In late April 2020, Judge Woods of the Southern District of New York dismissed several lawsuits against retail defendants asserting violations of Title III of the Americans with Disabilities Act (“ADA”). See Murphy v. Kohl’s Dep’t Stores, No. 19-09921, 2020 WL 1974261 (S.D.N.Y. Apr. 24, 2020); Calcano v. Swarovski N. Am. Ltd., No. 19-10536, 2020 WL 1974143 (S.D.N.Y. Apr. 24, 2020); Dominguez v. Banana Republic, LLC, No. 19-10171, 2020 WL 1950496 (S.D.N.Y. Apr. 23, 2020). Specifically, the suits asserted that the various defendants violated Title III of the ADA by selling gift cards that did not include Braille, thereby discriminating against the visually impaired. Starting last year, a small group of plaintiffs filed a total of 243 largely identical complaints. Continue reading SDNY Judge Grants Motions to Dismiss in Several ADA Gift Card Cases
On April 3, 2020, the Office for Civil Rights continued its guidance on how institutions can implement distance learning while complying with federal civil rights laws. This guidance is timely because distance learning due to COVID-19 is redefining how most educational institutions operate. When all levels of academic institutions had to close their doors due to stay-at-home orders, many of them opened the proverbial window by turning to online education. Despite its increasing popularity over the past decade or so, distance learning remains an emerging landscape for many institutions as they navigate purchasing/installing new technology, implementing new methods of teaching, and ensuring connectivity with students. OCR’s guidance provides a roadmap to this new territory.
In response to a complaint from disability advocacy groups in Washington state regarding health care rationing, the Department of Health and Human Services (HHS) Office of Civil Rights (OCR) issued a reminder to entities covered by federal civil rights statutes of their ongoing obligation, amid the COVID-19 crisis, to prohibit discrimination on the base of race, color, national origin, age, religion, sex, and disability. OCR is responsible for enforcing the Americans with Disabilities Act (ADA), Section 1557 of the Affordable Care Act, and Section 504 of the Rehabilitation Act. The bulletin reminds covered entities that “persons with disabilities should not be denied medical care based on stereotypes, assessments of quality of life, or judgments about a person’s relative ‘worth’ based on the presence or absence of disabilities.”
To read the full text of this post by Duane Morris partner Colin Knisely, please visit the Duane Morris Coronavirus (COVID-19) Blog.
As with all crises, this pandemic is a rapidly evolving situation that is forcing schools to quickly implement new policies and practices, often operating on limited information and without the usual procedural safeguards and vetting. Such an environment creates a risk of the unintended consequences of those new policies/procedures being overlooked, resulting in potentially discriminatory effects to students.
Well-known ADA plaintiffs’ firm, Carlson Lynch, has recently filed several lawsuits against stores that that have health screening kiosks, which have become popular in recent years. The kiosks allow users to self-check their blood pressure, weight, pulse and body mass index, and certain other health information. The lawsuits allege that the kiosks are not fully accessible to blind and visually impaired patrons because they require the use of a touchscreen, which plaintiffs allege is the only way to use the kiosks. Plaintiffs allege that the kiosks lack a keypad or keyboard with tactilely discernible input controls, in violation of both the ADA and the Rehabilitation Act of 1973. While the kiosks are capable of speech output and are equipped with speakers, plaintiffs claim that the audio capabilities are rendered useless to blind users who are unable to access the kiosk in the first place, due to the touchscreen component of the kiosk. Further, the lawsuits allege that, even if a blind or visually impaired user were able to access the kiosk, as a result of certain HIPAA privacy concerns, the kiosks audio function will not provide audio of the user’s health results. Plaintiffs are seeking injunctive relief, directing the defendants to make the kiosks accessible for users with visual disabilities.
The lawsuits allege that the blind plaintiff visited at least one store location and attempted to use the health kiosk, but was unable to access the kiosk because of the touchscreen. If the past practices of Carlson Lynch are any indication, every grocery store, pharmacy and retailer that operates a health kiosk is likely to end up as a defendant in a similar lawsuit.
Federal Prosecutors in New York have arrested and charged an attorney with filing fraudulent lawsuits under the Americans with Disabilities Act (“ADA”). According to the U.S. Attorney for the Southern District of New York, Stuart Finkelstein stole the identities of two individuals that he never actually represented and filed over 300 lawsuits in both the Southern District of New York and the Southern District of Florida. All of the lawsuits alleged that the individuals were denied access to certain public establishments due to ADA noncompliance. However, federal prosecutors allege that Mr. Finkelstein was never retained by the two individuals, was never authorized to file the lawsuits on their behalf, and that the individuals never actually attempted to visit the businesses in question. All told, Mr. Finkelstein collected approximately $930,000 in attorneys’ fees from the lawsuits. Mr. Finkelstein is charged with mail fraud, aggravated identify theft, obstruction of justice, and false declarations to a court. More information can be found on the Department of Justice website: https://www.justice.gov/usao-sdny/pr/attorney-charged-filing-fraudulent-lawsuits-under-americans-disabilities-act
In a pattern similar to the ADA website accessibility cases that have been so prevalent the past few years, since October 24, 2019, over 100 class action lawsuits have been filed against retail and restaurant chains alleging violations of the Americans with Disabilities Act (“ADA”) for failure to sell Braille gift cards. The lawsuits, which have all been filed in the United States District Courts for the Eastern and Southern Districts of New York, also allege violations of New York City and New York State anti-discrimination laws.
The complaints in these cases are virtually identical, with the exception of the name of the defendants. The plaintiffs allege that the defendants’ failure to sell gift cards imprinted with Braille constitutes a denial of access to defendants’ gift cards and, therefore, is also a denial of access to the products and services offered at the defendants’ brick-and-mortar locations, in violation of the ADA. Plaintiffs are seeking permanent injunctions against defendants requiring them to sell store gift cards that contain the name of the merchant and the denomination of the card in Braille, along with Braille writing on the gift card packing that conveys “other pertinent information.”
Assuming plaintiffs and their attorneys follow the same playbook they used in the ADA website cases, we expect to see an increase in these lawsuits and demand letters over the next several months, targeting any business that sells gift cards. However, we also believe there are a number of strong defenses to plaintiffs’ claims, and would expect that many defendants will move to dismiss the lawsuits.
If you have any questions about these lawsuits, please contact J. Colin Knisely, any member of the Commercial Litigation Practice Group, or the attorney in the firm with whom you are regularly in contact
On October 7, 2019, the Supreme Court of the United States issued an order denying certiorari in Domino’s Pizza, LLC v. Robles, a case that would have required the Supreme Court to determine the application of Title III of the Americans with Disabilities Act (ADA) to websites and mobile applications. The Supreme Court’s order means a Ninth Circuit decision applying Title III to websites and mobile apps will stand, even in the absence of Department of Justice-promulgated regulations outlining applicable compliance standards.
On September 1, 2016, Guillermo Robles, who is visually impaired, filed suit in the U.S. District Court for the Central District of California. He alleged that Domino’s website and mobile app were incompatible with his chosen screen-reading software, and thus violated Title III of the ADA, among other statutes. Domino’s moved for summary judgment, in part on the basis that Title III of the ADA does not extend to its website or mobile app. The District Court found that Title III did apply to Domino’s website and app, but granted summary judgment on the grounds that imposing liability on Domino’s without clear standards for satisfying Title III obligations would violate the company’s due process rights. Robles then appealed.
Disability discrimination lawsuits against hospitals have become relatively common in recent years. For example, Americans with Disabilities Act lawsuits have been filed against hospitals and other healthcare providers, claiming that their websites or parking lots do not adequately accommodate those with disabilities. But few, if any, major lawsuits have alleged that the facilities themselves fail to accommodate patients with physical disabilities. That may have changed with a putative class action lawsuit filed in the U.S. District Court for the Western District of Pennsylvania in late July, which may be the first of many cases to come.
Read the full story on the Duane Morris LLP website.
On August 23, 2019, Senior Judge Paul Huck of the U.S. District Court for the Southern District of Florida imposed severe sanctions—including two $59,900 penalties and an injunction prohibiting future filings without leave of court—on well-known Florida plaintiffs’ lawyer Scott R. Dinin and his client, serial plaintiff Alexander Johnson, after concluding Dinin and Johnson conspired to file frivolous claims under the Americans with Disabilities Act (ADA) and Florida Civil Rights Act (FCRA), inflated recoverable attorney’s fees, and unethically shared in the profits of their scheme.
The Court’s searing order stems from a series of complaints Dinin filed on Johnson’s behalf against gas station owners in southern Florida. In the pleadings, Johnson alleged the owners’ failed to include close captioning on the news and entertainment videos playing on their stations’ pumps, and thereby violated his rights under Title III of the ADA and the FCRA. The owners did not respond to Johnson’s pleading and the Court held a hearing after Johnson, through Dinin, moved for default judgment. At that hearing, the Court concluded that Dinin had “egregiously inflated and misrepresented” his claimed fees and that Johnson’s FCRA claim was frivolous because Johnson pursued it notwithstanding his knowledge that it was procedurally defective. The Court subsequently convened a hearing on July 22, 2019, for Dinin and Johnson to show cause why sanctions should not issue.