Serial litigators file lots of cases and that means lots of decisions, sometimes coming in batches. I’ve omitted a few decisions that say nothing more than the cases I have reviewed just to keep this blog manageable. If there is a theme, it is simply that despite very clear trends toward limiting serial litigation by paying more attention to standing, the outcome of any given case depends very much on the judge because there is still relatively little Circuit court guidance on some issues. Like Delacroix’s inspirational painting of Liberty Leading the People, celebrations of freedom from abusive ADA and FHA litigation may be premature. Before making any strategic decision you need to research the specific decisions of the judge who will hear your case because the ancien régime isn’t gone yet. More
FHA Defense
Quick Hits – Memorial Day Edition
By Richard Hunt in Accessibility Litigation Trends, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet, ADA Policies, ADA Public Accommodation, FHA, FHA Emotional Support Animals, FHA Regulation, Internet Accessibility, Public Facilities Tags: ADA defense, Deborah Laufer, FHA Defense, HOA, hotel websites, supplemental jurisdiction, website accessibility
Once again – as in past Memorial Day editions – I’m firing up the grill with hundred dollar bills in honor of the money wasted on lawyers, who are the only ones who really benefit from most ADA and FHA litigation. There are, however, some cases dealing addressing important substantive issues, and few in which Courts seem ready to turn the ADA and FHA into laws to help people instead of laws to make lawyers rich. More
Tester standing under the ADA – Getting it wrong, getting it right, and an interesting but irrelevant analysis.
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Internet Web, FHA, Hotels Tags: ADA defense, ADA standing, ADA Title II, ADA Title III, Duncan, FHA Defense, FHA standing, Laufer, Laufer v Mann, Newsome, Sierra
Three cases in the last thirty days look at ADA standing and reach different conclusions about what the Constitution and the ADA require. For victims of serial litigation and for courts interested in the coherent application of the text of the ADA and similar statutes these are crucial cases.² More
Same old wine in a brand new bottle – Pursuit of Justice, Inc. and the FHA
By Richard Hunt in ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, Internet Accessibility Tags: ADA defense, Advocacy for Justice, FHA Defense, J. Kevin Benjamin, Jerome Ramsaran, Legal Justice Advocates, Portell Law Group, Pursuit of Respect
I had forgotten that this classic song was from Loggins & Messina until I looked it up after getting an old demand letter packaged by a new firm. I have blogged before about Legal Justice Advocates, a front for a group of attorneys who sent hundreds of demand letters making unsustainable claims about website accessibility under the Fair Housing Act.¹ Their business was taken over by the Portell Law Group² when the original members of LJA dropped out of sight and one of them, Ilya Torchinsky, lost his license to practice. Now another member of the group, Jerome Ramsaran, has incorporated a new supposed disability rights group, Pursuit of Respect, Inc., which is pursuing the old business of making demands on website owners in different real estate related businesses. I know this because I was recently provided a demand letter sent by a lawyer in Chicago who also practices in Florida, the original home of Legal Justice Advocates. J. Kevin Benjamin is the lawyer sending demands on behalf of Pursuit of Respect, Inc. Unlike the claims from Legal Justice Advocates and the Portell Law Group Benjamin’s claims include ADA allegations, and unlike the LJA and Portell Claims the letters from Benjamin give the recipient fourteen days to correct the supposed website violations before there is a threat of a money demand. Of course the demands do not include any details about the supposed problems, and fourteen days is an impossible period for website remediation under the best circumstances. I expect the soft touch is intended to get an equally soft response that lets Benjamin solicit some kind of payment, and once the fourteen days are up there will probably be a stronger money demand. More
Quick Hits – April Fools Edition
By Richard Hunt in ADA, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Mootness, ADA Web Access, FHA, FHA Reasonable Accommodation, Hotels, Internet Accessibility, Landlord-tenant, Policies and Procedures FHA ADA Tags: ADA and Uber, ADA defense, ADA hotel litigation, ADA tester standing, ADA vexatious litigation, ADA Website Litigation, ASL interpreters, FHA Defense, FHA disability discrimination, Unruh Act supplemental jurisdiction
If foolishness were limited to one day a year this blog would be well overdue, but a glance at the news – legal, political or other, shows that every day in April can be April fools day, so I make no apologies for the delay in getting this out.
The difference between accommodation and modification under the ADA and FHA
Any discussion of S.W. Fair Hous. Council v. WG Chandler Villas SH LLC, 2021 WL 1087200 (D. Ariz. Mar. 22, 2021) must begin with a vocabulary note. The thing called “modification” under the ADA is called “accommodation” under the FHA and the thing called “modification” under the FHA doesn’t really exist under Title III of the ADA. The vocabulary matters because under the FHA a “modification” is a change to a physical feature that the tenant must pay for while an “accommodation” is a change in policy that the landlord must pay for on the theory that the costs will usually be nominal. In WG Chandler Villas the plaintiff, a fair housing organization that was testing local apartment communities for their responsiveness to the needs of the deaf, asserted that installation of a flashing doorbell was an accommodation rather than a modification, thus making the cost the landlord’s responsibility. The Court held that how to characterize such a request depended on what kinds of services the landlord already provided:
The Court finds that a flashing doorbell is a reasonable accommodation under the ADA—not merely a modification—in the context of Defendant’s housing facility, because one of the services that Defendant provides residents is safety checks.
Those safety checks included ringing the doorbell to see if the resident responded. Since deaf residents would not benefit from that safety check if they didn’t know the doorbell was being rung the addition of the flashing doorbell was better characterized as a change in policy about safety checks rather than a physical modification in the form of a new doorbell. This reasoning could apply to an array of services that any apartment complex might provide. If reserved parking is a service, for example, then a reserved accessible parking space would be an accommodation despite the physical changes (including using up an entire extra parking space) and their cost.² More