Daily Archives: January 28, 2020

Lydia Turnage, CLS ’21

On November 12, a magistrate judge in the Western District of Pennsylvania ruled that a group of wheelchair users from Pittsburgh could move forward with their proposed class action against the ride-share company Uber for alleged violations of the Americans with Disabilities Act (ADA) despite Uber’s attempt to force arbitration on the issue.[1] The plaintiffs in this case were able to successfully navigate around the arbitration clause included in Uber’s terms and conditions of service by virtue of the fact that none of the plaintiffs have ever actually used or downloaded the Uber app.[2] In fact, this lack of use is central to their claim: namely, that downloading and using the Uber app would be “futile,” due to company’s alleged failure to provide sufficient access to wheelchair accessible vehicles.[3]

The plaintiffs in the Pennsylvania suit, like plaintiffs in similar actions brought against Uber as well as its competitor Lyft,[4] brought their claims under Title III of the ADA. Specifically, the plaintiffs allege that Uber is in violation of Section 12182 of the Act, which prohibits private entities that own or operate public accommodations from discriminating on the basis of disability[5], as well as Section 12184, which prohibits disability discrimination in regards to specified public transportation services provided by private entities.[6] The plaintiffs argue that under the ADA, “individuals…who rely on wheelchairs for mobility and thus also wheelchair accessible vehicles (“WAVs”) for transportation, are injured by [Uber’s] failure to provide any access to its on-demand ridesharing transportation service to disabled individuals requiring WAVs….”[7] While the Pennsylvania plaintiffs were successful in bypassing the arbitration clause and establishing Article III standing, they now face the much greater challenge of convincing the court that Uber is actually subject to ADA liability.

Recent federal court cases regarding Title III claims brought against Uber and Lyft highlight the challenges faced by plaintiffs seeking to enforce the ADA against ride-sharing apps and other companies operating in the sharing economy. These companies—including Uber, Lyft, and Airbnb—do not operate as actual service providers, but rather serve to facilitate transactions between users and independent providers in ways intended to “mak[e] the transaction easy, possible, and safe.”[8] While this business model is good for people looking for convenient app-based services or side hustles, it has proven detrimental to individuals with disabilities who face the double disadvantage of being denied both accessible services and ADA protections.

Title III of the ADA requires that businesses open to the public take reasonable steps to ensure that their goods and services are accessible to individuals with disabilities.[9] Importantly, however, the ADA doesn’t reach private homes or private cars, which makes it difficult to hold home- and rise-share companies liable for widespread barriers to accessibility.[10] There is also a significant circuit split on the question of whether the ADA applies to internet- or app-based companies without physical locations.[11] These issues have allowed app-based companies like Uber, Lyft, and Airbnb to argue that they are primarily technology companies that do not operate public accommodations within the meaning Title III.[12] Lyft even went so far as to argue in federal court earlier this year that “it is not in the transportation business.”[13] While some courts have allowed plaintiffs to survive motions to dismiss on the basis that they have stated plausible claims of ADA liability,[14] it is far from clear whether courts will actually take the step of defining these companies as public accommodations under Title III.

Companies like Uber, Lyft, and Airbnb have so far benefitted from the regulatory grey area created by the advent of the sharing economy, skirting ADA liability by relying on definitions for covered businesses that were written in a pre-internet world. Because individuals with disabilities make up a relatively small percentage of their users, discrimination is likely to continue without pressure from Congress or the courts. As ongoing litigation like the class action in Pennsylvania demonstrates, the time has come for the law to catch up with the realities of modern business practices if the ADA is to live up to its promise of equal access for all.

[1] O’Hanlon et al. v. Uber Technologies, Inc. et al., Civil Action No. 2:19-cv-00675, U.S. Dist. LEXIS 196029 (W.D. Pa. Nov. 12, 2019)

[2] Id. at *3.

[3] Id.

[4] Plaintiffs brought similar claims in Lowell v. Lyft, Inc., 352 F. Supp. 3d 248 (S.D.N.Y. Nov. 29, 2018), and Namisnak v. Uber Techs., 2018 U.S. Dist. LEXIS 221054 (Apr. 13 2018).

[5] 42 U.S.C. § 12182 provides: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”

[6] 42 U.S.C. § 12184 provides: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of specified public transportation services provided by a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce.”

[7] O’Hanlon at *2.

[8] Bernard Marr. The Sharing Economy: What It Is, Examples, And How Big Data, Platforms and Algorithms Fuel It. Forbes, (Oct. 21, 2016) https://www.forbes.com/sites/bernardmarr/2016/10/21/the-sharing-economy-what-it-is-examples-and-how-big-data-platforms-and-algorithms-fuel/#e4ce6d77c5af.

[9] 42 U.S.C. §12181 et. seq.

[10] Michael Byrne. New Study Quantifies Airbnb’s Widespread Exclusion of Disabled Guests. Vice, (Jun. 5, 2017) https://www.vice.com/en_us/article/8x9nx5/new-study-quantifies-airbnbs-widespread-exclusion-of-disabled-guests.

[11] See Del-Orden v. Bonobos, Inc., 2017 U.S. Dist. LEXIS 209251 at *14 (S.D.N.Y. Sec. 20, 2017).

[12] Helen Christophi. Jude Advances Men’s ADA Complaint Against Uber. Courthouse News Service, (Mar. 1, 2018) https://www.courthousenews.com/judge-advances-mens-ada-complaint-against-uber/; Melissa Locker. Lyft’s Response to ADA Lawsuit: Sorry, we’re “not in the transportation business.” FastCompany, (May 3, 2019) https://www.fastcompany.com/90343921/lyft-claims-its-not-a-transportation-company-to-avoid-ada-compliance.

[13] Locker, supra note 12.

[14] See Nat’l Fedn. of the Blind of Cal. v. Uber Techs., Inc., 103 F. Supp. 3d 1073 (Apr. 17, 2015), Ramos v. Uber Tech., Inc., 2015 WL 758087 (W.D. Tex. Feb. 20, 2015)

David Berman, CLS ’21

Over the past few years, state and private plaintiffs alike brought lawsuits alleging that federal student loan servicers misled borrowers in violation of state consumer protection laws.[1] These lawsuits now confront the problem of federal preemption: the Higher Education Act of 1965 (“HEA”) forbids states from layering disclosure requirements on “[l]oans made, insured, or guaranteed pursuant to a program authorized by title VI of the Higher Education Act.”[2] Because student borrowers in these cases have taken loans originated or guaranteed by the Department of Education (“DOE”), preemption by the HEA looms.

For plaintiffs, the stakes of federal preemption are high. The HEA does not offer a private right of action,[3] and the DOE has resisted the Consumer Financial Protection Bureau’s efforts to hold student loan servicers accountable.[4] Foreclosing state law remedies would limit student borrowers’ ability to recover at all.[5]

Nelson v. Great Lakes Educational Loan Services, Inc.,[6] a recent ruling by the Seventh Circuit, provides some clarity and hope to student borrowers seeking a remedy under state law. The plaintiff, Nicole Nelson, claims that her student loan servicer, Great Lakes Educational Loan Services (“Great Lakes”), held itself out as employing student loan “experts,” and encouraged its struggling borrowers to reach out for assistance.[7] Nelson called her student loan servicer, but claims that she was steered towards the most profitable options for Great Lakes, to her detriment.[8] Nelson brought suit alleging that Great Lakes violated the Illinois Consumer Fraud and Deceptive Business Practices Act, as well as Illinois common law.[9]

The Seventh Circuit found that the HEA does not expressly preempt Nelson’s state law claims because Great Lakes made inaccurate, voluntary statements. The Court distinguished between those statements compelled by the HEA, and those that are not. State law cannot interfere with HEA-required disclosure, so a case brought under a theory of fraudulent non-disclosure, implying any duty to provide additional information, is expressly preempted.[10] Nelson’s claims, however, relate to affirmative misrepresentation falling outside of the HEA’s requirements.[11] The Seventh Circuit panel agreed that § 1098g does not extend to misrepresentation in counseling, “where Great Lakes could have avoided liability under state law by remaining silent (or telling the truth) on certain topics.”[12] The Seventh Circuit also quickly dispensed with claims of conflict preemption[13] and field preemption,[14] before remanding for further proceedings.

Nelson has broad implications for future student loan litigation. Plaintiffs and amici cited the case in briefs to the Third Circuit[15] and oral arguments before the Eleventh Circuit,[16] both of which are actively considering whether the HEA preempts state law claims. A district court cited the case favorably in allowing private plaintiffs to proceed with state law claims.[17] Nelson is not a panacea for plaintiffs: the decision still preempts nondisclosure.[18] Even though the dust has yet to settle on this issue,[19] borrowers have reason to hope that they can hold student servicers accountable with state and common law claims.

[1] See, e.g., Complaint, New York v. Pa. Higher Educ. Assistance Agency, No. 19-cv-9155 (S.D.N.Y. Oct. 3, 2019); Complaint, Hyland v. Navient Corp., No. 17-2-01115-1 (S.D.N.Y. Oct. 3, 2018); Complaint, Mississippi v. Navient Corp., No. G2108-98203 (Miss. Ch. Ct., July 17, 2018); Complaint, California v. Navient Corp, No. CGC-18-567732, (Cal. Super. Ct., Jun. 29, 2018); Complaint, Massachusetts v. Pa. Higher Educ. Assistance Agency, No. 1784-CV-026282 (Ma. Sup. Ct. Feb. 28, 2018); Complaint, Pennsylvania v. Navient Corp., No. 17-CV-01814 (M.D. Pa. Oct. 5, 2017); Complaint, Illinois v. Navient Corp., No. 2017CH00761 (Ill. Cir. Ct. Jan. 18, 2017); Complaint, Washington v. Navient Corp., No. 17-2-01115-1 (Wash. Super. Ct. Jan. 18, 2017).

[2] 20 U.S.C. § 1098g.

[3] Thomas M. Cooley Law Sch. v. Am. Bar Ass’n, 459 F.3d 705, 710 (6th Cir. 2006).

[4] Eric Levitz, Trump’s Student Debt Policies are Mind-bogglingly Corrupt, N.Y. Mag. Intelligencer (Aug. 28, 2018), http://nymag.com/intelligencer/2018/08/cfpbs-student-loan-watchdog-resigns-in-protest-of-trump.html; Andrew Kreighbaum, Education Dept. Ends Partnership with CFPB, Inside Higher Ed (Sept. 5, 2017) https://www.insidehighered.com/news/2017/09/05/education-dept-rebukes-cfpb-overreach-kills-information-sharing-agreement.

[5] Brief for Ctr. for Responsible Lending and U.S. Pub. Interest Research Grp, Inc. as Amici Curae in Support of Appellant Nicole D. Nelson, Urging Reversal at 24, Nelson v. Great Lakes Educ. Loan Services, Inc., 928 F.3d 639 (7th Cir. July 2, 2018) (No. 18-1531).

[6] 928 F.3d 639 (7th Cir. 2019).

[7] Complaint at 8, Nelson v. Great Lakes Educ. Loan Services, Inc., 928 F.3d 639 (7th Cir. Feb. 21, 2017) (No. 18-1531).

[8] Id. at 13. (claiming that alternative options “would have likely allowed Plaintiff a $0.00 or extremely low monthly payment. . .”)

[9] Id. at 2-3.

[10] Nelson, 928 F.3d at 649.

[11] Id.

[12] Id. at 650.

[13] Id. at 651.

[14] Id. at 652.

[15] Brief for Appellee at 40, Pennsylvania v. Navient Corp., (No. 19-2116), 2019 WL 4013792 (3d Cir. Aug. 22, 2019); Brief for States of New York et al. as Amici Curae Supporting Appellee at 22, Pennsylvania v. Navient Corp., (No. 19-2116), 2019 WL 4139130 (3d Cir. Aug. 29, 2019); Brief for Amicus Curae the Am. Fed. of Teachers in Support of Plaintiff-Appellee and Urging Affirmance at 22, Pennsylvania v. Navient Corp., (No. 19-2116), 2019 WL 4139129 (3d Cir. Aug. 29, 2019).

[16] Oral Argument at 2:04, Lawson-Ross v. Great Lakes Educ. Loan Services, Inc., No. 18-14490 (11th Cir. Sept. 10, 2019), http://www.ca11.uscourts.gov/oral-argument-recordings?title=&field_oar_case_name_value=lawson-ross&field_oral_argument_date_value%5Bvalue%5D%5Byear%5D=&field_oral_argument_date_value%5Bvalue%5D%5Bmonth%5D=.

[17] Hyland v. Navient Corp., No. 18cv9031 (DLC), 2019 WL 2918238 at *6 (S.D.N.Y. July 8, 2019).

[18] Adam Minsky, This Big Court Decision May Help Student Loan Borrowers, Forbes (Oct. 22, 2019), https://www.forbes.com/sites/adamminsky/2019/10/22/this-big-court-decision-may-help-student-loan-borrowers/#694149003188.

[19] Andrew Keshner, Student-Loan Servicer Can’t Use Federal Law to Avoid Lawsuit Over Alleged Bad Advice, MarketWatch (July 2, 2019), https://www.marketwatch.com/story/student-loan-servicer-cant-use-federal-law-to-avoid-lawsuit-over-alleged-bad-advice-2019-07-02 (“Professor David Rubenstein of the Washburn University School of Law said the ruling could bring the clash of state and federal laws on student loans one step closer to the Supreme Court.”)

Elie Peltz, CLS ’21

In recent years, searches of electronic devices have skyrocketed at the border, nearly quadrupling.[1] In response to litigation filed by the ACLU of Massachusetts and the Electronic Frontier Foundation (EFF), the United States District Court for the District of Massachusetts recently issued a ruling on November 12^th stating that arbitrary searches of international travelers’ devices at airports and U.S. ports of entry violate the Fourth Amendment.

The ACLU and EFF brought the lawsuit on behalf of eleven travelers whose electronic devices had been searched at border crossings and airports. During the court proceedings, an attorney for Customs and Border Protection (CBP) stated that the agency had searched 30,200 electronic devices in 2018, a 60% increase from the previous year. [2] It was also revealed that CBP and Immigration and Customs Enforcement (ICE) permitted searches of travelers’ devices for matters beyond the scope of customs and immigration enforcement.[3] The agency explained that searches can include downloading material from a laptop to looking at pictures on a camera memory card.[4]

Judge Denise Casper’s summary judgment ruling held that in order to comply with the Fourth Amendment, agents with ICE and CPB must show reasonable suspicion that a device includes illegal contraband before initiating a search.[5]  In addressing the privacy interests of travelers, Judge Casper underscored the heightened concern attached to searches of digital devices.  She wrote that “the potential level of intrusion from a search of a person’s electronic devices simply has no easy comparison to non-digital searches.”[6] The ruling relied on previous Supreme Court and circuit decisions that have made clear that older Fourth Amendment principles applied to non-digital contexts cannot be applied carte blanche to digital searches.[7] These decisions have established that digital devices contain a wealth of personal information not accessible through searches of most non-digital items.

Plaintiffs had sought a heightened privacy standard mandating warrants justified by probable cause. Instead, Casper opted to institute a lower reasonable suspicion standard given the government’s interest in “territorial integrity” and travelers’ reduced expectation of privacy when crossing the border. [8] Casper also ruled against a motion requesting that all information previously gathered from agency electronic device searches at the border be expunged. Granting the motion would be superfluous, asserted Casper, given that the government will have to demonstrate reasonable suspicion to legitimize use of that data in the future. [9]

Casper found that both “basic” and “advanced” searches conducted by the agency violate the Fourth Amendment, and ruled that both kinds of searches will require reasonable suspicion of illegal material moving forward.[10] “Advanced” searches, as defined by CPB, occur when an officer uses external equipment through a wired or wireless connection to an electronic device to review or a copy the contents on the device. All other searches are classified as “basic.”[11] Additionally, Casper’s decision applies to both U.S. persons as well as foreign visitors.[12]

Plaintiffs hailed the ruling as a “historic opinion.”[13] The government has until January to appeal Casper’s ruling.[14]

[1] Hugh Handeyside, et al., Federal Court Rules That Border Officers Can’t Arbitrarily Search Our Electronic Devices, ACLU, (November 13, 2019) https://www.aclu.org/news/immigrants-rights/federal-court-rules-that-border-patrol-cant-arbitrarily-search-our-electronic-devices/.

[2] Zack Huffman, Judge Says Feds Need Reasons for Border Tech Searches, Courthouse News Service, (November 12, 2019) https://www.courthousenews.com/judge-says-feds-need-reasons-for-border-tech-searches/.

[3] Id.

[4] Id.

[5] Alasaad v. Nielsen, 2019 WL 5899371 (D. Mass. Nov. 12, 2019).

[6] Id. at *12.

[7] See e.g. Riley v. California, 573 U.S. 373, 393 (2014) (noting that cell phones are “minicomputers that also happen to have the capacity to be used as a telephone”); United States v. Cotterman, 709 F.3d 952, 964 (9th Cir. 2013).

[8] Alasaad, 2019 WL at *8.

[9] Zack Huffman, Judge Says Feds Need Reasons for Border Tech Searches, Courthouse News Service, (November 12, 2019) https://www.courthousenews.com/judge-says-feds-need-reasons-for-border-tech-searches/.

[10] Id. at *14.

[11] Id. at *2.

[12] Sophia Cope , et al., Federal Judge Issues Historic Opinion for Digital Privacy at the Border, Electronic Frontier Foundation, (November 15, 2019) https://www.eff.org/deeplinks/2019/11/federal-judge-issues-historic-opinion-digital-privacy-border.

[13] Sophia Cope, et al., Federal Judge Issues Historic Opinion for Digital Privacy at the Border, Electronic Frontier Foundation, (November 15, 2019) https://www.eff.org/deeplinks/2019/11/federal-judge-issues-historic-opinion-digital-privacy-border.

[14] Alaina Lancaster, ICE and CBP Searches Violate Fourth Amendment, Judge Rules, LAW.COM, (November 20, 2019) https://www.law.com/2019/11/20/whats-next-the-fourth-amendment-at-the-border-and-beyond-meeting-hackers-in-the-middle-what-to-watch-in-google-v-oracle/.