Father Says YMCA After-School Program Refuses to Accept Son with Diabetes

This again?  See this article, which begins:

A Raleigh father says he has filed a complaint with the U.S. Department of Justice after a YMCA after-school program declined to accept his son, who has Type I diabetes. 

Bruce Hatcher, whose son is a kindergartner at Underwood GT Magnet Elementary School, says YMCA officials told him that they do not administer shots and would not give his son a shot if the boy’s blood sugar dropped too low. 

“It’s more than just a shot. It’s a life-saving shot,” said Hatcher, who asked that his son’s name not be included. “If you had a kid, or anyone had a kid in this situation, you would understand a little better.”

DOJ Obtains $60K Settlement Against Golden Corral for Denying Service to Family of Kid with Skin Condition

See this article, which begins:

A Westland restaurant has agreed to pay a mother and herchildren $50,000 for asking them to leave because one of the daughters had a blistering skin disorder that was making customers uncomfortable. 

According to the settlement announced Wednesday by U.S. Attorney Barbara McQuade, the Golden Corral buffet-style restaurant also will pay $10,000 in civil penalties to the U.S. The incident happened in 2011, triggering a Justice Department lawsuit. 

According to the suit, a manager at the Golden Corral restaurant demanded that Danielle Duford and her four daughters leave the restaurant during a dinner outing because of the appearance of one of the children’s skin. The child, the suit said, has a genetic skin disorder known as epidermolysis bullosa, which causes blisters to form on the skin in response to minor injuries and temperature changes.

Forthcoming Student Note on Internet Accessibility

New on SSRN: Courtney L. Burks, Improving Access to Commercial Websites Under the Americans with Disabilities Act and the Twenty-First Century Communications and Video Accessibility Act, Iowa Law Review, forthcoming.  The abstract:

In 1990, Congress enacted the Americans with Disabilities Act ("ADA") — one of the most comprehensive set of antidiscrimination laws to date. Title III of the ADA requires private businesses to make reasonable efforts to ensure that disabled individuals are able to access their "place[s] of public accommodation." However, as the internet has grown more ubiquitous in Americans’ lives, there have been debates whether a commercial website is a place of public accommodation under Title III. In order to help ensure that the disabled community is not left behind as the nation’s dependence on web-based technology increases, Congress enacted the Twenty-First Century Communications and Video Accessibility Act ("CVAA"). This Note examines conflicting interpretations of Title III, and how the CVAA may affect the ADA’s application to commercial websites. This Note concludes by arguing that a broad definition of “place of public accommodation” is in line with the history and purpose of the ADA, and federal regulations imposing uniform technical accessibility standards are needed in order to diminish the accessibility barriers to websites that fall within the scope of Title III.

Good Article on Inaccessible Doctors' Offices

Via Bloomberg, here.  It begins:

Almost one-fourth of doctors are unable to accommodate and treat patients who use wheelchairs more than 20 years after the passing of the Americans with Disabilities Act, a study found. 

About 22 percent of 256 doctor’s offices surveyed said they couldn’t assist people in wheelchairs, with most of those saying it was because they weren’t able to safely transfer the patient to an exam table, according to research published today in the Annals of Internal Medicine. Lack of access to the building was a secondary reason, the researchers said. 

The Americans with Disabilities Act, passed by the U.S. Congress in 1990, is aimed at ending discrimination for people with disabilities in everyday activities including access to medical care facilities and the services provided there. Today’s findings are one of the first to show where barriers to medical services remain for wheelchair-bound patients, said Tara Lagu, the study’s lead author.

D. Colo. Grants Summary Judgment to Plaintiffs in Class-Action Challenge to Hollister's Placement of Steps at the Front of its Stores

My friends at Fox & Robertson, counsel for the plaintiffs, have the details over at their blog.

W.D. Va.: Farmers' Market is a Place of Public Accommodation Under the ADA

Last week, Judge Jackson Kiser of the United States District Court for the Western District of Virginia issued an opinion and order in Clement v. Satterfield, 2013 WL 765374 (W.D. Va., Feb. 28, 2013).  Clement had been refused a slot as a vendor at a local farmers' market; he alleged, among other things, that the market's president (Satterfield, the defendant) refused him that opportunity because he has a disability that resulted from a stroke.  Satterfield moved for summary judgment.  The district court denied summary judgment on the ADA claim.  The court concluded that the South Boston Farmers Market is a place of public accommodation under Title III of the ADA, that individuals who operate places of public accommodation may be properly sued under Title III, and that there was a genuine issue of material fact regarding whether Satterfield, the President of the Halifax County Farmers Market Association, operated the market.

This case tickles me a bit, because in an amicus brief I did for disability rights groups years ago in PGA Tour v. Martin, I used farmers' markets as an example of an entity -- like the PGA Tour -- that is a place of public accommodation with Title III obligations both to buyers and to sellers.  So it's nice to see a court rely in part on PGA Tour to hold that farmers' markets are covered by the statute in their dealings with potential sellers.

Wagstaff on Segways at Disneyland (and Everywhere Else)

My friend and former DOJ colleague Brandy Wagstaff has just published this piece: Brandy L. Wagstaff, Make Way for Segways: Mobility Disabilities, Segways, and Public Accommodations, 20 Geo. Mason L. Rev. 347 (2013).  The introduction:

“Segways at Disneyland? Could happen.” So sayeth Chief Judge Alex Kozinski of the Ninth Circuit. But, before anyone gets too excited, let us take a step back and really assess the possibility that we will see individuals cruising on Segways all over Disneyland, Disney World, or even your local mall. 

The question boils down to: Should Segways be treated like wheelchairs? And, if not, why not? 

The answer lies in 28 C.F.R. § 36.111--the U.S. Department of Justice's (“DOJ”) newly revised regulation under Title III of the Americans with Disabilities Act (“ADA”) as applied to mobility devices for persons with mobility disabilities. And this answer really matters to certain individuals with particular mobility conditions, such as multiple sclerosis and Parkinson's disease, who might prefer to use a Segway as a means of mobility in public places like malls or amusement parks, instead of a traditional wheelchair or scooter. 

Recently, the Ninth and Eleventh Circuits struggled with the application of this regulation, and while these two decisions are not necessarily in conflict with each other, they implicate some issues that help make sense of this interesting question. In Part I, this Essay sets forth the applicable law and examines the questions that courts, the DOJ, and places of public accommodation must answer in order to decide whether they can ban devices like Segways. Part II examines the two recent decisions involving Segways in the courts of appeals. Finally, Part III analyzes the particular case of Segways at Disneyland and whether the courts (and Disney) reached the correct decision.

Eighth Circuit Issues Important Communications Access Decision

Yesterday, the United States Court of Appeals for the Eighth Circuit issued an opinion in Argenyi v. Creighton University.  I've blogged about this case before.  Argenyi was a student at Creighton's medical school, which (according to the summary judgment record) refused various requests to accommodate his hearing impairment.  In particular, the school refused to provide computer-assisted real-time transcription (though it allowed Argenyi to provide it himself at his own substantial expense) or to provide an interpreter (or even permit Argenyi to use one at his own expense in clinical courses).  Although he succeeded in passing his courses during his first two years of medical school, Argenyi withdrew from school because he did not believe he was learning what he needed to, particularly in clinical courses.  Argenyi sued under Title III of the ADA and Section 504 of the Rehabilitation Act.  The United States District Court for the District of Nebraska granted summary judgment to the university, but the Eighth Circuit yesterday reversed.

The Eighth Circuit held that the ADA and the Rehabilitation Act apply an "equal opportunity" standard to determine what communications aids will be required under the statutes.  Those statutes, the court concluded, " each require Creighton to provide reasonable auxiliary aids and services to afford Argenyi 'meaningful access' or an equal opportunity to gain the same benefit as his nondisabled peers."  And the court summarized the elements of the record that, in its view, "provide[d] strong evidence that Creighton's accommodations were inadequate and that the University was not entitled to summary judgment:

In clinical courses Argenyi and his patients frequently failed to communicate effectively. He described in his affidavit a "consult with the parents of a two month old, with communication limited such that [he] did not know . . . why the infant was hospitalized," as well as his struggle to communicate with "emotional family members, patients with accents, and . . . a patient with a history of a broken jaw." Argenyi stated that Creighton had done "nothing to remedy [his] inability to understand what was happening in the clinic" and eventually advised him to "refrain from making requests for additional auxiliary aids and services."

After a careful review of the record, we cannot agree with the district court's conclusion that Argenyi's allegations were "unsupported." The record contains five letters from Argenyi's doctors to Creighton confirming his need for additional auxiliary aids and services. Dr. Backous wrote to Creighton during Argenyi's first month of medical school that "[i]t is imperative that [Argenyi] have access to visual cues for everyday communication and education," including "but . . . not limited to" closed captioning, CART, and a cued speech interpreter. He urged Creighton to consider Argenyi's specific requests, explaining that Argenyi "is the best person to judge what [assistance may be necessary] since no one else can really understand what he is hearing through his cochlear implant systems."

Creighton also received a report from Dr. Thedinger prior to Argenyi's second year, stating that the FM system actually worsened Argenyi's speech discrimination ability to 38 percent comprehension. In addition the record contains correspondence between Argenyi and Creighton in which he repeated requests for an interpreter in clinical courses, which were all denied. During his first two years of medical school, Argenyi borrowed more than $100,000 to pay for the auxiliary aids and services he needed to obtain the medical education he sought, and which Creighton declined to provide.

The district court had concluded that Argenyi's requested accommodations were not "necessary," largely because Argenyi was capable of attending school and passing his classes without them.  But the Eighth Circuit concluded that the district court applied the wrong legal standard.  In so holding, the Eighth Circuit relied on the Eleventh Circuit's recent ruling in Liese v. Indian River Hospital District (blogged about here) and the Ninth Circuit's recent ruling in Baughman v. Walt Disney World Company (blogged about here):

In Title III of the ADA and § 504 of the Rehabilitation Act, Congress required public accommodations and entities which receive public funding to furnish reasonable auxiliary aids and services so that all individuals have an equal opportunity to gain "a like" or "equal" benefit. Baughman, 685 F.3d at 1135; Liese, 710 F.3d at 343. Rather than merely ensure that Argenyi is not "effectively excluded" from its medical school, the ADA and the Rehabilitation Act require Creighton to "start by considering how [its educational programs] are used by non-disabled [medical school students] and then take reasonable steps to provide [Argenyi] with a like experience." Baughman, 685 F.3d at 1135.

This is a big win for Mary Vargas and Michael Stein of Stein & Vargas, Marc Charmatz of the National Association of the Deaf, and Dianne DeLair of Disability Rights Nebraska.

NPR on DOJ Settlement with Lesley University Over Meal Plans for Students with Food Allergies

See this story, which begins:

Many a college student lives off of microwavable meals – but some do it not by choice but because they're worried school food might make them sick. 

They may have celiac disease, a digestive ailment caused by gluten, or life-threatening allergies to foods like peanuts — both are on the rise. But even as more people become aware of the issues, schools and institutions may lag behind. 

Now some food allergy advocates are celebrating what they see as a shifting legal trend: schools and other institutions required to treat food allergies as a disability. They've found an ally in the Department of Justice. 

DOJ's Civil Rights Division announced last month that the Americans With Disabilities Act applies to students at Lesley University in Cambridge, Ma., who claimed that the school's food services and meal plans were inadequate for their needs. It was the first food allergy-related settlement under ADA in higher education, says a DOJ spokeswoman.

As the story notes, this sort of settlement likely wouldn't have been possible before the ADA Amendments Act.

Seventh Circuit Applies Continuing Violation Theory in ADA Public Accommodations Suit

Yesterday, the United States Court of Appeals for the Seventh Circuit issued an opinion in Scherr v. Marriott International, Inc., ___ F.3d ___, 2013 WL 57857 (7th Cir., Jan. 7, 2013).  The case was a rather straightforward hotel-accessibility case.  In a renovation in 2004, the defendant had added a spring-hinged door closer to the bathroom doors in a number of its Courtyard by Marriott hotels.  Scherr uses a walker for mobility.  She visited one of defendant's renovated hotels, in Overland Park, Kansas, in 2006, and was injured when the spring-assisted door closed too quickly on her.  In this lawsuit, filed in 2010, Scherr sought injunctive relief under Title III of the ADA to remove the spring-hinged door closers in all of defendants' hotels that have them.  The district court concluded that Scherr had standing to challenge accessibility at the Overland Park hotel (as she has lots of family in the Overland Park area who live near the Courtyard hotel, and she often visits) but not at the other hotels (as she made no similar showing that she would ever visit them).  The district court also concluded that Scherr's suit was not barred by the statute of limitations.  But the district court held that the spring-hinged door closer, while not compliant with the Attorney General's 1991 ADA regulations, did comply with the Attorney General's 2010 ADA regulations.  Accordingly, the court granted judgment to the defendant.

The Seventh Circuit affirmed in all respects.  The most legally significant aspect of the Seventh Circuit's opinion is its discussion of the statute of limitations.  The court concluded that Illinois's two-year personal-injury statute of limitations applied to Scherr's claim.  But even though Scherr filed her suit more than two years after she encountered the barrier she challenged, the court nonetheless held that the statute of limitations did not bar the suit.  Because Title III authorizes plaintiffs to seek injunctive relief for actual or threatened violations of the statute, the court concluded that the existence of unlawful barriers to access is a continuing violation of the statute that continues to impose a fresh injury.

Although there is no clear circuit split (because the appellate cases involve different accessibility statutes), the courts of appeals have employed a number of different statute-of-limitations analyses to disability-access claims involving construction or renovation.  The Seventh Circuit's decision in Scherr is consistent with the Ninth Circuit's 2002 decision in Pickern v. Holiday Quality Foods Inc., which also applied a continuing violation theory to an ADA Title III accessibility claim.  Last year, the en banc Fifth Circuit decided Frame v. City of Arlington (blogged about here), which held that the statute of limitations in an accessibility suit under Title II of the ADA does not begin to run until the plaintiff knew or should have known of the inaccessibility of the facilities at issue.  In 2008, the en banc Ninth Circuit decided Garcia v. Brockway, which refused to apply a discovery rule or continuing violation theory to a case challenging inaccessible design and construction under the Fair Housing Act.  The Garcia court held that the statute of limitations begins to run at the end of the design and construction phase.  Also in 2008, the Third Circuit held that the statute of limitations on a challenge to inaccessible alterations to a facility under the public-transportation provisions of ADA Title II begins to run no earlier than the completion of the alterations -- though the court left open the possibility that the statute would begin to run even later if the plaintiff did not discover the violation by the time the alteration was completed.  That case was Disabled in Action v. Southeastern Pennsylvania Transportation Authority.

Serial Litigation Comes to New Orleans

Hey, I'm going to New Orleans next week!  Coincidence?  Well, actually, yes.  

Nonetheless, see this article from the Louisiana Record.  It begins:

The number of lawsuits against businesses allegedly in violation of the Americans with Disabilities Act (ADA) has grown over the past few years in the New Orleans area. 

David Whitaker, partner at New Orleans-based defense firm Kean Miller, said the recent up-tick in the number of lawsuits under the ADA has been mainly led by New Orleans area attorney Andrew Bizer of the Bizer Law Firm.

California Supreme Court: Two-Way Fee-Shifting Statute for Accessibility Cases Not Preempted by the ADA

Yesterday, the California Supreme Court issued an opinion in Jankey v. Lee.  Jankey, who uses a wheelchair, brought a case in state court and alleged that Lee's grocery store was inaccessible because it had a small step in front.  Jankey raised claims under both the public accommodations provisions of the ADA and state law, though the state law imposed the same substantive standards of liability as does the ADA.  The trial court granted summary judgment to Lee.  Although the grocery store did, in fact, have a small step at the front, the court concluded that removal of that step would not be readily achievable.  As a result, Lee did not violate the ADA or the parallel state laws.  Lee then moved for an award of attorneys' fees under Section 55 of California's Civil Code, which provides that the prevailing party -- plaintiff or defendant -- is entitled to fees in injunctive actions alleging inaccessible public accommodations.  Jankey argued that this provision was preempted by the ADA's attorneys' fees provision -- under which prevailing defendants are entitled to fees only if the plaintiff's case satisfies the Christiansburg Garment standard of being "frivolous, unreasonable, or without foundation."  The trial court nonetheless concluded that Section 55 mandated an award of fees to a prevailing defendant.  Although it did not find Jankey's claims to be frivolous, unreasonable, or without foundation, it granted the motion for attorneys' fees.  The appellate court affirmed, as did the Supreme Court in yesterday's decision.

The California Supreme Court concluded that, under the plain text of Section 55, attorneys' fees are not discretionary.  Rather, any prevailing party -- plaintiff or defendant -- in a Section 55 action is entitled to fees.

The court then rejected Jankey's preemption argument.  It first interpreted the ADA's savings clause for more disability-protective state laws as foreclosing any conflict or obstacle preemption challenge to Section 55.  The ADA's savings clause provides that "[n]othing in this chapter shall be construed to invalidate or limit the remedies, rights, and procedures of any * * * law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this chapter."  The court read this clause as saving from preemption any state law that at least in part affords people with disabilities greater protection than does the ADA -- even if other aspects of the state law, or even the state law taken as a whole, provide less protection to people with disabilities.  Because Section 55 provides broader protection than the ADA's public accommodations title in one respect -- the state law empowers people with disabilities to sue when they are "potentially aggrieved" by a defendant's violations, while federal law requires an individual with a disability to show that she is "about to be subjected to" discrimination -- the court saw no "need to parse every aspect of [the] state law to determine whether, on balance, the state law is equally or more advantageous as a whole."

Notwithstanding this conclusion, the court then examined the questions of conflict and obstacle preemption directly.  The court concluded that -- even if the plaintiff's state-law and ADA claims so completely overlapped that the state-law claim required no additional work to defend -- the award of full attorneys' fees to the prevailing defendant was not preempted:  "Lee would have been entitled to the same fees whether or not Jankey pleaded an ADA claim; the pleading of an ADA claim was neither a necessary nor a sufficient cause of the fee award. The fee award here is not in any meaningful sense for or on account of having to defend against an ADA claim, but instead a consequence of Jankey‟s purely voluntary decision to seek additional state remedies."  Because "[p]laintiffs can always sue under the ADA alone, safe in the knowledge that even if they lose, defense fees will be available only in accordance with Christiansburg," the court concluded that awarding attorneys' fees to defendants more broadly in cases in which plaintiffs voluntarily choose to add a state-law claim neither conflicted with the ADA nor posed an obstacle to the accomplishment of its purposes.

Four years ago, the Ninth Circuit held that two-way fee-shifting under Section 55 was preempted by the ADA.  I doubt, therefore, that this is the last we'll hear of this issue.

A Constructive Response to Serial ADA Litigation

See this story from San Francisco.  It begins:

Some small business owners in the Sunset and Richmond districts have a new tool to stave off predatory lawsuits and bring their shops into compliance with the Americans With Disabilities Act. 

A $200,000 pilot program Mayor Ed Lee launched with Supervisor Carmen Chu on Tuesday allows small business owners in select areas to get a free inspection and a plan for compliance. It also gives them access to grant money and a $1 million loan fund to make needed improvements. 

The idea is twofold: to stave off what Lee called “drive-by lawsuits” where the cost of litigation and fines can drive shop owners out of business, while also getting owners on track to have their shop accessible to those in wheelchairs or with other disabilities as required by federal law.

Seattle NPR Affiliate on Argenyi v. Creighton University

See this story, which begins:

A Seattle man says his dreams of being a doctor are being dashed because Creighton University Medical School in Nebraska won’t accommodate his hearing impairment. At issue is just how far an institution must go to comply with the Americans with Disabilities Act. 

The case, Argenvi v. Creighton University, is being heard in the 8th Circuit Court of Appeals in St. Paul, Minnesota. 

Michael Argenyi, who has profound hearing loss, claims the school is in violation of the Americans with Disabilities Act because it has not provided him with interpreters and a real time captioning service known as CART.

Minnesota U.S. Attorney's Office Focusing on Downtown Minneapolis Restaurant Accessibility

See this post from the Minneapolis Star-Tribune, which begins:

Minnesota U.S. Attorney B. Todd Jones announced Wednesday that his office is sending a detailed questionnaire this week to 12 restaurants on or near Nicollet Mall to determine whether they are wheelchair accessible or otherwise complying with federal law requiring accommodations for people with disabilities. 

Jeanne Cooney, a spokesperson for Jones, said the U.S. Attorney’s office periodically looks into different types of venues to see if they are compliant with the Americans with Disabilities Act (ADA). She said the office works with the businesses to help them meet the ADA standards, but it also has the option to file a lawsuit. She said restaurants are expected to meet the ADA requirements that were in place at the type of the restaurant’s construction or latest renovation. 

She said her office cannot investigate all restaurants in the state, so it picked a small group in the same area. Other restaurants may be added to the inquiry. She said the U.S. Attorney’s office has no advance information about whether restaurants on Nicollet Mall are complying with the law.

This is a great way for US Attorney's offices to work on the enforcement of Title III of the ADA.

FoxRobBlog on New Oliver Case

Awesome disability rights lawyers (and FOBs) Tim Fox and Amy Robertson have a new blog over at their law firm's website; check it out.  They have a post on an important new case involving the Ninth Circuit's pleading standards for ADA public accommodations claims.  The case is Oliver v. In-N-Out Burgers, — F.R.D. —, 2012 WL 5266978 (S.D. Cal., Oct. 19, 2012).  Here's Amy's write-up:

This case does two important things: 

First, it permits the plaintiff to amend his complaint to add barriers he learned about during the litigation. This is clearly a best practice in light of the Ninth Circuit’s holding in Oliver v. Ralphs Grocery Company, 654 F.3d 903 (9th Cir. 2011), limiting the plaintiff — the same Mr. Oliver! — to the barriers alleged in his complaint. The Ninth Circuit had held, earlier that year, that “[a]n ADA plaintiff who has Article III standing as a result of at least one barrier at a place of public accommodation may, in one suit, permissibly challenge all barriers in that public accommodation that are related to his or her specific disability.” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 950-51 (9th Cir. 2011). These holdings are harmonized if a plaintiff is permitted to amend his complaint, during the litigation, to allege additional violations. 

Second, it addresses new state law pleading standards set to take effect on January 1, 2013, requiring complaints to allege the dates on which they encountered the alleged barriers. The defendant argued that the amendment would be futile because it did not contain these required dates. The court rejects this argument, holding that state pleading standards do not apply in federal court.

California City Pays Serial Litigant $15K Not to Sue the City or Any Business Within It

As all three of my blog's readers know (I have it on good authority I picked up a third reader!  Yay!), I have taken an "anti-anti-" position on serial ADA public accommodations litigation.  I understand the frustration that many business owners express about individuals with disabilities and their lawyers who go into a town and sue dozens of inaccessible businesses at a pop before moving on to the next town and doing it again.  But to focus one's criticism on the serial litigators, I have argued, misses two key points: (1) serial litigation wouldn't work if so many businesses didn't still fail to comply with the ADA, a law that is now more than 20 years old; and (2) the remedial structure of the ADA's public accommodations title encourages serial litigation.  In a very large swath of cases (perhaps the overwhelming majority of those cases), serial ADA public accommodations litigators are suing businesses that are actually in violation of the statute.  And whatever one might think of the attractiveness of the tactic of suing lots of businesses at once, the prospect of being sued by a serial litigator does place an incentive on businesses to get educated about the ADA and get into compliance. That is why I've generally opposed efforts to limit serial ADA litigation.

But I have no tolerance for serial litigation that does not advance compliance with the ADA -- litigation that does not contribute to making businesses more accessible.  Which brings me to the following story, which begins:

George Louie is a West Sacramento man who has sued hundreds of Northern California cities and businesses for failing to comply with the federal Americans with Disability Act. 

This week, Yuba City announced it has agreed to pay Louie $15,000 to leave the city and its businesses alone for good. 

"He's agreed not to file ADA lawsuits in our city, period," said Darin Gale, Yuba City's economic development manager. "There's no timetable, it's forever." 

The agreement, which Yuba City officials say is the first of its kind, has many business owners in the Sutter County town drawing a sigh of relief.

Read more here: http://www.sacbee.com/2012/10/13/4907961/yuba-city-pays-man-not-to-file.html#storylink=cpy

I understand why the city would pay $15,000 if it would get this plaintiff to go away, but a $15,000 bounty, paid for by the city, does absolutely nothing to incentivize business owners to improve accessibility or comply with the law.  Indeed, the promise never to file an ADA lawsuit against the city or businesses within the city, at any point in the future -- even for violations that haven't yet occurred -- undermines incentives for compliance.  Indeed, to the extent that the agreement covers claims that haven't yet arisen (because there is no violation yet or Mr. Louie hasn't yet encountered or learned of the violation), it is likely unenforceable.  See 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 265 (2009) (reaffirming "that [substantive] federal antidiscrimination rights may not be prospectively waived").  But even to the extent that the agreement is enforceable, it seems to me quite discreditable.

By the way, California's recent anti-serial-litigation legislation will do virtually nothing to stop conduct like this.  It will, to be sure, prohibit plaintiffs' lawyers from placing a request for money in a demand letter (likely a First Amendment violation), but it won't stop defendants from offering, and plaintiffs from accepting, settlements like this.  And it won't stop defendants from asking plaintiffs what it will take to get them to go away, and plaintiffs from responding by saying, "Give me the Louie v. Yuba City deal."  Nor, as Julia Campins recently pointed out, should the other provisions of the new legislation stop cases like this.  The legislation will have real effects on legitimate litigation, but it won't address the real problem that this case illustrates.

SDNY Zagat's Initiative Brings First Lawsuit: Rosa Mexicano

See this story in the New York Observer, which begins:

Rosa Mexicana is a favorite of New Yorkers hungry for upscale guacamole and well-mixed margaritas, but the restaurant has not been sitting well with the U.S. Attorney’s office, which has filed suit against the popular eatery for non-compliance with the Americans with Disabilities Act. 

The restaurant is the first “most popular” Zagat pick to be sued for ADA non-compliance after the U.S. Attorney’s office launched an initiative targeting the guide’s 50 most beloved eateries last year. In its 2012 guide, Zagat called the restaurant, which has three Manhattan locations, a “jumping” joint that “gets it right” with “flavorful” food and “personable service.” But the feds claim that the restaurants’ entrances, waiting areas, dining rooms, bars and bathrooms get it wrong, blocking disabled diners from enjoying the hot spot’s South of the Border cuisine. 

“When it comes to restaurants, New York City is arguably the world’s crown jewel, and the purpose of this initiative is to ensure that individuals with disabilities have equal access to its offerings. With today’s lawsuit alleging multiple violations of the ADA at three Rosa Mexicano locations in the City, that is exactly what we are doing,” said Manhattan U.S. Attorney Preet Bharara in a release about the lawsuit. “As alleged, neither the ADA, nor the warnings from this Office were enough to convince these restaurants to comply with the law, and the goal of this lawsuit is to see that they finally do.”

Consent Decree Filed in Netflix Captioning Case

Wow.  This is a big deal.  My friends at DREDF just announced a consent decree in their case against Netflix.  The decree will provide for closed captioning in 100% of Netflix's streaming content within two years.  This is a major step toward fully opening up the internet's incredibly important space of entertainment and commerce to people with hearing impairments.  The press release:

Netflix Inc. and the National Association of the Deaf (NAD), a non- profit organization, have submitted a joint Consent Decree to a federal court in Springfield, Mass., ensuring closed captions in 100% of Netflix streaming content within two years.

NAD, along with the Western Massachusetts Association of the Deaf and Hearing- Impaired (WMAD/HI) and Lee Nettles, a deaf Massachusetts resident, brought suit against Netflix seeking that commitment in 2010.

The agreement indicates the parties’ mutual intent to increase access for people who are deaf and hard of hearing to movies and television streamed on the Internet. Netflix began its closed-captioning program in 2010. Netflix has increased captioning for 90% of the hours viewed but is now committed to focusing on covering all titles by captioning 100% of all content by 2014. Captions can be displayed on a majority of the more than 1,000 devices on which the service is available.

Howard A. Rosenblum, CEO of NAD, the lead plaintiff in this case, said, “The National Association of the Deaf congratulates Netflix for committing to 100% captioning, and is thrilled to announce that 48 million deaf and hard of hearing people will be able to fully access Netflix’s Watch Instantly services.”

“We have worked consistently to make the broadest possible selection of titles available to Netflix members who are deaf or hard of hearing and are far and away the industry leader in doing so,” said Neil Hunt, Netflix Chief Product Officer. “We are pleased to


have reached this agreement and hope it serves as a benchmark for other providers of streaming video entertainment.”

Netflix will also improve its interface so that subscribers will be better able to identify content that has been captioned in the period until 100% captioning is achieved. The parties have asked the court to maintain jurisdiction of the case for four years to assure compliance with the terms of the Decree, and plaintiffs will monitor Netflix’s progress.

“We’re so pleased that Netflix worked jointly with plaintiffs to devise a reasonable and workable way to achieve 100% captioning. The Decree is a model for the streaming entertainment industry,” said Arlene Mayerson, Disability Rights Education & Defense Fund's Directing Attorney. “DREDF hopes that this is the beginning of opening the Internet for deaf and hard of hearing individuals in streamed entertainment, education, government benefits, and more.”

Campins on the New California Anti-Serial-Litigation Law

Ace disability rights and employment lawyer Julia Campins has this post on her law firm's blog about SB1186, the new California law that is supposed to respond to serial litigation.  A taste:

Others have commented on the First Amendment concerns in the new demand letter requirements, and I will not address those. What I am concerned with here is how this legislation will work to the detriment of those who need to use courts to protect their civil rights, and will barely cause a ripple in the practices of the targets of this legislation.

Let’s return to the story of the problem litigants. How hard of a requirement is it for them to list the date or dates of their visits? Indeed, they planned the visit for the purpose of the litigation. How hard of a requirement is it for them to list the specific barriers? They went with an eye toward barriers and, like a paid expert, were looking for specific violations. 

Now, compare this problem litigant to a real person visiting a public accommodation because she likes the food or he needs to purchase some clothing. She may not make a calendar entry every time she goes to Burger King. Do you? He may not go clothing shopping on a regular basis. Both may use cash and not get receipts. She may remember that there was a problem getting into the restaurant, but not remember until she returns or is reminded that not only was the door impossible for her to open, but there wasn’t enough room for her to open it. Or, more importantly, if she was unable to get into the restaurant at all, how is she to know that there was no seating for people who use wheelchairs? The legislation makes her lawsuit difficult or impossible (assuming that it is interpreted to require specific dates of visits), but has done nothing to stop the intended targets.