Website developers and even remediation experts have reason to be concerned about a recent decision from California. In Bashin v. Conduent, Inc., Case No. RG18888208 in the Superior Court for Alemeda County, Judge Brad Seligman refused to dismiss ADA claims against the developer of a website for the State of California Department of Public Works and Recreation. Each part of the decision identifies a real risk that every website developer needs to be aware of. More
By Richard Hunt in ADA, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet Web, ADA Mootness, FHA, Uncategorized Tags: ADA defense, FHA Defense, Gonzalez v Chinatown Hotel, Hillesheim, Scott Johnson
The Rite of Spring in the world of ADA and FHA litigation is a lot more like Stravinsky’s ballet – which terminates in the death of the lead character – than the bunnies and ducks that we usually associate with April. But whatever your spring festival, here’s the latest in the case law.
Corona Virus and Title III of the ADA
A great deal of attention has been paid to whether the disease Covid-19 constitutes a disability under the FHA and ADA. Crochet v. California College of the Arts, et al..,2020 WL 1815741 (N.D. Cal. Apr. 9, 2020) looks at a different aspect of the pandemic – whether injunctive relief matters when a physical place of business is only operating remotely. The plaintiff sought a preliminary injunction under the FHA to stop what she considered excessive rent charges. The court refused on the simple principle that money damages was an adequate remedy. This section of the opinion is worth reading because of its discussion of the principle that ordinary equitable limits on injunctive relief do not apply to the FHA. The plaintiff also wanted an injunction requiring the defendant to offer her the same level of shuttle bus service as other students. This the court refused because with the current California shut-in order there were no shuttle busses running and they were unlikely to start running before the plaintiff graduated. This raises the interesting question of how courts should deal with Title III ADA cases filed against businesses that are now shut down or offering only delivery service. Most cases will settle, but those that move forward will require deeper thinking about standing and available relief when the future is so uncertain. More
By Richard Hunt in Accessibility Litigation Trends, FHA, FHA definition of handicap, FHA Emotional Support Animals, FHA Guidance, FHA Training Tags: assistance animals, Emotional Support Animals, FHA Defense, HUD guidance, service animals
On April 14 at 2:00 p.m. CST I’ll be presenting a one hour webinar on HUD’s January 2020 guidance on reasonable accommodations for animals. I’ll cover what HUD got right and wrong in this guidance and explain what housing providers need to know about the reasonable accommodation process in light of the guidance. Written materials include modified decision tree for accommodation requests.
The course is sponsored by the University of Texas School of Law and is approved for CLE credit. If you are interested in registering, this link will take you to the registration page:
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet, ADA Internet Web, ADA Mootness, ADA Web Access, Title II Tags: ADA arbitration, ADA defense, Browsewrap, Clickwrap, FHA Defense, FHA Municipal Zoning, Hamer v City of Trinidad, Stadium Lines of Sight, Strojnik, Uber Technologies
“Beware the Ides of March” was what the prophet warned Caesar according to Shakespeare. It didn’t go well for him, but the latest batch of ADA and FHA decisions are something of a mixed bag. Before getting to that news though I want to make sure everyone who wants one has a copy of my white paper on HUD’s new guidance on service and assistance animals. If you are interested just email me. You will be added as a subscriber to this blog and I’ll email a copy of the paper. But now on to the news.
Standing and intent to return – the Strojnik factor
It is elementary that an ADA plaintiff must establish some likelihood of a future injury in order to have standing. Strojnik v. 1530 Main LP, 2020 WL 981031 (N.D. Tex. Feb. 28, 2020) is one of a small number of Texas cases addressing this issue. Judge Brown’s analysis is worth reading because it looks at the 5th Circuit authorities and explains why the “deterrent effect” doctrine is not sufficient to give a plaintiff standing in the absence of any intent to return. The “deterrent effect” doctrine is, in fact, a mis-named and mis-used substitute for intent to return. A plaintiff who never intended to go back cannot have been deterred from going back by some condition at the defendants’ place of business. Sloppy language and slopping thinking in the Nnth Circuit are the origin and support of the ADA litigation industry. More
By Richard Hunt in Accessibility Litigation Trends, FHA, FHA design/build litigation, Statute of Limitations Tags: ADA defense, Fair Housing Justice Center, FHA Defense, FHA statute of limitations, Havens Realty Corp. Design/build litigation, JDS Development, tester standing
I wrote back in 2014 about the problem of endless FHA liability for design/build defects* and have covered other statute of limitations cases as well** but a recent decision from the Southern District of New York is worth noting for both its summary of existing law and the fundamental error it embraces.
In Fair Hous. J. Ctr., Inc. v. JDS Dev. LLC, 2020 WL 1126556 (S.D.N.Y. Mar. 9, 2020) the plaintiff, an advocacy group, dispatched testers to several of the defendant’s developments where they discovered various failures to meet the design/build requirements in 42 U.S.C. §3604(f)(3)(C). The defendant moved to dismiss the plaintiff’s lawsuit on the grounds that the statute of limitations on design/build claims had run. The court disagreed. More