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

ADA and FHA Quick Hits – Delayed World Cup Edition

July 28, 2018 By Richard Hunt in Uncategorized

Bravo les bleus as our friends from France say. Their convincing victory over Croatia to win the World Cup is not, unfortunately, matched by developments in the world of ADA and FHA litigation, which are as usual a mixed bag.

Remember the Hydra?

Fernando Gastelum, Pl., v. P. Heritage Inn of Chandler LLC, Def.., 2018 WL 3376964 (D. Ariz. July 11, 2018) reminds us that ADA plaintiffs, like the mythical Hydra, can be hard to stop. The Hydra originally had nine heads, but grew two new heads for every one that was cut off. Mr. Gastelum, who suffered a reversal recently when a federal judge dismissed eleven cases as once* survived a Motion to Dismiss that argued, in essence, his eleven earlier defeats should be sufficient to defeat his new lawsuit. The Court disagreed, noting that a lawsuit against a different defendant and different hotel was subject to the same rules concerning the presumed truth of the complaint no matter how many times similar complaints had been dismissed. Another reminder that only Congress can solve the serial litigation problem. More

Haynes v Hooters – hard lessons about ADA website litigation

July 8, 2018 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Web Access, Internet, Internet Accessibility Tags: ADA consent decree, ADA internet litigation, ADA litigation defense, ADA Website Litigation, Haynes v Hooters, WCAG 2.0

This is not the owl of Athens, a symbol of wisdom associated with the goddess Athena. Nonetheless, there is some wisdom to be gained by taking a look at Haynes v. Hooters of Am., LLC, 17-13170, 2018 WL 3030840 (11th Cir. June 19, 2018). The case has already been the subject of many articles in the pay-to-play legal press and an excellent blog by William Goren.* The main lesson to be learned from Haynes v. Hooters is one that we’ve known a long time – a private settlement agreement will not moot a new claim by a new plaintiff. Only remediation will do that. There is, however, a deeper and more disturbing message. In website accessibility claims meaningful claims of mootness may well be impossible to achieve.

To understand why we start with the point of the mootness defense. Mootness as an abstract legal concept simply means that there is no case or controversy for the judge to decide because there is no meaningful relief that the plaintiff can be granted. The mootness defense failed in Haynes because the earlier settlement on which the defense was based had an expiration date and because even before it expired a new plaintiff could not enforce it. Thus the new plaintiff could be awarded meaningful relief in the form of an injunction requiring Hooters to do what it promised in the earlier settlement. Because that relief was meaningful the case was not moot. QED as the logicians say. More

Pit Bulls and disability discrimination – the hard problem of FHA, ADA and ACAA policy

June 28, 2018 By Richard Hunt in Accessibility Litigation Trends, ADA service animals, Airlines, Animals, FHA Emotional Support Animals Tags: ADA defense, Air Carrier Access Act, Delta Airlines, Emotional Support Dogs, Pit Bulls, service dogs

Delta’s recent announcement that it was banning “pit bull type” dogs from its flights* has focused public attention on a long-standing problem in disability law; the inherent conflict between the need for easy to apply policies concerning service and emotional support animals and the prohibition in the law against basing decisions on stereotypes. You can ban any particular pit bull if there is good reason to believe it is dangerous, but you can’t ban all pit bulls just because it is a dangerous breed. More

Effective defense of ADA website lawsuits – is there such a thing?

June 23, 2018 By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Mootness, ADA Web Access, Internet Accessibility Tags: Accessibility Litigation, ADA Congress, ADA Defense Lawyer, ADA Website Litigation, website accessibility

A client of mine recently got a long letter from a defense firm informing it that it had been sued under the ADA and extolling its own expertise in defending website accessibility lawsuits. The letter laid out in some detail the defenses they were prepared to assert in a motion to dismiss, with a description of a possible standing argument, an the assertion that the ADA did not cover websites, and a due process claim based on the lack of regulations. More