Today’s Google news brought another batch of outraged articles about serial ADA plaintiffs and legislators looking for solutions to the ADA litigation epidemic. The serial filer was in the Wichita, Kansas area, and the legislators were in Colorado, but otherwise the stories were pretty much the same as the stories last week, and the week before, and the week before that. Business owners say they were surprised to find that they were not ADA compliant, and lawmakers say the law should require a pre-suit demand so businesses have a chance to fix their problems before they get sued. The plaintiff, or his lawyer, always points out that the ADA has been in effect for 25 years, so it shouldn’t really be news. More
ADA FHA Litigation General
By Richard Hunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Apartments, FHA, FHA Reasonable Accommodation, Reasonable accommodation Tags: City Vision, dialing for dollars, Fair Housing Advocates, HUD complaint, Patrick Coleman, Texas Workforce Commission
I’ve written before about the dialing for dollars phenomenon in Fair Housing Act claims (click here) and about how cheap standing facilitates litigation aimed more at profit than progress (click here). There is good news on both fronts from the Texas Workforce Commission, which recently dismissed several FHA complaints because the organization that filed them, a private corporation called Fair Housing Advocates, could not demonstrate it had standing. Fair Housing Advocates is operated by Patrick Coleman, one of the two owners of City Vision, a similar organization devoted to making money by means of HUD complaints. Citi Vision appears to have abandoned the dialing for dollars business earlier this year, probably because TWC started dismissing its complaints for lack of standing. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA FHA Litigation General, Restaurants, Retail, Shopping Centers Tags: ADA drive-by litigation, ADA serial litigation, frequent filers, Strojnik, The Economist
This is a bit of tooting our own horn. In an article published in the May 28 edition of The Economist, and available on-line at the following link (“Frequent Filers”) Richard is quoted concerning the serial litigation epidemic. This followed several hours of interviews with reporter Benjamin Sutherland in which Richard provided background information on the ADA and so-called “drive-by” litigation. You don’t have to wait for The Economist to publish another article, or wonder how much information was left out because of format restrictions. Just subscribe to our blog for frequent updates on the ADA and FHA.
As an aside, the Arizona attorney quoted in the article, Peter J. Strojnik, should not be confused with his son P. Kristofer Strojnik, (also sometimes referred to as Peter K. Strojnik), who was the subject of a May 13, 2016 ruling from the Central District of California. In Brooke v. Clay Andro Peterson, 2016 WL 2851440 (C.D.Cal. May 13, 2016) the District Judge dismissed three lawsuits filed by P. Kristofer Strojnik that were based solely on telephone calls to various hotels by the plaintiff. The reasoning will apply to many of P. Kristofer Strojnik’s cases, and should be studied by any lawyer representing clients sued by the plaintiff, Ms. Brooke, or by P. Kristofer Strojnik’s firm. For more detail, see tomorrow’s blog – “Dialing for Dollars Revisited.” You will find more information on P. Kristofer Strojnik at the State Bar of Arizona website: Phoenix Attorney Peter K. Strojnik Suspended
for Threatening Opposing Party with Public Shaming.
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA FHA Litigation General, Definition of disability, major life activity Tags: ADA disability, ada litigation, dyslexia, mental health disabilities, Mental Impairment, private litigants
In Winston Groom’s “Forrest Gump” a young man with a significant intellectual impairment manages to accomplish great things through a combination of luck, determination, and insistent loyalty to his friends and family. Was he disabled as that term is defined under the ADA? An April 11 decision from the Easter District of Pennsylvania reminds us how complex a disability determination can be. It also highlights a persistent question with intellectual and other mental impairments: If hard work and character allow someone to overcome their limitations, is that person really disabled? Bibber v. National Board of Osteopathic Medical Examiner, Inc., 2016 WL 1404157 (E.D. Penn. April 11, 2016). More
We’ve blogged more than once about the ongoing question of whether a current owner of a property built after the FHA guidelines became effective can be liable under the design/build provisions of the Fair Housing Act. (Click, here, and here). A March 31, 2016 decision from the United States District Court for the District of Maryland (Equal Rights Center v. Equity Residential, Case No. 1:06-cv-01060-CCB, Document 283) adds some important clarity to this issue, but not without raising other issues.
In Equal Rights Center the first issue the Court considered was whether various entities that were successors to the original owner and builder could be liable under the design/build provisions of the FHA. The Court looked at two theories; veil piercing and successor liability, to decide based on undisputed facts that some could and some couldn’t. Where there was liability the Court found that the predecessor was:
- merely an agency or instrumentality of the current owner, giving rise to veil piercing, and/or
- part of a continuous enterprise giving rise to successor liability
In every case the Court applied federal common law. As it applied the law, the effects on traditional development structures is dramatic:
First, the Court found that when the ownership of a property owning entity changed the entity had successor liability, apparently to itself. This analytical step is puzzling since the property owning entity did not change and would, under traditional standards, continue to be liable regardless of any changes in ownership.
Next, if the original property owner was a typical subsidiary or subsidiary of a subsidiary of the ultimate corporate owner the Court concluded that veil piercing was always appropriate. The Court explained this holding as follows:
It would be fundamentally unfair to limit liability to these entities which serve as nothing more than vehicles for holding Equity’s property assets. Further, it would frustrate the purpose of the FHA’s broad remedial scheme* to allow Equity to escape liability simply because it established separate subsidiaries to hold each of its properties.
The Court did not require any element of fraud or misuse of the corporate structure, both of which are the typical hallmarks of veil piercing. Instead it applied “no fault” veil piercing in which the subsidiary structure is simply disregarded for public policy reasons.
Moreover, the Court refused to consider the implications of the timing of control; that is, the Court looked at control of the property owning subsidiary not at the time of construction, but rather at the time Equity obtained complete control by buying out its development partner. Under these holdings the ultimate corporate owner of any traditional development subsidiary or partnership will always be liable for its subsidiary’s FHA violations. This denies developers any protection from the FHA through the use of typical development structures that suffice with respect to every other kind of liability.
The second important holding from the Court is that violations of the statute will be measured by a purely objective standard; that is, the FHA Design Manual or one of the other safe harbors in the statute. This is appropriate, the Court held, because:
requiring a plaintiff to make an ill-defined subjective showing of inaccessibility—that is, allowing a defendant to escape liability simply by showing that some disabled persons can access a property—cuts against the “broad remedial intent of Congress embodied in the [FHA]”
In keeping with this holding the Court rejected evidence from two experts that the property was in fact accessible, choosing a regulatory theory over actual facts. This holding means that the standards intended by Congress to be a safe harbor standard have been converted into a national building code for multi-family housing, which Congress certainly did not intend. In short, the FHA is not an anti-discrimination law; it is a building code that applies regardless of whether any disabled person is ever affected.**
Equal Rights Center v. Equity Residential was first filed in 2006, and it seems reasonable to conclude that the defendant is not simply going to give up after 10 years of litigation in the District Court. It therefore remains to be seen whether the 4th Circuit will agree with any of the District Court’s departures from traditional legal principles. One thing, however, is certain. There will be more litigation, and plaintiffs will not be deterred from suing the ultimate parent entities by the ownership structures created to insulate the ultimate owners from liability of all kinds.
*”broad remedial scheme” is, in general, a phrase used by courts just before they throw out the actual words of the statute in favor of enforcing the law the court believes Congress should have written.
**As recently as March 23, 2016 another Court found that disputes about actual accessibility despite deviations from the safe harbors created a fact issue: