the same defendants.

Face masks, direct threats and the ADA

With mask mandates being rapidly eliminated cases like Giles v Sprouts Farmers Market, Inc. 2021 WL 2072379 (S.D. Cal. May 24, 2021) may seem on the verge of being irrelevant, but on its way to dismissing the plaintiff’s complaint the Court makes a crucial observation that can apply in any ADA case. The plaintiff’s gripe was that she was not allowed into a Sprouts store because she refused to wear a mask although her supposed disability made it hard for her to breathe. That wasn’t good enough to state a claim because she did not explain why she couldn’t wear a face shield, which Sprouts would have allowed as an acceptable alternative. In the course of its discussion the Court notes that the risk of a “direct threat” to the health and safety of others is “not a yes or no question, but a matter of degree.” Deciding whether the “direct threat” exception to ADA requirements applies requires actual thinking. Businesses who don’t trust their employees to think at least need a policy that escalates ADA requests to someone they do trust to think. The same requirement – thinking – applies to individuals like this plaintiff. The Court observes that “a slew of public health documents” verify the threat posed by individuals who refused to wear masks or shields and were not vaccinated. The plaintiff and her lawyers probably should have thought about whether her conduct was irrational before they filed suit.

The cost of default

Just a quick market update for the Eastern District of California. Besides remediation, the price of not defending the plaintiffs claims in Avalos v. Sidhu, 2021 WL 1961736 (E.D. Cal. May 17, 2021) was $5,763.00, including costs, attorneys’ fees and damages.

It warms the cockles of my heart

An expression I wanted to use back on St. Patricks day, but certainly applies to the decision in Rutherford v. Evans Hotels, LLC, 2021 WL 1945729 (S.D. Cal. May 14, 2021). This is one of several hundred cases filed by Rutherford and his attorneys based on various ADA claims. The entire opinion is worth reading as a way to get to this sentence: “Plaintiffs SHALL PAY Defendant the total sum of $115,074.48, consisting of $102,458.75 in attorneys’ fees and $12,615.73 in costs.” At some point bogus ADA claims do become frivolous, even in the Ninth Circuit.

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¹  Quick Hits – April Fools Edition is the most recent. Searching for “supplemental jurisdiction” will turn up a number of others.
³ William Goren often focuses on these subjects in his blog at Understanding the ADA
(4) See the discussion in Quick Hits – April Fools Edition
(5) The likely problem is that private process servers cost money, and adding an additional 20% to the cost of filing suit cuts in to profit margins for a high volume low margin practice.

(6) Laufer v. Looper,  2021 WL 330566 (D. Colo. Jan. 11, 2021) (“[W]ithholding of information itself does not constitute a concrete injury—the information must have some relevance to the litigant.”) (citing Griffin v. Department of Labor Fed. Credit Union, 912 F.3d 649, 654 (4th Cir. 2019)); Laufer v. Naranda Hotels, LLC, 2020 WL 7384726 (D. Md. Dec. 16, 2020) (“Pure testers, by definition, have no desire to actually use the room reservation website, and the information required by § 36.302(e)(1) has no specific relevance to them beyond their generalized desire to find ADA violations and file lawsuits.”); Laufer v. Dove Hess Holdings, LLC, 2020 WL 7974268 (N.D.N.Y. Nov. 18, 2020) (“[T]o allege an injury-in-fact for standing purposes, a plaintiff challenging a website’s ADA violations must demonstrate that she had a purpose for using the website that the complained-of ADA violations frustrated, such that any injury is concrete and particularized to the plaintiff.”) Laufer v. Mar-Lyn in Maine, LLC, 2021 WL 1993553, at *4 (D. Me. May 18, 2021), Laufer v Acheson Hotels, LLC, 2021 WL 1993555, at *5 (D. Me. May 18, 2021). Laufer v. Alamac Inc., 2021 WL 1966574 (D.D.C. May 17, 2021).Laufer v. Giri Hotels, LLC, 2021 WL 1996386 (D. Me. May 18, 2021)

(7) See, for example, my blog at Personal injury and the ADA as well as numerous mentions of negligence in various Quick Hits blogs.

(8) See, for example Mahoney v. Bittrex, Inc., 2020 WL 212010 (E.D. Pa. Jan. 14, 2020)

(9) Tester standing under the ADA – Getting it wrong, getting it right, and an interesting but irrelevant analysis.

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