Previously, we have blogged on a case involving Julian Vargas and the inaccessibility of kiosk equipment used by Quest diagnostics. It turns out that he is involved in a similar case involving Laboratory Corporation of America Holdings with another plaintiff, Luke Davis. A district Court in California approved a class under the California antidiscrimination law, Unruh Act, as well as a nationwide class under the ADA. Laboratory Corporation appealed. As usual, the blog entry is divided into categories, and they are: facts; court’s reasoning that Vargas had standing; court’s reasoning that the Unruh act class action as certified by the district court goes forward; court’s reasoning that the district court did not abuse its discretion in certifying the nationwide class under the ADA by determining that a nationwide injunction could provide relief to all members; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

The facts are pretty straightforward. That is, as far as I can tell, they closely resemble the facts of the case we discussed in this blog entry, here. In short, as a result of being blind, mandating the use of inaccessible kiosks interfered with the full and equal enjoyment of Lab Corporation’s services.

II

Court’s Reasoning That Vargas Had Standing

1. When it comes to disability discrimination, it is not necessary for standing purposes that the barrier completely preclude the plaintiff from entering or from using a facility in any way. Rather, a plaintiff need only demonstrate that the barrier interferes with the plaintiff’s full and equal enjoyment of the facility.
2. Citing to Robles, which we discussed here, and to a Code of Federal Regulation, 28 C.F.R. §36.303(c)(1), full and equal enjoyment of the facility requires effective communication with individuals with disabilities.
3. As a result of the inaccessibility of the kiosk, Vargas was unable to immediately preserve his place in the patient queue, as sighted patients could, or to access other kiosk features, such as the ability to privately alter account information. Therefore, Vargas was denied effective communication and by extension, the full and equal enjoyment of Lab Corporation’s services. As a result, he suffered an injury adequately concrete to convey Article III standing.

III

Court’s Reasoning That the Unruh Act Class Action as Certified by the District Court Goes Forward

1. To certify a class under Rule 23, a plaintiff has to show two things: 1) commonality, numerosity, typicality, and adequacy of representation; and 2) that the class also fits into one of three categories. In this case, the category at issue is whether questions of law or fact common to class members dominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.
2. A showing of difficulty, discomfort, or embarrassment is only required to recover damages in construction -related Unruh act claims. Since this case concerns effective communication and not construction, such as showing for each plaintiff is not required.
3. It is also not required that each plaintiff suffer identical harm. Instead, the relevant inquiry, is whether class members were subject to the same injuring behavior. Since all class members maintain their injury resulted from the inaccessibility of a Lab Corporation kiosk, the commonality requirement is satisfied.
4. The district court identified six common issues whose answers would determine key elements of the case and the district court did not abuse its discretion in coming to those conclusions.
5. Rule 23’s typicality requirement is a permissive standard satisfied when representative claims are reasonably co-extensive with those of absent class members. Those claims need not be substantially identical to the claims of absent members. In this case, Vargas is blind, tried to access Lab Corporation’s services, and was unable to do so using a kiosk. Therefore, his claims are typical of the class.
6. Identifying class members would not be difficult because Lab Corporation knows how many patients checked in, and has information on those patients from their provided ID and insurance. When it comes to validating claims of class members, administrators, auditing processes, and other techniques can be used.

IV

The District Court Did Not Abuse Its Discretion in Certifying the Nationwide Class under the ADA by Determining a Nationwide Injunction Could Provide Relief to All Members

1. All class members were injured by the complete inaccessibility of Lab Corporation’s kiosks for blind individuals.
2. As mentioned by the district court, kiosks could be rendered accessible to the blind with the addition of technological accommodations. Therefore, that would address the injuries of the entire class.
3. It doesn’t matter if some class members may still prefer to not use the kiosks because the ability to make a choice of doing it that way or by using an accessible kiosk in the first place relieves any current injuries.
4. The district court did revise the class definitions in its June 13 order. However, Lab Corporation never attempted to amend or refile its interlocutory appeal to include June 13 order. So, the June 13 order is not properly before the court.

V

Thoughts/Takeaways

1. When it comes to class actions, the whole key comes down to whether a class is certified in the first place. If a class is certified in the first place, the stakes go up exponentially. So, it wouldn’t surprise me to see this case head towards settlement rapidly.
2. The case is not published.
3. Standing for a person with a disability is conferred when the allegations show that the person with the disability was denied full and equal enjoyment of the facility.
4. This case makes you wonder why Quest Diagnostics, which we discussed here and which involved the same plaintiff, appealed their case. While this case is unpublished, the facts are essentially the same.
5. As mentioned previously, I am involved with the Kiosk Manufacturers Association on an informal basis. There are companies making accessible kiosk and it is a significant point of emphasis of the Kiosk Manufacturers Association.
6. It is significant that the court said that full and equal enjoyment of facilities includes effective communication because now effective communication becomes a statutory requirement rather than just a regulatory requirement. That distinction can sometimes be important when it comes to being able to claim a cause of action as not every final regulation can automatically serve as the basis for a cause of action.
7. While discomfort, difficulty, or embarrassment was not required in this case, a blind individual having to go through this would certainly suffer difficulty, discomfort, and embarrassment.
8. Interesting that the first name on the pleading at the Ninth Circuit is not Vargas but someone else, since Vargas is the subject of the appeal
9. One wonders why Lab Corporation litigated all this because my understanding is that fixing the situation with accessible kiosks is not terribly difficult or expensive, especially considering the resources of the defendant, and would certainly be much cheaper than litigating the matter.