The Rolling Stones famously asked that they be rolled like a pair of tumbling dice, and looking at recent Title III ADA headlines reminded me of just what a crapshoot ADA litigation can be. The good news for businesses is that the district attorneys of San Francisco and Los Angeles have filed suit against the Potter Handy firm and its partners alleging that the firm filed false lawsuits under the ADA.¹ Hard on the heels of the action by the local authorities a federal judge in San Francisco, Vince Chhabria, entered a series of show cause orders requiring the Potter Handy firm and its clients to file sworn declarations providing factual support for their allegations concerning having visited and intending to visit ADA defendants in the future.² I don’t know how Potter Handy and its clients will respond to these orders, or what Judge Chhabria will do with those responses, but within days of these actions a federal judge in San Jose entered an all too typical order allowing a case to proceed despite being more or less identical to those being handled by Judge Chhabria. Sevens or snake eyes, in ADA Title III matters defendants and plaintiffs are at the mercy of the random assignment of judges done with each federal lawsuit filed. More
ADA
Stigmatic injury and how the 11th Circuit got in wrong in Laufer v Arpan
By Richard Hunt in Accessibility Litigation Trends, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Internet Web Tags: ADA defense, Article III standing, FHA Defense, Laufer, Laufer v Looper, Laufer v Mann
Can the 11th Circuit hold back the tide as King Cnut famously failed to do?² In Laufer v. Arpan LLC, 2022 WL 906511 (11th Cir. Mar. 29, 2022) the 11th Circuit disagreed with the Fifth, Tenth and Second Circuits concerning the injury sufficient to satisfy the standing requirements in Article III of the Constitution. If the case goes to the Supreme Court the 11th Circuit is likely to get its feet wet on Article III standing, but of more interest is the Court’s failure to consider whether the plaintiff had even suffered a statutory injury; that is, did she suffer the kind of injury Title III of the ADA was intended to prevent? If there was no statutory injury then the question of constitutional injury never arises. More
ADA and FHA Quick Hits – it could be worse edition
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - Standing, FHA, FHA definition of handicap, FHA Emotional Support Animals, HOA, Uncategorized Tags: ADA defense, Emotional Support Animal, FHA Defense, serial litigation
Pictures of bombed out buildings and civilian casualty counts are a reminder that aggravating and expensive as ADA and FHA lawsuits can be, taking these disputes to court is a luxury most people in the world do not enjoy. For those of us who can engage in a civilized discussion of legal issues, here are the latest cases and other news. You’ll see where I think the courts and administration have gone wrong, but I’d rather be here than most of places in the news these days.
HUD and DOJ pushing hard on ESA cases.
ADA and FHA Quick Hits – Not quite President’s Day edition part 1
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, FHA, Uncategorized Tags: ADA defense, ADA intent to return, ADA Mootness, ADA standing, ADA website nexus, FHA Defense, unruh act, website accessibility
The last six weeks have seen some important or at least interesting decisions under the Fair Housing Act and Title III of the ADA. If there is any common thread, it is that courts in general seem increasingly reluctant to give serial plaintiffs the benefit of the doubt on dubious pleadings while some judges continue to treat private enforcement as a legitimate means to advance the policy goals of these statutes. This is part 1 of a 2 part blog, so stay tuned . . . More
Laufer v Looper – the death of tester standing, and not just in ADA cases.
By Richard Hunt in ADA - drive-by litigation, ADA - Standing Tags: ADA defense, ADA standing, FHA Defense, FHA standing, Laufer v Looper, Transunion v Ramirez
I’m the last of the ADA bloggers to discuss Laufer v Looper, 21-1031, 2022 WL 39072, at *6 (10th Cir. Jan. 5, 2022) but reading the analysis by Bill Goren (Is Tester Standing a Thing When it Comes to Title III of the ADA) and Seyfarth Shaw (A Status Update on Hotel Reservations Website Lawsuits) has given me some perspective on what the decision means for tester standing in ADA and FHA cases. I think the discussion of tester standing in Laufer v. Looper exposes the fatal flaw in all tester standing cases; that is, testers never suffer the kind of injury that is now required by the Supreme Court to meet the requirements of Article III. Like Yorick, a fellow of infinite jest who bore young Hamlet a thousand times, tester standing should be dead (5).