Before getting started on the blog entry for the week, last week, the Federal Bar Association blog posted my piece on the interactive process. It’s an unusual piece of writing in that it talks about the step-by-step approach to the interactive process AND the psychological overtones of the process. Again, as I mentioned in that piece, my thanks to Robin Shea of Constangy Brooks for her blog entry on the step-by-step approach to the interactive process and for allowing me to borrow her steps and refine it from my perspective. You can find the Federal Bar Association blog piece here.

 

Turning to the blog entry of the week, it is a published decision from the Sixth Circuit decided on February 25, 2026. It asks the question of whether an attached claim to a sexual harassment claim allows the attached claim to circumvent an arbitration agreement. The Sixth Circuit holds that it does. The case is Bruce v. Adams and Reese, LLP, here. The Sixth Circuit majority opinion goes into elaborate detail about why the sexual harassment claim was properly pleaded, but for our purposes that discussion isn’t really relevant once it is known that the claim was properly pleaded in the first place. As usual, the blog entry is divided into categories and they are: the situation (I decided that “facts,” is just too boring); why a properly pleaded sexual harassment claim allows attached claims to circumvent arbitration after the enactment of the Ending Force Arbitration Act (EFAA); dissenting opinion of Judge Thapar; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

The Situation

 

Plaintiff has a history of childhood abuse as well as diagnosis of: PTSD, ADHD, social phobia, persistent depressive disorder, sleep apnea, insomnia, periodic limb movement disorder, and restless leg syndrome. While working for the law firm that she started with, which became part of another law firm, she experienced sexual harassment. She filed a sexual harassment claim, and she also filed ADA claims for failure to accommodate and/or engage in an interactive process. The issue faced by the Sixth Circuit was whether the EFAA allows attached claims, in this case ADA claims, to also escape arbitration.

 

II

Why A Properly Pleaded Sexual Harassment Claim Allows Attached Claims to Also Circumvent Arbitration After the Enactment of the Ending Force Arbitration Act

 

  1. Section 402(a) reads, in full, as follows: IN GENERAL.—Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute jointaction waiver shall be valid or enforceable with respect to a case (emphasis mine), which is filed under Federal, Tribal, or State law and relates (emphasis mine), to the sexual assault dispute or the sexual harassment dispute.
  2. The keyword is “case,” because it is “respect to a case,” that an otherwise valid arbitration agreement is invalid and unenforceable. Therefore, that term points clearly in the direction of “case,” encompassing a plaintiff’s entire suit.
  3. Black’s Law Dictionary defines “case,” as, “a civil or criminal proceeding, action, suit, or controversy at law or in equity.”
  4. The Federal Arbitration Act uses the word “case,” to reference an entire matter, including all the claims associated with it. In fact, the term makes sense only if read to refer to a proceeding.
  5. Numerous other provisions of federal law also support the premise that “case,” refers to a proceeding. For example, a party does not call a witness in a claim, or count, or cause of action.
  6. “Claims,” are the component parts of a “suit,” “case,” or “action,” each of which encompasses the entirety of a civil proceeding.
  7. The EFAA’s text renders an arbitration agreement unenforceable with respect to a plaintiff’s entire case, or action, and not only with respect to certain claims.
  8. The cases the EFAA shields are those relating to sexual assault disputes or sexual harassment disputes.
  9. “Relate,” means to have some connection to or stand in relation to per Black’s Law Dictionary.
  10. In other contexts, the Supreme Court has held that one thing “relates to,” if it has a connection with or reference to that other thing (a deliberately expansive term).
  11. The Sixth Circuit has also recognized that “relates to,” is an expansive term.
  12. When a plaintiff files a case that includes a sexual harassment claim, that case certainly has “a connection with,” and “reference to,” the claim.
  13. Congress could easily have drafted the EFAA to protect only sexual harassment claims and sexual assault claims from force arbitration, but it didn’t follow any of those paths. For example, Congress could have used the word “claim,” instead of the word, “case,” but they did not do so.
  14. To hold that “claim,” and “case,” are synonymous ignores Congress’s deliberate choice of words.
  15. The idea that every word and every provision of the statute must be given effect, disfavors a narrow reading of such a statute. Congress could have provided plaintiffs with protection limited to sexual assault claims and sexual harassment claims simply by striking the words “a case which is filed under federal, tribal, or State law and relates to the,” from §402(a) and they didn’t do so. To hold otherwise, would cause these words to have no consequence and such a reading therefore should not be preferred.
  16. Congress also could have used the term “individual disputes,” as another way of making clear that attached claims to sexual harassment or sexual assault cases would also have to be arbitrated. Congress didn’t do that either.
  17. The EFAA’s text and statutory structure all points in the same direction. A court has to presume that Congress says in a statute what it means and means in the statute what it says there. Accordingly, since EFAA’s bar to arbitration focuses on cases and not on claims or causes of actions, and Congress did not take obvious alternative paths when drafting the legislation, attached claims to sexual harassment or sexual assault matters do not have to be arbitrated.
  18. Federal policy favoring arbitration has nothing to do with whether a statute mandates arbitration of certain claims where the statute unambiguously precludes arbitration of an entire case.
  19. Since the EFAA’s plain language controls, each claim that is a part of plaintiff’s case may remain in court, whether that is taken claim by claim or as a whole.
  20. When Congress enacts similar language to a statute that has been consistently construed in one way, it is presumed that Congress intended to incorporate that interpretation.
  21. Policy arguments to the contrary simply cannot prevail over the plain language of a statute.
  22. The sole function of courts where the disposition required by a statute is not absurd, is to enforce the statute according to its terms.
  23. The stated purpose of the EFAA according to the House Report, “is to restore access to justice for millions of victims of sexual assault or harassment who are currently locked out of the court system and are forced to settle their disputes against companies in the private system of arbitration.” Allowing these “millions of victims,” to bring other claims alongside their sexual assault or harassment claims is far from “demonstrably at odds with this intention.”
  24. It is entirely possible that Congress would view the holding that attached claims to sexual assault or sexual harassment claims survive as advancing the intent of the legislation because the alternative would discourage plaintiffs from accessing the court system as a result of the increased costs and time commitment in bringing parallel actions in different forums.
  25. The defense has not demonstrated the effects of the holding in this case will contravene congressional policy, much less sufficiently so that the court could disregard the law’s plain text.

 

III

Dissenting opinion of Judge Thapar

 

  1. Judge Thapar’s dissent focuses on his belief that plaintiff simply did not state a sexual harassment claim based upon prior precedent.
  2. Since his belief is the sexual harassment claim should have been dismissed, the ADA claims should be arbitrated. He noted that the majority, the district court, and the parties all agreed on such an outcome if the sexual harassment claims were dismissed.

 

IV

Thoughts/Takeaways

 

  1. I am seeing several cases coming down of late reaching the same conclusion as the Sixth Circuit. So, if a plaintiff properly pleads a sexual harassment or sexual assault claim, attached causes of action are also not subject to arbitration. Of course, a plaintiff should plead each and every claim with Iqbal/Twombly in mind. It will be interesting to see whether a circuit court split develops on whether attached claims to sexual harassment and sexual assault claims escape forced arbitration.
  2. I am also seeing cases coming down where the very strict view of what constitutes a hostile working environment is being modified in the courts (See this blog entry for example). The courts are often using the same language they have always used, but they are, in many cases, being more flexible in allowing such claims to proceed or even survive summary judgment.
  3. This case also illustrates, as my colleague Robin Shea has noted in her blog entries, how hard it is to throw out a case at the motion to dismiss stage. Defendants are going to have much more success throwing out cases at the summary judgment stage than they are at the motion to dismiss stage.
  4. I have also seen commentators, such as Jon Hyman, who represents management and labor and employment matters, express reservation as to whether arbitration is all that it is cracked up to be. So, unclear how much this holding actually adversely affects defendants.

This week’s blog entry focuses on what happens if assuming for the sake of argument, renovations are not readily achievable at a place of public accommodation, whether that ends the analysis. The answer is no. The case also discusses just how the burden of proof works with respect to claiming that an accommodation is readily achievable.  Our case of the day is Lopez v. Catalina Channel Express Inc. 10, 974 F.3d 1030 (9th Cir. 2020), here. This case also sets an Understanding the ADA record for being decided six years before blogging on the case. Even so, the case is worth blogging on for the issues it discusses. As usual, the blog entry is divided into categories and they are: facts; court’s discussion of who bears the burden of proof at summary judgment with respect to whether an architectural barrier is or is not readily achievable; court’s discussion of how even assuming that removal of the architectural barrier is not readily achievable, alternative solutions still need to be explored; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Daniel Lopez is confined to a wheelchair due to a disability and alleges that he was unable to use the restroom aboard the Jet Cat Express, a passenger vessel sailing between Long Beach and Santa Catalina Island, California, because the restroom’s door was too narrow to allow his wheelchair to enter resulting in him soiling himself. Lopez sued Catalina Channel Express, Inc. (“Catalina”), which owns and operates the vessel, under the Americans with Disabilities Act of 1990 (“ADA”) and California’s Unruh Civil Rights Act (“Unruh Act”) for failing to widen the vessel’s restroom door.

 

Catalina has not altered the restroom in the Jet Cat Express since it was built in 2001. According to Tony Ross, Catalina’s Vice President of Vessel Engineering, no passenger—other than Lopez—has ever reported any difficulty accessing the restroom. Ross also testified that the sliding “pocket door” creates a 26-inch-wide entryway when fully opened and the door cannot be widened because its handle is placed three inches from the outer edge of the door. According to Ross, there are two reasons why widening the restroom door is not readily achievable. First, “installing a different type of handle at the outer edge of the ‘pocket door’ . . . may make it more likely that passengers’ hands would be injured in the doorway when closing the door, due to the constant movement of the vessel.” Second, Catalina “cannot structurally alter the restroom without negatively impacting the stability of the vessel . . . [which] is a threat to the safety of navigation.” Specifically, Ross explained:

 

“[M]odifications and alterations to a vessel can negatively impact the stability of the vessel in many ways. For example, here, in order to expand the doorway of the disabledaccessible restroom on the Jet Cat Express, the structure of the restroom itself would need to be expanded which, in turn, would impact the structure of the adjoining restroom. As walls shift, the vessel’s overall weight changes. These changes may cause the overall center of gravity (“COG”) of the vessel to move, and the freeboard to be reduced. These two factors affect the stability of a vessel. . . . Simply put, as the COG moves and the amount of freeboard becomes lower, the vessel becomes more susceptible to unstable situations.”

 

In other words, Ross declared that widening the vessel’s restroom door is not readily achievable

 

The district court denied Lopez’s motion for summary judgment and instead granted summary judgment to Catalina on Lopez’s ADA claim. The district court also refused to exercise supplemental jurisdiction over Lopez’s Unruh Act claim and Lopez appealed.

 

II

Court’s Discussion of Who Bears the Burden of Proof at Summary Judgment with Respect to Whether an Architectural Barrier Is or Is Not Readily Achievable

 

  1. A passenger vessel like the vessel used by Lopez is a place of public accommodation. As such, the place of public accommodation has a duty to make sure that individuals with disabilities can fully enjoy the facilities.
  2. To prevail, Lopez has to show that: 1) he is a person with a disability; 2) Catalina is a private entity owning, leasing, or operating a place of public accommodation; and 3) Catalina discriminated against him by denying him public accommodation because of his disability.
  3. Neither party disputes that Lopez was a person with a disability and that Catalina is a place of public accommodation. The only question is whether Catalina discriminated against him by denying him public accommodations because of his disability. That is, whether any barriers interfered with Lopez’s ability to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of the facility.
  4. Discrimination under Title III of the ADA specifically includes failing to remove architectural barriers in existing facilities when that removal is readily achievable. See 42 U.S.C. §12182(b)(2)(A)(iv).
  5. Even if an entity can demonstrate that the removal of a barrier is not readily achievable, the entity is still liable under the ADA if it fails to make its goods, services, facility, privileges, advantages, or accommodations available through alternative methods so long as such methods are readily achievable. See 42 U.S.C. §12182(b)(2)(A)(v).
  6. Title III of the ADA is silent as to who bears the burden of proving at summary judgment that removal of an architectural barrier is or is not readily achievable.
  7. The 10th Circuit was the first Court of Appeals to articulate a two-part burden shifting framework for evaluating whether removing an architectural barrier is readily achievable under the ADA. Under that approach, the plaintiff must initially present evidence tending to show that the suggested method of barrier removal is readily achievable under the particular circumstances. If the plaintiff meets that initial burden, the defendant then bears the ultimate burden of persuasion that barrier removal is not readily achievable. This approach was adopted by the Eighth and 11th Circuits as well. The Second Circuit modified the test slightly by requiring a plaintiff to first articulate a plausible proposal for barrier removal and then recognizing that the defendant may counter the plaintiff’s showing by meeting its own burden of persuasion and establishing that the costs of plaintiff’s proposal would in fact exceed its benefits.
  8. Regardless of the jurisdiction, it is clear that the defendant bears the ultimate burden of proving the affirmative defense, but the initial burden of proof is on the plaintiff. Such an approach makes sense because a plaintiff must make clear what accommodation is needed and disability accommodations are so specific to the individual.
  9. Placing the initial burden of proof on the plaintiff to plausibly show how removal of an architectural barrier is readily achievable makes sense for several reasons: 1) 42 U.S.C. §§12182(b)(2)(A)(iv), (v) read together require the removal of an architectural barrier unless such removal is not readily achievable. Subsection (iv) starts by requiring defendants to remove architectural barriers where the removal is readily achievable. Subsection (v) then offers the defendant an opportunity to avoid liability by demonstrating that the removal of a barrier is not readily achievable. In other words, only if the plaintiff makes a plausible showing that the barrier removal is readily achievable, does the defendant then have to negate that showing by proving that the removal is not readily achievable; 2) burden shifting frameworks have been used in other sections of Title III of the ADA. For example, the same analysis has been used when dealing with the question of whether reasonable modifications to a place of public accommodation policies, practices, or procedures that allow individuals with disabilities to enjoy their goods and services are in order; 3) a burden shifting approach is also used in employment claims under Title I of the ADA when it comes to an employee seeking a reasonable accommodation. For example, in that situation, an employee must initially prove that the accommodation seems reasonable on its face. If that accommodation is reasonable on its face, then the defendants have to show circumstances demonstrating an undue hardship; and 4) disparate treatment cases also use a burden shifting approach.
  10. With respect to historical buildings, Ninth Circuit case law has held that the initial burden of proof is on the defendant, which makes sense when historical buildings are involved because a defendant is the one possessing the best understanding of the circumstances under which the historical designation might be threatened. The defendant is also in the best position to discuss the matter with the applicable historical commission to request an opinion on proposed methods of barriers removal. Those considerations do not apply outside of the historic building context.
  11. Even though every Circuit applies a burden shifting framework when addressing removal of architectural barriers at summary judgment, the initial burden on plaintiffs varies. In the 10th Circuit, a plaintiff must provide precise cost estimates and a specific design regarding their proposed accommodation. However, the Second Circuit only requires a plaintiff to articulate a plausible proposal for barrier removal, the costs of which on their face do not clearly exceed their benefits.
  12. The Second Circuit approach with respect to the initial burden of proof makes the most sense because it would be asking too much of plaintiff’s since defendants have the superior knowledge and information regarding their own facilities so as to allow them to quickly and easily counter implausible barrier removal proposals.
  13. 42 U.S.C. §12181(9)(A-D) sets forth four factors for determining whether an action is readily achievable. These factors are: (A) the nature and cost of the action needed; (B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility; (C) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (D) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.
  14. Under the approach with respect to the initial burden of proof being adopted in this decision, a plaintiff is not required to address in detail each of those factors in order to meet their initial burden of plausibly explaining why it is readily achievable to remove an architectural barrier. Instead, once a plaintiff makes a plausible showing that the requested accommodation is readily achievable, it is the defendant that bears the burden of convincing the court those four factors favor the defendant. Therefore, it makes sense for a plaintiff to submit as much evidence as possible pertaining to those four factors in their initial barrier removal proposal even if a plaintiff is not required to do so in order for the plaintiff to increase their chances of defeating a summary judgment motion.
  15. The lower court found that Lopez not only did not address the four factors, but he also did not meet his initial burden of plausibly showing how the costs of widening the restroom door does not exceed the benefits.

 

III

Court’s Discussion of How Even Assuming That Removal of The Architectural Barrier Is Not Readily Achievable, Alternative Solutions Still Need to Be Explored

 

  1. Even assuming that widening the restroom door was not readily achievable, Lopez can still prevail if he establishes that Catalina chose not to make the restroom available to him even though it could have done so through alternative methods without much difficulty or expense. See 42 U.S.C. §12182(b)(2)(A)(v).
  2. Lopez argued he was never offered a different wheelchair that would fit through the restroom’s door. However, he did testify that he rejected Catalina’s offer to transfer him from his wheelchair to the toilet because he is a big guy and has had bad experiences with being dropped with people trying to help him. It is unclear whether Lopez would have accepted an offer to use a narrower wheelchair or whether an offer to transfer him directly to the toilet would satisfy Catalina’s duty to offer alternative method to use the restroom. Finally, the District Court did not evaluate whether Catalina made the restroom available to Lopez through alternative methods. As a result, the District Court’s grant of summary judgment is reversed because it did not evaluate whether Catalina made the restroom available to Lopez through alternative methods. On remand, the district court has to focus on making that determination.

 

 

 

 

IV

Thoughts/Takeaways

 

  1. With respect to actual boats themselves, the Access Board doesn’t have accessibility regulations, though it has been thinking about doing so for some time. It does have regulations dealing with various other aspects of the boating experience.
  2. I do not recommend picking up a person from a wheelchair to carry them up the steps or put them in a bathroom as an alternative method of accessibility. It’s insulting, demeaning, and dangerous.
  3. Title III regulation do contain a list of priorities for a place of public accommodation when it comes to attacking barriers that are readily achievable with respect to removing them. See also this blog entry. Legal counsel can be very helpful when it comes to determining what barriers need to be remediated in what time order.
  4. The specific initial burden of proof for a plaintiff when it comes to alleging that removal of certain barriers are readily achievable varies from jurisdiction to jurisdiction.
  5. When it comes to Title III architectural barriers disputes, the ADAAG acts as a strict liability situation. That is, if the ADAAG has an applicable section and that particular section is not satisfied, liability is automatically placed on the defendant. In this case, there was no particular section applicable. So, the burden shifting questions come into play.
  6. The strict liability nature of the ADAAG combined with an applicable section almost always being available, means that you don’t see a lot of these cases discussing the readily achievable burden of proof, which might help explain why it took six years from this decision for me to blog on the set of issues presented by this case.

This week is disability awareness week. I suppose every week is disability awareness week for me😊. In keeping with the spirit of the week, we have another blog entry.

 

Previously, we have blogged on whether the work product privilege is jeopardized by the use of AI. In that blog entry, here, we talked about two cases that seemingly came up with irreconcilable approaches. I am not sure if those cases can be reconciled even if one was pro se and the other wasn’t considering the language in the two decisions. Now, we have a third case dealing with a pro se plaintiff and the plaintiff’s use of AI. Does such use violate work product privilege? Does that question really depend upon the platform that the plaintiff uses? A case that answered both of those questions is our blog entry for the week, Morgan v. V2X Inc., here, decided by Magistrate Judge Braswell of the United States District Court for the District of Colorado on March 30, 2026. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning regarding whether work product protections apply to a pro se litigant’s use of AI; court’s reasoning for the need for a protective order expressly restricting the use of AI; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

 

Plaintiff acting pro se, claimed he was subjected to a hostile work environment and eventually terminated based on his race and national origin in retaliation for protected activities, including opposing sexual harassment and engaging in protected whistleblowing activity. During the course of the litigation, plaintiff sought an insurance policy from the defendant. The defendant refused to supply it unless plaintiff disclosed his AI tool and submitted to certain restrictions on AI use. Both parties were using AI in connection with the litigation work, but disagreed on how AI should or should not be used in connection with confidential information as defined in a prior protective order.

 

II

Court’s Reasoning Regarding Whether Work Product Protections Apply to a Pro Se Litigant’s Use Of AI

 

  1. Federal Rules of Civil Procedure 26(b)(3)(A) protects documents and tangible things prepared in anticipation of litigation or for trial by or for another party or its representative.
  2. Federal Rules of Civil Procedure 26(b)(3)(B) says that mental impressions, conclusions, opinions, and legal theories, are content that may be embedded in such documents and tangible materials. It also recognizes that those materials may include mental impressions, conclusions, opinions, and legal theories.
  3. Federal Rules of Civil Procedure 26(b)(3)(B) adds another layer of protection to mental impressions and opinions when they come from a party’s attorney or other representative.
  4. Federal Rules of Civil Procedure 26(b)(3) refers to things prepared in anticipation of litigation by any party (emphasis in opinion), which is language that would seem to include material created by a party before retaining a lawyer as well as a party who never actually hires an attorney.
  5. A reading that the rule includes material created before retaining a lawyer is also reinforced by the history of the Rule. In particular, the Advisory Committee’s amendments were specifically designed to extend protection beyond attorney work product to materials prepared by or for a party (emphasis in opinion). Since then, courts routinely interpret the Rule to apply not just to attorney work product, but also to a pro se litigant’s work product as well.
  6. Courts have broadly interpreted the rule to protect not just litigation preparation materials, but also the mental impressions, opinions, and theories of parties (emphasis in opinion).
  7. While only attorneys and other representatives get the additional heightened protection under Federal Rules of Civil Procedure 26(b)(3)(B), a party’s own mental impressions are nevertheless generally protected under Federal Rules of Civil Procedure 26(b)(3).
  8. Pro se litigants are forced to act as both party and advocate simultaneously.
  9. For the first time in history, widespread access to powerful technology may make that dual role faced by pro se litigants surmountable.
  10. A reading of Federal Rules of Civil Procedure 26(b)(3) conditioning work product protection over AI materials and the involvement of counsel is not supported by the rule’s text and would further disadvantage unrepresented litigants.
  11. Since pro se litigants are held to the same standard as represented litigants, they should also be afforded the same protections.
  12. Heppner is distinguishable in at least two ways: 1) Heppner was a criminal matter; 2) Heppner involved a gap between the party and the attorney because the defendant acted entirely apart from his lawyer. No such gap exists when a pro se litigant is involved.
  13. While it is true that AI systems like ChatGPT, Claude, Gemini, and other AI widely available to the public, collect user data for training and other purposes, that does not eliminate all expectations of privacy or automatically waives protections.
  14. Nearly all electronic interaction today passes through third-party systems. Google, for example, host millions of accounts, and by extension, has access to millions of messages, emails, documents, videos, and more. Phones, computers, in-home smart devices, and other electronics, collect information about us to offer more customized services. That simply cannot mean that anyone with a Gmail account has forfeited all rights to confidentiality and privacy.
  15. Intermediary access does not alone extinguish privacy expectation.
  16. The Supreme Court has held that the mere fact that information is held by a third-party intermediary, does not automatically extinguish the reasonable expectation of privacy in that information.
  17. While the fourth amendment governs searches and seizures and has a completely different legal framework from the work-product doctrine, the principle involved in those cases is informative. That is, routing information through a third-party system does not forfeit all privacy.
  18. Unlike a general-purpose search engine, which passively returns results, many modern AI platforms are specifically designed and trained to engage. They invite candid and significant disclosure of information, including sensitive information. They also simulate empathy, foster trust, and interact in a way that feels genuine and intimate. Research confirms that people share personal and sensitive information with AI chat bots, often without appreciating what happens to that information once shared.
  19. The situation of a pro se litigant using AI to assist with their litigation preparation, closely resembles the kind of confidential, strategy-laden work product that Federal Rule Of Civil Procedure 26(b)(3) was designed to protect.
  20. Given how AI tools function, it is entirely reasonable for a person to expect some privacy and confidentiality when when interacting with these tools, even though they understand that a third-party is behind the AI collecting and storing their information.
  21. Work product protections are typically waived by disclosure to an adversary, or in circumstances substantially increasing the likelihood that an adversary will obtain the materials.
  22. Even though AI use technically discloses information to a third party, it is highly unlikely the information will fall into the hands of an adversary absent some legal process to compel it. Therefore, AI interactions do not automatically compromise work product protections.
  23. Defendant’s request for the name of the tool is legitimate and reasonable. If plaintiff has already submitted confidential information to an AI system, which it appears he has, the defendant is entitled to know which system it is.

 

III

Court’s Reasoning For The Need For A Protective Order Expressly Restricting The Use Of AI

 

  1. The suggested language submitted by both the plaintiff and the defendant for clarifying the protective order just doesn’t work for the court.
  2. The defendant’s suggested language is imperfect but makes more sense than the plaintiff’s.
  3. So, the language the court ultimately settled on is: “No party or authorized recipient may input, upload, or submit CONFIDENTIAL Information into any modern artificial intelligence platform, including any generative, analytical, or large language modelbased tool (“AI”), unless the AI provider is contractually prohibited from: (1) storing or using inputs to train or improve its model; and (2) disclosing inputs to any third party except where such disclosure is essential to facilitating delivery of the service. Where disclosure to a third party is essential to service delivery, any such third party shall be bound by obligations no less protective than those required by this Order. In addition, the AI provider must contractually afford the party or authorized recipient the ability to remove or delete all CONFIDENTIAL information upon request. A party intending to use AI that it contends meets these requirements must retain written documentation of these contractual protections.” (Emphasis in opinion).
  4. The court recognizes that practically speaking that the court’s language clarifying the use of AI in this case by the parties will bar the party from using most, if not all, mainstream low-to-no-cost AI to process confidential information. This type of restriction disadvantages pro se litigants, as enterprise tier AI account status having these requirements may be available only through organizational procurement processes, or at costs that a pro se litigant is unlikely to bear. Even so, the court can’t ignore the real risks associated with mainstream tools that persistently collect and store data and can compromise confidentiality. The clarifying language is not intended to leave the pro se plaintiff without the benefit of being able to use AI. Modern AI tools may be used in many ways that do not involve uploading confidential information, and nothing in the revised clarifying language restricts those uses.

 

IV

Thoughts/Takeaways

 

  1. Assuming the plaintiff is not happy with the clarification of the protective order and kicks it up to the District Judge, it will be interesting to see if the District Judge agrees with the scope of the protective order as clarified.
  2. It is absolutely true that AI can be used for information that is not confidential. One of the ways I use AI is to develop PowerPoint presentations (unfortunately, PowerPoint is not meaningfully accessible to voice dictation users), and it is pretty cool what AI can do in that situation. No confidential information is involved.
  3. For someone that is a litigant, especially a pro se litigant, figuring out what confidential information is in order to not put it into an AI system that is affordable, may be an extremely difficult thing to do. Privileges are not always the easiest thing to understand absent independent legal knowledge, even for lawyers. With regards to information submitted by another party, it is unclear how would a pro se litigant know whether that information is confidential, except for self-serving statements from the other party that the information is confidential. Even interpreting a protective order might be something difficult to do. In that situation, I could see a person asking AI to dumb down the order so that the pro se litigant could understand it. Of course, asking AI to dumb down that order would carry risks of its own, in that the dumbing down might change the meaning of the order.
  4. If not using enterprise systems, a pro se litigant with a protective order similar to this case, would definitely want to turn off the training feature of the AI if it is possible.
  5. One wonders whether the clarifying protective order goes further than the reasoning the court uses for holding the work product privilege applies to pro se litigants when using AI.
  6. What does any of this have to do with persons with disabilities? It does. People with disabilities are using AI in a variety of ways. For example, people with ADHD use AI to help them organize their thoughts. People with communication issues might use AI so that they can explain themselves better. I am sure that the list goes on and on. Also, I can’t tell you how many calls I get from people with disabilities that have meritorious disability discrimination cases, but simply cannot afford the kind of services I provide. AI is an equalizer but the enterprise systems do not come cheap. Further, I just read in the April 13, 2026, issue of the Wall Street Journal that there is a huge shortage of computer power for these AI systems, which means that the actual cost of using these AI systems is increasing all the time.
  7. If a litigant is not pro se, and the client uses AI to accommodate the disability, it makes a lot of sense for the attorney and the client to be quite explicit about how the AI is used and that the AI is being used to accommodate a disability. While a federal judge that is not part of an executive agency is free to do what they want in their courtroom with respect to discriminating or not against a person with a disability (with the exception of some limited rules pertaining to the hearing loss community), a lawyer has independent obligations under various provisions of the ADA to accommodate a client with a disability. So, that is a another reason for an attorney and their client to be explicit about AI use and whether it is being used as part of a reasonable accommodation process.
  8. It makes sense for an attorney to include in the retainer agreement how the client can expect AI to be used by the attorney. It also makes sense to discuss in that agreement the expectations for how a client might use AI.
  9. This case winds up on the side more closely resembling that work product privilege is waived when using AI than it does on the side of the case saying that work product privilege is not waived when using AI.
  10. Ultimately, the Supreme Court is going to have to step in. I have absolutely no idea what they might do when faced with issues of work-product and attorney-client privilege when using AI.
  11. These cases have bigger implications than just the evidentiary privilege. Journalists now are going big into AI. I read all the time about how journalists are using AI to expand the scope of their coverage. I am sure journalists are using AI in all kinds of other ways. Journalism protects its sources. Many of these journalists are freelance and may not be able to pay the freight for enterprise AI. Are they jeopardizing their sources by using Gen AI under the reasoning of this case and others like it?

I hope everyone had a happy Easter and had or is having a good Passover.

 

Also, congratulations to UCLA on their women’s Division I basketball national championship and to Michigan on their men’s Division I basketball national championship.

 

This week’s blog entry dives into the rapidly evolving world of emotional support animals and persons with disabilities. It turns out it is getting really complicated. We will actually discuss two cases. First, Commission on Human Rights and Opportunities Ex Rel. Wendy Pizzoferrato v. The Mansions LLC, decided by the Connecticut Supreme Court on March 31, 2026, here. This case is actually a case where Richard Hunt represented the landlord (Richard is a person I have known for some time and have co-presented with him numerous times). Second, Hinckley v. City of Brandon, decided by United States District Court for the Southern District of Mississippi on March 31, 2026, here. This case was sent to me by Clinical Law Prof. Emeritus Leonard Sandler of the University of Iowa. As usual, the blog is divided into categories, and they are: Commission on Human Rights decision/thoughts/takeaways; Hinckley facts; Hinckley’s reasoning that plaintiff had not demonstrated the necessity for an exception to the waiver provisions of the ordinance; instructive dicta; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Commission on Human RightsDecision/Thoughts/Takeaways

 

  1. This case involved a tenant wanting to have two emotional support animals in their unit. The complex would allow one but not two. The tenant proceeded on a regarded as claim, and the Connecticut Supreme Court wasn’t having any of it. In particular, the Connecticut Supreme Court said that although the regarded as prong is necessary to preclude landlords from refusing to rent to prospective tenants because of perceived disabilities, a perceived disability does not give rise to the need for reasonable accommodation because there is no disability giving rise to the need for the dog.
  2. The case goes off on Connecticut law, but it closely matches Federal Fair Housing Act.
  3. For more details on this case, Richard Hunt blogs on it in detail here.
  4. The case also tracks the ADA in that reasonable accommodations are not available to a person alleging they were regarded as having a disability.
  5. The Connecticut Supreme Court did say that under Connecticut law that it might be possible for a reasonable accommodation to be in order in a perceived disability case, but this wasn’t the case for that.

 

II

Hinckley Facts

 

Hinckley has two mixed breeds pit bulls as her emotional support animals. The City of Brandon prohibits pit bulls by an ordinance. However, they do allow pit bulls if the person has in place and approved (/enclosure) for each dog approved by the Chief Of Police or his designee and that enclosure meets various specific requirements. The particular pit bulls were strictly inside dogs, so the plaintiff did not see any reason to have to build such enclosures. She also did not claim that she was somehow unable to accomplish the enclosures demanded by the variance. She sued for a preliminary injunction that she be allowed to keep the pit bulls without building the enclosure.

 

III

Hinckley’s Reasoning That Plaintiff Had Not Demonstrated the Necessity for an Exception to the Waiver Provisions of the Ordinance

 

  1. No dispute exists that Hinckley sought a variance without taking the steps demanded for those wishing an exception to the ordinance.
  2. Hinckley never suggested at any time that she was somehow unable to accomplish the measures required by the exception to the ordinance.
  3. Hinckley is required to prove that she was discriminated by a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary.
  4. To prove that an accommodation request is necessary, the plaintiff has to show that the requested accommodation makes a home either financially viable or therapeutically meaningful.
  5. In the Fifth Circuit, necessity is defined as something that is indispensable, requisite, essential, needful and which cannot be done without, or is absolutely required. In other words, a requested accommodation must be essential.
  6. The necessity inquiry adopts a strict sense of necessary and functions as a but for causation requirement that ties the needed accommodation to equal housing opportunity.
  7. An accommodation is necessary if without the accommodation, the plaintiff will be denied an equal opportunity to obtain, use, or enjoy the housing of her choice.
  8. The question is whether the requested accommodation (emphasis in opinion), is necessary to afford the resident an equal opportunity to use and enjoy the home.
  9. Hinckley never claimed that she lacked the ability to comply with the terms of the variance. She also has not shown that exclusion from the variance requirements is necessary to attain an equal opportunity to enjoy her home. Rather, she is asking to be treated more favorably than others wishing to own pit bulls within the city limits. Therefore, she fails to establish a substantial likelihood of proving the accommodation was necessary.
  10. HUD’s 2013 guidance on animals was withdrawn on September 17, 2025. So, any cases citing that guidance are less than persuasive.

 

IV

Instructive Dicta

 

  1. Hinckley offers no legal arguments showing that HUD’s 2020 animal guidance correctly construed the FHA’s text, including the necessity element, when applied to requests to waive a city’s variance requirements.
  2. Case law cited by Hinckley precedes Loper Bright and therefore, is hardly persuasive.
  3. Necessity still needs to be proven in order to receive an accommodation.

 

V

Thoughts/Takeaways

 

  1. I had to double check, but HUD has withdrawn BOTH the 2013 and the 2020 animal guidance, here. I don’t know why the court has a section of the opinion analyzing the 2020 guidance as if it is still in effect. So, that discussion would be dicta. The discussion is valuable in that it says the FHA necessity requirement remains as a result of Loper Bright even assuming the 2020 animal guidance is still in effect.
  2. We know from this blog entry, here, that one court has held that charging a pet deposit to process an ESA is perfectly permissible.
  3. An argument can be made that ESA’s are no longer a thing with respect to private housing. HUD has a very short regulation, here, on private housing dealing with a guide dog for the blind. ESA’s certainly go far beyond the limited regulation detailing a very specific kind of service animal. So, this argument would say that an ESA is not in order because an ESA goes far beyond the FHA private regulation on service animals. Interestingly enough, this same logic would suggest that if you had an animal acting as a service animal (trained to engage in recognition and response related to a person’s disability), that was not a dog and you were in private housing, that Loper Bright combined with the HUD regulation on animals in private housing would allow for that animal.
  4. HUD also has a regulation talking about animals in public housing as well, here. The wording of that regulation seems to go beyond service animals and extends to emotional support animals. If one looks at the history behind that regulation, that is indeed the case. See this case. So, in public housing an argument exists that emotional support animals are specifically permitted. On the other hand, I could see a Loper Bright back-and-forth before a court questioning whether a regulation implicitly allowing for emotional support animals was a close fit with the FHA requirement that reasonable accommodation be offered when necessary to enjoy the housing.
  5. Basically impossible for me to believe that a service animal would not be necessary in order for a person to enjoy the benefits of their housing.
  6. So, what you have now is several possibilities with respect to service animals and ESA’s in housing:
    1. Service animals are allowed. Further, a service animal in the housing context possibly could extend beyond dogs.
    2. Emotional support animals are not allowed in private housing.
    3. Emotional support animals are allowed in private housing if necessity can be shown.
    4. Emotional support animals are allowed in public housing, subject to a court’s view of any back-and-forth regarding whether interpreting the public housing regulation to allow emotional support animals is a step too far considering the statutory text of the FHA.
  7. With respect to the Connecticut Supreme Court case, which in my view is likely to be followed in FHA cases, a person must have an actual disability or a record of a disability in order to get accommodations necessary to enjoy their housing.
  8. The line between an emotional support animal and a psychiatric service animal can be extremely small. I have had more than one perspective client contact me about their emotional support animal, only to find out on further questioning that they actually have a psychiatric service animal.
  9. Blanket breed restrictions without exception have been held to be a violation of Title II of the ADA. See this blog entry.
  10. This case involved a mixed breed. We don’t know what mix the pit bulls were and that could conceivably could make a difference in the temperament of the animals. Also, are pit bulls inherently dangerous? People in the animal law field will tell you that pit bulls is actually more than one breed and that it is their training to bring out their naturally aggressive tendencies that makes them dangerous. If this is so, one wonders if an argument doesn’t exist that breed restrictions are arbitrary and void on that ground.
  11. Don’t forget about state laws. For example, your state may have codified much of the prior guidances dealing with animals in housing. See this blog entry for example.

I hope everyone is enjoying the start of baseball season. The NCAA’s women tournament is about to get very interesting now that they are in a situation where the likelihood, though you never know for sure, is that the top seeds from each region will be in the final four. On the men’s side the UConn v, Duke game will likely go down in history as one of the all-time great sports moments.

 

Turning to the blog entry of the week, it is a published decision from the First Circuit, Walsh v. HNTB Corporation, decided on March 13, 2026, here, that doesn’t involve the ADA at all. Rather, it involves the Age Discrimination in Employment Act and considers the question of what is an adverse action after Muldrow. We have previously discussed what Muldrow might mean for failure to accommodate cases, here. While this case is not a failure to accommodate case nor is it even an ADA case, it is a published decision and offer some clues as to whether a failure to accommodate would be an adverse action. As usual, the case is divided into categories and they are: facts; court’s reasoning that the performance improvement plan was not an adverse action; and thoughts/takeaways and what might the impact of this case be on failure to accommodate claims. The decision also talks about constructive discharge, but there isn’t any need for us to spend a great deal of time on that. Basically, with respect to that issue, the court held that the situation the plaintiff resigned from was not so unpleasant that staying on the job while seeking redress would have been intolerable. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

In August 2019, the defendant placed Walsh on a three-month performance improvement plan that she successfully completed. About 10 months later, Walsh resigned. She then sued her employer, the defendant, alleging that the defendant committed unlawful age discrimination by placing her on the performance improvement plan and then constructively discharging her.

 

Between the end of the performance improvement plan and her resignation, Walsh never complained to human resources for submitted a complaint to the defendant’s hotline system about being mistreated by her supervisor or anyone else. She was not demoted from her position and her compensation was not reduced. No one at her employer ever asked or told Walsh to leave her employment. Nevertheless, 10 months after she had successfully completed the performance improvement plan, she and another coworker simultaneously resigned and quietly walked out together. Walsh then brought suit under Massachusetts law as well as the Age Discrimination in Employment Act

 

The District Court ruled that Walsh had not suffered an adverse action by being placed on the performance improvement plan because she successfully completed it and was neither demoted nor her pay reduced. Also any changes in her responsibilities would de minimus. The court also rejected the constructive discharge claim as well.

 

II

Court’s Reasoning That the Performance Improvement Plan Was Not an Adverse Action Post Muldrow

 

  1. In Muldrow, the Supreme Court held that an adverse action is any employment event, regardless of severity, where an employer’s conduct leaves an employee: 1) worse off; and 2) with respect to the terms or conditions of their employment.
  2. Many other antidiscrimination statutes, including the Age Discrimination in Employment Act (ADEA), use the same or similar language. So, courts have extended Muldrow to apply to those statutes as well.
  3. A performance improvement plan does not have the same effect in every employment situation. Sometimes, an employer may issue a performance improvement plan to warn an employee about performance deficiencies or assistant employee and developing a plan to achieve an identified opportunity for skill development. In those cases, a performance improvement plan is not an adverse employment action.
  4. A performance improvement plan may also impose new job responsibilities, change present terms of employment, or deprive an employee of potential advancement opportunities. In those situations, a performance improvement plan may well be an adverse employment action.
  5. Whether a performance improvement plan is an adverse action is fact intensive and specific to the performance improvement plan. The key is whether the performance improvement plan affected the terms or conditions of her employment.
  6. The PIP identified its purpose as providing Walsh with “the opportunity to correct [her] unsatisfactory performance.” It then identified several problem areas and provided a corresponding list of ways to improve. The PIP stated that Walsh should “be more proactive” and act as an “advocate” for the offices she supported; it also stated that Walsh should clean her office because it was so messy that it made “it difficult for employees to access IT resources.” The PIP did not assign Walsh new duties, alter her title or compensation, or limit her ability to seek other opportunities within the company. Its only reference to a term of employment was the company’s reservation of its right to terminate Walsh’s employment before the end of the plan. But Walsh has not argued that she was anything other than an at-will employee before, during, or after the PIP.
  7. A per se rule that all performance improvement plans are an adverse action is inconsistent with Muldrow’s requirement that the employee demonstrate a change in the terms or conditions of employment.
  8. Walsh never showed how the performance improvement plan altered her employment conditions, which is the key question post Muldrow.

 

III

Thoughts/Takeaways and What Might The Impact Of This Case Be On Failure To Accommodate Claims

 

  1. While this case is an ADEA case and not an ADA case at all. As the court noted, many statutes contain similar language, including the ADA.
  2. The decision is published and thereby precedential.
  3. With respect to constructive discharge, states very widely on what needs to be shown in order to support a constructive discharge claim, so be sure to check your jurisdiction. In general, being terminated presents an easier line of attack for plaintiff than a resignation does.
  4. Lots of debate out there about whether a performance improvement plan invariably leads to a termination, with some saying it needn’t work that way and others saying it invariably does. The answer may be very company specific.
  5. Adverse action is still a thing after Muldrow. The language in the decision about a performance improvement plan adverse action determination being very fact specific, makes one wonder just how easy it will be for employers to get summary judgment when it comes to adverse action determinations in general.
  6. The key question is whether the performance improvement plan affects the terms or conditions of a person’s employment.
  7. Something that changes the present terms of employment is an adverse action.
  8. An unreasonable delay in providing a reasonable accommodation for a denial of a reasonable accommodation certainly leaves an employee with a disability worse off with respect to the terms and conditions of their employment, which is a strong argument that an adverse action exists in those circumstances.
  9. Something that deprives an employee of potential advancement opportunities is an adverse action.
  10. An unreasonable delay in providing a reasonable accommodation certainly deprives an employee of advancement opportunities as a person with a disability is not going to be able to get to the same starting line as a person without a disability absent the reasonable accommodations. Accordingly, such a person would not be able to advance. Same can be said for failing to accommodate a person with a disability.
  11. My view was, see this blog entry, and remains after this case, is that a failure to accommodate is an adverse action.

 

A happy Easter and Passover to those who are celebrating.

Before getting started on the blog entry for the week, if anybody is interested in the journey I took to get to my law and consulting practices, I discussed that journey in this article.

 

This week’s blog entry is an update on a case that we previously blogged on here, Payan v, Los Angeles Community College District. Since that blog entry, it was sent back down to the trial court where a trial occurred and was then subsequently appealed back to the Ninth Circuit after that with the Ninth Circuit issuing a published decision on March 11, 2026, here. In the interest of full disclosure, I personally know many of the attorneys on the plaintiff side, including co-presenting with two of them- Jessie Weber and Andrew Rozynski-, and  corresponding with Maria Uzueta from time to time as well.

 

As you will blog entry is divided into categories and they are: facts; court’s reasoning that emotional distress damages are not allowed under Title II of the ADA; court’s reasoning that damages for lost educational opportunities are allowed under Title II of the ADA; dissenting opinion of Judge Lee; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories as well.

 

I

Facts

 

On remand from the first decision in this case from the Ninth Circuit, the District Court specified that the plaintiffs could try their claims under one of three theories of potential liability under Title II of the ADA: disparate impact, reasonable accommodation, or disparate treatment. While the decision doesn’t say so explicitly, from reading the opinion, it seems that the parties tried the case on a combination of reasonable accommodation and disparate treatment (it is hard to tell from the opinion if there actually was a single theory the case was tried on at trial).

 

On retrial, the jury found Los Angeles Community College District liable on 14 of the 19 factual allegations. They also found intentional discrimination as well on nine of the factual allegations, including: accessibility issues pertaining to the website; library resources; class management software program; textbooks; accommodation letters; testing accommodations; and the refusal to permit Payan to attend a math class. The jury then awarded $218,500 plus attorney fees to Payan and $24,000 plus attorney fees to the other named plaintiff (Mason).

 

Defendant filed a motion for remittitur, which District Court granted the following year. It reduced the damage it to $1650 for Payan and $0 for Mason, finding that the record only supported an award for out-of-pocket expenses. The District Court based its remittitur on its belief that Title II of the ADA does not allow for emotional distress damages per Cummings, which we discussed here. It also subsequently fashioned injunctive relief on just a few of the issues. The plaintiffs appealed the District Court’s grant of remittitur and its injunctive order.

 

II

Court’s Reasoning That Emotional Distress Damages Are Not Allowed Under Title II of The ADA

 

  1. While Title II of the ADA is a Non-Spending Clause antidiscrimination law, it explicitly defines its rights and remedies as those of the Rehabilitation Act, which is Spending Clause legislation.
  2. Title II of the ADA explicitly states that the remedies, procedures, and rights for violations of Title II of the ADA are the remedies, procedures, and rights set forth in the Rehabilitation Act. The Rehabilitation Act establishes that it’s remedies, procedures, and rights are those set forth in Title VI of the Civil Rights Act of 1964. So, following the chain of incorporation articulated in the statutes, the scope of remedies available under Title II of the ADA is determined by Title VI’s remedial scheme.
  3. That the Rehabilitation Act is Spending Clause and Title II of the ADA is not is of no relevance because the Supreme Court in Barnes v. Gorman, here, explicitly rejected that distinction when it held that punitive damages are not available under §504 of the Rehabilitation Act as well as under Title II of the ADA.
  4. The Supreme Court specifically stated that the ADA could not be clearer that the remedies, procedures, and rights of Title II of the ADA are the same as the remedies, procedures, and rights set forth in the Rehabilitation Act.
  5. Taking Cummings and Barnes together, means that the remedies for violating Title II of the ADA are the same as those of the Rehabilitation Act and Title VI of the Civil Rights Act. Accordingly, emotional distress damages are not recoverable under Title II of the ADA.

 

III

Court’s Reasoning That Damages For Lost Educational Opportunities Are Allowed Under Title II of the ADA

 

 

  1. A jury verdict must be upheld unless the amount is grossly excessive or monstrous, clearly not supported by the evidence, or based only on speculation or guesswork.
  2. Several courts post-Cummings have found that plaintiffs may still seek compensatory damages for opportunities lost as a result of a violation of the rights under federal antidiscrimination statutes. In fact, the court cited to an 11th Circuit decision from 1992, that found plaintiffs could seek compensation for lost educational benefits/opportunities under Title II of the ADA.
  3. Federal courts may use any available remedy to make good the wrong done.
  4. The jury’s award was consistent with the evidence presented at trial and the District Court’s instruction regarding damages. During trial, plaintiffs presented the jury with evidence that they lost opportunity to meaningfully learn class material, engage in classroom discussion, and explore their educational interest as a result of the defendant’s violations of the ADA. Such testimony also included Payan recounting how he was deprived of the opportunity to participate at the same level of participation as the rest of the students, and that he was unable to participate in aspects of his math and psychology courses because they used inaccessible software programs.
  5. The jury instruction broadly allowed the jury to compensate the plaintiff’s for any injury they found was caused by the defendant’s violations of the ADA.
  6. Taking the jury instructions literally, which contained the phrase “you can consider the testimony of the plaintiffs regarding the expenses they incurred,” the use of the term “can,” reasonably indicated to the jury that it has permission to or may consider out-of-pocket expenses, but that is not at all the same thing as saying that the jury instruction limited the jury to only (the court emphasized the term “only,” in its opinion), considering out-of-pocket expenses.
  7. Since the plaintiffs presented evidence of the educational opportunities they lost and because of the general nature of the damages instructions, the jury could have reasonably calculated damages to be the amount awarded the trial.
  8. In a footnote, the court said that it agreed with the dissent that a plaintiff seeking lost opportunity damages must prove the amount of damages with reasonable certainty, but disagreed with the dissent’s ultimate conclusion. That is, plaintiffs did establish those damages with reasonable certainty when they testified that they were unable to avail themselves of the educational opportunities they paid for, including being deterred from taking certain classes, being unable to access critical educational materials, and being unable to participate in necessary educational assessments, such as homework and online classroom discussions. Those experiences demonstrate how the plaintiffs were unable to access educational opportunities or benefits, and thereby meets the evidentiary area threshold to establish the damages they are entitled to.
  9. Accordingly, the court abused its discretion by granting the remittitur when it failed to consider whether the jury’s award was based on the legally viable basis of lost educational opportunities.

 

IV

Dissenting Opinion of Judge Lee

 

  1. Judge Lee agrees that Title II of the ADA does not allow for emotional distress damages. He also agrees with the majority that plaintiffs can still seek other pecuniary damages for opportunities lost after suffering unlawful discrimination. However, he does not agree that the plaintiffs offered sufficient evidence to prove that they suffered lost educational opportunities to the tune of the award they received from the jury, especially because the District Court incorrectly barred the plaintiffs from introducing evidence of lost educational opportunities.
  2. The evidence presented at trial amounts to little more than the parties feelings they failed to receive the full value of their educational program. Such testimony provides no basis for a jury to reasonably calculate the value of the plaintiffs losses.
  3. Plaintiff did not appeal the District Court’s error in barring evidence of lost educational opportunities, and it is implausible that the jury calculated the value of any lost opportunities to exceed $200,000 given the record.

 

 

 

 

V

Thoughts/Takeaways

 

  1. The evidence supporting lost opportunity damages came primarily from the plaintiffs’ own testimony about the educational opportunities they lost. Plaintiffs did not present additional economic analyses or expert testimony quantifying the financial value of those lost opportunities.
  2. Plaintiffs’ testimony alone can support significant damages awards for their lost opportunities. The court rejected the notion that plaintiffs must present complex economic or expert evidence to prove the value of educational opportunities they lost. It will be interesting to see if other courts agree that a plaintiff does not have to present complex economic or expert evidence to prove the value of lost opportunities.
  3. In Cummings, the Supreme Court explicitly stated that they were not deciding whether emotional distress damages were prohibited by Title II of the ADA. The problem for plaintiffs is that for the Supreme Court to decide that Title II of the ADA allows for emotional distress damages, they will somehow have to distinguish and/or overrule Barnes v. Gorman. Of course, I have absolutely no idea how the Supreme Court will ultimately rule on whether emotional distress damages are allowed under Title II of the ADA. You have to figure, though you never know, that there will be three Justices saying emotional distress damages are allowed under Title II of the ADA, but the question will be where the other two votes will come from. The problem with getting two other Justices to agree that emotional distress damages are allowable under Title II of the ADA is the literal language of Title II’s remedies section and Barnes v. Gorman.
  4. Lost opportunities may be a suitable substitute for emotional distress damages. Definitely look for more plaintiff attorneys to take that approach going forward after this decision, which is published and thereby precedent.
  5. The specific wording of the jury instruction played a significant role in the court’s analysis. So, expect lots of fighting over jury instructions in Title II matters going forward.

 

I would be remiss if I don’t end with good luck on the upcoming baseball season and enjoy the rest of the NCAA tournament.

I had a moment while my daughter, who is in for spring break, is out doing something with my wife. Writing blog entries is the most favorite part of my practice. So, I figure I would write a blog entry. This blog is pretty short. I will say that there will not be a blog entry, outside of this one, for the week of March 16. The next blog entry after this one will be the week of March 23.

 

Turning to the blog entry for the week, the Georgia House passed HB 1470 and it is now in a Georgia Senate committee. The question this blog entry deals with is whether this particular bill assuming it gets through the Georgia Senate and is signed by the Governor of Georgia, will withstand a court challenge. As usual, the blog entry is divided into categories and they are: key facts; actual provisions of HB 1470; and if HB 1470 is signed into law by the governor of Georgia, will it withstand a court challenge.

 

I

Key facts

 

  1. Georgia has virtually no nondiscrimination laws of its own. It has a very limited one with respect to employees of state entities but that’s it.
  2. There most certainly is an industry whereby certain firms sue for inaccessible websites.
  3. There are no regulatory standards detailing what an inaccessible website is, though WCAG 2.0 et. ff. is the gold standard.
  4. In the United States, the standard is that each party pays their own party’s attorney fees unless a statutory scheme indicates otherwise. With respect to the ADA, a prevailing party invariably obtains reasonable attorney fees. It is very difficult for a defendant to get attorney fees as a defendant basically must show that the claim was frivolous in the first place.

 

II

Actual provisions of HB 1470

 

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA: 8 SECTION 1. 9 Chapter 1 of Title 51 of the Official Code of Georgia Annotated, relating to general 10 provisions relative to torts, is amended by enacting a new Code section to read as follows: 11 “51-1-58. 12 (a) When a civil action brought by a claimant against a person or entity of this state 13 alleging that such person or entity operates a website that violates the federal Americans 14 with Disabilities Act of 1990, 42 U.S.C. Section 12101, et seq., as amended, is adjudicated 15 on the merits against such claimant, involuntarily dismissed at any stage of the civil H. B. 1470 (SUB) – 1 – 26 LC 63 0140S 16 proceedings, or dismissed based on the claimant’s lack of standing, such person or entity 17 shall be entitled to recover the following from the claimant and the claimant’s attorney: 18 (1) Actual damages for disruption of such person’s or entity’s business or other lost 19 opportunity costs related to the unsuccessful action, or statutory damages of $10,000.00, 20 whichever is greater; 21 (2) Reasonable attorney fees related to the defense of the unsuccessful action and to the 22 prosecution of an action under this Code section; and (3) Treble damages when, prior to the entry of judgment in the underlying unsuccessful 24 action, the claimant was given written notice of the provisions of this Code section but 25 refused or otherwise failed to voluntarily dismiss such action. 26 (b) Any action under this Code section shall be brought within two years after the entry 27 of judgment in the underlying unsuccessful action. 28 (c) This Code section shall be narrowly construed and shall not be construed to alter or 29 amend any other provision of law.”

 

III

If HB 1470 Is Signed into Law by the Governor of Georgia, Will It Withstand a Court Challenge?

 

  1. In Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000), here, the Supreme Court said that it is fundamental that Congress has the power to preempt state law.
  2. Crosby also says that preemption can be of two kinds. First, when Congress intends federal law to occupy the field, state law in that area is preempted (this is what you see with respect to the Air Carrier Access Act and the regulations implementing same). Second, even if Congress has not occupied the field, state law is naturally preempted to the extent of any conflict with a federal statute.
  3. With respect to conflict with a federal statute, Crosby says preemption can take two different forms. First, preemption exists where it is impossible for a private party to comply with both state and federal law. Second, where under the circumstances of the particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.
  4. Crosby also says that when the question is whether a federal act overrides a state law, the entire scheme of the statute must be considered. If the purpose of the act cannot otherwise be accomplished-if it’s operation within a chosen field must be frustrated and its provisions refute their natural effect-the state law must yield to Congress within the sphere of it delegated power.
  5. Title III of the ADA does provide for enforcement by DOJ and for civil penalties imposed by DOJ when they take on the case. See 42 U.S.C. §12188(b)
  6. Title III of the ADA is mainly enforced by way of the private attorney general system whereby a prevailing party can get attorney fees and injunctive relief but nothing else. See 42 U.S.C. §12188(a).
  7. Georgia, unlike California, for example, and numerous other states, does not have any statutory scheme prohibiting disability discrimination, with one limited exception involving state employees.
  8. The provisions of HB 1470 will undoubtedly chill any exercise of rights by a person through the private attorney general process when they seek to address disability discrimination after visiting an inaccessible website.
  9. The proposed legislation chills the private attorney general process in several different ways: 1) allows for actual damages for disruption of the business or other lost opportunity costs or statutory damages of $10,000 whichever is greater; 2) grant reasonable attorney fees related to the defense of the unsuccessful action and to the prosecution of recovering attorney fees under HB 1470; and 3) provides for treble damages where the plaintiff refuses to voluntarily dismiss the action after being given notice of the provisions of HB 1470. In short, I can’t see any plaintiff taking on a website inaccessibility case given these provisions. Again, Georgia has no, with one small exception, disability discrimination law.
  10. In short, for all the reasons mentioned in this blog entry, it is hard to believe, though one never knows, that HB 1470 if signed into law would survive a legal challenge. As mentioned above, I am certainly not denying that an industry exists for certain firms suing for inaccessible websites.
  11. It is interesting that I just read in the Georgia Bar Journal, that the Georgia legislature has very few attorneys in it. It is hard to say whether if the legislature had more attorneys, whether this bill would get as far as it already has.
  12. We don’t know what course whether this bill will pass the Georgia Senate and whether the governor of Georgia will sign it.
  13. One wonders if the bill passes and is signed into law, whether a defendant seeking to utilize HB 1470’s provisions wouldn’t then automatically expose themselves to an interference cause of action under 42 U.S.C. §12203(b), here. See also this blog entry.
  14. If Georgia did have significant protections against disability discrimination of its own, it would of course be free to manage that statute. For example, California has amended their disability discrimination statute as a result of the industry arising out of suing for architectural barriers.

Before getting started on the blog entry of the week, a housekeeping matter. My daughter is coming in for spring break at the end of this week and then leaving at the end of the following week. So, it is unlikely I will have a blog entry next week. I certainly plan on a blog entry for the week after.

 

Recently, we blogged on the case of U.S. v. Heppner, here, where the United States District Court for the Southern District of New York held that a person faced with criminal proceedings who used AI as a tool for getting a handle on on the indictment and what might follow without first seeking the direction of legal counsel, waived attorney-client and work-product privileges. It turns out on the same day that decision came down, the United States District Court for the Eastern District of Michigan in Warner v. Gilbarco, Inc., an employment matter, here, took a very different view of things. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning why the documents were not discoverable; and thoughts/takeaways. This blog entry is so short that I imagine the reader will want to read the whole thing.

 

I

Facts

 

The opinion deals with a discovery dispute and sorting through it is a bit confusing. Basically, defendants sought production of all documents and information concerning plaintiff’s use of third-party AI tools in connection with the lawsuit. Plaintiff refused, and the court was faced with how to deal with that refusal.

 

II

Court’s Reasoning Why The Documents Were Not Discoverable

 

  1. Ordinarily, a party may not discover (emphasis in opinion), documents and tangible things that are prepared in anticipation of litigation or for trial by another party (emphasis in opinion), or its representative.
  2. In a footnote, the court noted that defendants have no evidence of the plaintiff having violated a prior protective order by uploading documents marked confidential onto an AI platform.
  3. Even if the information was discoverable, the information sought is protected under the work-product doctrine.
  4. To the extent that the defendants argue that plaintiff’s waived the work-product protection by using ChatGPT, the work-product waiver has to be a waiver to an adversary (emphasis in opinion), or in a way likely to get in an adversary’s hand.
  5. ChatGPT and other generative AI programs are tools, not persons, even if they may have administrators somewhere in the background.
  6. As plaintiff noted in her response to the discovery requests, the defendants are asking the court to compel plaintiff’s internal analysis and mental impressions (her thought process), rather than any existing document or evidence, which is not discoverable as a matter of law.
  7. Defendants motion seeks intrusive post-discovery production based on speculation about what might exist in plaintiff’s internal drafting process, untethered from Rule 26 relevance, disregarding the heightened protection given to opinion work-product and improperly attempting to manufacture a waiver where none exists.
  8. At its core, defendants by making their request are doing nothing more than engaging in a fishing expedition.
  9. The court agrees with the plaintiff that the pursuit of this information is a distraction from the merits of the case.
  10. The court also agrees with the plaintiff that defendant’s theory, which is unsupported by any case law and only a Law360 article posing rhetorical questions, would nullify work-product protection in nearly every modern drafting environment, a result no court has endorsed.

 

III

Thoughts/Takeaways

 

  1. AI raises questions of protection of the attorney-client privilege and the work-product privilege. The work-product privilege is probably the broader of the two privileges.
  2. Can Heppner and Warner, decided on the same day and very likely without knowledge of the other, be reconciled? I don’t think so. So, it will be interesting to see how this developed going forward.
  3. I do believe the Warner court has a point in saying that a broad waiver of the work-product privilege as a result of using AI, nullifies work-product protection in nearly every modern drafting environment of the world we find ourselves in today.

Stay tuned for sure.

Before getting started on the blog entry of the week, an update/supplemental information on a couple of prior cases that we have discussed previously. First, EEOC v. William Beaumont Hospital, which we discussed here, resulted in a consent decree. The hospital has to pay the plaintiff $30,000 in noneconomic and compensatory damages. Also, within 90 days after the decree and thereafter on an annual basis, the hospital must provide mandatory training on disability discrimination under the ADA to its Human Resources team members and its Talent Attraction staff. The training must be interactive and in person or through Microsoft Teams (Why Teams and not Zoom or something else, I have no idea). The consent decree expires in 18 months. I always wonder in these settlements mandating training as to who is doing the training that follows. I just don’t understand why the same problems keep coming up over and over again. That shouldn’t be happening with qualified trainers and if the training is being done regularly, at least not as often as it does (in the interest of full disclosure, training is a large part of my practice). The other preliminary matter is a concurring opinion, which can be found here, by Judge Abudu in a published case from the 11th Circuit decided on February 6, 2026, where she talks about how the hostile environment severe or pervasive standard is completely broken. Her reasoning very closely tracks the reasoning of the Minnesota Supreme Court in a case we discussed here. It will definitely be worth following whether the Minnesota Supreme Court and now Judge Abudu of the 11th Circuit are starting a new trend.

 

Turning to the case of the day, it is something that is being discussed quite a bit among attorneys in their blogs and on LinkedIn. The case of the day is U.S. v. Heppner, here, decided by Judge Rakoff of the United States District Court for the Southern District of New York on February 17, 2026. It deals with the question of whether a person under indictment who uses AI to help piece together their situation after being indicted loses their ability to claim the inputs as part of the attorney-client or work product privilege. The blog entry is divided into categories and they are: how a person with a disability who has executive functioning weaknesses might plan for an important meeting; facts; court’s reasoning that the attorney-client privilege was waived; court’s reasoning that the work product privilege was waived; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

How a Person with a Disability Who Has Executive Functioning Weaknesses Might Plan for an Important Meeting

 

There are a variety of disabilities that frequently have executive functioning deficits associated with them, such as for example: ADHD; people with learning disabilities; people with traumatic brain injury; and autistic individuals. It is perfectly reasonable to think, especially today, that such an individual might use AI to help them prepare for an important meeting, such as when they are in need of attorney representation. I did an AI search into the Google AI, and it came up with the below as to how a person lacking executive functioning skills might prepare for an important meeting.

 

 

AI Overview

Organize thoughts for meetings by

using a “brain dump” to list all ideas, then prioritize them using the 3-minute rule or a traffic light system (red/yellow/green). Structure preparation with checklists, visual aids, and breaking down tasks into 25-minute Pomodoro sessions. Use tools like Trello, Cozi, or Notability for structure.

ADDA – Attention Deficit Disorder Association +5

Key Strategies for Meeting Preparation:

  • Brain Dump & Prioritize: Before a meeting, write down everything in your head, then highlight the top 3 critical points.
  • Use Checklists/Templates: Create a standardized agenda template to fill in for every meeting to reduce cognitive load.
  • Visual Aids: Use sticky notes for brainstorming and mapping out ideas visually.
  • Time Management: Use a timer for preparation steps to avoid getting stuck on one detail.
  • Body Doubling: Work alongside a colleague (in-person or virtually) to improve focus and accountability.
  • Reduce Distractions: Clear your workspace, use noise-canceling headphones, and turn off notifications.
  • Review Ahead: Spend 5-10 minutes reviewing materials beforehand, and allow for a mental break afterward.

ADDA – Attention Deficit Disorder Association +10

Tools to Consider:

  • Digital: Cozi, Trello, Tiimo.
  • Physical: Whiteboards, sticky notes, color-coded notebooks.

Job Accommodation Network (JAN) +4

 

 

 

 

Almost all of this can be more efficiently done with using AI tools, such as ChatGPT, Claude, etc. Please note, that I am emphatically not saying that the defendant in this case had any of these disabilities. Rather, I am saying that it is perfectly logical that a person with any of the disabilities mentioned earlier above might use AI in the manner used by the defendant in this case for similar purposes with respect to being able to make the most out of their attorney’s representation.

 

II

Facts

 

Heppner (defendant) was indicted for security fraud, wire fraud, conspiracy to commit security fraud and wire fraud, making false statements to auditors, and falsifying corporate records. The indictment charged that the defendant defrauded investors out of more than $150 million by making false representations and causing the company to enter into undisclosed self-serving transactions concerning two privately held companies that the defendant controlled. Among the materials seized in a search warrant executed by the FBI were approximately 31 documents memorializing communications that the defendant had with the generative AI platform Claude. Those documents represent communications between the defendant and Claude taking place in 2025 after the defendant has received a grand jury subpoena and after it was clear with discussions with the government that the defendant was the target of the investigation. Without any suggestion from counsel that the defendant do so, the defendant prepared reports: 1) outlining defense strategy; and 2) outlining what he might argue with respect to the facts and the law that was anticipated that the government might be charging. He also asserted that the reports were prepared in anticipation of a potential indictment.

 

 

II

Court’s Reasoning That The Attorney-Client Privilege Was Waived

 

  1. In order for the attorney-client privilege to apply, there must be a communication: 1) between a client and their attorney; 2) that is intended to be, and in fact was, kept confidential; and 3) for the purpose of obtaining or providing legal advice.
  2. The attorney-client privilege is narrowly construed because it operates as an exception to the rule that all relevant proof is essential for a complete record and for competence in the fair administration of justice.
  3. The AI documents are not communications between the defendant and his counsel.
  4. The defendant does not maintain nor could not maintain that Claude is an attorney.
  5. In the absence of an attorney-client relationship, the discussion of legal issues between two non-attorneys is not protected by attorney-client privilege.
  6. The written privacy policy to which users of Claude consent provides that Anthropic (the makers of Claude), collect data on both users inputs and Claude’s outputs. The agreement also provides that it uses such data to “train,” Claude. Finally, the agreement says that Anthropic reserve the right to disclose such data to a host of third parties, including governmental regulatory authorities.
  7. The policy clearly put Claude’s users on notice that even in the absence of a subpoena compelling it to do so, personal data may be disclosed to third parties in connection with claims, disputes, or litigation.
  8. AI users do not have substantial privacy interest in their conversation with another publicly accessible AI platform that users voluntarily disclosed to the platform and which the platform retains as a normal course of business.
  9. The documents are not like confidential notes prepared by a client with the intent of sharing them with an attorney because the defendant first shared the equivalent of his notes with a third-party.
  10. The defendant did not communicate with Claude for the purpose of obtaining legal advice even if he did so for the express purpose of talking to counsel. The defendant did not communicate with Claude at the suggestion or direction of counsel. However, had counsel directed the defendant to use Claude, Claude might arguably be said to function in a manner similar to a highly trained professional acting as a lawyer’s agent within the protection of the attorney-client privilege.
  11. Since the defendant communicated with Claude on his own volition, the question is whether the defendant intended to obtain legal advice from Claude and not whether he later shared Claude’s outputs with counsel. Claude specifically disclaims providing legal advice when prompted to do so.
  12. Even assuming the defendant intended to share these communications with his counsel and eventually did so, it is black letter law that nonprivileged communications are not somehow magically changed into privileged communications upon being shared with counsel.
  13. In a footnote, the court noted that even if information put into Claude by the defendant incorporated information that his attorneys had conveyed to him over the course of the representation, that didn’t change the outcome at all because the defendant waived the privilege by sharing the information with Claude just as if he had shared the information with any other third party. Further, in light of Claude’s privacy policy, the defendant has no reasonable expectation that the inputs would not be shared with other third parties.

 

 

III

Court’s Reasoning That The Work Product Privilege Was Waived

 

  1. The AI documents do not merit protection under the work product doctrine because even assuming for the sake of argument that they were prepared in anticipation of litigation, they were nevertheless not prepared by or at the behest of counsel, nor did they reflect defense counsel’s strategy.
  2. Defendant’s counsel confirmed that the AI documents were prepared by defendant on his own volition. That means that the defendant was not acting as his counsel’s agent when he communicated with Claude.
  3. Counsel conceded that while the AI document did affect counsel’s strategy going forward, they did not reflect counsel’s strategy at the time defendant created them.
  4. While it is true that the work product doctrine applies to material generated by non-lawyers, the Second Circuit has repeatedly stressed that the purpose of the doctrine is to protect lawyers” mental processes.
  5. No dispute that defendants acted on his own when he created the AI documents.
  6. Since the AI document were not prepared at the behest of counsel and did not disclose counsel’s strategy, the AI document do not merit protection as work product.

IV

Thoughts/Takeaways

 

  1. Welcome to the brave new world of AI.
  2. An absolutely critical fact here is that the defendant prepared the documents without notifying counsel that he would doing so or at the direction of counsel.
  3. It is perfectly reasonable to expect individuals with weaknesses in executive function to use AI in the way the defendant used AI in this case.
  4. It is also perfectly reasonable for a client to suggest to their attorney that they want to use AI to accommodate their weaknesses in executive functioning as a result of their disability.
  5. Jennifer Ellis, Esq., is an attorney in Pennsylvania whom I have been fortunate to co-present with and is extremely involved in the AI user space. One of the suggestions that she had in a presentation that we recently made together, is to be sure to turn off the option where AI allows anything you put into it to be used to train other users.
  6. An attorney has the obligation under Title III of the ADA to reasonably modify their practices absent an undue burden or fundamental alteration.
  7. Executive functioning deficits also raise the issue that the DOJ’s effective communication rules might be involved, which applies to anyone with a disability having issues with communication. That rule, here, requires attorneys in private practice dealing with persons with disabilities with communication issues to engage in a back-and-forth (we can call it the “interactive process,”), to figure out a way where the client and the attorney can both win with respect to the client’s disability being accommodated. For an attorney working for a nonfederal governmental entity, the effective communication rule, here, requires primary consideration be given to how the person with a disability prefers to communicate.
  8. It would be wise for the attorney and the prospective client to discuss as part of their engagement how the use of AI by the client might negatively affect the representation. Not a bad idea to put such language in the retainer agreement as well.
  9. If the client mentions to the attorney that they have weaknesses in executive function and use AI to compensate for those executive functions, it would make sense for the attorney to document that as a reasonable modification request. If the firm has AI tools in a closed system that the client might be able to use, the attorney could consider letting the client use those systems. If not, definitely wants to tell the client to turn off the training option on the AI. It would also make sense for the attorney to document that the client is using AI to accommodate for their disability, that the attorney is fully aware of this happening, and that all of this is necessary to help ensure the best representation of a client with a disability.
  10. Lawyers need to get on top of things in a hurry to figure out how client’s use of AI will be dealt with by their firms. This whole issue very much affects people with disabilities as people with disability are using AI in all kinds of ways to accommodate their disabilities. For that matter, everybody is using AI now.
  11. This case may be even more broad than attorneys and their clients. For example, do journalists now waive their rights to protect their sources when AI is a part of their discussion with their sources?
  12. It’s a brave new world and this is not the last of it.

Previously, we had blogged on the Supreme Court decision that set forth the major questions doctrine, here. In reviewing that blog entry, there really wasn’t much meat on the bone so to speak in terms of just when the major question doctrine would be employed. That decision suggested that it could be employed any time desired since just about everything is a major question. That said, on February 20, 2026, the Supreme Court decided Learning Resources, Inc. v. Trump, here. From that majority opinion as well with the concurrences, we now have some idea as to how the major question doctrine might work going forward. As usual, the blog entry is divided into categories and they are: facts; sections of Chief Justice Roberts majority opinion joined by Justice Sotomayor, Justice Kagan, Justice Gorsuch, Justice Barrett, and Justice Jackson; sections of Chief Justice Roberts majority opinion joined by Justice Gorsuch and Justice Barrett; Justice Kagan’s concurring opinion; Justice Gorsuch concurring opinion; Justice Barrett’s concurring opinion; Justice Jackson concurring opinion; and thoughts/takeaways. Since the blog entry is focused on what shape the major question doctrine might take going forward, the blog entry does not discuss Justice Kavanagh’s dissent (view that the statute allowed for the presidential powers), and it also does not discuss Justice Thomas’s dissent as well since his focus was also not on the major questions doctrine.

 

I

Facts

 

The facts are really simple. As we all know President Trump used the International Emergency Economic Powers Act to initiate a series of tariffs and to increase or reduce them at his will. Learning Resources Inc. challenged that authority as being unconstitutional.

 

II

Sections of Chief Justice Roberts Majority Opinion joined by Justice Sotomayor, Justice Kagan, Justice Gorsuch, Justice Barrett, and Justice Jackson

 

 

  1. Since imposing a set of tariffs, the President issued several increases, reduction, and other modifications.
  2. The first clause of Article I, §8 of the U.S. Constitution states Congress has the power to lay and collect taxes, duties, imposts and excises. It isn’t an accident that the power appears first because the power to tax is the most important of the authorities proposed to be conferred upon the union. It is also a power to destroy and a power necessary to the existence and prosperity of the nation.
  3. The power to impose tariffs very clearly is a branch of the taxing power as it is a tax levied on imported goods and services.
  4. The framers gave Congress alone access to the pockets of the people by requiring all bills for raising revenue to originate in the House of Representatives. As such, the framers did not vest any part of the taxing power in the executive branch. The whole power of taxation rests with Congress.
  5. Absent from the lengthy list of powers in the law that President Trump used for his authority is any mention of tariffs or duties even though Congress did name a bunch of other things that the President can do. Accordingly, it stands to reason that had Congress intended to convey the distinct and extraordinary power of imposing tariffs to the President, it would have done so expressly as it has done in other tariff
  6. The power to regulate is not a grant of such authority, as the power to regulate ordinarily means, “to fix, establish, or control; to adjust by rule, method, or establish mode; to direct by rule or restriction; is subject to governing principles or laws.” Such a definition captures much of what the government does on a day-to-day basis but to argue anything broader than that suggest that the other eight verbs are simply wasted ink.
  7. The plain meaning of the term “regulate,” places in stark relief what the term is not usually thought of as including, which is the power of taxation.
  8. The United States Code has all kinds of statutes granting the executive the authority to regulate someone or something, but it does not contain any statute where the power to regulate includes the power to tax.
  9. When Congress addresses both the power to regulate and the power to tax, it does so separately and expressly.
  10. Since the power to regulate commerce is entirely distinct from the right to levy taxes, that Congress did not grant both of those powers separately in this case is strong evidence that the power to regulate in the law President Trump exercised the authority over does not include the power of taxation.
  11. The neighboring words that regulate is associated within the statute at issue also suggests that Congress did not intend “to regulate,” to include the revenue raising power and past presidential action is consistent with that.
  12. None of the authority listed in the statute at issue in this case includes the distinct extraordinary power to raise revenue, and no President is ever found such power in this statute before. As such, that is strong evidence that the power does not exist.
  13. When Congress granted the power to impose tariffs, it does so clearly and with careful constraints.
  14. Everyone agrees that the President has no inherent peace time authority to impose tariffs.

 

 

 

III

 

Chief Justice Roberts Majority Opinion Joined By Justice Gorsuch And Justice Barrett

 

  1. The Supreme Court has long expressed reluctance to read into ambiguous statutory text extraordinarily delegations of Congress’s powers.
  2. Separation of powers principles and a practical understanding of legislative intent suggest that Congress would not delegate highly consequential power through ambiguous language.
  3. Congress would likely intend for itself the basic and consequential trade-offs inherent in the use of imposing taxes.
  4. When Congress has delegated tariff powers it has done so in explicit terms and subject to strict time limits.
  5. To say that the President would have the extraordinary power simply by issuing a presidential declaration of emergency and then only by having it overwritten by a veto proof majority in Congress, would represent a transformative expansion of the President’s authority over tariff policy. It would also replace long-standing executive legislative collaboration over trade policy with unchecked presidential policymaking.
  6. In the half-century of the law that President Trump exercise the authority over, no President has ever invoked the statute to impose any tariffs, let alone tariffs of the magnitude and scope at issue here. Instead, Presidents have regularly invoked this law for other purposes. They have also invoked other statutes but never the one at issue here, in order to impose tariffs.
  7. The economic and political significance of the authority the President has asserted provides another reason to hesitate before concluding that Congress meant to confer such authority on the President.
  8. The President’s assertion of broad statutory power over the national economy is extravagant by any measure. Even the government admitted and boasted that the economic and political consequences of the tariffs are astonishing.
  9. The stakes involved here are much higher than those of other major question cases that have previously arisen before the court.
  10. A reasonable interpreter would not expect Congress to find such a big-time policy call off to another branch.
  11. The emergency argument as a justification for the authority doesn’t work because emergency powers tend to kindle emergencies and afford a ready pretext for the usurpation of congressional power.
  12. Where Congress has reason to be worried about its power slipping through its fingers, the Court has every reason to expect Congress to use clear language to effectuate unbounded delegations, particularly in the case of Congress’s one great power.
  13. The government admits that the President and Congress do not enjoy any concurrent constitutional authority to impose tariffs during peacetime. The framers gave the power to Congress alone notwithstanding any obvious foreign affairs implications of tariffs.
  14. There is no major questions exception to the major question doctrine.
  15. A president must point to clear congressional authorization in order to justify his extraordinary assertion of the power to impose tariffs and he cannot do so.
  16. When a president asserts the extraordinary power to unilaterally impose tariffs of unlimited amount, duration, and scope, he must identify clear congressional authorization to exercise it.
  17. The government points to no statute in which Congress uses the word “regulate,” to authorize taxation, and no President before this one has ever read into this law the ability to have such power.

 

IV

Justice Gorsuch Concurring Opinion

 

  1. As a preliminary matter, it is an interesting read. Much of the opinion is spent trying to convince the reader why Justice Gorsuch’s analysis of the situation is correct and literally all of the other Justices are just not analyzing the situation properly.
  2. Under the major question doctrine, the President must identify clear statutory authority for the extraordinary delegated power he claims.
  3. The statute did not clearly surrender to the President the authority he seeks to utilize.
  4. The authority the President granted to himself is broad and extensive.
  5. The statute at issue is also major legislation designed to address big problems in crises.
  6. When an executive branch official claims Congress has granted them an extraordinary power, as the President did in this case, they must identify clear statutory authority for it.
  7. The major question doctrine teaches that to sustain a claim that Congress has granted them an extraordinary power, executive officials must identify clear authority for that power.
  8. The major question doctrine is really nothing more than a derivation on the traditional clear statement rule. That is, early corporations often functioned much in the way today’s executive branch does, and when interpreting the scope of that authority, the common law has a clear statement rule that looked very much like the major question doctrine. Same can be said for what state and federal courts did when modern administrative agencies started claiming extraordinary delegated powers
  9. When it comes to legislative power, Congress is principal and executive officials are the agents.
  10. The major question doctrine is pro-Congress by allowing for maximum flexibility when drafting statutes but yet limiting resourceful members of the executive branch to act on their strong incentives to exploit any doubt and Congress’s past work to assume new power for themselves.
  11. The founders understood that men are not angels and we disregard that insight when it is allowed for someone to expand their power based on loose or uncertain authority. It is also delusional to think that power will accumulate safely and only in the hands of dispassionate people found in agencies.
  12. Once the Supreme Court reads a doubtful statute to grant the executive branch a given power, it becomes almost impossible for Congress to retrieve it. Further, any President interested in his own authority, and all presidents are, has a strong incentive to veto legislation aimed at returning power to Congress. For example, no president ould willingly give up the power to not have his emergency declarations reviewed or to have his ability to impose tariffs on nearly any goods he wishes, in any amount he wishes, based on emergencies he himself has declared.
  13. All major question cases can be easily explained by reference to a rule requiring the executive branch to identify clear statutory authority when it claims Congress has granted an extraordinary power.
  14. Some clues to look at when deciding whether a major question is involved include: is the president seeking to exercise an unheralded or newfound power based upon a statute long in existence; how has the executive branch interpreted the statute at issue in the past; if there is a mismatch between the action the executive officials seek to take and his expertise; is the President relying on oblique, elliptical, or cryptic language. As helpful as the clues can be in helping court spot when a claimed power is not (emphasis in opinion), supported by clear statutory authority, they do not represent an exhaustive checklist, nor does satisfying one of the clues guarantee a claim will succeed. Additional clues in this case include the way is used elsewhere in federal statutes, neighboring language in the statute at issue itself, and how Congress has delegated tariff authority in the past.
  15. The central question in any major question case remains whether the executive branch’s claim to an extraordinary power is supported by clear statutory authority.
  16. The major question doctrine does not contain a foreign affairs exception as that would swallow the entire doctrine.
  17. Justice Gorsuch opinion ends with the following statement that will certainly be much quoted from here on out:

 

“All I can offer them is that most major decisions affecting the rights and responsibilities of the American people (including the duty to pay taxes and tariffs) are funneled through the legislative process for a reason. Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design. Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man. There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions. And because laws must earn such broad support to survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day. In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the Nation’s future. For some today, the weight of those virtues is apparent. For others, it may not seem so obvious. But if history is any guide, the tables will turn and the day will come when those disappointed by today’s result will appreciate the legislative process for the bulwark of liberty it is.”

 

V

Justice Barrett’s Concurring Opinion

 

  1. Justice Barrett’s opinion specifically goes out of the way to take on Justice Gorsuch claims that she is not analyzing the major question doctrine properly and that he is the better textualist.
  2. The major question doctrine situates text in context. As such, it is perfectly permissible to use background legal conventions, common sense, and constitutional structure to ascertain a text’s most natural meaning
  3. Since Article I grants all legislative power to Congress, the reasonable interpreter would expect Congress to make the big time policy calls itself rather than pawn them off to another branch.
  4. When it comes to a power that Congress gives away, it is not necessary for Congress to always speak precisely to that major power when it does so. Less obvious clues can do the trick, but no such clues are present here.
  5. The major question doctrine does not impose a clarity tax on Congress.

 

VI

Justice Kagan Concurring Opinion

 

  1. The opinion also takes on Justice Gorsuch with respect to his view that Justice Kagan not analyzing the matter correctly.
  2. The statute is so clear as to where the authority lies and the scope of that authority, it is unnecessary to invoke the major question doctrine at all.
  3. The government not only fails to satisfy a strict test, they also failed to satisfy the normal one.
  4. Statutory construction makes clear that the President has the ability to regulate but not to impose taxes, in this case on imports.
  5. When Congress has given presidential authority to levy tariffs in the past they have used a combination of specific language and imposed tight restraints on the power given.
  6. No President in the past has ever understood this particular statute to authorize imposing tariffs.

 

VII

Justice Jackson’s Concurring Opinion

 

  1. It is perfectly sensible that when assessing a case involving the major question doctrine, legislative intent be factored in to any decision-making on the case.

 

VIII

Thoughts/Takeaways

 

  1. For those having read the actual opinion, the layout of this blog entry may be confusing as my layout doesn’t match the way the Court laid it out in terms of who joined what section of Chief Justice Roberts opinion. My layout tries to simplify the opinion’s format so that it is easy to keep track of what Justices are saying what in the majority opinion.
  2. The major questions doctrine involves extraordinary delegations of power.
  3. In many ways, the various opinions remind me of the debate over equal protection tiers. Chief Justice Roberts and Justice Gorsuch seem to suggest that when major questions are involved something akin to strict scrutiny must be satisfied before the delegation of power will be sustained. On the other hand, Justice Barrett seems to suggest something you can use intermediate scrutiny before the delegation of power will be sustained. The analogy is imperfect, but it is there nevertheless. That is, you could analogize the “clear precise,” language to strict scrutiny and the implicit language found in Justice Barrett’s concurring opinion to intermediate scrutiny.
  4. How a statute has been applied over the years matters a great deal in major question cases.
  5. The clues listed by Justice Gorsuch in his concurring opinion affords some guidance in how to go about and trying to figure out how a major question case might pan out. Those clues are not an exhaustive list nor does one clue predominate over the others.
  6. The very end of Justice Gorsuch opinion will be quoted and cited for a long time.
  7. Justice Kavanagh, Justice Thomas, and even Justice Kagan while disagreeing on the result all agree that the statute should drive interpretation in this case.
  8. This is not the first time that Justice Jackson had talked about legislative history being important. The Supreme Court until her arrival has clearly moved away from using legislative intent. My career has actually given me quite a bit of experience with the legislative intent concept, and so I find the various thoughts on how legislative intent might matter when deciding cases interesting to follow.
  9. When the major question doctrine first hit the scenes, I had concerns about how sparse the doctrine was with respect to what it might cover. It seemed that it could cover almost anything, including laws affecting those with disabilities. After reading this decision, I am much less concerned. It is clear that a majority of this court believes the major question doctrine only applies in cases of extraordinary delegation of powers. It will be interesting to see if the “intermediate scrutiny,” approach of Justice Barrett for the “strict scrutiny,” approach of Justice Roberts and Justice Gorsuch prevails in major question cases. Since the major questions doctrine is essentially a nuclear one, I can see the argument for any delegation of power in a major question situation must be authorized by clear precise language, but this debate is definitely worth following going forward.
  10. It will be interesting to see how this case affects other cases going forward. There are several cases pending before the Supreme Court reaching the issue of President Trump’s use of presidential powers. The language in the various opinions of this case strongly suggests, but you never know, that this will not be the last case where the Supreme Court limits the authority of the President.