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.

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.

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.”

Seven Credit Unions Sued for Inaccessible ATMs

See this article, which begins:

A Pittsburgh attorney, on behalf of three blind clients, has sued seven credit unions and several more banks, claiming their ATMs don’t comply with the Americans with Disabilities Act’s standards for accessible design. 

And, according to court documents filed by attorney R. Bruce Carlson, the lack of compliance is widespread despite a March 15 deadline to comply with the 2010 rules. Carlson cited in court documents a March 7 Wall Street Journal article that said at least 50% of all ATMs in the U.S. are inaccessible to blind individuals. 

Credit unions sued by Carlson are the $131 million Century Heritage FCU of Pittsburgh, the $203 million USX FCU of Cranberry Township, Pa.; the $1.2 billion American Heritage FCU of Philadelphia; the $415 million Primeway FCU of Houston, the $1.6 billion JSC Federal Credit Union of Houston; the $412 million Members Choice CU of Houston; and the $1.5 billion Premier America CU of Chatsworth, Calif. All suits were filed after March 15.

Cinemark Agrees to Provide Audio Description at All First-Run Theaters

Linda Dardarian passes along this press release, announcing a very big deal.  It begins:

Cinemark Holdings, Inc. (NYSE: CNK), one of the world’s largest motion picture exhibitors, today announced that it is providing an audio description option for people who are blind or have visual impairments in all of its first-run theatres. Cinemark is installing audio description systems on a rolling basis across its circuit in conjunction with the chain’s conversion to an all-digital format. Installation is already well under way, and all of Cinemark’s theaters in California already have audio description capability. Cinemark will be able to offer audio description at all of its first-run theaters by mid 2013. 

In audio description (also known as descriptive narration) a narrator provides vocal description of key visual aspects of a movie, such as descriptions of scenery, facial expressions, costumes, action settings, and scene changes, described audibly during natural pauses in dialogue or critical sound elements. Narration of these elements is then woven into the soundtrack of the program or film, so that the finished version is a mix of program audio and descriptive narration. The description, which is provided by movie studios, is available only to members of the audience who choose to receive it via personal headsets and a receiver provided at the theater. 

The California Council of the Blind (CCB), a consumer advocacy organization of people who are blind and visually impaired, and individual blind Cinemark movie patrons applauded Cinemark’s commitment. Cinemark has worked closely with CCB and individual patrons with visual impairments on its audio description initiative.

The full settlement agreement is here.

Student Note on Tester Standing and ADA Title III

Just out: Leslie Lee, Note, Giving Disabled Testers Access to Federal Courts: Why Standing Doctrine is Not the Right Solution to Abusive ADA Litigation, 19 Va. J. Soc. Pol'y & L. 319 (2011).  The abstract:

Over twenty years after the enactment of Title III of the Americans with Disabilities Act (“ADA”), its promise of providing access for the disabled to places of public accommodation has remained unfulfilled. This likely stems from the wide under-enforcement of Title III; though Title III creates a private right of action for disabled individuals to sue for enforcement, the few individuals who do bring suit are often turned away for lack of standing. Perhaps these suits face skepticism and harsh scrutiny from courts because Title III suits are viewed as a “cottage industry” formed by a few profit-driven individuals who have no interest in actually removing barriers to access. Standing, however, is not the right solution for curbing these abusive practices. 

This Note will argue that ADA “testers,” disabled individuals who travel across the country searching for ADA violations and bringing suit, should have standing to sue under Title III. The statutory language and legislative history of Title III suggest that Congress intended for testers to have standing to sue, and traditional standing doctrine as applied to Fair Housing Act and equal employment testers suggest that testers should have standing. This Note will argue that the primary reason for skepticism towards ADA testers stems from practical problems with the application of Title III - specifically an under-enforcement problem and a professional plaintiff problem. The under-enforcement problem stems from the lack of incentive for most disabled individuals to bring suit, and the small number of lawyers with the Attorney General who are dedicated to ADA suits. The professional plaintiff problem arises because, in order for Title III suits to be worthwhile for a plaintiff and his or her attorney, they must file many suits against many places of public accommodation, which often results in profit-driven, rather than access-seeking, litigation. These problems can be resolved by revising Title III to clearly give testers standing to sue, and employing other mechanisms, like attorney's fee-shifting, vexatious litigant sanctions, and compliance certification, to curb abusive litigation.

Eleventh Circuit Overrules Objections to Disney Segway Class Action Settlement

A few days ago, the United States Court of Appeals for the Eleventh Circuit issued an opinion in Ault v. Walt Disney World Co..  The case was brought as a class action to challenge Disney's refusal to permit Segways in its facilities.  After some back and forth, the district court certified a settlement-only class of everyone with a mobility impairment or disability who has brought, intends to bring, or may bring in the future a Segway into one of the Disney Resorts (including Disneyland, Disney World, and other Disney facilities).  And the district court approved a class settlement under which Disney would continue to refuse to permit Segways.  In that settlement, Disney agreed to "develop a four-wheeled, electric-stand up-vehicle ('the ESV') for those for whom a stand-up mobility device is a necessity and who are unable to utilize a mobility device that requires sitting, such as an electronic wheelchair or motorized scooter."  Notably, Disney committed only to provide 15 of these ESVs, and the terms of the settlement permitted Disney to charge patrons with disabilities for renting them.  The settlement also included "a nationwide waiver of declaratory or injunctive claims relating to Disney’s policy."  The case was certified as an injunctive class action under Federal Rule of Civil Procedure 23(b)(2); class members thus were not permitted to opt out of the class or the settlement.

A number of individuals with disabilities, organizations, state attorneys general, and the United States objected to the settlement.  (Disclosure: I supervised the relevant section of the Civil Rights Division at the Department of Justice during part of the time this litigation proceeded, and I had some involvement with the case in that capacity, though I was gone from the Department by the time the United States filed its brief on appeal.)  The district court overruled the objections and approved the settlement, and various objectors appealed.  In its opinion last week, the Eleventh Circuit affirmed.

In an opinion by Chief Judge Joel Dubina, the Eleventh Circuit first rejected the objectors' challenges to the class certification.  The objectors argued that the named plaintiffs' claims were not typical of those of the class, because the named plaintiffs only occasionally used Segways for mobility.  Myany absent members of the class, by contrast, rely on the Segway as their primary mobility aid.  The Eleventh Circuit waved this argument off:

Class members’ claims all stem from the same policy prohibiting the use of Segways® within Disney Resorts, and all claims require analysis of Title III to determine the outcome. While each class member may have a stronger or weaker claim depending upon his or her degree of reliance, we conclude that this alone does not make class representatives’ claims atypical of the class as a whole.

The Eleventh Circuit then turned to the question whether the district court abused its discretion in determining that the settlement was fair, adequate, and reasonable (the showing required for a settlement of a class action).  The appellate court found no abuse of discretion, because it concluded that the plaintiffs would have been unlikely to prevail if the case had been tried to a final judgment:

During an extensive fairness hearing before the district court, Hale [Disney's Chief Safety Officer] testified regarding the safety risks posed by the operation of Segways® in Disney Resorts. The very factors Hale considered before deciding that Segways® are too dangerous for operation in Disney Resorts are the very factors facilities are required to consider under the new regulation. See 28 C.F.R. 36.311(b)(2)(i)–(v) (requiring a public accommodation to consider the attributes of the device, the volume of foot traffic in the facility, the design and operational characteristics of the facility, whether safety restrictions on the use of the device can mitigate its danger, and whether operation of the device will harm the environment in determining if a specific device is allowable in the facility). The district court found that based upon this testimony Disney is likely to succeed at trial in showing that it has fulfilled its obligations under Title III. Objectors and the DOJ would like us to hold that this finding constitutes an abuse of discretion. We decline to do so. The issue before us is not who prevails over whom, but rather, the question is whether the district court abused its discretion in its finding regarding who was most likely to prevail at trial. We conclude from the record that there is no abuse of discretion.

The court also noted in a footnote that the Ninth Circuit had recently permitted an ADA challenge to Disney's exclusion of Segways to proceed.  (I blogged about that case here.)  But it distinguished that case on the ground that the Ninth Circuit hadn't reached the question whether there was a legitimate safety basis for Disney's policy.

A few quick points about this decision:

1.  The settlement here was extremely problematic on class action grounds.  The district court heard substantial testimony that the ESV -- the Disney-created alternative to the Segway -- just would not work for a number of the absent class members due to their height or the nature of their disabilities.  And many of the absent class members, unlike the named class members, use the Segway as their principal means of getting around.  Yet this class action settlement, brought by named plaintiffs whose disabilities were substantially different from the disabilities of that set of absent class members, forecloses those absent class members from challenging the no-Segway policy and provides them nothing.  That's a typicality/adequacy-of-representation problem if I ever heard one.

2.  In concluding that Disney would likely have prevailed on its safety defense if the case had gone to trial, the Eleventh Circuit completely failed to engage the analysis of the Department of Justice, which drafted and enforces the relevant ADA regulation:

The relevant question under the regulation is not whether “unrestricted” Segway use would raise safety concerns, see R.208 at 124, but “[w]hether legitimate safety requirements can be established to permit the safe operation of [Segways] in the specific facility.” 28 C.F.R. 36.311(b)(2)(iv). The regulation permits a public accommodation to impose reasonable time, place, or manner restrictions on the use of OPDMDs to ensure safe operation. See 28 C.F.R. 36.311(b)(2); 75 Fed. Reg. at 56,299. Specifically, the regulation prescribes several factors that a public accommodation must consider in determining whether permitting use of a particular class of OPDMDs is safe and reasonable. See 28 C.F.R. 36.311(b)(2). Among those factors are the vehicle’s speed, the design and operational characteristics of the facility, and the volume of pedestrian traffic, including variations in such volume during the day, week, month, or year. 28 C.F.R. 36.311(b)(2)(i), (ii), & (iii). In its commentary interpreting the regulation, the Department explained that “[o]f course, public accommodations may enforce legitimate safety rules established for the operation of [OPDMDs] (e.g., reasonable speed restrictions).” 75 Fed. Reg. at 56,299. The Department further emphasized that “public accommodations should not rely solely on a device’s top speed when assessing whether the device can be accommodated; instead, public accommodations should also consider the minimum speeds at which a device can be operated and whether the development of speed limit policies can be established to address concerns regarding the speed of the device.” Ibid.

Other safety-related restrictions may be permissible, depending on the circumstances and the particular facility. For example, Segway users may be required to use elevators, but not escalators, to move between floors, and they may be banned from using cell phones or headphones while operating Segways. See McElroy v. Simon Prop. Grp., Inc., No. 08-4041-RDR, 2008 WL 4277716, at *5, *7 (D. Kan. Sept. 15, 2008) (upholding such restrictions imposed by a shopping mall). It may also be reasonable in some facilities to temporarily suspend Segway use during periods of heavy crowds until the congestion clears. See ibid. And in some circumstances, a public accommodation might legitimately require an individual with a disability to perform a brief field test to show his ability to maneuver a Segway prior to using it in the public accommodation’s facility, particularly if the individual wishes to use the Segway when the facility is especially crowded.

Disney also failed to present a facility-specific analysis to establish the safety defense. As noted, the relevant inquiry is “[w]hether legitimate safety requirements can be established to permit the safe operation of the [OPDMDs] in the specific facility.” 28 C.F.R. 36.311(b)(2)(iv) (emphasis added); accord 75 Fed. Reg. at 56,299. “Facility” is broadly defined to include “any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.” 28 C.F.R. 36.104.

Even if legitimate safety concerns might justify a ban (or partial ban) on Segway use at one Disney facility, those concerns would not necessarily mean that Disney could establish a valid safety defense for other facilities that differ in size, configuration, or levels of pedestrian traffic. Disney’s Segway ban applies to a wide variety of facilities within its resorts, including six theme parks (and the multiple facilities found in each park), hotel complexes, restaurants, shopping districts, and individual stores. R.208 at 124-126. Disney’s evidence of Segways’ purported safety risk was limited the devices’ use at its theme parks. E.g., R.208 at 92, 94-95, 110-111; R.209 at 301-302. Disney’s general assertion that Segways, by design, pose a risk in a crowded venue is insufficient to establish that at every time of day, every day, all of Disney’s facilities have a crowd capacity that would preclude the safe operation of Segways. See R.208 at 77-78, 80-81, 88, 115-116. The district court thus erred in concluding that Disney’s evidence “likely” would establish this safety defense. R.252 at 8.

3.  Finally, even if this decision does not formally conflict with the Ninth Circuit's recent decision, the breadth of the class approved by the Eleventh Circuit, and of the release of claims in this settlement, creates a serious practical impediment to other cases challenging Disney's no-Segway policy.  I doubt this decision is the last word we'll hear on the matter.

Fay Vincent on the Low Cost of Disability Accommodations

Former Major League Baseball Commissioner Fay Vincent had this op-ed in the Wall Street Journal yesterday urging businesses to accommodate wheelchair users.  An excerpt:

I begin by urging the wide acceptance of toilet facilities with suitable bars and seats about four inches higher than normal. I know the cost of such a bathroom isn't great and the comfort and security such equipment offers the handicapped is enormous. 

I'm stunned by the number of doors in offices and other public places that aren't wide enough for my wheelchair—and by the number of door sills that make wheelchair use difficult. 

If the doorways were constructed to make it easy for the wheels of my chair to slide over the sills, the awkward occasions when the chair is unable to cross the sill would be avoided.

Battle with Hershey School Won, But Fight Against Ignorance Continues

See this editorial by that title in the Pottstown (PA) Mercury.  It begins:

Abraham Smith has won the battle but not yet the war. 

The 14-year-old, who is using an alias because he is infected with the AIDS virus, was issued an invitation a month ago to attend the Milton Hershey School, a free private boarding school for 1,850 low income boys and girls. The Dauphin County institution was founded by chocolate magnate Milton Hershey and his wife, Catherine, in 1909, originally for white male orphans. 

The invitation by school president Anthony Colistra was a reversal of the school officials’ previous stance last year that rejected the honor roll student’s application because he was HIV-positive.