Several colleagues shared Judge Paul C. Huck’s August 23, 2019 sanctions order in Johnson v. Ocaris Management Group, Inc., Case No. 1:18-cv-24586 (S.D. Fla. August 23, 2019), and it provides a good counterpoint to the cases discussed in my last Sea to Shining Sea blog. The short sweet news is that Scott Dinan, Florida attorney, and his partner in the ADA business, Alexander Johnson were sanctioned by the court and required to disgorge certain fees (amounting to $59,900) and to pay a penalty in the same amount as well as notify other courts of the sanction. However, it is worth taking a closer look at the legal grounds on which the sanction rests because those grounds may apply to other serial litigants even if their conduct is not quite as outrageous as that of Dinan and Johnson. More
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 Web Access, ADA Website Accessibility Tags: ADA defense, ADA drive-by, ADA serial litigation, ADA standing, ADA website, Maximilian Travis, Vaughn & Associates
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
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA - Standing, ADA Class Actions, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Mootness, ADA Web Access, ADA Website Accessibility Tags: ADA defense, ADA injunctive relief, ADA Mootness, ADA standing, Diaz v Kroger, Diaz v Lobel's, website accessibility
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
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA FHA General, ADA FHA Litigation General, ADA Internet Web, ADA Litigation Procedure, ADA Mootness, ADA Policies, ADA Web Access, ADA Website Accessibility, FHA Reasonable Accommodation, Hospitals, Internet Accessibility, Statute of Limitations Tags: ADA defense, ADA Policies, ADA standing, FHA Defense, HOA litigation, Johnson v Starbucks, Midwest Disability Initiative, Pacific Trial Group, Scott Ferrell, Strojnik, unruh act, website accessibility
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
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA Internet Web, ADA Movies, ADA Policies, ADA Theaters Tags: Auer deference, Kisor v Wilke, Stadium seating, theater seating
Auer deference – the subject of the Supreme Court’s recent decision in Kisor v. Wilkie – has played a role in some important ADA cases, especially those concerning the line-of-sight issue for movie theaters and stadiums that Justice Kagan mentioned in her opinion. Despite this, Kisor is unlikely to have much effect on Title III jurisprudence both because of the limits on the decision, which confirmed Auer deference with a little explication, and because of the limits on Auer deference itself. Auer deference could be outcome determinative in ADA cases, but at the end of the day it is the court, not the legal principle, that matters. More