This is just a quick note about a major development in the story concerning thousands of lawsuits filed in Arizona by a purported disability rights group. The attorney involved, Peter Strojnik was mentioned in two of my blogs earlier this year. The Economist covers serial ADA litigation – Hunt quoted and Cheap Standing under the ADA. After investigations by the press and local authorities the head of the plaintiff organization has resigned and the Arizona Attorney General has intervened in an effort to shut down the litigation mill. You can read the most recent in a series of stories by Steven Trotten HERE and read the Motion to Intervene HERE. More
ADA
Does DOJ’s new definition of disability matter? Maybe.
By Richard Hunt in ADA, ADA FHA Legislation, ADA Policies, ADA regulations, ADA rulemaking, ADA Web Access Tags: ADA regulations, ADA rulemaking, definition disabled, Department of Justice
On August 11, 2016 the Department of Justice finally issued its regulations implementing the expanded definition of disability contained in the 2008 Americans with Disabilities Act Amendments. The actual content of the regulations, which apply to Titles II and III of the ADA, will already be familiar to most businesses because they are intended to be consistent with the EEOC’s 2011 regulations implementing the 2008 ADAA for Title I. Equally important, they appear after eight long years of lawsuits brought under the 2008 ADAA in which the courts and litigants had to wrestle with the meaning of the statute. More
Is this a service animal under the ADA?* What Arizona can teach the Department of Justice.
By Richard Hunt in ADA, ADA - drive-by litigation, ADA - serial litigation, ADA FHA Legislation, ADA Internet, ADA Internet Web, ADA Miniature Horses, ADA regulations, ADA rulemaking, ADA service animals, DOJ, Uncategorized Tags: ADA service animals, miniature horses, service animals
Reading the daily update I get on disability law issues I was struck by this sentence from an article published on August 8 in the Daily Courier from Prescott Arizona:
“The Arizona Legislature altered laws this year that govern those service animals, specifically allowing businesses, especially restaurants, to tell an owner the animal must be removed if it is out of control or not housebroken.”
(Click here for complete article). This is interesting because the “altered law” does not appear to change anything. Under both the ADA and its Arizona equivalent businesses have always been entitled to exclude service animals that are out of control or not housebroken. Other details in the new law are also consistent with existing federal regulations concerning service animals. More
ADA reform legislation moves forward
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Attorney's Fees Tags: ADA Legislation, ADA Reform, H.R. 3765, Senator Poe
On July 7 H.R. 3765, the ADA Education and Reform Act of 2015, passed out of the House Judiciary Committee. H.R. 3765 is one of several pending ADA reform bills targeting “drive-by” or serial litigants. They share a common approach, requiring that plaintiffs give notice before filing suit so the problem can be fixed. They also share a common reaction from the disabilities and business communities. Disability advocates vehement oppose the bills while business groups support them.
We’ve blogged about H.R. 3765 before (click HERE and HERE to read the earlier blogs). Our prediction that the bill would go nowhere is proving wrong, but our criticism of the bill’s likely effectiveness hasn’t changed. Serial litigation is driven by cheap standing and the economics of defending a lawsuit in federal court, neither of which will be changed by this bill. There is something in the bill that all sides should agree on – a requirement for more ADA education. Unfortunately, this requirement comes without any funding, so it is unlikely to be effectively implemented. The best way to reduce litigation and help the disabled involves seriously funded education for business and coordination of ADA compliance requirements with the building inspection process at the local level. This would improve ADA compliance before a suit was filed or demand letter sent, and that would have the effect of moving resources from attorneys fees to accessibility. Private enforcement of the ADA through litigation is the most wasteful way to achieve the goals of the ADA, and as long as litigation is the main tool for enforcement the lion’s share of money will go to lawyers instead of improvements in accessibility.
First Fix, Then Fight – the foundation of ADA defense.
By Richard Hunt in Accessibility Litigation Trends, ADA - Standing, First Fix Then Fight Tags: ADA defense, ADA defense strategy, ADA dismissal, ada litigation, ADA pleading
“First Fix, Then Fight” has been this blog’s slogan and trademark from the beginning. This isn’t based on a philosophical opposition to litigation, which is sometimes unavoidable, but on a hard headed assessment of the economics of ADA litigation and the difficulty in winning in the early stages of a case. Last week’s decision in Burrell v. Akinola, 2016 WL 3523781 (N.D. Tex. June 27, 2016) demonstrates why first fix, then fight has to be the foundation for ADA defense.
In Akinola the plaintiff sued the defendant for various violations of the ADA. The allegations of violations were not very specific, and the allegations related to the plaintiff’s standing were also somewhat general. Of course a dismissal based on pleading standards or standing is very hard to obtain, and perhaps with this in mind the defendant chose to attack whether there was any allegation of discrimination at all; that is, had Burrell alleged a violation of the statute. More