CREEC, Disabled Professional Women File Amicus Brief Supporting Title III Class Actions

When an accessibility barrier at a chain of businesses affects people with similar disabilities in the same way — narrow queue lines at a restaurant; steps at the entrance to a store; parking lots with excessive slope — the most efficient way to address these violations is through a class action under Title III of the Americans with Disabilities Act (ADA) against the common owner or operator.  This was the conclusion reached by a federal district court in Pennsylvania in an order certifying a class of people with mobility disabilities challenging noncompliant parking lots at Steak ‘N Shake restaurants around the country.

Steak ‘N Shake challenged this decision in the Third Circuit, supported by two amicus briefs on behalf of various business associations including the National Retail Federation and the Chamber of Commerce.

CREEC — for itself and disability rights legends Corbett O’Toole, Julie Farrar, Carrie Ann Lucas, and Julie Reiskin — filed an amicus brief to the Third Circuit in support of the plaintiffs and the righteousness of Title III class actions.  Eve Hill, of Brown, Goldstein & Levy, and Michelle Uzeta drafted an amicus brief on behalf of Disability Rights Pennsylvania and the National Disability Rights Network, also supporting the plaintiffs, and explaining the importance of not just achieving, but maintaining access for people with disabilities.

CREEC’s brief explained the many ways in which Title III cases — based on objective measurements and the DOJ’s design standards — are ideally suited for class treatment.  CREEC also took the opportunity to respond to Steak ‘N Shake’s amici — the business associations — who filed briefs full of insults and random context-free statistics designed to demonize Title III plaintiffs and belittle the important task of making the commercial world more accessible.

For example, Defendant’s amici urged alarm that there were so many Title III lawsuits — 6,601 in 2016 and possibly 7,887 in 2017.  We had some fun looking up the source of their numbers and showing how they compared with other categories of lawsuits.  Turns out they were citing to a ADA defense law firm’s blog, which had warned that its analysis “may not be bullet proof.”  We were able to respond with a chart — you know we’re numbers nerds here at CREEC — showing that the number of cases filed under Titles II and III of the ADA — coded “ADA – Other” — are very low in contrast to other types of cases.  These numbers are drawn from statistics gathered by the Administrative Office of the U.S. Courts.

Image: a line graph with the years 2006 to 2016 on the x axis and numbers 10,000 to 100,000 on the y axis. 7 colored lines cross the graph horizontally, each representing a type of case. The top line is a jagged line representing tort cases (varying between 50,000 and 90,000. The bottom line is "ADA - Other" vary from 1,400 to about 7,000.

[There is an image description for the chart in alt text.  You can also access the underlying Excel spreadsheet here.]

Defendant’s amici also rolled out the usual epithets — “drive-by,” “cottage industry,” “shakedown,” blah blah blah.  The CREEC amicus brief called them out for this playground-level name-calling:

Litigation by insult is not uncommon in the Title III context and may, again, stem from the fact that liability is so easily established.  Rather than surveying their facilities and bringing them into compliance — or raising legitimate, civilly-argued defenses — many businesses resort to the type of name-calling present in the Defendant’s amicus briefs here.  The undersigned searched Westlaw’s “Trial Court Documents – Civil Trial Documents” database for pleadings filed in Title III cases since 2002 that used one or more of the following terms:  “vexatious;” “shakedown;” “abusive;” “serial;” “bilk;” “cottage;” “extort!;” or “drive-by.”  The search returned over 1,200 results.  In many cases, identical sentences or even paragraphs appeared in pleadings in different cases involving different parties and different barriers — but filed by the same defense counsel with, apparently, the same language ready to copy and paste from one pleading to the next.

We also found it amusing that Steak ‘N Shake argued both that the case was so complex that it would require “mini-trials”* but so vague that it would be impossible to craft an injunction beyond “obey the law.”

It is contradictory for Defendant to complain simultaneously about its perceived need for “mini-trials” and its perception that the only possible injunction is an “obey the law” injunction.  . . .  Compliance, for Defendant, is either too complex or too general.  Like Goldilocks,** however, the district court should not have difficulty formulating an injunction that is just right:  one that requires Defendant, based on complete or symptomatic evidence, to remediate noncompliant parking spaces; and to promulgate a policy to include this in existing maintenance procedures.

Ultimately, the most important point to keep in mind is that plaintiffs who bring multiple ADA lawsuits are a feature, not a bug.  As the Supreme Court held, with respect to the provision that was adopted as the ADA’s enforcement provision:

When the Civil Rights Act of 1964 was passed, it was evident that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance with the law. A Title II suit is thus private in form only. When a plaintiff brings an action under that Title, he cannot recover damages. If he obtains an injunction, he does so not for himself alone but also as a ‘private attorney general,’ vindicating a policy that Congress considered of the highest priority. . . . . Congress therefore enacted the provision for counsel fees—not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II.

Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 401–02 (1968) (emphasis added).

It was a terrific experience writing for Corbett, Julie F., Julie R., and Carrie, and working with Michelle and Eve during the drafting process.  Easily the coolest thing about being a lawyer is working on a great team.  And we love writing amicus briefs here at CREEC, so if you need someone to call baloney on bogus statistics and clap back at silly name-calling, keep us in mind!

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*Can you blame me for picturing Lego mini-figure lawyers and judges every time some defendant argues that a class action will require “mini-trials.”

Image: courtroom with judge, witness and two lawyers at counsel table, all made out of Lego.

Photo credit: Stewart & Sydney’s Flickr page. https://www.flickr.com/photos/godwinshollow/7879293332/in/album-72157631286177512/ (Check it out – it’s a total Lego city!)

** Credit for the “Goldilocks” metaphor to Erica Grossman, who deployed it skillfully when a defendant initially argued that her complaint was too short, and then — in a second motion — that it was too long.  And you wonder why plaintiffs’ civil rights lawyers develop a sarcastic sense of humor!

 

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