Like most of you I’ve been working from home for the last couple of months, meaning primarily that my dogs are getting a lot of exercise. There has been no sign of any slowdown in the ADA and FHA litigation business, so there is plenty to cover in this Quick Hits edition.
Accessibility Litigation Trends
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 Internet, ADA Internet Web, ADA Web Access, ADA Website Accessibility Tags: ADA defense, ADA Internet, website accessibility, Website litigation, website overlays, Website widgets
This is going to be an unusual blog because most of it will be in a footnote of sorts. The legal part of the blog is easy. If your business wants to avoid getting sued under the ADA because of an inaccessible website an accessibility overlay or widget isn’t going to help you. I can say this with some certainty because in the last two weeks alone five lawsuits have been filed against businesses that use an accessibility widget or overlay on their websites.* I also know why this is the case. The law firms who file website accessibility lawsuits and their pet clients start the process of finding a target using automated tools that scan for compliance with the technical requirements of the Web Content Accessibility Guidelines 2.0 or 2.1. I have used those tools on websites using an overlay or widget and they almost always flag errors of some kind. There is a lot a dispute about the effectiveness of these scanning tools, but effective or not getting flagged by one of them is an invitation to a lawsuit. If a widget doesn’t fix the errors plaintiff’s lawyers can find using automated tools it won’t prevent a lawsuit. The conclusion is simple. If avoiding litigation is your goal an overlay or widget won’t do the trick. More
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