Contribution, Indemnity and Disability – Does the FHA make sense?

July 29, 2018 By Richard Hunt in ADA FHA Litigation General, ADA indemnity contribution, FHA indemnity contribution, Residential Development Tags: AECOM, Cherokee Meadows, Equal Rights Center, FHA contribution, FHA enforcement, FHA Indemnity, non-delegable duty

Last week’s decision in Shaw v. Cherokee Meadows, LP, 17-CV-610-GKF-JFJ, 2018 WL 3474082 (N.D. Okla. July 19, 2018) provides a good opportunity to revisit contribution and indemnity claims arising out failures to meet the design/build requirements in Section 3604(f)(3)(C) of the Fair Housing Act.* The question remains the same as always: does the law make any sense at all.**

The judge who decided Cherokee Meadows was faced with a split between two Circuit Courts of Appeal and no precedent from the Tenth Circuit, which Oklahoma is a part of. The leading case on contribution and indemnity in design/build cases was Equal Rights Center v. Niles Bolton Associates, 602 F.3d 597, 602 (4th Cir. 2010). In that case the Fourth Circuit held that the Fair Housing Act pre-empted any state law that might allow an owner to put off all or even part of the liability for design/build failures on a third party. The Court found that the owner had a “non-delegable duty”† to follow the law and that allowing any shifting of liability would encourage owners to evade that duty. Equal Rights Center punishes an owner who may be innocent while excusing those who are in fact guilty because, it appears, the Fourth Circuit views the purpose of the FHA as primarily punitive.‡ More

Quick Hits – April is the cruelest month edition

May 4, 2018 By Richard Hunt in ADA, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA FHA Litigation General, ADA Internet, ADA Internet Web, ADA Litigation Procedure, FHA, Internet Accessibility Tags: ADA standing, Fair Housing Act, Group Homes, internet accessibility, Quick Hits, World Wide Web

April is the cruellest month according to T.S. Eliot†, but it was really just busy for my practice and the courts. Here’s part one of our update on important decisions in the ADA and FHA world. We expect to be caught up after a long weekend of blogging and a couple of additional installments. More

Quick Hits – Vernal Equinox edition.

March 24, 2018 By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA FHA Litigation General

Along with the crocus and narcissus we’ve got a bunch of new ADA and FHA cases, each with some interest for those in business concerned with disability law.

Website Accessibility

In Gathers v. 1-800-Flowers.com, Inc., 17-CV-10273-IT, 2018 WL 839381, at *1 (D. Mass. Feb. 12, 2018) the defendant raised just about as many legal defenses as might be available in a motion to dismiss, but they all failed. Behind the failure is the difficulty present in all ADA cases; that is, the plaintiff’s allegations are really all that matters at the beginning of the case. In many cases the most cost-effective strategy is to remediate as needed to meet the plaintiff’s claims and then file a Motion for Summary Judgment. First Fix, Then Fight is our motto and the best game plan in most ADA cases. More

Obvious but often overlooked – it takes more than an impairment to be disabled under the ADA (or FHA)

March 21, 2018 By Richard Hunt in Accessibility Litigation Trends, ADA, ADA FHA General, ADA FHA Litigation General, ADA regulations, Definition of disability, FHA definition of handicap, Uncategorized Tags: ADA, Alcoholism, disability, FHA, Major life activity

The March 13 decision in Johnson v. NYS Office of Alcoholism and Substance Abuse, 1:16-cv-9769 (S.D.N.Y. March 13, 2018) shouldn’t be particularly interesting. The plaintiff claimed to be disabled because he was a recovering alcoholic. The Court dismissed the complaint because the plaintiff did not allege that his alcoholism interfered with a major life activity, explaining:

Although alcoholism is considered an ” impairment” under the ADA and the Rehabilitation Act , “more than a physical or mental impairment is required ” to satisfy the definition of “disability. ” Because ” [m]ere status as an alcohol or substance abuser does not necessarily imply a limitation under the anti-discrimination statutes, a plaintiff who alleges that he is disabled “must demonstrate not only that he . . . was actually addicted to drugs or alcohol in the past, but also that this addiction substantially limits one or more of his . . . major life activities. ” (quoting an earlier case). More

Dialing for Dollars – Ninth Circuit encourages abusive ADA litigation

September 11, 2017 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Standing, ADA FHA Litigation General, ADA Policies, Hospitality, Hotels Tags: ADA, ada litigation, CREEC, dialing for dollars, drive-by lawsuits, Hospitality Partners, Ninth Circuit, serial ADA litigation

In Civil Rights Education and Enforcement Center v. Hospitality Properties Trust, 2017 WL 3401319 (9th Circuit, August 9, 2017) the Ninth Circuit decided once again to make abusive serial ADA litigation as easy as possible, ignoring both the constitutional limits on standing and the way cheap standing† has created a crisis in ADA litigation that Congress is only now beginning to fix.* The plaintiffs in Hospitality Properties Trust never visited the hotels they sued, relying instead on telephone calls in which they were supposedly told the defendant hotels lacked accessible free shuttle services. Beyond alleging the existence of these calls they included boilerplate allegations that they would have stayed at the hotel if there had been shuttle service and that they would visit in the future but were deterred by the ADA violation. This, they claimed, created an injury sufficient for Article III standing. More