As more ADA suits dismissed, are plaintiffs’ lawyers changing tactics?

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Credit unions have hailed a string of court victories as case after case claiming CUs’ websites violated the Americans with Disabilities Act have been dismissed, but legal experts warn the law firm involved in many demand letters and lawsuits is attempting a new tactic.

Another dismissal came Wednesday, when a lawsuit against Grand Prairie, Texas-based Local 20 IBEW Federal Credit Union was voluntarily dismissed by the plaintiff just two days after the Credit Union National Association and the Cornerstone Credit Union League filed an amicus brief supporting the credit union’s motion to dismiss. Suzanne Yashewski, the Cornerstone League’s senior vice president, regulatory compliance counsel, told Credit Union Journal the dismissal probably was prompted by rulings by other courts, which found the plaintiff did not have standing to sue because that person was not eligible to join the credit union.

“In light of the court decisions we have seen in Virginia and other locations on the federal level, there is attorney who is bringing cases against hundreds of credit unions across the country,” Yashewski said. “He has approximately three plaintiffs. Many of the demand letters involve one plaintiff, a California resident.”

According to court documents obtained by Credit Union Journal, the attorney in the Local 20 IBEW FCU case is identified as Scott J. Ferrell, who works for a firm known as Pacific Trial Attorneys in Newport Beach, Calif. The listed plaintiff was Cheryl Thurston.

According to Yashewski, attorney Ferrell’s new tactic is “he can claim jurisdiction and standing based on the shared branching system. The Cornerstone League is working closely with CUNA and defense attorneys and we believe his claims are meritless.”

Leah Dempsey, CUNA’s senior director, advocacy and counsel, told CU Journal there have been some instances in other states where ADA litigation targeting credit unions has begun but then had not proceeded, though Texas is the only state she knows of in which there have been voluntary dismissals.

“In Texas there were nine identical lawsuits involving the same plaintiff, and it was pretty clear the plaintiff was not eligible to join the credit union and would lose on the standing question, which is probably why those suits were voluntarily dismissed,” Dempsey explained.

In the Fourth Circuit there were some ADA cases that dismissed for the plaintiff’s lack standing and because the court found a website is not a “place of public accommodation,” Dempsey continued. One such case, involving Department of Labor Federal Credit Union, is being appealed by plaintiff. CUNA will be participating going forward, Dempsey said, noting the briefing schedule was released by the court only this week.

“In the case of a voluntary dismissal it is frustrating because the credit union would have already put out resources, such as preparing a motion to dismiss,” said Dempsey. “We are seeing new demand letters that are asserting standing based on shared branching. We think that is completely meritless.”

‘Abusing the Americans with Disabilities Act’

CUNA says credit unions in 26 states have received demand letters alleging ADA violations by their websites, and there have been in excess of 100 lawsuits filed.

After the suit against Local 20 IBEW FCU was voluntarily dismissed, CUNA released a statement saying, “Similar predatory lawsuits have detrimentally impacted credit unions nationwide alleging non-compliance with the Americans with Disabilities Act.”

“We are glad to see that only days after CUNA and the Cornerstone Credit Union League weighed in supporting the credit union, the firm voluntarily dismissed yet another frivolous lawsuit concerning website accessibility,” said Jim Nussle, CUNA’s president and CEO. “Abusing the Americans with Disabilities Act to exploit community financial institutions is not a winning strategy. And, CUNA will continue to highlight to courts across the country the meritless claims found throughout these lawsuits.”

In February, CUNA and the Cornerstone Credit Union League filed a similar brief in Texas and the case was dismissed just eight days later, the trade association noted.

“Finding a solution to legal threats is a top priority for CUNA with case filings to support credit unions in Texas, Illinois and Ohio. CUNA will continue to evaluate lawsuits were necessary and engage with the Department of Justice,” the trade group said.

Another suit dismissed in Virginia
Yet another ADA dismissal came on Thursday, when a federal district court in Virginia again found a plaintiff did not have standing to sue Washington Gas Light Federal Credit Union because he was not eligible for membership and would likely not use the credit union’s services.

The National Association of Federally-Insured Credit Unions had filed an amicus brief in support of this credit union, which was noted in the court's decision. The decision also referenced previous credit union lawsuits related to this issue that have been dismissed.

“As another lawsuit against a credit union is dismissed on this matter, NAFCU is pleased to see the courts recognize that these plaintiffs have no standing and are following precedent of other recent decisions,” said Dan Berger, NAFCU’s president and CEO. “NAFCU will continue to defend our members in this fight; we hope these meritless lawsuits will end soon.”

Credit Union Journal's coverage of ADA lawsuits, amicus brief filings and case dismissals can be found here.

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ADA Compliance Jim Nussle Dan Berger CUNA NAFCU Texas