Intent to Return

Originally published by William Goren.

Hope everyone had a great Thanksgiving week and did not have too hard of a time getting the kids back to school.

 

Today’s blog entry is going to discuss a couple of cases dealing with standing. In the first, we will discuss standing with respect to physical stores. In the second, we will discuss standing with respect to a physical place accessed only through the Internet. My colleague, Richard Hunt, blogs on these issues all the time. It is not unheard of for me to blog on them either. The reason I want to blog on these two cases discussing is because these two cases show that courts and judges may be beginning to resist a broad notion of what standing is.

 

As I mentioned in another blog entry of mine, the California Supreme Court came down with a decision that was likely to blow the lid off Internet accessibility litigation in California. We are already seeing that happen as seen in this case, Thurston v. Midvale Corporation, for example.

As usual, the blog entry will be divided into categories and they are: Mosley v. Kohl’s Department Stores, Inc. facts; Mosley’s majority reasoning; Mosley’s dissent by Judge McKeague; Mosley takeaways/thoughts; Castillo v. The Jon Gore Organization Inc. facts; Castillo court’s reasoning; and Castillo takeaways/thoughts. Of course, the reader is free to focus on any or all of the categories.

 

I

Mosley v. Kohl’s Department Stores, Inc. Facts

 

In April 2018, plaintiff visited Kohl’s stores in Northville and Nuvi Michigan and encountered architectural barriers to access in each of the restrooms, including: inaccessible doors; improperly spaced grab bars; and sinks, mirrors, and toilet paper dispensers that were too high. Plaintiff has filed similar lawsuits throughout the country. Plaintiff is a resident of Arizona and has family and friends residing in the Detroit area he tries to visit at least annually in the summer. At the time of filing his amended complaint, plaintiff, a career musician, had scheduled upcoming visits to Flint and to other areas in southeast Michigan in September and October of 2018 to perform and attend shows at various places. He was also planning to visit his family in Detroit on November 11, 2018. Finally, he stated he would return to the two stores if they were modified to be ADA compliant.

 

II

Mosley’s Majority Court Reasoning

 

1. An injury is concrete and particularized where the plaintiff alleges that he personally observed and encountered architectural barriers to access and those barriers interfere with a mobility impaired individual’s full and equal enjoyment of the property.
2. An ADA tester does not deprive a person of standing, assuming that plaintiff is such an individual, because title III of the ADA guarantees the right to be free from disability discrimination and enjoyment of the facility regardless of plaintiff’s motive for visiting the facility.
3. If testers were not meant to have standing to challenge discrimination, Congress could have set up the statute to limit its protection to clients or customers as it did another provisions of title III of the ADA. It also could have imposed a bona fide usage requirement akin to the bona fide offer requirement for housing discrimination suits. Congress did not do either.
4. When it comes to intent to return, the question is whether the plaintiff intends to return to the geographic area where the accommodation is located and has a desire to visit the accommodation if it were made accessible. So, once a plaintiff establishes both more than a someday intent to return to the geographic area and an interest in the accommodation, an intent to return to the accommodation can be inferred.
5. Citing to PGA Tour, Inc. v. Martin, the court said requiring a plaintiff to provide a definitive plan for returning to the accommodation itself would frustrate the ADA’s aim of integrating individuals with disabilities into the economic and social mainstream of American life. If this wasn’t the case, plaintiffs would have more success bringing title III actions against accommodations that are booked for travel, such as hotels, then for accommodation they spontaneously choose to enjoy, such as markets and stores.
6. Persons with disabilities are entitled to full and equal access to all public accommodations wherever they may be and any point in time.
7. Although the Constitution requires plaintiff to show a real and immediate threat of future injury, it doesn’t require plaintiff to allege such specifics as the precise dates, arrangements for the return to the accommodation, and the reason for returning.
8. It is enough to allege an intent to return to the area and an interest in visiting the accommodation in the future when it becomes ADA compliant. That is, while the plaintiff must show more than a someday intent to return to the accommodation, frequent visits and concrete plans to return to geographic area support a plausible inference of intent to return to the accommodation.
9. Plaintiff are not required to have visited the place of accommodation more than once and that flouts title III’s requirement that plaintiffs not be asked to engage in a futile gesture once they have actual notice of the barrier access.
10. Title III of the ADA does not require persons with disabilities to subject themselves to repeated instances of discrimination in order to invoke its remedial framework.
11. Plaintiff suffers an injury once he or she becomes aware of the discriminatory conditions existing at a place of public accommodation and thereby deterred from visiting that place of public accommodation.
12. While the plaintiff lives in Arizona, he has family and friends in the Detroit area whom he tries to visit at least annually in the summer. In fact, he had scheduled visits already.

 

III

Mosley Dissent by Judge McKeague

 

1. “Who plans on going to a suburban Kohl’s on a trip to Detroit?”
2. The majority’s view of standing is better termed, “discount standing.” “While 20% off works for Kohl’s, it doesn’t work for the Constitution.”
3. Courts generally consider three factors with respect to intent to return: 1) the distance between the plaintiff’s residence and the accommodation; 2) the frequency of the plaintiff’s past visits both to the area where the accommodation is located and to the accommodation itself; and 3) the definiteness of the plaintiff’s plans to return to the accommodation in the future, including reasons for making the return trip and visiting the place of public accommodation.
4. Plaintiff lived nearly 2000 miles away from the stores complained of.
5. Plaintiff visited the stores only once in the past. While it is true that a plaintiff is required to make repeat visits, the fact that he has made infrequent past visits cuts against the plausibility of claiming prospective injury.
6. While plaintiff alleged he planned to return the Detroit area in the future, his allegations do not plausibly suggest that plaintiff would return specifically to the specific stores alleged in the complaint. Such an allegation is a legal conclusion even if it looks like a factual allegation. More facts are needed. For example, plaintiff doesn’t allege any facts explaining his desire to return to those Kohl’s stores. That is, an intent to return to an accommodation is plausible when a plaintiff explains why he wants to return and he did not do so in this case.
7. Plaintiff never alleges an interest in Kohl’s specifically. He doesn’t allege that he likes to shop there for reasonably priced clothing. He also doesn’t allege why he prefers Kohl’s over Target or T.J. Maxx or Marshalls or other similar retailers with a large presence in southeast Michigan. In fact, plaintiff fails to allege a reason for going to Kohl’s at all.
8. Plaintiff doesn’t allege why he wants to return to those specific stores. For example, are those stores near stores he otherwise frequents? Do those stories have excellent customer service? Plaintiff simply doesn’t say one way or the other.
9. Majority opinion doesn’t address all the other Kohl’s location closer to Detroit, the airport, and major roads like I-75 and US 23. Why would plaintiff bypass them all to go to the particular stores alleged in the complaint? While it is conceivable that he would do so, that isn’t enough. It has to be plausible.
10. If it is convenience plaintiff is after, there are 18 Kohl’s Department stores in his home county in Arizona.
11. Plaintiff has filed over 180 ADA lawsuits, most of them in Arizona, but a handful in Colorado and four in Michigan. If he alleged tester motivation, it might make it more plausible that the plaintiff would return to the particular stores alleged in the complaint. However, he doesn’t make any allegations that he intends to return to those particular stores to test their ADA compliance.
12. Judge McKeague simply doesn’t buy the majority test that an intent to return can be inferred once a plaintiff has established more than a someday intent to return to the geographic area and an interest in the place of accommodation. Judge McKeague believes that such an analysis contradicts a couple of different United States Supreme Court opinions.

 

IV

Mosley Takeaways/Thoughts

 

1. The Mosley majority adopts a deterrence standard.
2. The Mosley majority states that testers have standing.
3. The decision is recommended for publication.
4. Considering the current configuration of the United States Supreme Court, I think the dissenting opinion will get a very receptive review by the United States Supreme Court should there be an appeal to the United States Supreme Court. I wonder if an en banc rehearing won’t be sought first.
5. Judge McKeague’s opinion in terms of its writing style almost reads like a Justice Gorsuch opinion. Justice Gorsuch is not afraid to use common sense when deciding his cases.
6. The dissent provides a very useful roadmap to plaintiff attorneys as to how they may configure their complaint to get around the concerns that the dissent raises.

 

V

Castillo v. John Gore Organization, Inc. Facts Taken Directly from the Opinion

 

In or around December 2018, from Kings County, New York—where she resides—the plaintiff visited the defendant’s website because she “intended to buy tickets to attend” a “concert” there. However, the plaintiff “did not book a ticket” after seeing on the defendant’s website that the defendant had a policy prohibiting patrons from bringing outside food into the theater. Because she has diabetes, the plaintiff must have specific types of snacks with her at all times, as her blood sugar can drop suddenly, and she must immediately eat an appropriate food item to stabilize it. Thus, the defendant’s policy banning outside food from its theater deterred the plaintiff from visiting the theater. The defendant notes that the performance that the plaintiff alleges she intended to see was a play and not a concert.

 

The plaintiff claims that she “intends to take advantage of the facilities offered by Defendant in the future once the access barriers are remedied” and that she “intends to attend a similar event at the [theater] as soon as Defendant fixes its discriminatory policies.” However, she does not claim that she has ever visited the defendant’s theater—or Boston—in the past. In fact, she claims that she “did not attempt to attend an event” at the theater “because she understood Defendant’s discriminatory policy and knew that such an attempt would be futile.”

 

According to the defendant, in December 2018, its website’s homepage contained an “accessibility” policy that invited visitors to contact the theater about any accessibility concerns. Spry Decl. Specifically, that policy stated that “[t]he Charles Playhouse is accessible to all patrons. Guests with accessibility questions or who require additional assistance may email the Playhouse directly . . . or call the House Manager . . . .” It also provided an email address and phone number for such accessibility questions or requests. See id. It further provided more specific accessibility information for wheelchair users and individuals with visual impairments. See id. The website’s homepage also contained a “code of conduct” that included a policy prohibiting “outside food or beverage[.]”All of the website’s homepage content—including the accessibility policy and the code of conduct—appeared on one page. Spry Decl. The defendant sequenced its website content such that before reaching the policy prohibiting outside food, a website user must have first scrolled past the theater’s accessibility policy. Between December 2018 and at least September 2019, when the defendant’s employee David Spry submitted the latest declaration in connection with this case, “the substantive content, language and sequencing of all relevant portions” of the defendant’s website “have remained the same,” although the defendant migrated its website to a new platform for aesthetic reasons in March 2019.

The plaintiff claims that when she accessed the defendant’s website in or around December 2018, she encountered the portion of the website prohibiting outside food, but she does not claim to have contacted the theater to ask a question about accessibility or to request assistance.

Plaintiff then filed suit in January 2019 bringing her claims as a class-action and seeking injunctive and declaratory relief as well a compensatory damages under both the ADA and related New York State and City llaws. Defendant moved to dismiss for lack of standing and for failure to state a claim.

 

VI

Castillo Court’s Reasoning

 

1. In order for standing to exist, three criteria must be met in the Second Circuit: 1) the plaintiff alleged a past injury under the ADA; 2) it was reasonable to infer that the discriminatory treatment would continue; and 3) it was reasonable to infer based upon the past frequency of plaintiff’s business and the proximity of defendant to plaintiff’s home, that plaintiff intended to return to the subject location.
2. If a plaintiff has not personally encountered a barrier to access, she nevertheless suffers an injury if she has actual knowledge of the barrier complained of and has been deterred from visiting the public accommodation because of that barrier.
3. A plaintiff has to at least prove actual knowledge of the barriers and show that he or she would visit the building in the imminent future but for those barriers.
4. An injury has to be imminent rather than conjectural or hypothetical.
5. In assessing imminence, one looks at the likelihood of return (we often see it in the case law as intent to return). Four factors are used when analyzing intent to return and they are: 1) the proximity of the place of public accommodation to plaintiff’s residence; 2) plaintiff’s past patronage of defendant’s business; 3) the definiteness of the plaintiff’s plan to return; and 4) the plaintiff’s frequency of travel near the defendant.
6. A plaintiff has to support each element of standing in the same way as any other matter on which he or she bears the burden of proof.
7. Plaintiff does not allege that she ever visited the theater or that the defendant physically barred her from entering. So, the only injury that plaintiff could have suffered was deterrence.
8. While deterrence can get you standing, the plaintiff still has to have actual knowledge of a barrier to access.
9. In December 2018, the theater’s website homepage content appeared on one page. The homepage was set up in such a way so that before even reaching the theater’s policy prohibiting outside food or beverage, a website user had to have first scrolled past the theater’s accessibility policy. That policy stated that the theater was accessible to all patrons. Further, guests with accessibility question requiring additional assistance could email the Playhouse directly or call the house manager. Finally, it also provided an email address and phone number for such accessibility questions or requests.
10. The plaintiff made no claim that she contacted the theater as the defendant’s website invited her to do and that she was then denied permission to bring in outside food. Accordingly, she could not have had actual knowledge that the defendant’s outside food prohibition would bar her access to the theater as the defendant’s website made it abundantly clear there was at least a possibility of obtaining an accommodation.
11. At the time plaintiff filed her complaint in January 2019, it was not reasonable to infer that any alleged discriminatory treatment would continue as content, language and sequencing of all relevant portions of the website remained the same. As such, the more reasonable inference to be drawn is that any discrimination inflicted by the outside food prohibition would disappear once the defendant received and responded to a request for reasonable accommodation.
12. A broad allegation of intent to return or visit is not sufficient. Plaintiff has not alleged that she made any past visits to the theater. She also did not state that she had attempted to attend an event at the defendant’s theater in the past but did not do so because of the discriminatory policy and that such an attempt would be futile.
13. The theater is nowhere near plaintiff’s home as she resides in King County, New York and the theater is in Boston.
14. Plaintiff’s allegation that she intends to attend a similar event at the theater in the future is vague and not definitive. In fact, plaintiff made no allegation that she ever traveled to the area near where the theater is located.
15. Claims under the State and City laws fail for the same reasons.

 

VII

Castillo Takeaway/Thoughts

 

1. Castillo clearly represents a pushback on a broad notion of standing.
2. If you are a physical place of public accommodation, an accessibility policy is a really good idea.
3. If you have an accessibility policy, this decision requires a plaintiff to take advantage of it before they could be found to have standing.
4. Not said in this opinion is that your Internet site should be meaningfully accessible to persons with disabilities.
5. Judge Ross in many ways is taking a very similar approach to Judge McKeague when it comes to standing. So, on the plaintiff side, the more specifics you have, the better off you will be. On the defense side, a lack of specifics by plaintiff in the complaint could prove very helpful in getting the case dismissed.
6. Castillo did not involve an Internet only place of public accommodation.

 

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