Christmas is over with lumps of coal and sugar plums distributed in ways that often seem unrelated to who has been naughty or nice. Regular readers will see just how little has changed in the course of 2019 despite some important defense victories in the Sixth and Eight Circuits. With most ADA litigation centered in New York, California and Florida the serial litigation business will almost certainly continue to thrive in 2020.
ADA Website Litigation
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Mootness, FHA, FHA design/build litigation, FHA Emotional Support Animals Tags: ADA defense, ADA Stadium, ADA standing, ADA Website Litigation, FHA Defense, Olmstead
A hodgepodge, I just learned, is a not just a word for a confusing mixture, but also the name of a vegetable stew. The FHA and ADA decisions of the last few weeks may not be tasty, but they are varied. I’ve put the FHA case first because it involved an unforced error and illustrates why landlords of all sizes need to be aware of what the FHA permits and denies.
FHA disability claims – get it right the first time.
In Root v. Salazar, 2019 WL 4040405 (M.D. Fla. Aug. 27, 2019) made a critical mistake. Having in hand a legitimate non-discriminatory reason to refuse to rent he instead made an excuse that probably seemed more legitimate but wasn’t. The legitimate excuse was the tenant’s lack of steady income. The FHA does not require that landlords take financial risks to accommodate disabled tenants. The illegitimate excuse was that the duplex in question did not meet the FHA’s accessibility guidelines. A fundamental principle under the FHA, ADA and other similar disability laws is that the tenant gets to decide what he or she needs. It may seem helpful to tell a prospective tenant why they should rent elsewhere, but if the tenant is disabled or a member of a protected class that helpfulness will look like illegal discrimination. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Website Accessibility, Internet, Internet Accessibility Tags: Accessibility tools, ADA defense, ADA experts, ADA Website Litigation, Diaz v General Nutrition, Diaz v Lobel's
Two weeks ago I wrote about Diaz v. Lobels,* a case I think exemplifies some of the confusion concerning just what an accessible website should be. Today I want to take a harder look at the Court’s exclusion of testimony from the plaintiff’s expert to ask the question: Just what should an ADA expert testify about? The issue has come up in only three reported cases, each of which has its own take on the matter.
The exclusion of the plaintiff’s expert testimony in Diaz v. Lobels was based on two failings. The Court found the expert, Michael McCaffrey, failed to sufficiently describe his methodology and process, and failed to establish the methods were widely accepted or standard in the field. The Court did not reject the assumption underlying the report because the plaintiff and defendant stipulated that compliance with WCAG 2.0 or 2.1 would make the website accessible for ADA purposes and that non-compliance would make it inaccessible. Instead the Court focused on the “high level” description of the methods used by the team of individuals working for the expert, which the Court found insufficient when combined with a lack of testimony concerning the standards used. More
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA Internet, ADA Internet Web, Uncategorized Tags: ADA defense, ADA Website Litigation, James Herrera, Monterey Herald, vanity
Yes, I’m briefly tooting my own horn because James Herrera of the Monterey Herald interviewed and quoted me in his article “Making Business Websites ADA Compliant.” He did a good job of explaining the situation that businesses find themselves in, so the article is worth reading for reasons beyond searching for my name, which is of course the first thing I did.
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees Tags: ADA defense, ADA Website Litigation, FHA Defense, Oscar Rosales, Pacific Trial Group, Peter Strojnik, Scott Ferrell, Scott Johnson, unruh act
This Memorial Day we are once again firing up the grill with hundred dollar bills to celebrate how the ADA its current form encourages litigation that makes lawyers rich without any correspondening improvement in meaningful access for the disabled. The first case presents the unappetizing picture of a single claimed lack of access generating parallel state and federal proceedings as defendants and plaintiffs maneuver for a procedural advantage. The last explores the exploitation of California law by plaintiffs who can use internet accessibility claims to bring the whole world into their favorable local courts. In between we will see some courts pushing back, though only in the most egregious cases. More