Case 3:17-cv D Document 10-1 Filed 03/01/18 Page 1 of 21 PageID 144

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1 Case 3:17-cv D Document 10-1 Filed 03/01/18 Page 1 of 21 PageID 144 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION CHERYL THURSTON, Plaintiff, v. UNITED ENERGY CREDIT UNION, Defendant. ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 3:17-cv-3393 BRIEF OF NATIONAL ASSOCIATION OF FEDERALLY-INSURED CREDIT UNIONS (NAFCU) AS AMICUS CURIAE SUPPORTING DEFENDANT UNITED ENERGY CREDIT UNION S MOTION TO DISMISS THE COMPLAINT BLALACK & WILLIAMS, P.C. BY: _/s/ Randy Roberts Randy Roberts, ID# rroberts@blalack.com 4851 LBJ Freeway, Ste. 750 Dallas, TX / ; 214/ (fax) Of Counsel Carrie R. Hunt Pamela Yu NATIONAL ASSOCIATION OF FEDERALLY-INSURED CREDIT UNIONS th Street North Arlington, VA (703) chunt@nafcu.org Counsel for Amicus Curiae National Association of Federally-Insured Credit Unions { DOCX}

2 Case 3:17-cv D Document 10-1 Filed 03/01/18 Page 2 of 21 PageID 145 TABLE OF CONTENTS Page I. INTEREST OF AMICI CURIAE...1 II. BACKGROUND...2 A. The Credit Union System...2 B. Texas Credit Union Field of Membership Requirements...4 III. SUMMARY OF ARGUMENT...4 IV. ARGUMENT...5 A. Plaintiff Lacks Standing Because She Has Not Demonstrated An Injury- In-Fact...5 B. Plaintiff Lacks Standing Because She Fails To Demonstrate An Injury-In- Fact Fairly Traceable To The Challenged Action...11 C. Plaintiff Lacks Standing to Seek Injunctive Relief and Shows No Redressable Injury That Can Be Resolved By A Judgment In Her Favor...13 V. CONCLUSION...15 { DOCX} i

3 Case 3:17-cv D Document 10-1 Filed 03/01/18 Page 3 of 21 PageID 146 TABLE OF AUTHORITIES FEDERAL CASES Access 4 All, Inc. v. Wintergreen Commercial P'ship, Ltd., No. 3:05-CV-1307-G, 2005 U.S. Dist. LEXIS (N.D. Tex. Nov. 7, 2005)...14 Anderson v. Macy's, Inc., 943 F. Supp. 2d 531 (W.D. Pa. 2013)...14 Carroll v. Northwest Federal Credit Union, No. 1:17-cv-01205, slip. op. (E.D. Va. Jan. 26, 2018)...5, 8, 9, 11 City of Los Angeles v. Lyons, 461 U.S. 95 (1983)...13 Clapper v. Amnesty Int l USA, 133 S. Ct (2013)...6 Cortez v. Nat'l Basketball Ass'n, 960 F. Supp. 113 (W.D. Tex. 1997)...13 Davis v. Flexman, 109 F. Supp. 2d 776 (S.D. Ohio 1999)...14 Deutsch v. Annis Enters., No , 2018 U.S. App. LEXIS 3028 (5 th Cir. Feb. 8, 2018)...11 Deutsch v. Travis County Shoe Hosp., Inc., No , 2018 U.S. App. LEXIS 2647 (5th Cir. Feb. 2, 2018)...11, 14 Frame v. City of Arlington, 657 F.3d 215 (5th Cir. 2011) (en banc), cert. denied, 565 U.S (2012)...11 Griffin v. Dep't of Labor Federal Credit Union, No. 1:17-cv-1419 slip. op. (E.D. Va. Feb. 21, 2018)...8, 9, 14, 15 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)...6, 14 Molski v. Kahn Winery, 405 F. Supp. 2d 1160 (C.D. Cal. 2005)...14 Norkunas v. Park Rd. Shopping Ctr., Inc., 777 F. Supp. 2d 998 (W.D.N.C. 2011), aff'd, 474 Fed. Appx. 369 (4 th Cir. 2012)...13 O'Shea v. Littleton, 414 U.S. 488 (1974)...13 Spokeo, Inc. v. Robins, 136 S. Ct (2016)...6, 9, 10 Steger v. Franco, Inc., 228 F.3d 889 (8 th Cir. 2000)...13, 14 Page { DOCX} ii

4 Case 3:17-cv D Document 10-1 Filed 03/01/18 Page 4 of 21 PageID 147 STATUTES AND REGULATIONS Americans with Disabilities Act, Pub. L , 42 U.S.C (1990)... passim Civil Rights Act, Pub. L , 42 U.S.C. 2000a 3 (1964)...13 Federal Credit Union Act, Pub. L , 48 Stat (1934)... passim Tex. Fin. Code Ann passim 28 C.F.R Tex. Admin. Code passim OTHER AUTHORITIES H.R. Rep. No (1934)...3 S. Rep. No (1934) Fed. Reg (Dec. 26, 2017)...2 { DOCX} iii

5 Case 3:17-cv D Document 10-1 Filed 03/01/18 Page 5 of 21 PageID 148 I. INTEREST OF AMICI CURIAE For decades, federally-insured credit unions have been an integral part of the nation s financial system. These nonprofit, cooperative, community-based financial organizations have enabled millions of Americans to save and invest more effectively by joining together with friends, family, and the broader community. Credit unions and the affordable services they offer are of particular importance to individuals in traditionally underserved communities, including lower-income and rural areas. Amicus National Association of Federally-Insured Credit Unions ( NAFCU ) is the only national trade association focusing exclusively on federal issues affecting the nation s federallyinsured credit unions. It provides members with representation, information, education, and assistance to meet the constant challenges that cooperative financial institutions face in today s economic environment. NAFCU proudly represents many smaller credit unions with relatively limited operations, as well as many of the largest and most sophisticated credit unions in the nation. NAFCU represents 70 percent of total federal credit union assets and 43 percent of all federally-insured credit union assets. Defendant United Energy Credit Union ("United Energy") is a member of NAFCU. This case arises from a recent spike in lawsuits and demand letters unfairly targeted at credit unions and other entities due to unclear website accessibility requirements under the Americans with Disabilities Act ("ADA"), 42 U.S.C et seq. The Complaint is one of a litany of almost identical federal civil actions brought against numerous credit unions across Texas and multiple other states by the Plaintiff or Plaintiff s counsel within the past few months. NAFCU and its member credit unions recognize the importance of the ADA and fully support the ability of all Americans to have access to a broad array of financial services. However, the ADA and the Department of Justice's ("DOJ") regulations are currently silent on website { DOCX} 1

6 Case 3:17-cv D Document 10-1 Filed 03/01/18 Page 6 of 21 PageID 149 accessibility standards. For numerous years, the DOJ has gathered information on standards for website accessibility and has even issued an advance notice of proposed rulemaking ("ANPR") intended to consider the feasibility of adopting formal accessibility standards. However, the DOJ recently removed this initiative from its rulemaking agenda and withdrew several related ANPRs, indicating that it is "evaluating whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate." 82 Fed. Reg (Dec. 26, 2017). Thus, unfortunately, there are no clear regulatory standards and a complete lack of guidance on website accessibility requirements for entities like credit unions. Plaintiff and her attorney seem to be attempting to capitalize on this regulatory void with this action, along with wholesale issuances of demand letters and identical threats of litigation to numerous other credit unions across the state. The consequence of this unwarranted and costly lawsuit, and others like it, is that real dollars are being taken out of the hands of credit union member-owners. As not-for-profit, community-based cooperative financial institutions, credit unions are uniquely focused on the needs of their members, especially those with disabilities, and support the protections of the ADA. However, this action is part of a growing and troublesome trend of meritless lawsuits against well-meaning and community-focused credit unions, such as defendant United Energy, which could result in NAFCU's member credit unions being forced to cut valuable services due to unreasonable litigation risk to the detriment of American consumers. Amicus NAFCU therefore has a substantial interest in the Court's resolution of this case. II. BACKGROUND A. The Credit Union System Credit unions are member-owned, not-for-profit cooperative financial institutions that serve defined fields of membership under the general oversight of volunteer boards of directors. { DOCX} 2

7 Case 3:17-cv D Document 10-1 Filed 03/01/18 Page 7 of 21 PageID 150 Democratically owned and operated, credit unions are organized without capital stock and governed under a one member, one vote principle each member has one vote, regardless of the amount on deposit. While banks are operated with the purpose of maximizing profits for their shareholders, the purpose of credit unions is to return those benefits to their member-owners. The origins of America s dual charter credit union system date back to the Great Depression. The financial challenges of that period were compounded by the inability of millions of ordinary Americans to obtain the credit they needed to start businesses, purchase homes, or invest in their communities. See S. Rep. No , at 3 (1934) (detailing the need to bring normal-credit resources on a cooperative basis to the masses of the people whose buying power is now so often dissipated in high-rate interest charges ); see also H.R. Rep. No , at 1 2 (1934). Responding to these concerns, in 1934, Congress passed and President Franklin D. Roosevelt signed into law the Federal Credit Union Act (FCUA). The FCUA authorized the creation of federally chartered credit unions in each State for the purpose of promoting thrift among [their] members and creating a source of credit for provident or productive purposes. 12 U.S.C. 1752(1); see also Pub. L. No , ch. 750, 48 Stat. 1216, 1216 (1934) (preamble). Because credit unions would be member-owned and operated democratically (usually by a volunteer board of directors), they were exempted from federal taxes and many state taxes. In 1970, Congress created the National Credit Union Administration ("NCUA") as an independent agency and vested it with authority under the FCUA to regulate, charter, and supervise federal credit unions. Congress also created the National Credit Union Share Insurance Fund ("NCUSIF") to protect the deposits of account holders in all federal credit unions and the overwhelming majority of state-chartered credit unions. NCUA operates and manages the NCUSIF with the backing of the full faith and credit of the United States. { DOCX} 3

8 Case 3:17-cv D Document 10-1 Filed 03/01/18 Page 8 of 21 PageID 151 B. Texas Credit Union Field of Membership Requirements Under the Texas Finance Code, membership in every state-chartered credit union is limited to persons who share a definable community of interest in accordance with the credit union s articles of incorporation or bylaws, including a community of interest based on occupation, association, or residence. Tex. Fin. Code Ann (a)(1). Membership in a credit union is "limited to one or more groups, each of which (the Group) has its own community of interest and is within the credit union s local service area," which generally consists of "one or more contiguous political subdivisions that are within reasonable proximity of a credit union s offices." 7 Tex. Admin. Code (a). For purposes of the credit union's field of membership, the Group as a whole is considered to be within the local service area when: (1) a majority of the persons in the Group live, work, or gather regularly within the local service area; (2) the Group s headquarters is located within the local service area; or (3) the persons in the Group are paid from or supervised from an office or facility located within the local service area. Id. Persons outside this field of membership are ineligible for the credit union s services and benefits. Field of membership requirements are a fundamental credit union concept that has continued to endure from the Depression era until today. III. SUMMARY OF ARGUMENT Amicus NAFCU agrees with United Energy's arguments in support of its motion to dismiss. United Energy is correct that the Complaint fails to state a claim upon which relief may be granted, and should be dismissed because: (1) Plaintiff lacks standing to pursue her claim because she has suffered no injury-in-fact as she does not allege that she is a member of the credit union or even qualifies for membership; (2) the Fifth Circuit has held that only a physical { DOCX} 4

9 Case 3:17-cv D Document 10-1 Filed 03/01/18 Page 9 of 21 PageID 152 place can qualify as a place of public accommodation subject to Title of the ADA and United Energy's website is not a physical place 1 ; (3) United Energy has no duty to implement the accessibility standards desired by Plaintiff because neither Congress nor the DOJ has established formal website accessibility standards or guidelines; (4) to the extent Plaintiff claims that United Energy violated Title III by failing to provide auxiliary aids and services, Plaintiff has failed to allege that she requested them. Absent a request, United Energy has no duty to act; and (5) it would be a violation of United Energy s right to due process to require an accessible website when no law or regulation imposes such obligation. Amicus NAFCU writes separately, however, to draw the Court s attention to additional evidence supporting United Energy's argument that Plaintiff does not have legal standing in this case. IV. ARGUMENT A. Plaintiff Lacks Standing Because She Has Not Demonstrated An Injury-In-Fact Plaintiff lacks standing in this case because she has not demonstrated that she has suffered an injury-in-fact that is concrete, particularized, actual, or imminent. Article III of the 1 In a recent case out of the Eastern District of Virginia, the district court dismissed a similar claim for failure to state a claim for which relief may be granted. The court found that a website is not a place of public accommodation under Title III of the ADA: Plaintiff's claim also fails because the website is not a place of public accommodation. Title III of the ADA prohibits discrimination in public accommodations based on disability. 42 U.S.C (a). The statute provides for a list of entities that are considered public accommodations. 42 U.S.C (7). Notably absent from the list is the term "website". Not only is "website" not found on the list, but the statute does not list anything that is not a brick and mortar "place". Over the years Congress has extensively amended the ADA; however, at no point did Congress choose to add websites as a public accommodation. Keith Carroll v. Northwest Federal Credit Union, No. 1:17-cv-01205, slip. op. at 5. (E.D. Va. Jan. 26, 2018). { DOCX} 5

10 Case 3:17-cv D Document 10-1 Filed 03/01/18 Page 10 of 21 PageID 153 Constitution limits federal courts jurisdiction to certain Cases and Controversies. Clapper v. Amnesty Int l USA, 133 S. Ct. 1138, 1146 (2013). One element of the case-or-controversy requirement is that plaintiffs must establish that they have standing to sue. Id. To establish Article III standing, an injury must be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling. Id. at 1147; see also Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992). The Supreme Court has repeatedly reiterated that threatened injury must be certainly impending to constitute injury in fact, and that [a]llegations of possible future injury are not sufficient. Clapper, 133 S. Ct. at Moreover, "[t]he party invoking jurisdiction bears the burden of establishing [the] elements [to show standing]." Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). An [i]njury in fact is a constitutional requirement, and [i]t is settled that Congress cannot erase Article III s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing. Id. at Thus, a plaintiff does not "automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right." Id. at Rather, Article III standing requires a concrete injury even in the context of a statutory violation. Id. Thus, the U.S. Supreme Court has made it clear that an alleged violation of a statute, "divorced from any concrete harm," is not sufficient to allege an injury-in-fact sufficient to meet Article III standing requirements. Id. at Plaintiff has no standing to sue unless she meets her burden of demonstrating a concrete injury, even in the context of an alleged statutory violation of the ADA. In this case, Plaintiff cannot make a showing of concrete injury because she has not alleged that she is a member of United Energy or that she is even within the credit { DOCX} 6

11 Case 3:17-cv D Document 10-1 Filed 03/01/18 Page 11 of 21 PageID 154 union's limited field of membership. Without showing that she was actually harmed by being denied access to United Energy's goods and services Plaintiff has no standing. Under the Texas Finance Code, membership in a credit union is limited to persons who share a definable community of interest" that is "based on occupation, association, or residence. Tex. Fin. Code Ann (a)(1). Only persons sharing the following communities of interest are eligible to join United Energy: 1. Employees of Centerpoint Energy (formerly Reliant Energy-Entex) & Reliant Energy (formerly Reliant Energy-HL&P), who work in or are paid from Houston, Texas, excluding employees eligible for primary membership in Entex-United Credit Union and Entex South Texas Credit Union at the time membership is sought; 2. Persons who are receiving retirement, pension, or other benefits as a result of prior employment within this field of membership; 3. Spouses of persons who died while within the field of membership; 4. Persons who live, work, attend school, or worship in any businesses located within 10 miles of the office of United Energy Credit Union located at 8790 F.M. 1960, Humble, Texas and 1111 Louisiana, Houston, Texas 77002; and 5. Members of the family of such persons. Thus, the financial goods and services offered by United Energy are restricted to those who qualify for membership as a person within that definable community of interest based on occupation, association, or residence. See Tex. Fin. Code Ann (a)(1). Membership qualification alone is not sufficient to establish credit union membership, however. Individuals who fall within United Energy's field of membership are eligible to apply to join the credit union but they must complete additional concrete steps to become members. { DOCX} 7

12 Case 3:17-cv D Document 10-1 Filed 03/01/18 Page 12 of 21 PageID 155 Membership in a credit union requires a paid entrance fee or membership fee, or both, if required; compliance with minimum share, including membership share, requirements or other qualifying account requirements established by the board; and compliance with any other requirement of the credit union's articles of incorporation and bylaws. See Tex. Fin. Code Ann (a)(2)-(4). Thus, only after all membership requirements are met, and the individual has paid the minimum membership share and any required entrance and membership fees can that individual receive financial services from United Energy as a member of the credit union. In Carroll v. Northwest Federal Credit Union, a Virginia district court considering nearly identical claims granted the credit union's motion to dismiss, ruling that the plaintiff (who was represented by same counsel as Plaintiff) lacked standing because he was not a credit union member or eligible for membership and would not likely use the credit union's services. The court therefore determined the plaintiff did not sufficiently establish a requisite injury-in-fact: Here, the defendant, Northwest Federal Credit Union ("Northwest FCU"), is a credit union chartered by the Federal government which only includes a specific membership field.... Plaintiff is not included in this membership field, nor has he alleged any facts in his Complaint to suggest he is [a member] or otherwise eligible to become a member of Northwest FCU. As a result, Plaintiff is unable to deposit money in, or obtain a loan or other services from Defendant. Plaintiff is unable to show that he has suffered an injury in fact or that there is certain impending future harm. [Plaintiff] cannot make this showing because he has not established that he is entitled, or would ever be entitled, to utilize any services provided by Northwest FCU. Carroll v. Northwest Federal Credit Union, No. 1:17-cv-01205, slip. op. at 3 (E.D. Va. Jan. 26, 2018). In another Virginia case, decided just last week, the district court in Griffin v. Department of Labor Federal Credit Union similarly found that the plaintiff (who was also represented by the same counsel as Plaintiff) lacked standing because he failed to show a concrete injury because he did not, and could not, allege "(i) that he is a member of [the credit union], (ii) that he { DOCX} 8

13 Case 3:17-cv D Document 10-1 Filed 03/01/18 Page 13 of 21 PageID 156 is within [the credit union's] limited field of membership, or (iii) that he could ever be a member of [the credit union]." Griffin v. Dep't of Labor Federal Credit Union, No. 1:17-cv-1419 slip. op. at 3 (E.D. Va. Feb. 21, 2018). Thus, the plaintiff could not establish that he suffered an actual or imminent, concrete and particularized injury. Id. at 4. In addition, the Griffin court held that, while the plaintiff asserted harm to his dignity, in that case "dignitary harm alone was [not] sufficient to confer standing on a plaintiff who otherwise was not allowed to patronize a particular public accommodation," such as a credit union with a limited membership field. Id. at 4-5. Furthermore, the court noted that if it were to find that a dignitary harm based on an alleged website access barrier was sufficient to confer standing, then any disabled person who learned of any access barrier would automatically have standing, thus essentially eliminating entirely the requirement to demonstrate an injury-in-fact. Id. Such a result would clearly run counter to the Supreme Court's holding in Spokeo. Id. Plaintiff's Complaint makes absolutely no reference to her place of residence. Coincidentally, the Civil Cover Sheet filed with the Complaint, ECF 1-1 at 1 of 2, leaves blank her county of residence. However, in other Title III civil actions, of which she is seemingly a serial litigant, Plaintiff has consistently identified herself as a resident of San Bernardino County, California. See Mot. to Dismiss, ECF 7 at 7. San Bernardino County California is approximately 1,512.7 miles from Humble, Texas, and about 1,497.2 miles from Houston, Texas, where United Energy's offices are located. Plaintiff has not alleged that she resides anywhere near United Energy's local service area, such that she is even eligible for membership. She has failed to allege that she lives, works, attends school, or worships in any businesses located within 10 miles of United Energy's Humble or Houston offices. Moreover, Plaintiff has not alleged she is an employee of Centerpoint Energy, Reliant Energy, who work in or are paid { DOCX} 9

14 Case 3:17-cv D Document 10-1 Filed 03/01/18 Page 14 of 21 PageID 157 from Houston, Texas (or receiving retirement, pension, or other benefits from prior employment with those entities); a spouse a person who died while within the field of membership; or a family member within United Energy's defined membership field. Further, even if she were eligible for membership, Plaintiff has failed to show that she has met the membership share and fee requirements necessary to become a member of the credit union. Without meeting these membership requirements, Plaintiff has not shown he is "entitled, or would ever be entitled," to obtain financial goods and services from United Energy. In fact, given that Plaintiff has apparently filed similar cases across the state of Texas, it is unlikely that Plaintiff can meet this burden as it would require her to share a definable community of interest" based on occupation, association, or residence with numerous other credit union communities, or otherwise demonstrate the requisite common bond necessary for credit union membership in each of those credit unions. Without a showing that Plaintiff is a member of United Energy, Plaintiff cannot meet even the first element required to establish standing in this court: that the injury must be concrete, particularized, and actual or imminent. Simply put, without membership, there is no concrete harm. Under Spokeo, Plaintiff's mere allegation of a violation of the ADA is insufficient; Article III requires such a violation to have caused him real, actual harm. Plaintiff has failed to show that she is a member entitled to access United Energy's website in order to obtain goods and services from the credit union. Irrespective of the accessibility of United Energy's website, absent a showing of membership, Plaintiff is not permitted to utilize United Energy's web services to obtain financial services in the first place and has suffered no concrete injury as a result of purportedly being denied equal access to United Energy's website. Even assuming United Energy's website was inaccessible to the visually-impaired Plaintiff has { DOCX} 10

15 Case 3:17-cv D Document 10-1 Filed 03/01/18 Page 15 of 21 PageID 158 suffered no concrete injury since she is not permitted to receive services through that website in any case. Moreover, Plaintiff has not shown, and likely cannot show, any imminent injury without demonstrating she qualifies for membership in the credit union. While it is theoretically possible that Plaintiff could enter into United Energy's membership field at some point in the future, take the requisite steps to become a member, and then suffer some alleged concrete harm, as the Supreme Court has held, mere allegations of possible future injury are not sufficient to establish standing in this court. The district court held as much in Carroll, finding that "plans to visit [the credit union] in the future are immaterial unless [Plaintiff] can establish he is eligible to use [the credit union]'s services." Carroll v. Northwest Federal Credit Union, No. 1:17-cv-01205, slip. op. at 4 (E.D. Va. Jan. 26, 2018). In light of the foregoing, the Court should dismiss Plaintiff's Complaint. B. Plaintiff Lacks Standing Because She Fails To Demonstrate An Injury-In-Fact Fairly Traceable To The Challenged Action Plaintiff also lacks standing because she has not demonstrated that she has suffered an injury-in-fact that is fairly traceable to being denied equal access to United Energy's website. Recently, the Fifth Circuit affirmed, in two separate cases, the dismissals for lack of standing of Title III claims because there was "[no] reason to believe that [plaintiff] is affected by [defendant s] alleged ADA violation in any way, let alone some concrete way. Deutsch v. Annis Enters., No , 2018 U.S. App. LEXIS 3028, at *7 (5th Cir. Feb. 8, 2018) (quoting Frame v. City of Arlington, 657 F.3d 215, 236 (5th Cir. 2011) (en banc), cert. denied, 565 U.S (2012)); accord Deutsch v. Travis County Shoe Hosp., Inc., No , 2018 U.S. App. LEXIS 2647, at *10 (5th Cir. Feb. 2, 2018). { DOCX} 11

16 Case 3:17-cv D Document 10-1 Filed 03/01/18 Page 16 of 21 PageID 159 As discussed above, Plaintiff has failed to show concrete harm. Plaintiff s claim of damages is generally encompassed in two paragraphs of the complaint: If unitedenergycu.com were accessible, Plaintiff could independently and privately investigate UECU s services, privileges, advantages, and accommodations and amenities, and find the locations to visit via UECU s website as sighted individuals can and do. Despite several attempts to use unitedenergycu.com in recent months, the numerous access barriers contained on UECU s website have denied Plaintiff s full and equal access, and deterred Plaintiff on a regular basis from accessing UECU s website. Similarly, based on the numerous access barriers contained on unitedenergycu.com, Plaintiff has been deterred from visiting UECU s physical locations that Plaintiff may have located by using unitedenergycu.com. ECF 1 (Complaint at 15-16). In essence, Plaintiff is claiming that she (1) could not find out what services the credit union was offering; and (2) was deterred from visiting the credit union s physical locations. In neither instance has Plaintiff alleged anything that could be considered a concrete injury. But even assuming Plaintiff has suffered harm in "some concrete way," such alleged injury could not be fairly traceable to the defendant's actions. Since Plaintiff has not shown that she is a member of United Energy, or that she is even eligible to become one, Plaintiff would not be permitted to access United Energy's goods and services through its website, accessible or not, in any case as a nonmember. The Texas Finance Code expressly limits membership in a Texas credit union to those persons sharing a definable community of interest. See Tex. Fin. Code Ann (a)(1). In other words, United Energy's goods and services are limited to its members by operation of law. Thus, any denial of equal access to United Energy's online financial goods and services is due to Plaintiff's status as a nonmember, rather than to her purported inability to the access the website due to her visual impairment. Without alleging a { DOCX} 12

17 Case 3:17-cv D Document 10-1 Filed 03/01/18 Page 17 of 21 PageID 160 threshold basis to obtain member goods and services from United Energy's website in the first place, the Complaint reflects the complete lack of any injury-in-fact that might be fairly traceable to supposed accessibility issues with the United Energy's website. C. Plaintiff Lacks Standing to Seek Injunctive Relief and Shows No Redressable Injury That Can Be Resolved By A Judgment In Her Favor The Court should grant United Energy's Motion to Dismiss because Plaintiff does not have legal standing to pursue injunctive relief and, even if she did establish standing, Plaintiff has not demonstrated that the Court's favorable judgment in this matter could redress her injury. The ADA and its regulations permit the DOJ to assess civil penalties for ADA violations, but do not authorize statutory penalties for private party plaintiffs. See 42 U.S.C ; 42 U.S.C. 2000a-3; 28 C.F.R Injunctive relief is available, but the Supreme Court has stated that a plaintiff seeking an injunction must demonstrate that there is a non-speculative, imminent threat of repeated future injury to establish injury-in-fact sufficient to support injunctive relief and that "[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief... if unaccompanied by any continuing present adverse effects." O'Shea v. Littleton, 414 U.S. 488, 495 (1974). Indeed, a plaintiff must show she is "likely to suffer future injury" to establish standing to seek an injunction. City of Los Angeles v. Lyons, 461 U.S. 95, (1983). Further, courts have uniformly required that for injunctive relief under the ADA, plaintiffs must allege that they have an intention to return to a public accommodation. See, e.g., Cortez v. Nat l Basketball Ass n, 960 F. Supp. 113, (W.D. Tex. 1997) (plaintiff lacked standing because she failed to allege that she intended to return to the defendant s events in the future); Steger v. Franco, Inc., 228 F.3d 889, 893 (8th Cir. 2000) (absent likelihood that plaintiffs would visit an inaccessible building in the imminent future, they lacked standing to seek injunctive relief); Norkunas v. Park Rd. Shopping Ctr., Inc., { DOCX} 13

18 Case 3:17-cv D Document 10-1 Filed 03/01/18 Page 18 of 21 PageID F. Supp. 2d 998 at 1001 (W.D.N.C. 2011), aff d, 474 Fed. Appx. 369 (4th Cir. 2012) ( In order to demonstrate a likely future harm, Plaintiff must demonstrate an intention to return. ); Davis v. Flexman, 109 F.Supp.2d 776, 784 (S.D. Ohio 1999) (patient lacked standing to seek injunctive relief under the ADA where there was no evidence she intended to return to the clinic). [S]omeday intentions without any description of concrete plans, or indeed even any specification of when the some day will be do not support a finding of the actual or imminent injury that our cases require. Access 4 All, Inc. v. Wintergreen Commercial P ship, Ltd., No. 3:05-CV-1307-G, 2005 U.S. Dist. LEXIS 26935, at *10 (N.D. Tex. Nov. 7, 2005) (Fish, CJ) (quoting Lujan, 504 U.S. at 564); see also Deutsch v. Travis County Shoe Hosp., Inc., No , 2018 U.S. App. LEXIS 2647, at *7-8 (5th Cir. Feb. 2, 2018). Courts have found that as the distance between a plaintiffs residence and a public accommodation increases, the potential for the occurrence of future harms decreases. Anderson v. Macy's, Inc., 943 F. Supp. 2d 531, 539 (W.D. Pa. 2013) (quoting Molski v. Kahn Winery, 405 F. Supp. 2d 1160, (C.D. Cal. 2005)). Plaintiff has alleged only that she has made "several attempts to use unitedenergycu.com in recent months," to investigate the credit union's services, and to "find the locations to visit," but "has been deterred from visiting" United Energy's physical locations. See ECF 1 (Complaint at 15-16). Nowhere in the Complaint does Plaintiff allege that she ever visited a United Energy location or had any real plan or intention to do so even "someday." Indeed, given that she evidently resides approximately 1,500 miles and at least three states away in California, the notion that Plaintiff had any plan or intention to ever visit or return to one of United Energy's locations strains credulity. Further, Plaintiff has not alleged that she had any concrete plan to become a member of United Energy, nor that she had any intention whatsoever of even investigating whether she is even eligible to become a member of the credit union. The Griffin { DOCX} 14

19 Case 3:17-cv D Document 10-1 Filed 03/01/18 Page 19 of 21 PageID 162 court found that, without demonstrating any "plausible intention to return to patronize a public accommodation," the plaintiff in that case had failed to establish any facts to support legal standing to pursue injunctive relief against the credit union. Griffin, No. 1:17-cv-1419 slip. op. at 6. Like the plaintiff in Griffin, here, Plaintiff "could not plausibly allege intent to become a member of [the credit union] because plaintiff is barred from membership." Id. As such, Plaintiff lacks standing to pursue injunctive relief. Even supposing Plaintiff did establish standing, and the Court provided injunctive relief by directing United Energy to meet website accessibility standards 2 as a result of this action, such a judgment in Plaintiff's favor would not effectively redress her purported injury. As discussed, Plaintiff has failed to allege that she is a member of the credit union entitled to goods and services accessible through United Energy's website. Thus, even if the Court directs United Energy to improve its website accessibility, Plaintiff is still a nonmember who is unable, under Texas law, to utilize United Energy's services through that website. Plaintiff has not alleged that she has any entitlement whatsoever to use United Energy s services and, therefore, can point to no redressable injury. V. CONCLUSION Credit unions are community-focused, member-owned, member-controlled, not-for-profit cooperative financial institutions chartered under federal or state law to allow groups of persons sharing a common bond to save, borrow, and obtain other financial services. Despite the myriad benefits that credit unions, including United Energy, may offer to consumers, credit union services are limited to their members. Plaintiff has failed to demonstrate she is a member of 2 We reiterate, however, that the ADA and the DOJ's regulations are currently silent on website accessibility standards. { DOCX} 15

20 Case 3:17-cv D Document 10-1 Filed 03/01/18 Page 20 of 21 PageID 163 United Energy or even eligible to become a member of United Energy; thus, she is not permitted under Texas law to obtain financial goods and services through United Energy's website irrespective of its accessibility to the visually impaired. Plaintiff has no standing in this case. Amicus NAFCU respectfully requests that the Court grant United Energy's Motion to Dismiss the Complaint. Respectfully submitted, BLALACK & WILLIAMS, P.C. BY: _/s/ Randy Roberts Randy Roberts, ID# rroberts@blalack.com 4851 LBJ Freeway, Ste. 750 Dallas, TX / ; 214/ (fax) Of Counsel Carrie R. Hunt Pamela Yu NATIONAL ASSOCIATION OF FEDERALLY-INSURED CREDIT UNIONS th Street North Arlington, VA (703) chunt@nafcu.org Counsel for Amicus Curiae National Association of Federally-Insured Credit Unions { DOCX} 16

21 Case 3:17-cv D Document 10-1 Filed 03/01/18 Page 21 of 21 PageID 164 CERTIFICATE OF SERVICE I hereby certify that on this 1 st day of March 2018, I served a true and accurate copy of the foregoing by filing it electronically with the Clerk of the Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following: Scott J. Ferrell, Esq. Attorney-in-charge State Bar No Northern District of Texas Bar No CA Pacific Trial Attorneys 4100 Newport Place Drive, Suite 800 Newport Beach, CA Phone: (949) Fax: (949) sferrell@pacifictrialattorneys.com Counsel for Plaintiff and Katrin U. Schatz State Bar No Katrin.Schatz@jacksonlewis.com JACKSON LEWIS P.C. 500 N. Akard, Suite 2500 Dallas, Texas PH: (214) FX: (214) Counsel for Defendant Counsel for Amicus Curiae National Association of Federally-Insured Credit Unions 17