TS EliotApril is the cruellest month according to T.S. Eliot†, but it was really just busy for my practice and the courts. Here’s part one of our update on important decisions in the ADA and FHA world. We expect to be caught up after a long weekend of blogging and a couple of additional installments.

ADA and FHA Standing

Feltzin v. Clocktower Plaza Properties, Ltd., 216CV4329DRHAYS, 2018 WL 1221153, at *4 (E.D.N.Y. Mar. 8, 2018) doesn’t say anything new, but does make some useful distinctions in the area of standing and contains a warning for defendants who lead with a motion to dismiss instead of an effort at compliance. The Court dismisses claims based on conditions where the allegation is that the plaintiff “and others” will suffer discrimination on the ground they do not allege a concrete, but rather a hypothetical injury. Serial plaintiffs use such allegations to expand their lawsuit, and limiting the lawsuit to actual injury can be helpful. At the same time, the Court finds that by filing a motion to dismiss with no suggestion that any condition will be remediated the defendants more or less confirmed the likely continued existence of the ADA violations, which is an element of the 2nd Circuit’s test for ADA standing. First fix, then fight will always be the best approach in ADA cases. Finally, based on 2nd Circuit case law the Court dismisses the case entirely based on a lack of plausible allegations of an intent to return. The analysis is good news for lawyers in the 2nd Circuit; unfortunately other Circuits have proven less willing to apply Iqbal and Twombly to the kind of vague intent to return allegations used by most ADA serial filers.

Longhini v. J.U.T.A., Inc., 617CV987ORL40KRS, 2018 WL 1305909, at *4 (M.D. Fla. Mar. 13, 2018) is a very similar ADA standing case from Florida, again concluding the case should be dismissed based on a lack of a plausible intent to return. What is most interesting is the Court’s use of its own interrogatories to flush out implausible claims. Court interrogatories are often used in pro se prisoner cases to determine at an early date whether there is any cognizable claim, and using them in ADA cases makes perfect sense because otherwise the economics of litigation almost always force a settlement regardless of the merits.

Miami Valley Fair Hous. Ctr. Inc. v. Metro Dev. LLC, 2:16-CV-607, 2018 WL 1229841, at *1 (S.D. Ohio Mar. 7, 2018) is a summary judgment case with a useful discussion of organizational standing under the FHA that shows just how easy it is for an organization to get into the business of litigation while avoiding the general principal that diversion of resources standing cannot be based exclusively on litigation related expenses. An organization that knows what to do (send out a few flyers after suit is filed) and what to allege (the investigation started before a decision was made to file suit) will always defeat a standing motion, making the constitutional limits on standing in  Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) meaningless.

Settlement strategy

In Mark v. Sunshine Plaza, Inc., CV 16-455, 2018 WL 1282414, at *1 (E.D. La. Mar. 12, 2018), report and recommendation adopted  CV 16-455, 2018 WL 1960022 (E.D. La. Apr. 26, 2018) the defendant settled with an agreement that the Court would set the plaintiff’s attorneys’ fees, a not uncommon solution to arguments about what kind of fee is reasonable. The amount finally awarded was more than $20,000 after a 20% discount from the amounts billed. The Court also awarded several thousand dollars in expert fees. This illlustrates the Catch-22 present in all ADA litigation – the harder you fight the more you pay to the plaintiff if you can’t obtain an outright victory. The most important strategic decision in ADA litigation must be made before an answer is filed, and that is whether to settle immediately based on full remediation or to fight to the death in hope of a victory. Almost any middle course will result in unnecessary settlement expenses. First fix, then fight if you must, but in any case, fix the problems.

Mootness and a mootness strategy

In Wagner v. Nason, 617CV1863ORL31DCI, 2018 WL 1243039, at *2 (M.D. Fla. Mar. 9, 2018) the defendants did almost everything right on their mootness defense, but the case isn’t over because the plaintiff was able to find some remaining ADA violations.* Mootness is the best defense to an ADA case, but given the number of ADA requirements and the minute detail required for compliance a plaintiff’s expert hired for the purpose can almost always find some unfixed problem, particularly if the original fixes are based only on the allegations in the complaint. The safest way to deploy a mootness defense is to wait for the plaintiff’s expert report and then fix everything in it. This requires time and additional fees, but it can avoid the waste of a premature motion.

Dalton v. NPC Intl., Inc., CV 17-4012 (PAM/LIB), 2018 WL 1401809, at *3 (D. Minn. Mar. 20, 2018) is in some ways a mirror image of Wagner. In Dalton the plaintiff was unable to avoid a mootness defense because he allowed several months to pass after it was raised before claiming he needed time for an inspection. Under the right circumstances pleading mootness and waiting may be an effective strategy.

Arbitration of ADA claims

Egan v. Live Nation Worldwide, Inc., 2:17-CV-445, 2018 WL 1281860, at *2 (W.D. Pa. Mar. 12, 2018) is a critical decision, already on appeal, concerning arbitration of ADA claims arising out of online purchases. The legal issues presented concern the validity of clickwrap agreements of the kind common with internet purchases and the case illustrates how difficult it can be to implement those agreements in a binding fashion. Nonetheless, website owners and developers may want to consider whether they can use such agreements to get ADA accessibility cases out of the courts and into arbitration.

ADA Readily Achievable defense / requirement

Disability Support All. v. Heartwood Enterprises, LLC, 885 F.3d 543 (8th Cir. 2018) is an appeal from the dismissal of a case against an inaccessible office building. The Court found the plaintiff had standing but affirmed the trial court’s finding that the required barrier removal was not readily achievable based on cost. This is a rare case in which the cost of remediation (exceeding $100,000) justified a vigorous defense. It also illustrates how such a defense can work against a plaintiff unwilling to incur significant costs to obtain summary judgment evidence.

Forum shopping in ADA website litigation

Access Now, Inc. v. Sportswear, Inc., CV 17-11211-NMG, 2018 WL 1440315, at *5 (D. Mass. Mar. 22, 2018) illustrates just how easy it is for ADA plaintiffs in website litigation to shop for a favorable forum. The District Court’s decision amounts to a holding that a business selling goods on the internet can be sued in any state where it has a customer, which is to say, any state at all.

Too clever by half

Valencia v. City of Springfield, Illinois, 883 F.3d 959 (7th Cir. 2018) illustrates a common problem with FHA claims against a municipality: Politics drives a defense that reason will not sustain. The plaintiffs were operators and residents of a group home who discovered, after they opened it, that it violated local city zoning requirements because it was too close to another group home. Plaintiff’s applied for a variance, but it was rejected after a public hearing that included complaints by the neighbors. They then sued and obtained a temporary restraining order to prevent enforcement of the zoning. The City’s defense was, as the court said, “dubious” because it relied on the notion that no one was allowed to have more than three unrelated individuals in a single family residence, whether or not disabled. This contradicted the language of the ordinance itself** and the City’s own practices, allowing the Seventh Circuit to conclude the plaintiffs were likely to prevail on the merits. It may be good politics to defy the Fair Housing Act, but it is a bad legal strategy.

† “April is the cruelest month, breeding
lilacs out of the dead land, mixing
memory and desire, stirring
dull roots with spring rain.”

T.S. Eliot, The Wasteland

*This doesn’t appear in the decision itself, but we looked at the Court’s docket to see what happened after this decision.

** We recently handled a similar matter on behalf of a non-profit dealing with a major city in Texas whose zoning ordinance is identical. The City readily conceded that the ordinance permitted as many as five non-related individuals to live together in a single family residence and therefore immediately agreed there was simply no zoning violation at all.