I’m a day late with the St. Patrick’s Day Edition of Quick Hits but that’s no reason not to raise a toast to the saint who, as my great-grandfather William Mullin said, drove all the snakes out of Ireland except the politicians.
ADA Attorney’s Fees
Lessons about the ADA from the CSUN Assistive Technologies Conference
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 Policies Tags: ADA defense, ADA Internet, ADA website, CSUN Assistive, Lainey Feingold, WCAG
I’m just departing from the 2019 Assistive Technology Conference with a few prejudices confirmed but with some new ideas as well.
I spoke with a number of companies that sell consulting services for web accessibility based on a wide range of business models. Since the website litigation storm broke in 2015 the field has developed, but there is still no good accessibility solution for a small retail store or restaurant. Simple websites are less likely to have accessibility issues, but their owners are heavily dependent on small, independent web designers and developers who often live in blissful ignorance of accessibility issues. Twenty-five years after passage of the ADA strip shopping centers that don’t meet ADA standards are still being built because smaller contractors and one person architecture firms don’t know about or understand the construction standards. The same thing will be true for web accessibility twenty-five years from now if we don’t find a way to educate the web design community about it. For those who don’t want to wait the following link has a list of resources from Lainey Feingold’s website. Resources. More
ADA and FHA Quick Hits – Happy New Year edition
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Class Actions, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Mootness, ADA Web Access, FHA, FHA design/build litigation Tags: ADA defense, FHA Defense, Lyft, Ride Sharing ADA, uber
There is only one prediction that can be made with complete certainty about ADA and FHA litigation in 2019: Lawyers will continue to make money exploiting these laws for profit in the name of accessibility. The number of lawsuits continues to climb, and with Congress and regulators unwilling to do anything this exploitation will continue. However, before we face the new challenges of a new year it is time for a final look backward at the recent decisions concerning accessibility for the disabled.
Standing in website accessibility cases.
Price v. Orlando Health, Inc., 2018 WL 6434519, at *4 (M.D. Fla. Dec. 7, 2018) shows just how important theories about why the ADA covers websites can be to standing in such cases. Courts in the 11th Circuit have adopted the theory that a website is covered by the ADA only if it has a nexus to a physical public accommodation. Because this relationship is required, the ADA injury giving rise to standing must be some inability to use the physical accommodation. The plaintiff in this case had no plausible intent to use the defendant’s facilities so he could not establish an ADA injury and did not have standing to sue. This is one of many reasons there is a widening gap between the Circuits with respect to how website cases can be effectively defended. More
ADA Title III year in review – it’s a bull market in website accessibility lawsuits.
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Attorney's Fees, ADA Internet, ADA Internet Web, ADA Mootness, ADA Policies Tags: ADA defense, ADA Internet, ADA web access, ADA website, bull market, CUNA, drive-by lawsuits, unruh act, Usablenet, WCAG 2.0
The financial markets are bouncing around like ping pong balls, but there is one financial indicator that is only going up. For website accessibility litigation we have a bull market and no sign of a recession. Based on federal filings alone the number of website accessibility cases almost tripled in 2018, increasing by 181%*. For ordinary serial ADA litigation based on parking and restrooms the market is flat and the cases confirm the general lack of consistent standards across circuits and between judges – know your court is the rule with respect to every strategic decision. The fake service animal businesses online continue to outrage businesses but without much resulting litigation. A few notable serial filing lawyers have gotten trouble, but the 181% increase in federally filed** web access cases has created both the most serious threat to businesses and the most interesting legal developments in Title III litigation. More
Quick Hits – Cyber Monday edition
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - serial litigation, ADA Attorney's Fees, FHA, FHA design/build litigation, FHA renovation, First Fix Then Fight Tags: ADA defense, Cyber Monday, FHA Defense
That’s right, it’s Cyber Monday. Interestingly enough there have been no ADA web access decisions since my last Quick Hits blog, but there are still a few developments of interest.
The long road from an interesting partial victory to a final settlement.
I blogged about States v. Mid-America Apartment Comms., Inc., 247 F. Supp. 3d 30, 36 (D.D.C. Mar. 27, 2017) last year.* The case was interesting because the defendant got a preliminary ruling suggesting that a certificate of occupancy based on a building code that incorporated FHA standards could be a defense to a claim under 28 USC §3604(f)(3)(C) for failure to properly design and construct multi-family housing. The potential for this defense was recognized in Miami Valley Fair Hous. Ctr., Inc. v. Preferred Living Real Est. Investments, LLC, 2018 WL 4690790, at *8 (S.D. Ohio Sept. 28, 2018) but found premature in a summary judgment context. Then, on November 21 of this year the Department of Justice announced a multi-million dollar settlement with Mid-America. I was interested in what happened between the 2017 ruling and the 2018 settlement, so I reviewed the case file to see if anything of interest to other defendants might appear. More