“Don’t fire till you see the whites of their eyes” was William Prescott’s famous advice to the colonial soldiers defending Bunker Hill, and that kind of patience can be important to ADA defendants as well. Property owners and operators sued under the Americans with Disabilities Act always face a strategic choice: Should they simply remediate and settle, or should they attack the plaintiff’s standing to bring the lawsuit, which is frequently dubious at best. In most cases remediation and settlement is the best choice because the cost of defending the lawsuit and winning is more than the cost of remediation. Sometimes, though, a plaintiff just won’t settle. He or she may insist on work that the ADA doesn’t require or attorneys’ fees that are too high for the settlement to be reasonable. When that happens, and a legal battle is inevitable, choosing the right strategy is the key to minimizing expense while achieving a good outcome. A California case, Feezor v Patterson, 896 F.Supp.2d 895 (E.D.Cal. 2012) shows how patience worked to the defendant’s advantage and lead to a complete win without unnecessary expense. More
A couple of recent cases caught my eye because they serve as reminders of the persistence of certain strategic considerations in ADA defense. The first, Taylor v. Wing It Two, Inc., 2013 WL 3778315 (S.D. Fla. 2013) demonstrates the perils of a settlement that isn’t followed by complete remediation. The defendant had settled a previous ADA lawsuit but had not, it appears, actually remediated every ADA violation. The Court rejected the argument that this settlement bound the new and different plaintiff in part because the new plaintiff sued for violations that were not part of the earlier settlement. A settlement without full remediation is a flimsy shield against later lawsuits. More
Since 2010 the Department of Justice has been in the process of creating rules for web access under the ADA. No rules have been proposed, and this month the DOJ announced that it was splitting the proposed rule making into two parts and delaying the issuance of a notice of proposed rule making for both. The original proposed rules were to cover both Title II entities (cities other municipalities) and Title III entities (private businesses operating as places of public accommodation. The Title II rules will now proceed as a separate process with an earlier proposed date. More
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Apartments, Condominiums, FHA, Multi-Family Tags: Apartments, assistance animals, Condominiums, FHA Litigation, Pets, service animals, therapy animals
On July 1 the Department of Justice announced the filing of another lawsuit challenging what it calls discrimination based on the refusal to allow a therapy animal without a pet deposit. U.S. v Barber, 3:13-05539 (W.D. Wash). Coming on the heels of HUD’s April 25 “Notice Concerning Service Animals and Assistance Animal” the lawsuit is another reminder that this particular FHA violation is of special interest to the government regulatory agencies. It also suggests that apartment owners and managers need to tread carefully and think clearly about how they approach requests for assistance animals. After all, there is no animal more dangerous than a lawyer with a plausible claim. More
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Condominiums, FHA, Multi-Family, Residential Development Tags: Apartments, architects, Condominiums, contractors, FHA Litigation
On April 30, 2013 HUD and the Department of Justice issued a “Joint Statement” concerning FHA issues. It includes some straightforward tips about compliance with the FHA, but also includes some examples of how these agencies pick and choose among statutes and regulations in ways that might be hard to predict.
The first example is found in item 59. Both HUD and DOJ reject the 9th Circuit’s understanding of the statute of limitations in FHA cases although it is the highest court authority on the issue. In Garcia v. Brockway, 526 F.3d 456 (9th Cir. 2008) the Ninth Circuit held that design/build claims under the FHA accrued for limitations purposes when the project was completed. This result can be avoided only by alleging a continuing practice of discrimination (see cases cited in National Fair Housing Alliance, Inc. v. HHHunt Corp., 2013 WL 335877 (W.D.Va. 2013)). Despite this, HUD flatly states that it will accept complaints based on its own interpretation of the law. More