Quick Hits for the ADA and FHA – World Cup edition

June 18, 2018 By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Web Access, FHA, FHA Emotional Support Animals, FHA Reasonable Accommodation, Internet, Internet Accessibility, Reasonable accommodation, Rehabilitation Act Tags: ADA defense, ADA drive-by litigation, ADA Mootness, ADA website accessibility, FHA Defense, World Cup

Those of you who are not binge watching the World Cup matches will be interested in what has been going on in the world of disability rights during the last few weeks. Here is our roundup of recent ADA and FHA decisions, some of which are notable.

Indemnity and contribution for Fair Housing Act claims.

Shaw v. Cherokee Meadows, L.P. 2018 WL 2967708 (N.D.Okla. June 12, 2018) is another in a series of cases concerning indemnity for design/build defects under the FHA that gets it completely wrong and winds up with an absurd result. The decision has little in the way of discussion because it relies on the analysis from an earlier case, Equal Rights Center v. Niles Bolton Associates, 602 F.3d 597 (4th Cir. 2010). We’ve blogged on this issue before* but the arguments are worth repeating. Equal Rights Center based its analysis on earlier cases concerning race and similar kinds of intentional discrimination found that public policy precluded indemnity and contribution for FHA discrimination claims. In cases of intentional discrimination or respondeat superior it makes sense to forbid indemnity because you want to discourage bad intent and encourage proper supervision of employees. It doesn’t make any sense at all in design/build cases under Section 3104(f)(3)(C) because this is a “no fault” provision that can be violated without any intent to discriminate. Moreover, the owner of an apartment complex has no choice but to rely on 3rd party experts – architects and contractors – to properly design and build the apartments. When architects and contractors know that they are immune from liability for their failures they have no incentive to design and build according to FHA standards, and as a practical matter they are always immune because the first target in any lawsuit will be the owner. The Ninth Circuit has rejected Equal Rights Center for good reason, and if Shaw v. Cherokee Meadows is appealed the Tenth Circuit should reject it as well. More

Quick Hits – the ADA and FHA Memorial Day edition

May 30, 2018 By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet Web, ADA Mootness, FHA, First Fix Then Fight Tags: ADA defense, ADA drive-by litigation, ADA Mootness, ADA pleading, ADA serial litigation, FHA Defense

The last couple of weeks brought a variety of decisions, most falling in to one of the familiar patterns for ADA and FHA litigation, but one or two presenting novel defenses and interesting judicial reactions.

A very interesting question of standing.

Johnson v. Castro et al, 2:16-CV-00658-MCE-DB, 2018 WL 2329249, at *3 (E.D. Cal. May 23, 2018) makes a very interesting point about standing, one related to some of the standing questions raised by other recent cases dealing with the plaintiff’s ability to take advantage of the goods and services of a public accommodation.** In Johnson the plaintiff suffered from cerebral palsy and made various claims concerning entrances and access to the restrooms. In response to the plaintiff’s motion for summary judgment the defendants provided evidence that the restroom issues had been remediated and challenging the existence of a problem with the doors. They added that the plaintiff’s disability was so severe he could not eat or drink without assistance from the restaurant owner, who cut up his food and fed him at the table. The owners argued that the plaintiff was incapable of taking advantage of the restaurant without help they were not obligated to provide and therefore could not prove any accessibility had caused him harm. The Court found this at least raised an issue of fact:

“Consequently, Defendants raise a question of fact as to whether Plaintiff legitimately could have eaten at the Restaurant without assistance going well beyond any accessibility requirements mandated by either the ADA. . .”

“Just the facts, m’am” – A bad week for ADA serial litigants

October 5, 2016 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Web Access Tags: ADA drive-by litigation, ADA serial litigation, ADA standing, Ron Deutsch, Travis County

This is a follow up to last week’s blog, “Consolidate and Eliminate.” A magistrate judge in the Western District of Texas seems to be just that in a series of cases (more than 300) filed by Jon Deutsch in Austin, Texas. Deutsch v. Annis Enterprises, Inc., 2016 WL 5317431 (W.D. Tex. Sept. 21, 2016). I won’t provide a detailed analysis of the opinion, which should be read by every lawyer representing defendants in serial litigant cases,* but two points stand out. First, the Court conducted an evidentiary hearing, thus moving past the pleading stage, at which standing depends only on the plaintiff’s willingness to lie. Putting the plaintiff to his proof of standing early in the case is the single most important reason to consolidate and eliminate because it allows the critical fact issue to be resolved early, before the costs of litigation become absurd. More

Consolidate and (maybe) eliminate – a new strategy against ADA serial litigants

September 26, 2016 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Litigation Procedure Tags: ADA drive-by litigation, ada litigation, Arizona Attorney General, serial litigation

Two recent cases, one handled by the authors of this blog, illustrate how a strategy of consolidation may make it possible to economically get rid of serial ADA filings where standing is an issue.

The intervention of the Arizona Attorney General in more than a thousand cases filed under Arizona’s ADA equivalent has been big news for some time in the ADA litigation world. (see our blog, Arizona Attorney General Intervenes to stop abusive ADA litigation) Now, according to the latest news stories (click here), the Attorney General will seek to have the entire group of cases dismissed on standing grounds. The result is still uncertain, but reports that the plaintiff never visited most of the locations sued seem to point toward a decision favorable to the State.** More

Last week’s news – The ADA lesson business never seems to learn.

September 12, 2016 By Richard Hunt in ADA - drive-by litigation, ADA - serial litigation, ADA FHA Litigation General, Restaurants, Retail, Shopping Centers Tags: "drive-by", ADA drive-by litigation, DIY, DIY ADA Survey, Do It Yourself

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