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.
ADA – Standing
ADA and FHA Blogathon – tortoise and the hare edition
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 Web Access, FHA, Uncategorized Tags: ADA defense, ADA web access, driveby lawsuits, FHA Defense, Serial filers
Being slow but steady the tortoise, as we all know, won the race. The picture on the left tells you the strategy I ended up using. In any case the news is current as of November 14, the last day I checked for new ADA and FHA decisions. There’s plenty of interest, as usual.
A pre-emptive strike on website accessibility succeeds.
The plaintiff in Expensify, Inc. v. White, 2019 WL 5295064 (N.D. Cal. Oct. 18, 2019) sought to take matters into its own hands and local court by suing a pair of serial website filers for a declaratory judgment that its website was not in violations of the ADA. The defendants almost immediately agreed to waive their claims, presumably because they did not want to litigate without the home field advantage they command in the Western District of Pennsylvania. The plaintiff was not content and tried to keep the case alive, but the Court found the waivers mooted its claims. The key finding is that there was a dispute justifying the complaint for declaratory relief. It is only a district court decision, but Defendants who receive a demand letter without a lawsuit should consider this kind of pre-emptive strike as a good way to avoid an unfriendly jurisdiction. More
Blogathon – not so quick hits on the ADA and FHA
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Mootness Tags: ADA defense, ADA Mootness, ADA standing, FHA Defense, Landis v Mariners, unruh act
The blog a day pace I thought I might hit hasn’t happened but I’m not giving up. Here is the first of several Quick Hits on recent ADA and FHA developments.
ADA standing – aiming to high leads to a crash and burn.
It appears the plaintiff in Rizzi v. Hilton Dom. Operating Co., Inc., 2019 WL 4744209 (E.D.N.Y. Sept. 30, 2019) decided to attack not one, but all of the websites operated by the defendant hotel company. Unfortunately, this meant the plaintiff could not identify any single website to which he plausibly intended to return. Litigation filed in the public interest rather than to alleviate an individual harm is the proper business of the Department of Justice, which has no similar limits on standing to sue. More
Blogathon – ADA and FHA cases with a little help from my friends.
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
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.
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
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