Tarr v. Clothing Arts, Ltd.

Filing 15

ORDER: In light of the attached letter from Mr. Rapp, the conference scheduled for tomorrow is canceled. Plaintiff shall file any motion for a default judgment on or before February 12, 2024. Any such motion is returnable before Judge Rearden and sha ll comply with "Attachment A" of her Individual Practices. If plaintiff does not timely file a motion for a default judgment, the case may bedismissed for failure to prosecute. The Clerk is requested to mail a copy of this Order to: Clothing Arts, Ltd., c/o Adam Rapp, 360 Carnegie Ave A, Kenilworth, NJ 07033. SO ORDERED., ( Motions due by 2/12/2024.) (Signed by Magistrate Judge Gabriel W. Gorenstein on 2/05/2024) (ama) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
ELLEN ELIZABETH TARR
:
:
Plaintiff,

ORDER
23 Civ. 9319 (JHR) (GWG)

:
-v.:
CLOTHING ARTS, LTD.
:
Defendant.
:
---------------------------------------------------------------X
GABRIEL W. GORENSTEIN, United States Magistrate Judge

In light of the attached letter from Mr. Rapp, the conference scheduled for tomorrow is
canceled. Plaintiff shall file any motion for a default judgment on or before February 12, 2024.
Any such motion is returnable before Judge Rearden and shall comply with “Attachment A” of
her Individual Practices.
If plaintiff does not timely file a motion for a default judgment, the case may be
dismissed for failure to prosecute.
The Clerk is requested to mail a copy of this Order to:
Clothing Arts, Ltd.
c/o Adam Rapp
360 Carnegie Ave A
Kenilworth, NJ 07033
SO ORDERED.
Dated: February 5, 2024
New York, New York

Adam Rapp <[e-mail]>

Request To Cancel Conference in Tarr v. Clothing Arts, Ltd., 23cv09319
1 message
Adam Rapp <[e-mail]>
To: [e-mail]
Cc: Mars Khaimov <[e-mail]>

Mon, Feb 5, 2024 at 11:03 AM

Re: Tarr v. Clothing Arts, Ltd.; Case No. 1:23-cv-09319
Attn: Magistrate Judge Hon. Gabriel W. Gorenstein
Thurgood Marshall
United States Courthouse
40 Foley Square
New York, NY 10007
Dear Honorable Gorenstein,
Thank you for the opportunity to represent myself at conference. I have seen numerous instances of requests to postpone conferences, so I can only assume there is a
way to ask to cancel conferences. I apologize for the lateness of the request as we have not heard back from Mr. Khaimov in our latest settlement negotiation from last
Thursday - we do not expect a response. Mr. Khaimov is cc'd on this correspondence. 
I would like to ask that we cancel the conference, if possible, to free up the court's time and not enable Mr. Khaimov to increase what will be his eventual attempt to get
his / Ms Tarr's legal bills paid by my company. We have updated our website at great cost to our company using a well-respected ADA web design firm and do not plan
on hiring a lawyer to add further costs to this case. Ms Tarr is welcome back to our website at her convenience.
Instead of the conference, please allow me to add some of my notes to the record and, in the interest of time, allow Mr. Khaimov to move directly to default judgment.
Mr. Khaimov agreed in our settlement negotiations that the ruling in Cruz v. Wide Open Arts, LLC is fair for Ms Tarr and is now looking to get his / Ms. Tarr's legal bills
paid by my company through a settlement or through the courts. This is the clear end game of the plaintiff's attorney, as written to me in our settlement negotiations. My
end game is covered in my email negotiations with Mr. Khaimov below. I will only include excerpts of my side of the correspondence. Right now, this area of the law is
the wild west. Perhaps we can change that today. 
To prepare to meet with you, I read ALL of Mr. Khaimov's open case files in Pacer on January 12th - there were 243, give or take, all ADA. As I mentioned in my
settlement negotiations, it is like an "ADA Groundhog Day" in the Southern and Eastern Districts of NY with respect to Mr Khaimo's cases. Going over the cases, one
interesting fact quickly came to light. 0% of plaintiffs in at least Mr. Khaimov's case are contacting websites prior to suing them. Statistically speaking that is quite an
outlier. These can then be classified as ADA "tester" lawsuits (see my notes on Acheson v. Laufer below), all of which are the same case with different websites and
site-specific reasons why said website didn't work correctly. Interestingly, because it is basically the same case, lawyers representing defendants over and over in the
small world of ADA defense are also using carbon copy responses, cutting and pasting them over and over, likely billing top dollar for them.
These cases, very clearly, started with a lack of clarity on how to properly code the web for blind users. There may have been a real need for a user to access some
website at some point in the past, but it has now metastasized to take aim at every single stop on the World Wide Web that can afford $5000-10000. 
Here are my settlement negotiations with Mr. Khaimov: 
My Response Email #1 - Jan 19, 2024

My Response Email #2 - Mars took 7 business days to respond, saying to pay him his billable hours on Jan 30, 2024, and here is an excerpt from my response on Feb
1, 2024. We have yet to get a response. 

There are a number of cases that I have come across that have bearing on this case:
Acheson v. Laufer:
This went to the Supreme Court, and the plaintiff magically dropped their case before the justices could rule on the standing of "tester" lawsuits where the user had no
real intent to use or obtain a good or service from the site in question. Since, as mentioned above, 0% of Mr. Karimov's plaintiffs contacted the website before suing
them, it stands to reason that these are all tester suits which then got site-specific data added later to manufacture an intent to purchase. 
"In his opinion concurring only in the judgment, Justice Thomas found Laufer’s explanation implausible and concluded that she dismissed her case as a “transparent
tactic for evading review” by the Court.  He pointed out that the sanctioned attorney had never served as her counsel in the case.  He added: “[W]e have needlessly
invited litigants to follow Laufer’s path to manipulate our docket.  We should not resolve this case about standing based upon mootness of Laufer’s own making.”
 Justice Thomas went on to conclude that Laufer did not have standing because the alleged violation on the website (i.e., deficient accessibility information about the
hotel) caused her no harm, as she never had any interest in staying at the hotel.  He then described the dangers of ADA testers who seek to vindicate the public interest
but do not have the accountability of the Executive Branch.  Without a violation of her own rights, he explained, Laufer was able to, without any discretion required of a
government official, “surf the web” to ascertain compliance of hotels she had no intention to visit and obtain monetary settlements from businesses seeking to avoid
substantial defense fees.  Justice Thomas concluded that these activities go far beyond the role for private plaintiffs that Congress envisioned in ADA Title III cases." ¹   

Harty v. West Point Realty:
"The Second Circuit also made clear that the plaintiff’s inability to obtain information from the website alone was not sufficient injury to confer standing.
'[e]ven assuming that Harty can allege that he was deprived of information to which he is entitled by the ADA, he must also allege downstream consequences from
failing to receive the required information in order to have an Article III injury in fact. In other words, Harty must show that he has an “interest in using the information …
beyond bringing [his] lawsuit.  That he has not done. Harty, therefore, has not alleged an informational injury sufficient for Article III standing.'
In short, to bring a lawsuit about a website’s compliance with the ADA, a plaintiff has to show that he or she had a need for the information, goods and services offered
by the website and that there were “downstream consequences” resulting from the alleged inability to use the website." ²
Thank you for your time and again for allowing me to represent myself at conference, but it would just be best to let the court decide this one as quickly as possible. I
wanted to put these notes into the record as it may help someone else down the road. This is not the way to go about fixing the accessibility issue. The real fix is to get
better e-reader software that can more accurately analyze the visual world and translate it for Ms. Tarr and others. If there was as much money involved in the e-reader
software business vs the ADA lawsuit business suing every stop on the World Wide Web, this would have already been developed. 
I have attached the judgment in  Cruz v. Wide Open Arts, LLC. To conclude, I would like to quote from my settlement negotiations above. "What is the going rate for
cutting and pasting filings these days?" Perhaps after reading my notes Ms. Tarr will magically drop this case just like Acheson v. Laufer. Thank you for your time.
Citations:
1 - https://www.adatitleiii.com/2023/12/scotus-punts-on-whether-ada-testers-have-standing-in-acheson-v-laufer/
2 - https://www.adatitleiii.com/2022/03/bringing-website-accessibility-lawsuits-in-new-york-just-got-a-little-harder-for-repeat-plaintiffs/
Safe travels,
Adam Rapp
owner/designer
ClothingArts.com
cc: Mr. Khaimov, Esq

123-cv-00103-HG-RML Cruz v Wide Open Arts, LLC.PDF
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