By Carolina Bolado, Law360 | March 13, 2020
After years of settling for injunctive relief, some plaintiffs attorneys in Florida think they’ve found a way to open the door for money damages for their clients, testing a new theory that relies on trespass claims.
The Americans with Disabilities Act provides for just injunctive relief and attorneys’ fees and costs, but a common-law trespass claim alleging “cookies” placed on a computer without authorization gives disabled plaintiffs a hook for money damages and helps them enter settlement negotiations with a bit more leverage.
“I think it can potentially be used to increase the settlement demand and the settlement amount because you now have an additional layer added, damages on the trespass claim that are being factored in to potentially increase that settlement number,” said Scott Topolski of Cole Schotz PC, who regularly defends against these suits.
Beyond the damages, however, plaintiffs attorney Pelayo Duran says the ADA suits are a vehicle through which he can test this trespass theory, which he says affects everyone who uses websites, not just blind users.
Many websites in the U.S. automatically implant information tracking software, known as cookies, on user’s computers to track data, and they often share or sell that information to third parties, Duran’s partner Roderick Hannah said. Because of a recently implemented European Union law requiring user consent to use cookies, some sites now ask for users to accept or deny cookies, but Hannah and Duran said companies in the U.S. do not have to abide by it because there’s no statute regulating it there.
Duran pointed to a ruling in 2011 by U.S. District Judge Donald Graham in the Southern District of Florida in a non-ADA case in which the judge denied a motion to dismiss a common law trespass claim involving a computer system. The judge concluded that a server “certainly qualifies as a chattel which can be subject to trespass” and refused to dismiss the claim.
But attorneys who regularly defend against ADA website suits say these trespass claims are not credible. Yaniv Adar at Mark Migdal & Hayden, who says he first noticed it in an ADA website suit early last year, called it an “extremely novel concept.”
“They seek damages, but I don’t know what their damages would be,” he said. “I’m not sure what the injury would be.”
Whether the trespass claim is a viable one has yet to be adjudicated by a court, mainly because the cases tend to settle quickly. Some federal judges when presented with the claim routinely decline jurisdiction and say the state courts should handle the novel issue of state law. In one case, according to Hannah, the issue was briefed at the summary judgment stage, but the parties settled before the judge could rule.
Adar said there is some case law in California on the issue of items being automatically downloaded onto phones being considered trespass, but in Florida it’s still untested.
“The more these trespass claims are filed, the more likely it is someone’s going to challenge it and make law one way or the other,” Adar said.
–Editing by Brian Baresch and Alanna Weissman.
