Quick Hits – Now is the summer of our discontent edition

June 22, 2020 By Richard Hunt in Accessibility Litigation Trends, ADA - Hotels, ADA - serial litigation, ADA Litigation Procedure, ADA Mootness Tags: ADA defense, Braille gift cards, COVID-19, mootness, negligence and ADA, Readily Achievable, Service Counters, Strojnik, Voting Rights Alabama

Here’s a very unhappy looking King Richard III contemplating the murder of his nephews and possible rivals for the throne, or perhaps the latest headlines. While the latest cases on accessibility law don’t usually look like light reading, right now they are a cheery diversion from the rest of world events. Here we go:

Voting Rights and the ADA

People First of Alabama v. Merrill, 2020 WL 3207824 (N.D. Ala. June 15, 2020) deserves its own blog, but illustrates how the reach of the ADA is sufficient to touch every aspect of public life. In People First the plaintiffs were elderly and disabled, suffering as a result from an enhanced risk of significant illness or death from Covid-19. They claimed that Alabama’s restrictive absentee voting laws violated Title II of the ADA by depriving them of access to voting, which is for ADA purposes a state program for which the ADA requires equality of access. The Court agreed in most respects and entered a preliminary injunction requiring the state to make absentee voting easier in several respects. The case is on appeal, so the outcome remains uncertain, but it illustrates how the provisions of Title II of the ADA can affect every state and local government program, including those usually thought of as purely political.

ADA and FHA Quick Hits – is it safe to come out yet edition.

May 15, 2020 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Class Actions, ADA Internet Web, ADA Mootness, ADA Policies, ADA Web Access, FHA, FHA design/build litigation Tags: ADA consent decree, ADA defense, ADA Testers, ADA Website Litigation, Beshay Foods, Braille gift cards, Coca Cola Freestyle, COVID-19, FHA Defense, First Fix then Fight, Jack-in-the-box, Johnson v Starbucks, Legal Justice Advocates, Portell Law Group, Seyfarth Shaw

anxious woman with covers pulled over head Like most of you I’ve been working from home for the last couple of months, meaning primarily that my dogs are getting a lot of exercise. There has been no sign of any slowdown in the ADA and FHA litigation business, so there is plenty to cover in this Quick Hits edition.

Owners liability for leased premises – you can’t rely on your tenant.

Dunbar v. Empire Szechuan Noodle H. Inc., 2020 WL 2132339 (S.D.N.Y. May 5, 2020) perfectly illustrates the overriding responsibility of a property owner for the accessibility of a leased premises. The tenant defendant, Empire Szechuan, was evicted for non-payment of rent and went out of business. The Court had no trouble finding claims against it were moot since there was no possibility of effective injunctive relief. The property owner, New Gold Equities, did not fare so well. The court rejected its argument that claims were moot because the new tenant was contractually obligated to comply with the ADA because that compliance was in the future and therefore far from certain. The Court also noted that the ADA lease provision didn’t add much because the new tenant and owner were already obligated to comply with the ADA. A property owner who relies on their tenant may find themselves with continuing liability regardless of any lease provision.

ADA and FHA Quick Hits – Spring has sprung edition

April 16, 2020 By Richard Hunt in ADA, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet Web, ADA Mootness, FHA, Uncategorized Tags: ADA defense, FHA Defense, Gonzalez v Chinatown Hotel, Hillesheim, Scott Johnson

The Rite of Spring in the world of ADA and FHA litigation is a lot more like Stravinsky’s ballet – which terminates in the death of the lead character – than the bunnies and ducks that we usually associate with April. But whatever your spring festival, here’s the latest in the case law.

Corona Virus and Title III of the ADA

A great deal of attention has been paid to whether the disease Covid-19 constitutes a disability under the FHA and ADA. Crochet v. California College of the Arts, et al..,2020 WL 1815741 (N.D. Cal. Apr. 9, 2020) looks at a different aspect of the pandemic – whether injunctive relief matters when a physical place of business is only operating remotely. The plaintiff sought a preliminary injunction under the FHA to stop what she considered excessive rent charges. The court refused on the simple principle that money damages was an adequate remedy. This section of the opinion is worth reading because of its discussion of the principle that ordinary equitable limits on injunctive relief do not apply to the FHA. The plaintiff also wanted an injunction requiring the defendant to offer her the same level of shuttle bus service as other students. This the court refused because with the current California shut-in order there were no shuttle busses running and they were unlikely to start running before the plaintiff graduated. This raises the interesting question of how courts should deal with Title III ADA cases filed against businesses that are now shut down or offering only delivery service. Most cases will settle, but those that move forward will require deeper thinking about standing and available relief when the future is so uncertain. More

Quick Hits – Making a list and checking it twice edition

December 28, 2019 By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Litigation Procedure, FHA, FHA design/build litigation, FHA Reasonable Accommodation, Internet Accessibility, Title II Tags: ADA defense, ADA Mootness, ADA Website Litigation, Bike share programs, Dana Bowman, Eric Calhoun, FHA Defense, Peter Strojnik, unruh act

Christmas is over with lumps of coal and sugar plums distributed in ways that often seem unrelated to who has been naughty or nice. Regular readers will see just how little has changed in the course of 2019 despite some important defense victories in the Sixth and Eight Circuits. With most ADA litigation centered in New York, California and Florida the serial litigation business will almost certainly continue to thrive in 2020.

Personal jurisdiction over website owners

Camacho v. Vanderbilt U., 2019 WL 6528974 (S.D.N.Y. Dec. 4, 2019) is another case looking at the relationship between what a website does for the residents of a state and personal jurisdiction over claims related to that website. The Court applies the 2nd Circuit’s spectrum analysis to the website in a detailed way that is beyond the scope of a Quick Hits blog, concluding in the end that the presence of tools aimed at helping college prospects decide whether to apply were sufficient to find the required minimum contacts with the state of New York. The Court also finds that the plaintiff has standing despite having filed 50 similar lawsuits against other universities. While this might suggest the allegation about intending to utilize the website in the future is unlikely to withstand close scrutiny, college websites are used by a particular class of individual who is likely to do a lot of online shopping for a place to go to school, making the allegations at least plausible.

ADA and FHA Quick Hits – Day that will live in infamy edition

December 9, 2019 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Theaters, ADA Web Access Tags: ADA arbitration, ADA defense, ADA Title II, ADA website, Bird scooters, electric scooters, FHA Defense, Strojnik, uber

Before delving into the fascinating details of ADA and FHA legal developments it doesn’t hurt to remember that in the larger scheme of things the day-to-day problems caused by flaws in the ADA and FHA are not as earth shattering as we like to imagine.

Cities may be responsible for the carelessness of the public

More than a year ago I was interviewed for a local Dallas paper about complaints that rental bicycles were making sidewalks inaccessible for the disabled.‡ I rather blithely opined that the City of Dallas could not be responsible for the carelessness of people who rent bicycles. In Evans v. Bird Rides, Inc., 2019 WL 5864583 (N.D. Cal. Nov. 8, 2019) a District Judge in California disagrees, finding that blind plaintiffs unhappy with electric scooters stated a plausible claim under Title II of the ADA because “[i]t was predictable, not just foreseeable, that the scooters would sometimes be parked carelessly and block” the path of the disabled. Given the many companies now in the scooter business and the number of scooters on the streets of any major city this kind of claim is likely to become more common. Cities that license the scooter providers need to carefully consider the terms of their license and the extent to which they can limit their liability for Title II claims. Having said that, I still don’t believe Title II of the ADA obliges cities to manage the lack of courtesy of their citizens. Among other problems is the inability of the city to police the problem or the court to grant meaningful relief because the barrier encountered by any individual one day is unlikely to be present the next, and just where any individual plaintiff might next encounter a similar barrier is impossible to know. Managing the necessarily complex response of a city to this kind of problem is not the kind of work courts are suited for.

ADA – Hotels