ADA in the news January 14, 2020

The Game of Forfeiture: Fumbling the Ball and How the Court May Recover It

In the spirit of the upcoming Super Bowl, it is important to keep in mind certain rules of play regarding forfeiture of arguments in federal courts of appeals. The Tenth Circuit reiterated two such rules in recent opinions. In one, the court held that a plaintiff’s argument may be forfeited as against one defendant and not as against another defendant when the plaintiff gives varying degrees of specificity and attention to the argument among the defendants. In the other, the court reaffirmed the pressed-or-passed-on rule, holding that an argument is not forfeited when a party fails to press (i.e., raise) it in the lower court, but the lower court passes on the issue anyway.

The Tenth Circuit dealt with the first rule, how to fumble your argument, in In re Rumsey Land Co., No. 18-1452, 2019 WL 6974286 (10th Cir. Dec. 20, 2019). There, the plaintiff sued two defendants, RLH and PBT, for fraudulent concealment, alleging that each failed to disclose a loan purchase agreement that affected the sale price of the plaintiff’s property in a bankruptcy proceeding. RLH filed a motion for summary judgment arguing that it owed no duty to disclose the agreement to the plaintiff. PBT later joined the motion.

Whether the defendants had a duty to the plaintiff to disclose the existence of the purchase agreement was a factual question that required analysis of the relationship between the plaintiff and each defendant. In response, however, the plaintiff offered detailed factual bases for why RLH owed it a duty to disclose, but submitted only non-factual and vague bases for PBT’s duty to disclose. The district court granted summary judgment for both defendants.

In affirming, the Tenth Circuit held that the argument as against RLH was preserved, but the same argument was forfeited as against PBT. The court noted that because “PBT joined RLH’s motion for summary judgment, [the plaintiff] could have advanced arguments in district court about both Defendants in its opposition brief.” Instead, however, the plaintiff’s argument focused only on RLH’s conduct, identifying facts that might have triggered a disclosure duty from RLH. In contrast, references to PBT’s duty were “vague and ambiguous” or offered in a “perfunctory and underdeveloped manner.” Because the plaintiff also failed to argue plain error on appeal, the argument was unreviewable as against PBT.

The Tenth Circuit dealt with the second rule, how the court may recover your fumbled argument, in Tesone v. Empire Marketing Strategies, 942 F.3d 979 (10th Cir. 2019). There, the plaintiff sued the defendant for employment discrimination under the Americans with Disabilities Act (ADA). As the case drew near to trial, the plaintiff’s counsel was told by both opposing counsel and the magistrate judge assigned to the case that expert testimony was necessary for the plaintiff to establish disability under the ADA. On summary judgment, however, the plaintiff made no argument regarding the necessity of expert evidence to prove her disability, and instead argued that the non-expert evidence she presented was sufficient to establish the claim. Because the plaintiff failed to present expert medical evidence, the trial court granted summary judgment in favor of the defendant.

On appeal, the plaintiff argued that she was not required to present expert testimony in furtherance of her ADA claim. While acknowledging that, ordinarily, the plaintiff’s failure to raise this argument in the trial court would result in forfeiture, the Tenth Circuit held that the issue was nonetheless preserved because the district court “explicitly” determined that expert testimony is “required to establish disability under the ADA.” It explained that the forfeiture rule does not apply when a district court “passes upon” an issue by applying “the relevant law to the relevant facts” and “considers and resolves an issue of law on the merits.” In this way, the appellate court has power to review “an issue not pressed so long as it has been passed upon.”

Websites: A Growing Compliance Concern – CCPA, HIPAA, Accessibility, State Laws…

Websites play a vital role for organizations. They facilitate communication with consumers, constituents, patients, employees, and the general public. They project an organization’s image and promote goodwill, provide information about products and services and allow for their purchase. Websites also inform investors about performance, enable job seekers to view and apply for open positions, and accept questions and comments from visitors to the site or app, among many other activities and functionalities. Because of this vital role, websites have become an increasing subject of regulation making them a growing compliance concern.

Currently, many businesses are working to become compliant with the California Consumer Privacy Act (“CCPA”) which, if applicable, requires the conspicuous posting of a privacy policy on a business’s website. But, the CCPA is not the first nor will it be the last compliance challenge for organizations that operate websites and other online services. However, the CCPA along with the flood of ADA accessibility litigation are causing many organizations to revisit their websites and online services to meet the growing compliance burden.

What are some of these requirements?

ADA Accessibility. When people think about accommodating persons with disabilities, they often are drawn to situations where a person’s physical movement in a public place is impeded by a disability – stairs to get into a library or narrow doorways to use a bathroom. Indeed, Title III of the Americans with Disabilities Act grants disabled persons the right to full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. Although websites were not around when the ADA was enacted, they are now, and courts are applying ADA protections to those sites. The question is whether a website or application is accessible.

Although not yet adopted by the Department of Justice, which enforces Title III of the ADA, guidelines established by the Website Accessibility Initiative appear to be the more likely place courts will look to access the accessibility of a website to which Title III applies. State and local governments have similar obligations under Title II of the ADA, and those entities might find guidance here.

Developers working to make Downtown Mall more accessible

Work is underway to make sure part of Charlottesville’s Downtown Mall’s west end is accessible to everyone, while also preserving history. The Center of Developing Entrepreneurs (CODE) Building is under construction at that end of the pedestrian mall, and developers are presenting options to the city to meet ADA (Americans with Disabilities Act) standards.

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