I’ve been posting a lot of blogs in the last few days in an effort to catch up with a backlog of important or at least interesting cases. Just as I was wrapping up this Quick Hits blog the Sixth Circuit handed down its decision in Brintley v. Aeroquip Credit Union, precipitating the blog’s publication. Subscribers who feel they are being spammed can rest assured the pace of posts will slacken – assuming the pace of ADA and FHA accessibility developments slackens, of course. More
ADA Web Access
From Sea to Shining Sea – how different courts deal with serial ADA lawsuits.
Today’s blog concerns a couple of cases reported to me by colleagues in California and New York. They give a snapshot of how courts at both ends of the country are thinking about ADA lawsuits. The snapshot at left is pretty much in the middle, near Telluride Colorado.
Welcome to the Hotel California
I was alerted to the California case, Whitaker v. ARS REI USA Corp., by Vaughn & Associates, who represent the defendant. The case illustrates the odd yin and yang of litigation in California, where the shifting tides of state law have altered the litigation landscape in recent years. To understand why requires a little background. California’s Unruh Act parallels the ADA but provides for statutory damages of $4,000 per violation. The ADA does not provide for damages, so an Unruh Act claim is better for the plaintiff. That damage remedy has driven ADA litigation at volumes that make California a clear leader in the number of ADA lawsuits filed if state and federal court cases are counted. More
ADA website accessibility litigation – confusion about standards is driving abusive litigation.
I’m not Maimonides, but I do think we need a Guide for the Perplexed concerning ADA website litigation because it seems that in many cases both courts and litigants have mistakenly treated websites as if they were buildings. Websites are not buildings, and recognition of that fact would do a great deal to eliminate or slow down abusive website lawsuits. If you are a defendant in such a suit or think you might be, this blog is for you and your lawyers. There is no silver bullet, but there are approaches to defense with real promise. More
Browsewrap could tame the ADA website litigation monster.
In the last two years the federal courts have had a number of opportunities to find that Title III claims under the ADA are not arbitrable and have declined the invitation. That doesn’t mean these cases are in fact going to arbitration. In every case I found the arbitration agreement was found to be unenforceable on state law grounds, leaving open the possibility of a public policy argument. Nonetheless, I think that a properly written and implemented arbitration clause can force a Title III case into arbitration and give defendants a chance to avoid much of the unnecessary cost of litigation. Here’s why.
The starting point in a discussion of arbitration for civil rights statutes has to be Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647 (1991). In Gilmer the Supreme Court found that claims under the Age Discrimination in Employment Act could be made subject to a valid arbitration agreement, rejecting claims that it was somehow inconsistent with public policy. A few months later Congress passed the Civil Rights Act of 1991, in which, among other things, it affirmed that More
Quick Hits – Dog Days of Summer Edition
The official worst heat-wave ever is now over in both the U.S. and France, but Sirius is still rising just before dawn and nothing has cooled off in the courts. Here are the latest cases on ADA and FHA issues.
HOAs and the FHA
Lau et al v. Honolulu Park Place, AOAO, 2019 WL 3208644 (D. Haw. July 16, 2019) is a kind of short treatise on how the FHA applies to accommodation claims made by parents or others associated with a disabled person. What is surprising is the degree of ignorance or obtuseness shown by the HOA’s counsel in defending the case. Here’s what the Court says:
“Defendants appear to misunderstand the FHA as well as the injury-in-fact requirements of Article III. . . . Only the most obtuse reading of the Complaint could fail to construe the allegations as an injury to the person. . . . But Defendants’ conclusion is only possible when accepting their misrepresented version of what Plaintiffs seek. In other words, it is a straw man of their own creation.
HOAs should remember that the firm handling their assessment collections or dealing with personal injury suits may not have the specialized knowledge necessary for FHA defense. More