Yes, mass production of web accessibility suits is under way: “A partner of [Pittsburgh-based] Carlson Lynch Sweet Kilpela & Carpenter, which represents plaintiffs in such cases, tells the [Chicago] Tribune that it sent out about 25 demand letters to real estate companies in recent months.” [ABA Journal; Kenneth Harney; our 15+ years of coverage of the slow-motion legal disaster that is web accessibility]
California’s unique Unruh Act provides automatic bounty entitlements (often $4,000, plus attorney’s fees) to successful discrimination complainants without having to show any actual injury from their treatment. For many years this has led to a distinctive cottage industry of ADA filing mills that mass-generate accessibility complaints against California businesses to settle for cash, often based on minor instances of noncompliance in facilities open to the public. Correcting the bad incentives created by the Unruh Act appears to be politically out of bounds, but now, at least, following a multi-year push from the business community, Gov. Jerry Brown has signed SB 269, which lays out two escape paths from liability for smaller businesses: by hiring a Certified Access Specialist (CASp) they can get 120 days to fix any violations, and by providing a 15-day grace period before legal penalty for small business to fix the most minor violations, typically involving signage and surface display. [KXTV, NorCal Record, L.A. Daily News] “The number one complaint [in 2015]? Non-compliant loading zones. Number two? Problems with parking lot signage.” [Capital Public Radio]
Meanwhile, in Fresno, some disabled plaintiffs are now suing the lawyers who solicited their involvement in mass ADA filings, saying they broke promises, behaved deceptively, and kept nearly all the proceeds for themselves. [KFSN]:
One of the places the Moores sued is a donut shop in Reedley and one of the problems was with the signage.
The shop had a disabled parking only sign up, but it didn’t have the half that states “Minimum Fine $250” and without that part, this is a violation.
What the Moores may not have known is Doughnuts To Go is managed by Lee Ky, who suffers from cerebral palsy.
“Here I am all my life in a wheelchair and I get around in the community just fine,” Ky explained.
Ky says she never had any accessibility problems at her own store, but she made some updates after she was sued for violations and settled with the Moore Law Firm to make the lawsuit go away.
So when an Action News reporter showed her the video of Ronald Moore, the man who sued her, lifting his wheelchair into his SUV, then walking up to the driver’s seat, she was pretty upset.
“I wish I could be him sometimes,” Ky said. “I wish I could just get up and then walking and all the sudden becoming in the wheelchair. It looks bad.”
“IRS and federal prosecutors have launched a criminal investigation into serial disability access plaintiff Scott Johnson, who has moved his lawsuit operation to the Bay Area in recent months, to determine whether he has paid taxes on his alleged millions of dollars in settlements, multiple sources told this newspaper.
“Unless a plaintiff suffered physical injuries as a result of a civil settlement, that individual must pay taxes on the monetary award, tax experts said. It is unclear whether Johnson paid any taxes on any of his Americans with Disabilities Act settlements with thousands of businesses in California that he alleged obstructed his access as a paralyzed customer using a wheelchair. He and his attorney did not return requests for comment.” [San Jose Mercury-News, more of its coverage on Scott Johnson, earlier on ADA filing mills generally and on Johnson in particular here, here, here, here, and here]
Attorney Paul Hansmeier has sued more than 100 small businesses in Minnesota charging lack of handicap accessibility, sometimes “on behalf of the Disability Support Alliance, a nonprofit group that finds non-compliant businesses. A 5 Eyewitness News report from last summer found Hansmeier sought quick settlements from businesses for thousands of dollars and made little effort to ensure the buildings were brought into compliance.” Hansmeier has now denounced as “silly” a bill developed by the Minnesota Chamber of Commerce, working with the Minnesota State Council of Disability and Human Rights Department, aimed at curbing opportunistic accessibility complaints. “The legislation would give businesses at least 30 days to respond to lawsuits, shift the burden of proof in some cases to those filing the lawsuit and restrict attorneys from demanding immediate settlements.”
Attorney Hansmeier, according to the broadcast report, “is currently facing disbarment or suspension for running a copyright infringement scheme involving a pornographic video. A district judge in Hennepin County said last year that Hansmeier’s history reinforced concerns that the ADA lawsuits raised ‘the specter of litigation abuse.'” [KSTP] Last year I noted his adventures in copyright law and his more recent rolling out of multiple suits alleging that businesses had not adequately designed their online presence to accommodate disabled web users.
I’ve predicted that with wider acceptance of the legal theory that the ADA requires websites to reflect the needs of blind, deaf, paralyzed, and other disabled users in their design, there will eventually emerge filing mills generating form complaints alleging lack of online accessibility, just as we see with ADA complaints in some states against brick-and-mortar stores on Main Street. Now, after years of effort from disabled advocacy groups and the Obama administration to overcome unfavorable court precedent, we may be several steps closer to that day [Amanda Robert, Legal NewsLine]:
Defense attorneys say there has been an “explosion of activity” from payment-seeking plaintiffs lawyers and their blind clients who are alleging violations of federal disabilities law in lawsuits over companies’ websites – particularly in three jurisdictions [California, New York, and Pennsylvania].
One Pittsburgh attorney representing two blind plaintiffs has brought cases against Hard Rock Café International, Toys “R” Us, and Pep Boys over their online operations, as well as a case now consolidated against 16 different defendants including Ace Hardware, Brooks Brothers, the National Basketball Association and Red Roof Inns. As for smaller businesses, they are for the most part not exempt under the law, so their time will come too.
“Since the beginning of 2015, three plaintiffs have brought more than 200 lawsuits against Arizona hotels, retailers and restaurants alleging American with Disabilities Act accessibility violations. One of the three, Theresa Brooke, has filed 151 of the 237 total ADA lawsuits that aren’t related to employment. These suits, brought mainly in Arizona by two law firms, allege the defendants’ premises aren’t in compliance with ADA standards.” She is represented by Phoenix attorney Peter Strojnik. [Laura Wilcoxen, Legal NewsLine]
- Effort to qualify California ballot initiative to curb state’s infamous ADA filing mills; Harold Kim (US Chamber) podcast on lawsuit abuse and small businesses;
- Costly canines: Ohio’s Kent State will pay $145,000 for not letting two students have emotional support dogs in housing [Insurance Journal]
- USC football coach Sarkisian and alcohol: “Lessons In Disability Accommodation and the Interactive Process” [Nancy Yaffe, California Employment Law]
- “Does ADA require nursing homes to admit obese patients?” [Debra Cassens Weiss, ABA Journal]
- “It’s difficult to think of a piece of legislation that failed more abysmally than the ADA. So now what do we do?” [Scott Sumner; we’ve been on the post-ADA decline in labor force participation by the disabled for a long, long time]
- After football player collapses on field with heat stroke, resulting in nine-day coma that brings him near death, team doctor refuses to clear him to play again due to re-injury risk; Fourth Circuit reverses lower federal court that had ruled for his claim of disability discrimination [Gavin Class v. Towson University, opinion]
- Second Circuit: hearing-impaired IBM employee can’t get to jury after rejecting sign-language translation and transcripts of company videos as reasonable accommodation on the ground that captioning would have provided overall nicer experience [Wait a Second! via Daniel Schwartz]
- “Lawyer Threatens Yelp Reviewer With Lawsuit, Is Wrong” [Popehat, related Ken White on cease and desist orders]
- “Winghouse restaurants only serve chicken wing parts, not the full drummettes, flappers and wingtips combination that traditionally defines a chicken wing, a class action lawsuit claims.” [Courthouse News, links to paywalled document]
- Claim: what really ails law schools is lack of aggressive PR push. Readers push back in comments [Caron/TaxProf, Joe Patrice]
- I was hoping Sen. Rand Paul would take a harder line against wildcat public employee strikes [Dave Weigel on Kentucky clerk case]
- California’s Central Valley hit by ADA mass filings: “Griffiths said the Moore Law Firm has filed [accessibility] complaints against about 200 businesses in Fresno.” [Hanford Sentinel]
- If the “system is rigged,” it’s not in the way Sens. Elizabeth Warren and Bernie Sanders seem to think [Cass Sunstein, Bloomberg View]
- Up jumps the swagman, files a claim in copyright: origins and ownership chain of “Waltzing Matilda” are murky [Sydney Morning Herald via @ContentLawyer]
Today is the twenty-fifth anniversary of the Americans with Disabilities Act. Listen to Diane Rehm’s roundtable on the law with me and other guests here:
Five years ago I wrote on the occasion of the ADA’s 20th anniversary. I criticized the more recent, United Nations-drafted Convention on the Rights of Persons with Disabilities in this 2012 piece. And the potentially massive disruptions to be expected from a legal requirement that websites be “accessible” — a regulatory idea that the Obama administration is thought to be in the very final stages of considering — have been a regular theme here for many years, as has the harm done by ADA filing mills that file accessibility complaints by the batch against businesses and property owners, often with recovery of attorneys’ fees in mind. More: James Bovard, USA Today.
- Per The Economist, long-awaited Justice Department rules decreeing ADA accessibility for websites (earlier here, here, etc.) expected any day now, “in June. For example, each picture must have text describing it, so that screen-reader programs can tell blind people what is there.” Individual enforcement actions, as against Peapod, aren’t waiting [DoJ press release] Settlement with MOOC firm signals DOJ plans to deal with online education providers [Cooley] Contributor believes it’s a snap to include online captioning in all online Harvard and MIT courses, so what’re they waiting for? [Time]
- Rest of the Economist article is of interest too, especially on ADA filing mills in Florida and elsewhere;
- In Sheehan v. San Francisco, Ninth Circuit created right to ADA accommodation in confrontations with law enforcers, SCOTUS reversed on other (qualified immunity) grounds [Mark Pulliam, City Journal; Richard Re, Prawfs]
- Commemorations of 25th anniversary of the ADA — here’s what I had to say about the 20th — include plans “to hold [various Chicago institutions] publicly accountable for their commitments” to, inter alia, “increase civic engagement around disability issues” [Michael Waterstone, Prawfs]
- Sacramento: “Squeeze Inn owner joins fight against costly ADA lawsuits” [KCRA]
- Spread of fake service dog paraphernalia alarms groups that work with actual service dogs [BBC]
- Intended class-action plaintiff sues McDonald’s over new style Coca-Cola Freestyle dispensers, saying touchscreen format unfair to disabled users [BigClassAction.com]