Almost everyone who ever was, had or has a child probably knows  Bowser, the character from many Nintendo games. In Mario Party he often offers “gifts” that don’t always (or ever) turn out to be something you might want. Recent developments in accessibility law are, as usual, a mixed bag. Here’s what I found underneath the tree. Bwahahahaha!

A shiny new article about the ethics of communication.

My partner, Jeanne Huey and I collaborated on an article about ABA Formal Opinion 500 that was published by the American Bar Association Litigation Section Professionalism and Ethics Committee, but is easiest to find at her blog, Legal Ethics Today. Communication with those who are disabled is a statutory obligation under the ADA for all businesses open to the public as well as the Fair Housing Act for housing providers. For lawyers it is an ethical obligation as well.

Speaking of lawyers, what about CLE providers?

In Goren² v. LawPracticeCLE, L.L.C., 2021 WL 5566376 (M.D. Fla. Nov. 29, 2021) the Court denied a defense motion to dismiss based the Ninth Circuit’s holding in Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266 (11th Cir. 2021) that pure internet businesses are not public accommodations covered by the ADA. Goren argued in response that as a provider of education services the Defendant was covered by Section 12189 in Title III of the ADA even if it was not a public accommodation. The Court found the legal question was not settled and declined to grant the motion to dismiss without further development of the case. It is worth noting that had this case been brought in another Circuit the issue might never have arisen because some Circuits hold that stand alone internet businesses are covered by Title III regardless of their connection to a physical place of business.³

When “private” developments become public accommodations.

Conventional wisdom is that the FHA governs housing developments and their amenities while the ADA governs businesses open to the public. Seelig v. Old Vegas Manor and Estates HOA, 2021 WL 5771121 (D. Nev. Dec. 6, 2021) shows what happens when those amenities are open to the public. The streets, sidewalks and a park located in the Old Vegas Manor development were dedicated to public use by the deed restrictions establishing the HOA. That was enough for the plaintiffs to plausibly allege they were a public accommodation and had to meet ADA standards for access.

A warning to towns and cities with discriminatory zoning practices.

On December 6 the Department of Justice entered a Consent Decree in Self, Inc. et al v. Town of Wolcott, Connecticut, Case No. 3:20-cv-00252-RNC (D.Conn. 12-6-2021). The underlying lawsuit concerned the Town’s denial of a special use permit for a group home for adults with mental health disabilities. Like many towns and cities Wolcott had a zoning ordinance that permitted group homes in residential districts, but limited the number of residents in a way that ordinary family units were not limited. The Consent Decree requires that the town amend its zoning ordinance such that “no size limitations shall be imposed on such homes other than those that the Town applies to families of similar size.” Of course this is a settlement agreement with no admission of liability, but it tells us very clearly that DOJ believes zoning ordinances with different size limits for group homes and typical families violate the anti-discrimination provisions in the Fair Housing Act. Any town with an ordinance like that in Town of Wolcott should consider whether the ordinance can be justified and whether the town is prepared to take on DOJ in a fair housing lawsuit.

But are size limits always illegal?

Municipalities can, of course, find more favorable decisions if they look for them. In Meraki Recovery Housing, LLC et al v. City of Coon Rapids, 2021 WL 5567898 (D. Minn. Nov. 29, 2021) the Court granted a summary judgment in favor of the City, finding that there was no evidence of discriminatory intent in the City’s actions and that having more than six residents was not necessary for the equal use and enjoyment of the dwelling. However, the decision emphasizes that it is based on the specific facts of the case and cites other decisions finding in favor of group homes that needed more residents that permitted by the zoning ordinance. Group home operators will note that the decision turned in part on deficiencies in the expert testimony. Towns and cities sometimes assume that their zoning decisions will be upheld because their lawyers can find cases favoring restrictive zoning for group homes. Group home operators sometimes assume they can’t lose because of decisions that favor group homes. As is almost always the case in disabilities law the truth is more complicated and neither side of these disputes can assume victory is assured just because there is a case somewhere on their side.

AccessiBe won’t fix your website according to Judge Ramos

Quezada v. U.S. Wings, Inc. 2021 WL 5827437, (S.D.N.Y. Dec. 7, 2021) is one of a growing number of cases finding that the AccessiBe and other plugins or widgets will not make a website meet the requirements of the ADA if there is evidence of unremediated barriers to access.(4) I get many calls from small businesses who believe they’ve solved all their problems with a plugin. The bad news is that they haven’t.

Dealing with default.

Breeze v. Haiban Inn LLC, 2021 WL 5567490 (D.N.J. Nov. 29, 2021) follows a trend I have been discussing for some time.¹ Courts are increasingly reluctant to find that ADA testers with no personal interest in accessibility have standing to sue. In this case, the Court denied a motion for default judgment because it found the allegations in the Complaint insufficient to plausibly allege an intent to return.

Crossing your i’s and dotting your t’s.

In Cohan v. LVJ, Inc. 2021 WL 5564744 (E.D. Mich. Nov. 29, 2021) the Court denied the plaintiff’s motion for summary judgment because of a number of failures in the way it was presented. Although the plaintiff receives Social Security benefits because of his disability he failed to provide summary judgment evidence that his problems substantially limited a major life activity. His descriptions of how he was affected by the supposed barriers to access was also not specific enough in most cases. Finally, his expert witness on the “readily achievable” standard gave opinions that were legal rather than factual. What is most striking about the decision is that the list of barriers to access includes only items that should be almost trivially cheap to fix, including the location of grab bars, the weight of the restroom door and the accessibility of dining room tables. It’s difficult to understand why there was not a defense motion for summary judgment based on mootness by the time the case reached the summary judgment stage because the legal fees seem certain to have exceeded the cost of remediation. “First Fix, then Fight” is the mantra for all accessibility defendants. Those who prefer to fight first should give me a call, I have holiday gifts to buy and a little extra money is always nice.

The cost of settlement

In Johnson v. Ends in E., Inc. 2021 WL 5565842 (N.D. Cal. Nov. 29, 2021) the parties seem to have settled but left the award of attorneys’ fees to the plaintiff up to the Court. The Court cut the hourly rates of the attorneys involved as well as some of their hours, ending up with a fee of $6,077.50. Defendants dealing with Mr. Johnson should keep this number in mind as they negotiate.

Hotel websites

Love v. Pacifica Napa Winery LLC, 2021 WL 5848078, at *4 (N.D. Cal. Dec. 9, 2021) is another case holding that meeting DOJ regulations concerning accessibility information on hotel websites is sufficient to satisfy the ADA. The Court notes that this is the position of the “overwhelming” majority of courts in the Ninth Circuit.

Personal jurisdiction in website claims.

The internet is everywhere, and most e-commerce websites make products or services available everywhere in the United States. That doesn’t quite mean the website operator can be sued anywhere, but it comes close. Federal Courts in New York, applying New York’s Long Arm Statute, find that if a website permits the purchase of goods or services in New York then they have personal jurisdiction over the website owner if goods are likely to be sold in New York. Quezada v. U.S.Wings, Inc. 2021 WL 5827437, (S.D.N.Y. Dec. 7, 2021). (5) The owners of e-commerce websites should assume they can be sued anywhere they are willing to ship their goods or provide their services. That means the distinction between jurisdictions that do not apply the ADA to stand alone websites and those that do doesn’t mean much in practical terms.

Mootness done right

If you want to assert a mootness defense in a physical access case do what the defendant did in Dalfio v. Orlansky-Wax, LLC. 2021 WL 5761510, (S.D. Cal. Dec. 3, 2021) Fix the problems and get a report from an expert on accessibility stating that there are no barriers to access in violation of the ADA. Anything less is likely to fail.(6)

Dotting your i’s and crossing your t’s again.

I blogged on this subject in April looking at what defendants need to do.(7) Brown v. Good Friendship Deli and  Tobacco Corp. et al, 2021 WL 5822232, (S.D.N.Y. Dec. 7, 2021) should remind plaintiffs to be careful as well. The Court granted a default despite numerous technical mistakes, but did not grant any injunctive relief because the plaintiff’s evidence was insufficient. The attorneys will apparently get paid but the plaintiff will end up with no useful relief.

Is ignoring the ADA a form of unfair competition?

In Desote Cab Company v. Uber Technologies, Inc. 2021 WL 5860917, (N.D. Cal. Nov. 18, 2021) the court faced a number of claims of unfair competition, including one based on Uber’s alleged failure to comply with the ADA, which supposedly gave it an unfair advantage. Almost all the claims were dismissed, with the ADA allegations appearing to be more a sidelight than a matter of substance.  I noticed the case only because I can imagine other businesses using the ADA against their competitors. For those businesses the case is worth study.

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¹ See, my earlier blog, “Transunion v Ramirez” and others that it cites. I looked at this most recently in “ADA and FHA Quick Hits – Wild Turkey edition.” under the heading “Tester Standing – hotel website cases.”

² The plaintiff, William Goren, appears often in my blogs, not as a plaintiff, but because he writes an excellent ADA oriented blog that can be found at Understanding the ADA. We have co-presented various webinars on ADA issues, including some by CLE providers like the defendant.

³ In pre-website cases the First, Second and Seventh Circuits agreed that no connection to a physical place was required. See, Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, 37 F.3d 12, 19 (1st Cir.1994),  Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 32–33 (2d Cir.1999). Doe v. Mutual Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir.1999) and Morgan v. Joint Admin. Bd., Ret. Plan of the Pillsbury Co. and Am. Fed’n of Grain Millers, AFL–CIO–CLC, 268 F.3d 456, 459 (7th Cir.2001). By 2012 district courts in these circuits began applying the earlier holdings to website accessibility cases. See, e.g. Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F.Supp.2d 196, (D.Mass. 2012). This is still an open issue even in these circuits as one district court in New York recently found that a stand alone website was a “public accommodation.” See Seyfarth Shaw’s blog on the subject at Businesses Score a Few Recent Wins in Website Accessibility Lawsuits

4. See “ADA and FHA Quick Hits – Wild Turkey edition.” under the heading Mootness in Website Cases.

5. If the plaintiff does not interact with the website except to view information, on the other hand, the New York Long Arm statute does not reach the out of state owner. See, Quick Hits – April Fools Edition under the heading “Speaking of Hotel Websites” and ADA and FHA Quick Hits – Hearts & Flowers Edition under the heading “ADA Website Litigation – an important personal jurisdiction case.”

6. See, “ADA and FHA Quick Hits – Wild Turkey edition.” under the heading “ADA defense strategy – hold your fire” as well as earlier discussions of mootness done right and done wrong.

7. See, Quick Hits – April Fools Edition.