The last six weeks have seen some important or at least interesting decisions under the Fair Housing Act and Title III of the ADA. If there is any common thread, it is that courts in general seem increasingly reluctant to give serial plaintiffs the benefit of the doubt on dubious pleadings while some judges continue to treat private enforcement as a legitimate means to advance the policy goals of these statutes. This is part 1 of a 2 part blog, so stay tuned . . .

Standing requires both an Article III injury and a violation of the ADA

In Disabled Patriots of Am., Inc. v. Nakash Lincoln Tenant LLC, 21 C 03368, 2022 WL 226026 (N.D. Ill. Jan. 26, 2022) an organization of veterans sued under the ADA because one of its members had been a victim of discrimination. The victim himself was not a plaintiff. The standing problem at the forefront of discussion ever since the Laufer cases and the decision in Transunion has been whether a statutory violation is sufficient to satisfy Article III. In this case the plaintiff faced the opposite problem:
Whether a plaintiff has standing under Article III of the Constitution is a different inquiry from “whether, as a statutory matter, the plaintiff has stated a cause of action within the meaning of a provision in the U.S. Code.” Access Living, 958 F.3d at 609 (citing Spokeo, Inc. v. Robins, 578 U.S. 330 (2016)). It is the latter issue where Plaintiff falls short here. Because Plaintiff has not alleged that it, as an organization, was “subjected to” discrimination in violation of Title III of the ADA, its complaint must be dismissed.

Mootness done wrong and mootness done right

Serial filer claims are especially annoying when the defendant is pretty sure their facility is already ADA compliant, but a mootness defense requires the same precision in a weak ADA case as it does in a strong one. Three recent cases illustrate how to do it right and how to just waste time and money. I’ll let the courts speak for themselves:

And Defendants’ new photos, like their previously submitted photos, lack context or precise measures. As the Court explained in its previous Opinion and Order dismissing Defendants’ first summary judgment motion, “vague statements about increased accessibility, taken together with photographs that lack context or precise measures, are insufficient to resolve all ‘genuine issues of material fact about each barrier’s compliance with the ADA.’

Sutton v. 626 Emmut Properties, Ltd., 2021 WL 6052136 (S.D.N.Y. Dec. 21, 2021).

Thus, even if the Court were to assume that the proffered ramp exists, that fact alone would not be suffice to moot Mr. Breeze’s claims regarding the accessibility of the restaurant’s entrance.

Breeze v. Kabila Inc., CV 21-753 (JDB), 2021 WL 5918678 (D.D.C. Dec. 15, 2021).

The parties’ accessibility consultants performed a joint site inspection and certified that the accessibility barriers Plaintiff alleged in the complaint were remedied. (Dkt. No. 24-2 ¶ 14.) Neither consultant “identif[ied] any existing barriers to access at the [p]remises.” (Id.) Plaintiff’s counsel subsequently confirmed via email that “[w]e have completed the Joint Site Inspection and everything looks good.” (Dkt. No. 24-6 at 2.) Plaintiff has not identified any evidence that supports an inference that any access barriers remain. See Johnson v. DiVittorio, No. 21-CV-02026-SVK, 2021 WL 4749414, at *2 (N.D. Cal. Oct. 12, 2021) (finding that the declaration by a licensed access specialist stating that the premise was ADA compliant was sufficient to show that the alleged barriers were removed).

Whitaker v. Gundogdu, Inc., 2021 WL 5937659 (N.D. Cal. Dec. 16, 2021).

What does “injury” mean for an ADA plaintiff?

Two cases illustrate the difference between adequate evidence or allegations of injury and inadequate allegations. In Hernandez v. Roberts of Woodside, 2022 WL 19315 (N.D. Cal. Jan. 3, 2022) the plaintiff was able to purchase goods, but that did not mean there was no ADA claim:

The fact that Plaintiff was able to navigate the cracked, sloping, uneven pavement and even, apparently, “doing a wheelie” over a quarter-inch crack without overturning his wheelchair does not mean that the condition of the path of travel does not violate the ADA.

The plaintiff in Soto v. Rio Gary II, L.P., 2022 WL 112047 (C.D. Cal. Jan. 12, 2022), on the other hand, barely described the ADA violations, let alone how they affected him:
Soto neither alleges nor argues that the ADA parking space violations he asserts created any barrier to his full use and enjoyment of the grocery store or otherwise caused a denial of accommodation. Soto declares in the most general and conclusory terms that when he got to the grocery store, he “discovered barriers and conditions in the parking spaces that denied full and equal access by persons like myself who require the use of a wheelchair for mobility,” (Soto Decl. ¶ 4), but fails to allege exactly how he was not able to enjoy full access to and use of the grocery store. If the sole problem is that the disabled parking signage and markings are insufficient, but the lack of signage did not somehow prevent the plaintiff from accessing the business, then the plaintiff has not actually encountered an access barrier, has not been denied full and equal access, and has not been denied accommodation.
The court went on to tie the absence of a statutory violation to the absence of Article III standing:
That there was no denial of full and equal access not only causes the failure of a statutory element of Soto’s ADA claim; it also deprives him of Article III standing. To satisfy the injury-in-fact requirement for Article III standing, a plaintiff alleging ADA construction access barriers must have personally suffered discrimination under the ADA on account of his or her disability. . . .Here, Soto neither alleges nor argues how he personally suffered discrimination and incurred an injury-in-fact as a result of the asserted violations.
In Soto v Rio Gary II the court cites the Ninth Circuit’s 2011 decision in Chapman v Pier 1 Imports,  without really explaining how Soto’s allegations fail to meet the standard set in earlier Ninth Circuit cases  holding that a plaintiff who merely confronts an ADA barrier to access has suffered discrimination under Title III. See, for example, Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1041 (9th Cir. 2008). These court’s may be loath to admit it, but after TransUnion cases on standing like Doran v. 7-Eleven cannot be treated as authoritative, and will eventually have to be distinguished or overruled.

Nexus in the 9th Circuit

In the Ninth Circuit a website must have some nexus to a physical place of business to be subject to the accessibility requirements of the ADA. Just what that nexus has to be isn’t perfectly clear, but we learn in Gomez v. Smith, 2022 WL 117763 (N.D. Cal. Jan. 12, 2022) that the nexus must be to a public accommodation, not just a physical place: “the Ninth Circuit requires a nexus between the plaintiff’s visit to the website and a place of public accommodation, not just any physical location.” The court also relates nexus to the existence of an injury, explaining that unless the defects in the website interfere with access to the public accommodation the accessibility of the website doesn’t create an ADA violation:

[Gomez] avers he “has been deterred from returning to the Website as a result of these prior experiences” using the website. . . .He has not, however, explained how he was deterred from utilizing services or obtaining goods at physical places of public accommodation.

Defense and disclosure – readily achievable or not?

The lesson in Grey v. Overton Square, LLC, 2021 WL 5989050 (W.D. Tenn. Dec. 17, 2021) is that a business claiming a removal of an architectural barrier is not readily achievable has put its financial condition at issue, meaning that it will be required to let plaintiff’s attorney rummage around in matters most businesses treat as highly confidential:

The undersigned instead ORDERS that Overton Square produce financial statements (specifically balance sheets, income statements, cash flow statements, and statements of shareholders’/owners’ equity) and federal and state tax returns for 2018, 2019, and 2020. These records should be produced under a protective order to safeguard Overton Square’s privacy and any sensitive information contained within.

Where the cost of barrier removal really is an issue this disclosure may be worthwhile, but unless the cost is genuinely prohibitive the defense may not be worth urging.

Spontaneity and intent to return

Breeze v. Kabila Inc., 2021 WL 5918678 (D.D.C. Dec. 15, 2021) looks at the intent to return element of an ADA claim in practical terms. The degree to which an ADA plaintiff must specifically allege an intent to return depends on the kind of facility and distance:

Although the definitiveness of a plaintiff’s plans is a proper consideration in assessing the plausibility of his professed intent to return, the level of specificity required depends on the activity in question. Visiting a restaurant a few miles from one’s house or canoeing a nearby river is a far different situation from, say, traveling halfway around the world to observe endangered wildlife, and courts may properly account for those differences when assessing the plausibility of a plaintiff’s intent to return.

Bona fide intent under the Unruh Act

Arroyo v. Golbahar, 2022 WL 19199 (C.D. Cal. Jan. 3, 2022) is the latest decision to adopt the “bona fide intent” requirement for plaintiff’s under the Unruh Act that was established in Thurston v. Omni Hotels Mgmt. Corp., 69 Cal. App. 5th 299 (2021). Scott Ferrell of Pacific Trial Advocates routinely sends demand letters in which he extolls appellate victories gained on behalf of Ms. Thurston; they don’t mention Omni Hotels. In an upcoming blog I’ll look at Thurston’s record in California state courts to see what, if anything, can be predicted about future claims.

Websites as public accommodation

In Romero v. 88 Acres Foods, Inc., 2022 WL 158686 (S.D.N.Y. Jan. 18, 2022) the judge lines up with others predicting the 2nd Circuit will find that websites are places of public accommodation. The opinion has a thorough review of the conflicting viewpoints and is a reminder that in ADA litigation knowing your judge is just as important as knowing the law because two judges in the same building may disagree about fundamental matters like whether a website is a public accommodation.

The FHA doesn’t protect those with disabilities from every harm – see, mold.

Higgins v. 120 Riverside Blvd. at Trump Place Condo., 2021 WL 5450205 (S.D.N.Y. Nov. 19, 2021) discusses at length the difference between bad things in a dwelling that relate to a disability and bad things that are just bad. In this case the plaintiff was unhappy about mold, but, as the court observed, “Mold can affect everyone who is exposed to it.” The plaintiff’s failure to plead facts relating mold to her particular disability meant she failed to state a claim for discrimination under the FHA:

Where Higgins has not alleged that the condition would affect her differently than it would affect any other person who does not have her disability, she cannot use the FHA to give her rights against the Condominium Defendants that would not be possessed by any other resident subject to the identical condition.

The FHA requires some notice that an accommodation is being requested.

Besides mold, the plaintiff in Higgins was unhappy about noise, something else that was likely to annoy or even harm every resident, regardless of disability. In her case sensitivity to noise was related to her disability, but because it was a common nuisance her accommodation request had to indicate “she was requesting notice to address the difficulties posed by her disability, rather than notice as an interested tenant inconvenienced by noise occurring elsewhere in the building.”