It’s been a year and 43 blogs since last President’s Day and like Yosemite falls, the broad picture of ADA and FHA litigation in America remains about the same despite the passage of time. A huge majority of the cases filed are from serial litigants operating as part of a lawyer sponsored litigation machine whose goals have nothing to do with accessibility and everything to do with making money. Congressional action aimed at serial litigation was misguided and is now doomed. Individual judges are taking important stances against abusive litigation, but the overall landscape remains about the same. More
ADA Mootness
Quick Hits – First pre-Christmas Edition
If you’re not all in, you need to get out quickly. That seems to be a theme that runs through many of this week’s roundup of recent decisions. As we will see several times below, ADA lawsuits generally require a decision to surrender or fight to the death at the beginning of the case. Anything usually results in money wasted on attorneys’ fees. That said, defendants continue to succeed in some cases, justifying a close look at the particular court and its history before making a decision on how to proceed. More
Quick Hits – Recent ADA and FHA Cases
We aren’t quite to Halloween, but the candy is certainly crowding the shelves of local stores, whose owners might want to take a look at Ryan v. Kohls, Inc., discussed below. Beyond that we have the usual roundup of default judgment cases, website accessibility standing cases, and of course some ordinary “drive-by” cases involving physical accessibility mixed in with cases that deserve special attention because they could have a broad impact on ADA and FHA litigation. Here they are. More
ADA and FHA Quick Hits – Dog Days of Summer Edition
Congress and the President are taking a break, but the ADA and FHA cases keep coming. It has been an unusual few weeks because we have two circuit court opinions to discuss, though neither breaks much new ground. A third circuit court decision – Mielo v. Steak and Shake Operations – will get a blog of its own.
Temporary obstructions under the ADA
One of the circuit court decisions is Hillesheim v. Myron’s Cards and Gifts, Inc., 17-1408, 2018 WL 3602372 (8th Cir. July 27, 2018), which deals with problem of aisles blocked by “temporary” obstructions. We’ve blogged about this before* and the law really hasn’t changed. DOJ’s regulations acknowledge that aisles that are required to be 36″ wide will from time to time be blocked when shelves are being re-stocked or perhaps repaired. This doesn’t excuse the case in which the aisles are always blocked with something temporary. The line between temporary obstructions and permanent clutter can be hard to draw, and early in a lawsuit is not when hard lines are drawn. In this case the District Court dismissed a claim based on clutter in the aisles, applying an absolute rule that temporary obstructions could not violate the ADA. The Eighth Circuit disagreed, finding that the issue required factual development to decide whether the temporary obstructions were really temporary. This put it in line with the earlier cases cited in our past blogs. More
Quick Hits for the ADA and FHA – World Cup edition
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