2012 brought with it the final effective date for the 2010 Accessibility Standards and with that new possibilities for claims under the ADA and FHA. The most significant change in the standards from a litigation standpoint was the imposition of long pending requirements for ATM’s, which brought a wave of new cases around the nation. There were important trends for more traditional claims that will continue in 2013.
There will be an increased emphasis by plaintiffs on claims based on alleged policies regarding regarding FHA and ADA compliance as opposed to incidents of non-compliance. Once of the basic economic problems for ADA and FHA plaintiffs is that the barriers to access encountered by any individual plaintiff may be modest, and once such modest barriers are remediated the case may become moot. Unless there is a substantial controversy the fees awarded even by a generous court may be less than what is needed to justify the lawsuit in the first place. Alleging a policy of discrimination allows an individual plaintiff to assert claims based on barriers to access he or she does not know exist and may never encounter. The case law in this area is mixed at best, and plaintiffs can be expected to expand the availability of policy and practice claims in the accessibility context.
There will also be an increased emphasis on class actions. Class actions present additional expense for the plaintiff’s counsel, and can inhibit the ability to settle what may be nothing but a strike suit in the first place. At the same time, class action allegations can help overcome the standing problems faced by an individual plaintiff, especially when combined with an allegation that known barriers to access are really just the result of a policy of discrimination. Here again the case law is mixed, and plaintiffs will want to expand the possible claims available to them.
More and more FHA cases will attempt to get around the limited liability of subsequent owners by alleging design/build liability based on a combination or conspiracy theory. Plaintiffs and their attorneys know that if such a case survives a motion to dismiss the costs of litigation are likely to drive a settlement, especially if there is insurance to cover all or part of the remediation cost.
Finally, it is very likely that the trend toward more lawsuits under the ADA and FHA will continue, especially in those states whose laws provide significant statutory damages. An aging and overweight population means that more an more Americans suffer from mobility disabilities, and a majority of ADA and FHA cases are filed by plaintiffs with that kind of disability. In addition, the investment in an FHA or ADA case for contingent fee counsel is much smaller on an out of pocket basis than for personal injury cases, and because fees are not limited by an amount in controversy they are much more attractive than other kinds of consumer litigation. In a difficult legal economy ADA and FHA accessibility litigation will continue to attract new plaintiffs’ attorneys.
In the face of these likely developments the strategy for property owners and operators remains the same. Find and fix problems before a lawsuit is filed, and if a demand is received or a lawsuit filed move as quickly as possible to fix any real problems that may exist. When a fight is unavoidable, questions of standing and mootness must be approached with care because the case law varies so widely from circuit to circuit and even from district to district. As is always the case, experience in both settling and litigating accessibility cases will be important to developing the best strategy.