August is (in Texas at least) the month of afternoon thunderstorms. It’s a good metaphor for running a business subject to the ADA or FHA. Everything’s sunny and warm one minute then suddenly the wind is blowing and you are soaking wet. But the plants need the rain, so as usual there’s good and bad in ADA and FHA developments.
Unruh Act and the Internet – half a loaf is better than none.
You can read a detailed analysis of Matinez v. Cot’n Wash in Bill Goren’s blog “Gateway is Everything in California” so I’ll just hit the highlights. There is an ongoing controversy about whether the Americans with Disabilities Act applies to the websites of businesses with no physical facility open to the public. Some courts say yes and some say no. The Ninth Circuit, which covers federal courts in California, says “no.” As result the most prolific serial ADA filers, including the Pacific Trial Group and Apex Trial Law¹ turned in recent years to California’s Unruh Act and the California state courts, arguing that the Unruh Act does cover online only businesses. At least some lower California courts have agreed, but in Martinez v. Cot’n Wash one California Appeals court (there are six in all) said no, holding that the Unruh Act does not apply to the websites of online only businesses. This is big news coming from a state where thousands of serial ADA lawsuits and even more demand letters are sent every year. It isn’t the end of the road. While the decision is binding on lower courts, it isn’t binding on other California appellate courts or on the California Supreme Court, to which Marinez v. Cot’n Wash is likely headed. It also doesn’t apply to websites associated with physical facilities open to the public so it is not likely to lead to an immediate end of demand letters and lawsuits. California’s ADA litigation industry relies more on the threat of costly litigation than on the reality of winning and losing so until making a threat is sanctionable (which will require that the California Supreme Court speak) they probably won’t slow down. It likely though that the price of settlement will go down as it already has in face of other less dramatic losses in the last couple of years.
HUD’s press releases are interesting reading, not because they help you understand the law, but because they help you understand what HUD thinks the law is, and because they are often object lessons in mistakes no housing provider should make. This is a round up of press releases in the last four or five months, each of which has its own lesson to teach. I’ve also included a discussion of HUD’s guidance on animal accommodations at the end based on Bill Goren’s recent blog on the subject.
The Jurassic Park series of movies are all about unintended consequences. You can say the same thing about the Facebook advertising tools that were the subject of lawsuits against Meta. On June 21 the Department of Justice announced a settlement of claims against Meta related to Facebook’s advertising algorithms.¹ It is the second such settlement, the first having been obtained in a lawsuit filed by the National Fair Housing Alliance and other groups.² Both settlements are interesting reading for those who specialize in these subjects, but it is worth asking whether they will have any impact on other players in the real estate market. You don’t have to be a Meta, a Spectre, a T.H.R.U.S.H. or a Kaos(4) to for these settlements to have an effect on how you do business as a landlord, management company or real estate agent or broker. That’s because these settlements are aimed at new technologies, but rely on old fashioned legal principles that apply to all aspects of the housing market and to the unintended consequences of any kind of targeted marketing program.