Disney wins First DAS ADA Discrimination Lawsuit

And, just like that, the court of appeals reinstates the familes' appeal. The families' lawyer claimed not to have received any of the prior notices because the notice of appearance they filed had the email address - the firm's domain name was wrong.

To be clear, an attorney in the firm prepared or signed off on a simple 1 page form but did not notice that email address for the attorneys on that notice used the correct domain name.

That inspires a lot of confidence. At least the firm is consistent, having missed several key deadlines in the trial court without providing a good reason.

I'm not saying the court of appeals was wrong - they prefer not to dismiss appeals on technical grounds - I just get tired of spending nights and weekends working so I don't miss a deadline (I worked all day today when I had planned on taking most of today off) and then seeing other lawyers get away with missing deadlines by offering only the most flimsy of reasons.
 
The families' lawyer claimed not to have received any of the prior notices because the notice of appearance they filed had the email address - the firm's domain name was wrong.
Wow. Just wow. If they had the address wrong on the service list, wouldn't somebody at the firm have realized they hadn't been receiving the normal notices throughout the process?
 
You would think. You'd also wonder why any organization would change email domains and not have emails to the old domain forwarded or routed to the new domain. Courts routinely hold not getting court emails is not a good excuse because counsel have a duty to monitor the court's docket. I have several RSS feeds set up to do that. That's how I follow the Disney litigation in California and Florida.
 


Briefing in the DAS appeal ended in February 2021. I downloaded a boatload of documents, too much to load here. The court will likely hold oral argument (virtually, I expect) but Disney has said it is not necessary. I haven't had much of a chance to review the briefs. What little I did read didn't make me think that the appeal will be successful. It was primarily an argument that attraction wait-times are "horrible" for non-disabled guests, Disney likes it that way [sic], so making non-disabled guests wait even longer (horrible-plus) so the plaintiff can have faster access to attractions is entirely reasonable.

I checked on the Disney Store mask case. The same lawyer who represents Disney in the DAS case is handling it (essentially). Again, a superficial review of the filings makes me think that Disney is asking the court to dismiss the lawsuit because the potential dangers from not wearing masks (safety is always a defense to ADA claims.) Disney characterizes the family as asking the court to order unfettered maskless access to the store for anyone who claims they have a disability that prevents them from wearing a mask. As I have said, controlling the message is often 9/10ths of wining the lawsuit.
 


Makes you wonder why these people would even want to give such a horrible company, like Disney, their business. 🙄 If a company treated my disabled child in such an egregious manner, I would not be wanting to take them back.
 
Disney characterizes the family as asking the court to order unfettered maskless access to the store for anyone who claims they have a disability that prevents them from wearing a mask. As I have said, controlling the message is often 9/10ths of wining the lawsuit.

Is this posturing and making a more global (the family) interpretation than a real requirement/need?
 
You couldn't say it better. She is the mom thats "my son has special needs" when most of us are pushing our kid to be main streamed.
Are you familiar with the special needs classes at the schools? Those kids are super smart most will do anything for the teacher and not there parents.
They know what they will get away with.

My fave is in the first part talking about how he can wait 15 mins or car rides sometimes hours..
Sounds like she needs the same things we all use for kids tablet games, small toys etc.
And go to musicals that are hours long.... It seems to me that she may be using her son's disability to provide access or perks for her friends and family. Which is Disney's point.... misuse of the DAS/GAC

I read most of the document also. There were several parts that were just wrong. The section where DL blocked the Jungle Cruise ride (page 21) and his mom had to use 6 of the passes. Why did she have to have 6 (of the 24 passes) people there instead of one or two? Also, 21 DCL cruises went above and beyond in meal schedule, character greets etc.

Not begrudging her parenting or the enjoyment for her son, but her audacity in even bringing a lawsuit like this unreal.

I took my grandson to the restroom (he is 4) last month and the CM at 7Dwarves had an attitude about us getting back in line. I had to call my daughter and see where she was in line so that we could catch up. He is on the spectrum but did pretty good with the masks and waiting most of the time.
 
Just came across this thread and I recall hearing about the DAS case a year or so ago. From what I gather, Disney won that case but it is currently under appeal. Does Disney still use the same DAS? Or did they chance because people were abusing the system?

My memory (DW is disabled) is that we went to guest services and they gave her a pass. when we went to a ride they noted the time, current wait time, and asked us to return after however many minutes the current wait time was. This is what I recall as the "new" system, which I believe is still current.

My question is, is it the "new" system that Disney was sued over? Or were they sued over an older system? Again i vaguely recall hearing tales at some time about families literally hiring a disabled person to join their group so they could get a pass and skip all the lines with some disabled stranger. Which I thought was replaced with the system I describe above.

I'm just curious which system they sued Disney over.
 
Just came across this thread and I recall hearing about the DAS case a year or so ago. From what I gather, Disney won that case but it is currently under appeal. Does Disney still use the same DAS? Or did they chance because people were abusing the system?

My memory (DW is disabled) is that we went to guest services and they gave her a pass. when we went to a ride they noted the time, current wait time, and asked us to return after however many minutes the current wait time was. This is what I recall as the "new" system, which I believe is still current.

My question is, is it the "new" system that Disney was sued over? Or were they sued over an older system? Again i vaguely recall hearing tales at some time about families literally hiring a disabled person to join their group so they could get a pass and skip all the lines with some disabled stranger. Which I thought was replaced with the system I describe above.

I'm just curious which system they sued Disney over.

Readers Digest Condensed Version: the lawsuit is over the new system (DAS) - The mother of the plaintive wants the ability to use the DAS as if it were the GAC. (The old version or system that was being abused, and is the system that Disney ended as a result).
 
I checked on the Disney Store mask case. The same lawyer who represents Disney in the DAS case is handling it (essentially). Again, a superficial review of the filings makes me think that Disney is asking the court to dismiss the lawsuit because the potential dangers from not wearing masks (safety is always a defense to ADA claims.) Disney characterizes the family as asking the court to order unfettered maskless access to the store for anyone who claims they have a disability that prevents them from wearing a mask. As I have said, controlling the message is often 9/10ths of wining the lawsuit.
By now, you may have seen some publicity saying that the judge denied Disney's motion to dismiss. I read the decision. There are several reasons for the ruling. The legal standard required the judge to credit the facts asserted in the complaint and the court's decision could not dispute those facts nor could it go beyond those facts (the latter is important for reasons I'll explain in a minute). We spend a lot of time arguing whether a "fact" is a "fact" or a "legal conclusion" (to which the judge does not defer).

The judge accredited the assertion in the complaint that "Emanuel alleges that N.B. was neither infected with COVID-19 nor exhibiting any symptoms of the virus, such as fever, cough, or shortness of breath." That's interesting assertion given there's no way Disney could effectively ascertain whether the child had COVID-19. In other words, a person's unverified assertion that they or a family member don't have COVID-19 is next to worthless and the lack of COVID-19 symptoms is also far from being proof that a person is not infected. Had the parent presented a negative COVID-19 test, I might feel differently. A different judge might have looked at this differently.

Another key point is that the judge refused to considered Disney's defenses. This is a purely procedural issue. As I said, in ruling on a motion to dismiss, the court is supposed to limit consideration to the facts asserted in the complaint. The ADA, however, provides stores with certain defenses, namely, that permitting the "accommodation" or "modification" would pose a "direct threat" to others. Disney argued this but the judge refused to dismiss the complaint on this ground, saying the facts in the complaint did not address this. So, the ruling did not address whether permitting a maskless person to walk around in a store posed a substantial risk of harm to others. That's a pretty big unresolved issue, one that may never be resolved.

The ADA, like a lot of recent legislation, requires the party being sued to prove certain facts. It's within a legislative body's (here Congress) prerogative to decision what is a claim and what is a defense. In reality, the distinction primarily governs who must prove the issue, i.e., who bears the risk of failing to prove a fact. If Disney can show that, at the time of the incident (August 2020), permitting an unmasked child to walk around a store posed enough of a threat to others, then it would win, even if the child and his parents could prove the child could not wear a mask.

I say this issue may never be resolved because this part of the ADA only permits a court to award injunctive relief. By now, or at some point in the future, the Disney Store in the Lehigh Valley Mall may not require masks (Simon, which operates the Mall, no longer mandates masks for "fully vaccinated" individuals and has gone to asking people who are not vaccinated to wear a mask. https://healthsafetyfirst.splashthat.com/localhomepages. Even if the parent could prove the facts needed to obtain an injunction, an injunction in only appropriate to prevent an ongoing violation. In other words, if the Disney Store now lets people in without a mask, then an order requiring them to permit the child to enter without a mask is only telling the Store to do what it is already doing. (It isn't quite this simple when the party being sued is a private party, but I'm making a point, not trying to get into the legal weeds.)
 
I finally had a chance to read the decision in its entirety without falling asleep more than once. I have a few thoughts about where this decision leaves the lawsuits by other guests with Autism spectrum disorder ("plaintiffs"). I'm not going to spend my Saturday researching the tortured history of this six-year old lawsuit so I'll be a little less precise than normal. (Don't @ me; deal with it. :))

As filed in early April 2014, the complaint included 15 different families. They alleged a variety of claims, state and federal, based on Florida and California law. The families filed the lawsuit in California but a number of the families only alleged ADA violations at Walt Disney World. The lawsuit wasn't filed as a "class action" (this is a term of art) but sought to "join" (another term of art) all the families claims into one lawsuit. It grew with additional families.

Disney moved to transfer the WDW claims to Florida arguing that "24 of the 26 plaintiffs (including the lead plaintiff A.L.) who brought this case in California only complain of experiences in Florida." The California court agreed and sent the families to Florida. (https://www.wdwinfo.com/news/Genera...ey_transferred_from_California_to_Florida.htm)

Once in Florida, the plaintiffs tried to add 30 more families prompting Judge Conway to rule that trying 44 lawsuits with multiple claims at one time was unmanageable so she "severed" the families' claims into 44 separate lawsuits. Some of these were later voluntarily dismissed. Judge Conway refused to try any California claims in Florida and dismissed those (they were refiled in California).

By this point, the only claims pending in Florida alleged a violation of Title III of the ADA and Judge Conway later dismissed that, ruling the families failed to present enough evidence to warrant a trial. ( https://www.wdwinfo.com/news-stories/federal-court-rules-for-disney-in-lead-dasautism-lawsuit/)

The appeals court later reversed this dismissal in part (https://www.wdwinfo.com/news-storie...ul-autism-lawsuits-against-disney-to-proceed/) and that decision naturally plays a central role in Judge Conway's recent decision (she can't ignore it, after all). One of the key rulings in the appeal was that the adoption of DAS did not violate the ADA. Disney's issuing a DAS Card to all cognitively disabled guests is not per se impermissible under Title III of the ADA." A.L. by & through D.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d 1270, 1292 (11th Cir. 2018). (https://www.disboards.com/threads/a...wsuit-over-disability-access-service.3701176/)

The court of appeals told Judge Conway to have a trial on whether the sought for modifications were "necessary." It did not rule one way or the other and it did not address whether the desired modifications were "reasonable" or would "fundamentally alter" the park experience, leaving this for Judge Conway to decide.

At this point, Disney did something smart, they decided to try the case instead of filing more motions. Judge Conway set one of the cases (the "lead" plaintiff "A.L.") for trial in February 2020 and it lasted 2 or 3 days. (https://www.disboards.com/threads/w...or-the-bed-bugs-lawsuit.3754820/post-61154120 and https://www.disboards.com/threads/w...020-bedtime-for-the-bed-bugs-lawsuit.3754820/)

Judge Conway ruled for WDW on all three grounds. The "necessary' and "reasonable" rulings (which seem to me to be very closely related) are very much linked to this plaintiff's abilities. There are other rulings tied to "A.L.'s" specific case which could, in theory, lead to a different result. His lawyers didn't get the trail date on their expert's schedule, A.L.'s caregiver essentially gave up without really trying to see if DAS would work for him and Judge Conway's decision focused on what was necessary and reasonable to accommodate A.L.'s actual behavioral needs from his autism.

(Let's get one issue out of the way, this ruling does not apply to or "bind" the other plaintiffs. They could, if they wanted, have their day in court.)

Disney's expert categorized "A.L. as having a "moderate" condition. So, another plaintiff who has a more severe condition might, in theory, be able to prove they need more than DAS to have a "like experience" at WDW.

In reality, if a guest has to much more of a severe condition, they may not be able to experience WDW at all. Further, the "reasonable" inquiry turned on A.L's demand for 10 readmission passes for A.L. and everyone in his party and Judge Conway said that was not reasonable because it would severely impact the remaining non-DAS users by significantly increasing wait times and potentially lead to the same fraud and abuse as GAC.

A key part of this finding was that Department of Justice regulations do not permit Disney to ask guests for proof of their disability and if Disney gives one guest 10 readmission passes, it will end up having to do this for other guests who claim to have autism spectrum disorder (or a similar disorder that makes waiting in line difficult). I've expressed some skepticism of the DOJ rule. It makes no sense to me. In the employment context, Title I of the ADA permits employers' to request information about an employee's specific needs under certain situations so what sense does it make to prohibit businesses from doing so under Title III. Practically, of course, this would be nightmare because it would rely on cast members to discern in a matter of minutes what are often complex medical diagnoses (no slam on CM's is meant, I read a lot of medical records and they complex). But I digress.

So, one of the other plaintiffs might be able to persuade Judge Conway that they didn't need 10 readmission passes but it would be "reasonable" for them to receive 6 to 8 readmission passes in addition to DAS. This, of course, is speculation. Disney would still present evidence that every readmission pass increases the standby wait time.

So, in theory, the necessary and reasonable holdings might change depending on the facts. What will likely sink the remaining plaintiffs is the ruling that the requested modification would "fundamentally alter" the Disney Park experience. While this was based on the impact of A.L.'s request for 10 readmission passes, Disney persuaded Judge Conway this would increase standby wait times, reduce Disney's return business and essentially return to the abuses of GAC. Again, in theory, a different case could lead to a different result but practically, that would be threading a small needle with a large thread.

By the way, Judge Conway appropriately distinguished the Colonial Williamsburg decision she cited. I find the decision problematic but its problems likely stemmed from the park's decision not to put on evidence about the impact of permitting sack lunches in dining rooms.

So, what happens next? Judge Conway will probably put down an order. She may set the next case for trial (though there are few in person trials right now) or she may schedule a conference (call) to discuss the remaining cases.

You'll remember that Judge Conway awarded Disney's its costs. Disney might offer not to seek "costs" against the other families if they agree to dismiss the lawsuits. After losing (spectacularly) on all three grounds in the first lawsuit, the families' counsel has to be questioning how much more of a chance he has in the other lawsuits.

I will ask one question. Where do I ride "Buzz Light year’s Midway Mania?"


A.L. can appeal. Unlike the last appeal, this time, the appeals court would have to defer to Judge Conway's fact findings and it is highly unlikely to set those aside. If there are realistically successful issues to make on appeal, it is whether ADA Title III and the DOJ regulation prohibit Disney from obtaining specific information about a guest's disability and whether Disney would have had to apply A.L.'s sought-for accommodation to other guests (these are logically linked). I don't recall whether the plaintiffs preserved these issues for appeal. I also have to wonder why a disability advocate (remember she made comments about the trial on Facebook during the trial) would make arguments on appeal that are against the interests of anyone who has a disability.

I doubt Judge Conway will wait on the result of an appeal before moving forward with the other lawsuits. So, it isn't over, even after six years, but the score on "Buzz Light year's Midway Mania" is approaching zero.
This is why we can't have nice things. Disney is going to be a lot more careful in the future about the accommodations that it makes available to guests. That's not a good thing, but who can blame them for not wanting to get hauled into court when they decide it didn't work and want to replace it with something else?
 
As a matter of general interest, closing old issues etc., the California federal court has formally entered judgment in Disney's favor and against the families / plaintiffs suing to overturn the adoption of DAS at Disneyland Resort.

A judgment is a formal document closing litigation. When there is one plaintiff and one defendant, the judgment is a usually a simple task. Here there were 55 plaintiffs in one consolidated action so there needed to be something fairly comprehensive saying all the claims had been dismissed. There are really complex rules on when one party in a multi-party case can appeal a decision without a final judgment so having a final judgment avoids a headache if one of the plaintiffs wants to appeal.
 
As a matter of general interest, closing old issues etc., the California federal court has formally entered judgment in Disney's favor and against the families / plaintiffs suing to overturn the adoption of DAS at Disneyland Resort.

A judgment is a formal document closing litigation. When there is one plaintiff and one defendant, the judgment is a usually a simple task. Here there were 55 plaintiffs in one consolidated action so there needed to be something fairly comprehensive saying all the claims had been dismissed. There are really complex rules on when one party in a multi-party case can appeal a decision without a final judgment so having a final judgment avoids a headache if one of the plaintiffs wants to appeal.
Thank you for keeping us up on this!
It’s been a long time coming
 

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