Walter Olson calls our attention to this week's Ninth Circuit decision Antoninetti v. Chipotle, where a panel including Judge Reinhardt ruled that Chipotle's business model of allowing customers watch their burritos being made at 45-inch-high counters violated the ADA because the counters were too high for those in wheelchairs to watch. (Chipotle instead would take ingredients to a customer's table, and even let the wheelchair-bound taste them from serving cups.)
Objectionable enough (it's far from clear how Chipotle can accommodate the wheelchair-bound to the Ninth's satisfaction while both observing health and OSHA codes and permitting customers to view their food being made), but the appellate court was especially activist in overruling the finding of fact of the district court that there was no need for an injunction because there was no irreparable injury to the plaintiff, who specialized in bringing ADA suits:
The [district] court found that Antoninetti had failed to show irreparable injury because he had not revisited either restaurant after Chipotle adopted its written policy and because his "purported desire to return to the [r]estaurants is neither concrete nor sincere or supported by the facts." It also stated that Antoninetti's "history as a plaintiff in accessibility litigation supports this Court's finding that his purported desire to return to the [r]estaurants is not sincere. Since immigrating to the United States in 1991, Plaintiff has sued over twenty business entities for alleged accessibility violations, and, in all (but one) of those cases, he never returned to the establishment he sued after settling the case and obtaining a cash payment."
Antoninetti's analysis rejecting that finding contradicts, but does not cite, Molski v. Evergreen Dynasty Corp., 500 F.3d 1407 (9th Cir. 2007), creating an intra-circuit split.
(It's funny that I regularly think of Molski v. Evergreen Dynasty Corp. when I talk about problems with the ADA, and regularly cite Molski v. Gleich, a case reversing the approval of a lawyer-friendly class action settlement, when writing class-action briefs, but had not made the connection that it was the same Molski behind the two sets of unethical behavior before today.)