Retailer Fights Back Against Serial Plaintiffs

Recently, I read an article written by a law firm, which tells the story of one retailer who fought back against the serial plaintiff’s that files multiple ADA lawsuits.eddie_bauer

Since I deal with these very issues on a daily basis, I was curious to see how the courts ruled in these cases. I am pleasantly surprised to see that “Common Sense” is making a comeback!

Eddie Bauer LLC, a national retailer, recently fought back against frivolous “accessibility discrimination” lawsuits that serial plaintiffs brought under the Americans with Disabilities Act “ADA” and similar state laws, such as the California Disabled Persons Act “CDPA” and the Unruh Act. The company won summary judgment in several cases filed by many of the same plaintiffs and same attorneys at different store locations.

Earlier this year Eddie Bauer secured a favorable verdict on all claims against a serial litigant in the U.S. District Court for the Central District of California.  During the trail, the plaintiff alleged that he encountered a number of physical or architectural barriers that prevented him from enjoying full and equal access to an Eddie Bauer outlet store in violation of the ADA, the CDPA, and the Unruh Act.

The alleged barriers included:

1)    A checkout counter that was too high to accommodate a patron in a wheelchair.
2)    A dressing room bench that was too long
3)    The absence of an international Symbol of Accessibility “ISA”
4)    Aisles that were cluttered with merchandise, impeding the plaintiffs ability to navigate through the store

The District Court judge ruled in favor of Eddie Bauer on all claims and, in the process, made some significant rulings. While they are not binding on any other district court judge, they do provide useful support for other defendants who want to fight these frivolous lawsuits.

Here are some of the highlights:
1)    No ADA violation where an “equivalent facilitation” is provided. The Court held that there is no violation of the ADA if places of public accommodation provide an “equivalent facilitation” that allows access. The dressing room bench was 60” long not 48” which stated in the code. The court held that the longer and wider bench provided at least “substantially equivalent” access to a 48” bench.

2)    No ADA liability if alleged barriers are fixed before trial. The court found that there is no liability under the ADA if alleged barriers to access are remedied prior to trail, because the ADA provides for only injunctive relief. Thus, the plaintiff’s claim that the store’s entrance did not have an ISA sign was rendered moot when Eddie Bauer subsequently installed an ISA sign to the entrance, and Eddie Bauer could not incur liability under the ADA.

3)    Moveable displays are not unlawful barriers to accessibility. The court rejected the plaintiff’s claim that the aisles in the store were too narrow because there was “too much clothing on the floor”. Finding that the store had a policy of maintaining 48” aisles and moving any merchandise upon request, the court concluded the store met the applicable standard, and that there was no ADA violation. The court also offered the common sense conclusion that, “if clothing falls on the floor, it is easily moveable.”

4)    Plaintiff must provide specific measurements to establish a violation of the ADA. The plaintiff claimed that the stores check out counter to not meet a 36” max height requirement. However, the court held that, in order to establish a prima facie case of violation of ADA, the plaintiff bears the burden of providing precise measurements of any alleged ADA violation. Since the plaintiff could only offer estimates of the counter height it was found that they could not meet the burden of proof.

5)    No liability under California’s accessibility statutes unless plaintiff can prove he was deterred/ prevented from access or he experienced “difficulty, discomfort, or embarrassment.” The court found that the plaintiff could not meet his burden of proof that he was deterred from access to the store because he encountered no problem entering the store and making a purchase. Further, the plaintiff testified that he did not experience  difficulty, discomfort, or embarrassment based on any of the alleged barriers.

For those of us business owners out there, this is a major shot in the arm. The fact that the courts here in California are ruling with logic and common sense is exciting indeed.  These frivolous ADA lawsuits have to stop!

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