Blogathon – ADA and FHA cases with a little help from my friends.

October 31, 2019 By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - Hotels, ADA - Standing, ADA Internet Web Tags: ADA defense, ADA Title III, ADA website, FHA Defense

Richard's head pasted on a marathon runner body There has been a lot of ADA and FHA news in the last 10 days, so in an effort to catch up I’m going to aim for a blog a day over the next few days. Today’s is dedicated to cases reported to me by colleagues and subscribers, some of which have not yet appeared in official court reports.

Standing is the Achilles heel of serial plaintiffs

Maximilian Travis of Muchmore & Associates PLLC in Brooklyn told me about a result that confirms what we all know – a serial plaintiff’s greatest weakness is standing. You can allege anything to get past a motion to dismiss, but when the truth don’t lie, as they say, the standing claims of most serial litigants won’t stand up to the slightest scrutiny. That is no doubt why the plaintiff in Wu v. Jensen-Lewis, Case No. 1:17-cv-06534-34, (EDNY)* decided to voluntarily dismiss all her claims shortly before a status conference that would have likely required her deposition and browser history. This isn’t surprising – serial plaintiffs often lose on standing when they push through to trial. The fact that defendants have to spend a of money to win on an issue that deprives the court of jurisdiction is a weakness in the ADA as interpreted by the courts. More

Quick Hits – Halloween Candy edition.

September 30, 2019 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Mootness, ADA regulations, ADA Web Access, ADA Website Accessibility Tags: ADA defense, ADA reasonable accommodation, ADA standing, FHA Defense, Strojnik

A pile of candy corn Halloween is a month away, but the candy is on the shelves at our local grocery stores and the courts are already delivering tricks and treats for those of us concerned with accessibility lawsuits.

The complexities of accessibility in federal programs.

Ramos v. Raritan Valley Habitat for Humanity, 2019 WL 4316575 (D.N.J. Sept. 12, 2019) contains more law than can be easily summarized, covering:

HUD and federal sovereign immunity under the ADA, FHA and Rehabilitation Act
Standing for complaints of administrative action where federal sovereign immunity is waived.
State sovereign immunity under the ADA and FHA
The elements of a failure to accommodate claim
And of intentional discrimination claims.

The most interesting thing to me about the case is the facts that gave rise to it, for the complaints that will ultimately go forward seem to reflect the state agency’s stubborn refusal to be helpful to a disabled couple. If the allegations are true the state would not provide forms and letters with a font big enough for the vision disabled plaintiffs to read them and refused to meet either at their residence or by video conference to accommodate their inability to travel. This, by the way, was after the parties had reached a conciliation agreement that supposedly resolved the matter. Agencies, landlords and others who want to stay out of court should think of the accommodation process as a shared effort to solve a problem, not an adversary proceeding to be won or lost.

Bone v. U. of N. Carolina Health Care System, 2019 WL 4393531 (M.D.N.C. Sept. 13, 2019), like Ramos, has a complicated set of facts and an equally complicated series of rulings on issues that include associational standing and liability for the acts of contractors. It also shares the appearance that nobody associated with the defendants was really paying attention, which is always a problem in a bureaucracy. It’s quite possible the low level employee charged with delivering braille invoices to the plaintiffs thought a few months was reasonable turn around time given the seemingly eternal delays associated with hospital billing and reimbursement, but from the plaintiff’s standpoint getting collection notices for invoices he couldn’t read was disturbing. One question, however, is never raised or answered. There are a large number of handheld text reading devices available for the blind, and it would seem such devices could be a reasonable substitute for braille. At what point does the refusal of a disabled person to take advantage of new technologies make his or her request for accommodation unreasonable? More

ADA and FHA Quick Hits – hodgepodge edition.

September 13, 2019 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Mootness, FHA, FHA design/build litigation, FHA Emotional Support Animals Tags: ADA defense, ADA Stadium, ADA standing, ADA Website Litigation, FHA Defense, Olmstead

a vegetable stew called a hodgepodge A hodgepodge, I just learned, is a not just a word for a confusing mixture, but also the name of a vegetable stew. The FHA and ADA decisions of the last few weeks may not be tasty, but they are varied. I’ve put the FHA case first because it involved an unforced error and illustrates why landlords of all sizes need to be aware of what the FHA permits and denies.

FHA disability claims – get it right the first time.

In Root v. Salazar, 2019 WL 4040405 (M.D. Fla. Aug. 27, 2019) made a critical mistake. Having in hand a legitimate non-discriminatory reason to refuse to rent he instead made an excuse that probably seemed more legitimate but wasn’t. The legitimate excuse was the tenant’s lack of steady income. The FHA does not require that landlords take financial risks to accommodate disabled tenants. The illegitimate excuse was that the duplex in question did not meet the FHA’s accessibility guidelines. A fundamental principle under the FHA, ADA and other similar disability laws is that the tenant gets to decide what he or she needs. It may seem helpful to tell a prospective tenant why they should rent elsewhere, but if the tenant is disabled or a member of a protected class that helpfulness will look like illegal discrimination. More

The role of experts in Title III website litigation – what purpose can they serve?

September 8, 2019 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Website Accessibility, Internet, Internet Accessibility Tags: Accessibility tools, ADA defense, ADA experts, ADA Website Litigation, Diaz v General Nutrition, Diaz v Lobel's

Picture of man with pipe and sweater Two weeks ago I wrote about Diaz v. Lobels,* a case I think exemplifies some of the confusion concerning just what an accessible website should be. Today I want to take a harder look at the Court’s exclusion of testimony from the plaintiff’s expert to ask the question: Just what should an ADA expert testify about? The issue has come up in only three reported cases, each of which has its own take on the matter.

The exclusion of the plaintiff’s expert testimony in Diaz v. Lobels was based on two failings. The Court found the expert, Michael McCaffrey, failed to sufficiently describe his methodology and process, and failed to establish the methods were widely accepted or standard in the field. The Court did not reject the assumption underlying the report because the plaintiff and defendant stipulated that compliance with WCAG 2.0 or 2.1 would make the website accessible for ADA purposes and that non-compliance would make it inaccessible. Instead the Court focused on the “high level” description of the methods used by the team of individuals working for the expert, which the Court found insufficient when combined with a lack of testimony concerning the standards used. More

Hunt quoted on ADA website litigation in the Monterey Herald

September 2, 2019 By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA Internet, ADA Internet Web, Uncategorized Tags: ADA defense, ADA Website Litigation, James Herrera, Monterey Herald, vanity

two trumpets Yes, I’m briefly tooting my own horn because James Herrera of the Monterey Herald interviewed and quoted me in his article “Making Business Websites ADA Compliant.” He did a good job of explaining the situation that businesses find themselves in, so the article is worth reading for reasons beyond searching for my name, which is of course the first thing I did.