We aren’t quite to Halloween, but the candy is certainly crowding the shelves of local stores, whose owners might want to take a look at Ryan v. Kohls, Inc., discussed below. Beyond that we have the usual roundup of default judgment cases, website accessibility standing cases, and of course some ordinary “drive-by” cases involving physical accessibility mixed in with cases that deserve special attention because they could have a broad impact on ADA and FHA litigation. Here they are. More
ADA Web Access
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Mootness, ADA Public Accommodation, ADA Web Access Tags: ADA defense, ADA franchise, ADA Mootness, ADA web internet, Haynes v Dunkin' Donuts
Congress and the President are taking a break, but the ADA and FHA cases keep coming. It has been an unusual few weeks because we have two circuit court opinions to discuss, though neither breaks much new ground. A third circuit court decision – Mielo v. Steak and Shake Operations – will get a blog of its own.
Temporary obstructions under the ADA
One of the circuit court decisions is Hillesheim v. Myron’s Cards and Gifts, Inc., 17-1408, 2018 WL 3602372 (8th Cir. July 27, 2018), which deals with problem of aisles blocked by “temporary” obstructions. We’ve blogged about this before* and the law really hasn’t changed. DOJ’s regulations acknowledge that aisles that are required to be 36″ wide will from time to time be blocked when shelves are being re-stocked or perhaps repaired. This doesn’t excuse the case in which the aisles are always blocked with something temporary. The line between temporary obstructions and permanent clutter can be hard to draw, and early in a lawsuit is not when hard lines are drawn. In this case the District Court dismissed a claim based on clutter in the aisles, applying an absolute rule that temporary obstructions could not violate the ADA. The Eighth Circuit disagreed, finding that the issue required factual development to decide whether the temporary obstructions were really temporary. This put it in line with the earlier cases cited in our past blogs. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Web Access, Internet, Internet Accessibility Tags: ADA consent decree, ADA internet litigation, ADA litigation defense, ADA Website Litigation, Haynes v Hooters, WCAG 2.0
This is not the owl of Athens, a symbol of wisdom associated with the goddess Athena. Nonetheless, there is some wisdom to be gained by taking a look at Haynes v. Hooters of Am., LLC, 17-13170, 2018 WL 3030840 (11th Cir. June 19, 2018). The case has already been the subject of many articles in the pay-to-play legal press and an excellent blog by William Goren.* The main lesson to be learned from Haynes v. Hooters is one that we’ve known a long time – a private settlement agreement will not moot a new claim by a new plaintiff. Only remediation will do that. There is, however, a deeper and more disturbing message. In website accessibility claims meaningful claims of mootness may well be impossible to achieve.
To understand why we start with the point of the mootness defense. Mootness as an abstract legal concept simply means that there is no case or controversy for the judge to decide because there is no meaningful relief that the plaintiff can be granted. The mootness defense failed in Haynes because the earlier settlement on which the defense was based had an expiration date and because even before it expired a new plaintiff could not enforce it. Thus the new plaintiff could be awarded meaningful relief in the form of an injunction requiring Hooters to do what it promised in the earlier settlement. Because that relief was meaningful the case was not moot. QED as the logicians say. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Mootness, ADA Web Access, Internet Accessibility Tags: Accessibility Litigation, ADA Congress, ADA Defense Lawyer, ADA Website Litigation, website accessibility
A client of mine recently got a long letter from a defense firm informing it that it had been sued under the ADA and extolling its own expertise in defending website accessibility lawsuits. The letter laid out in some detail the defenses they were prepared to assert in a motion to dismiss, with a description of a possible standing argument, an the assertion that the ADA did not cover websites, and a due process claim based on the lack of regulations. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Web Access, FHA, FHA Emotional Support Animals, FHA Reasonable Accommodation, Internet, Internet Accessibility, Reasonable accommodation, Rehabilitation Act Tags: ADA defense, ADA drive-by litigation, ADA Mootness, ADA website accessibility, FHA Defense, World Cup
Those of you who are not binge watching the World Cup matches will be interested in what has been going on in the world of disability rights during the last few weeks. Here is our roundup of recent ADA and FHA decisions, some of which are notable.
Indemnity and contribution for Fair Housing Act claims.
Shaw v. Cherokee Meadows, L.P. 2018 WL 2967708 (N.D.Okla. June 12, 2018) is another in a series of cases concerning indemnity for design/build defects under the FHA that gets it completely wrong and winds up with an absurd result. The decision has little in the way of discussion because it relies on the analysis from an earlier case, Equal Rights Center v. Niles Bolton Associates, 602 F.3d 597 (4th Cir. 2010). We’ve blogged on this issue before* but the arguments are worth repeating. Equal Rights Center based its analysis on earlier cases concerning race and similar kinds of intentional discrimination found that public policy precluded indemnity and contribution for FHA discrimination claims. In cases of intentional discrimination or respondeat superior it makes sense to forbid indemnity because you want to discourage bad intent and encourage proper supervision of employees. It doesn’t make any sense at all in design/build cases under Section 3104(f)(3)(C) because this is a “no fault” provision that can be violated without any intent to discriminate. Moreover, the owner of an apartment complex has no choice but to rely on 3rd party experts – architects and contractors – to properly design and build the apartments. When architects and contractors know that they are immune from liability for their failures they have no incentive to design and build according to FHA standards, and as a practical matter they are always immune because the first target in any lawsuit will be the owner. The Ninth Circuit has rejected Equal Rights Center for good reason, and if Shaw v. Cherokee Meadows is appealed the Tenth Circuit should reject it as well. More