ADA and FHA Defense

    • California versus the Constitution – who can regulate internet accessibility?

      picture of the opening paragraph of the U.S. ConstitutionSeveral other sources have reported on recent legislation in California that would establish WCAG 2.1 AA as the minimum accessibility requirement for websites that do business in California.¹ The bill is a disaster in many ways, but rather than look at its many individual flaws I think it is useful to ask whether the entire law is invalid as an improper attempt to regulate interstate commerce. That’s right, the “dormant commerce clause” could make this and any similar effort by other states invalid.

      The dormant commerce clause, for those who did not take Constitutional Law at some point in their lives, is a kind of mirror image of the Commerce Clause. The Commerce Clause – Article 1, Section 8, Clause 3 of the U.S. Constitution – gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The dormant commerce clause interprets this to mean that states cannot make laws that excessively burden interstate commerce; that is, only Congress can regulate interstate commerce and state laws that have the effect of regulating it are not valid.

      The reach of the dormant commerce clause has been the subject of many Supreme Court decisions, so summarizing its reach is almost impossible. However, it would seem that it certainly includes any effort by the states to establish minimum accessibility requirements for websites. Here’s what the Supreme Court observed in 1989 about the dormant commerce clause:

      First, the “Commerce Clause … precludes the application of a state statute to commerce that takes place wholly outside of the State’s borders, whether or not the commerce has effects within the State,” . . . and, specifically, a State may not adopt legislation that has the practical effect of establishing “a scale of prices for use in other states,” . . . Second, a statute that directly controls commerce occurring wholly outside the boundaries of a State exceeds the inherent limits of the enacting State’s authority and is invalid regardless of whether the statute’s extraterritorial reach was intended by the legislature. The critical inquiry is whether the practical effect of the regulation is to control conduct beyond the boundaries of the State . . . . Third, the practical effect of the statute must be evaluated not only by considering the consequences of the statute itself, but also by considering how the challenged statute may interact with the legitimate regulatory regimes of other States and what effect would arise if not one, but many or every, State adopted similar legislation. Generally speaking, the Commerce Clause protects against inconsistent legislation arising from the projection of one state regulatory regime into the jurisdiction of another State.

      Healy v. Beer Inst., Inc., 491 U.S. 324, 336 (1989). Taking these up one at a time, the California bill would certainly affect commerce taking place outside the State of California, not only because it regulates websites that are available in other states, but also because it regulates the design and development of websites that might take place outside the State of California. More important, the bill will almost certainly interact with the legitimate regulatory regimes of other States, because if California can decide what it means for a website to be accessible then other States can certainly do the same. Websites would potentially be subject to fifty different accessibility standards as well as whatever regulatory standard the Department of Justice ultimately chooses for the ADA.
      Despite the obvious extraterritorial effects of internet regulation the Ninth Circuit and other courts have suggested the dormant commerce clause does not forbid such regulations. In Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 414, 433 (9th Cir. 2014) the Court held that even if California’s Disabled Persons Act required captioning videos on the internet the law did not interfere with interstate commerce because:

      Even though CNN.com is a single website, the record before us shows that CNN could enable a captioning option for California visitors to its site, leave the remainder unchanged, and thereby avoid the potential for extraterritorial application of the DPA.

      This followed the rationale in one of the very first internet accessibility cases, Natl. Fedn. of the Blind v. Target Corp., 452 F. Supp. 2d 946, 961 (N.D. Cal. 2006). The assumption in both cases is that because websites can be targeted to particular geographic areas any website owner can comply with a state regulation by just creating a separate website for that state..
      Despite the notion that websites can simply target their content to particular states courts have held that content regulation violates the dormant commerce clause. For example, a Vermont law forbidding internet transmission of pornography to minors violated the dormant commerce clause because, given the interstate nature of the internet, it inevitably regulated activities that were wholly outside the state. Am. Booksellers Found. v. Dean, 342 F.3d 96, 104 (2d Cir. 2003).  The same was true of a California law that forbade the display of information about state legislators on websites that were run and viewed outside the state. Publius v. Boyer-Vine, 237 F. Supp. 3d 997, 1023 (E.D. Cal. 2017).
      The difference in these two lines of cases seems to be whether the court has a real appreciation of just how expensive it would be to create fifty different websites to comply with fifty different sets of state regulation and then make sure that users in one state only had access to their state’s website. While that might be possible for CNN or Target, it certainly isn’t possible for the hundreds of thousands of small e-commerce websites and blogs run by individuals or small businesses that do not have the resources to make one website perfectly conform to WCAG 2.1 AA, let alone make sure that their non-conforming website could not be reached by someone in California. The internet has, in many ways, begun to erase the difference between local and interstate commerce that is central to the analysis of commerce clause issues and it has done so for businesses with very small amounts of revenue. As a practical matter regulating internet accessibility is always going to be a burden on interstate commerce that has the potential to destroy hundreds of thousands of businesses.
      This doesn’t mean accessibility regulation is impossible; only that it has to be the exclusive province of Congress or the DOJ and that it must be implemented with sensitivity to the costs it imposes on small internet businesses.²  There isn’t any evidence that DOJ is capable of such sensitive regulation, but the pending bill in California proves that state legislatures certainly cannot do so.

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      ¹ The most thorough analysis is found in “New California Assembly Bill on Website Accessibility Could Result in a Lawsuit Tsunami” published by Seyfarth Shaw.

      ² There is an argument to be made that the ADA will preempt any state laws concerning website accessibility as soon as DOJ adopts accessibility standards applicable in all fifty states. That argument seems to be at least a few years away given DOJ’s very slow movement toward adoption such regulations.


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    • Georgia Court of Appeals rejects HUD’s position on pet fees

      HUD has consistently taken the position that a landlord can never charge pet rent or a pet deposit for a service or assistance animal.¹ It is not a position that makes any sense although HUD has held it for a long time.² In Leslie v. 1125 Hammond, LP, 2023 WL 3858575 (Ga. App. June 7, 2023) the Georgia Court of Appeals explains why the position is wrong:

      As an initial matter, it appears that Leslie has failed to show that his requested accommodation to waive the pet fees for his dog was “necessary to afford him an opportunity to use and enjoy his dwelling.” . . . . A “necessary” accommodation is one that “alleviates the effects of a disability,” and a plaintiff must “show, at a minimum, that the accommodation affirmatively enhances his quality of life by ameliorating (or reducing) the effects of his disability.” . . . . Here, Leslie’s requested accommodation was not itself to have a service dog (as that was apparently already allowed), but he instead requested that Sync Residential waive any relevant pet fees for the dog. Leslie has not shown that waiving the pet fees would itself “alleviate the effect of his disability” any further than the benefit already provided by having the service dog.  . . . Leslie has not pointed to evidence that he lacks the reasonable financial capability to pay the pet fees, whether because of his disability or otherwise.4  . . .  Thus, it appears that Leslie has failed to show that his request to waive the pet fees was necessary to accommodate his PTSD.
      The Georgia Court is not the first to make the common sense argument that waiver of a pet deposit should only be required if it is necessary for the equal use and enjoyment of a dwelling.³ In U.S. v. Barber, 2014 WL 4988200, at *8 (W.D. Wash. Oct. 7, 2014) for example, the court rejected the notion that waiver of a pet deposit was required as a matter of law, finding that whether an accommodation was necessary depended on the facts of each case.
      The analysis for waiving pet rent or pet deposits as an accommodation is simple. An accommodation is necessary if without it the tenant cannot equally use and enjoy their apartment. If everyone else pays a pet deposit then for the disabled tenant to pay a pet deposit is equality, not discrimination. Saying that an assistance animal is not a pet is just word play – the landlord can call it an animal deposit and the argument disappears. In addition, HUD admits the tenant is required to pay for damage caused by the animal, which is what a pet deposit and pet rent are supposed to cover. If the tenant has to pay for damage why not require the tenant to pay a deposit to cover future damage? A tenant with an assistance or service animal may as a matter of fact need an accommodation with respect to pet fees, but that cannot be said to be universally true.
      It isn’t clear what rationale HUD has for its position. Perhaps since 66% of American households include a pet(4) this just reflects the fact that a majority of HUD’s regulators are pet lovers and can’t imagine why landlords want a deposit in the first place. It is almost certain that no one involved in the various non-binding guidances published by HUD has any experience with the costs landlords incur when badly behaved pets ruin carpets and sheet rock or with the practical reality that a landlord simply cannot recover losses from a tenant who has already moved out because renters are generally transient and rarely possessed of substantial assets that are subject to execution.
      Most important though, HUD cannot seem to grasp the fact that treating those with disabilities as if they are, by definition, incapable of paying pet fees that those without disabilities routinely pay, is the worst kind of insult. Those with disabilities may need accommodations directly related to their disability, but they do not need to be treated like helpless children who are unable to manage ordinary financial obligations like pet rent and pet deposits. Treating those with disabilities as equals means starting with the assumption that they are equal in every respect except their specific disability. The “no pet fee” rule does exactly the opposite.

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      ¹ The latest formal statement in found in FHEO 2020-1, “Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act.”

      ² See, Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act (“Joint Statement”), Q and A 11 (May 17, 2004),  

      ³ See my blog: Unconventional wisdom concerning pet deposits under the Fair Housing Act.

      (4) See, Forbes, Pet Ownership Statistics and Facts in 2023.


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    • Indemnity and Contribution under the Fair Housing Act

      A recent decision from the Northern District of New York has  a useful summary of the law of contribution and indemnity in Fair Housing Act cases. Clover Communities Beavercreek, LLC et al v. Mussachio Architects P.C. et al, 2023 WL 3864965 (N.D.N.Y. June 7, 2023). For the plaintiffs, who were developers and owners, there is a happy ending, but the sunny result is shadowed by an important mistake carried on from earlier cases. Before we get there, a little backgound is in order.¹

      The FHA establishes accessibility standards for multi-family housing. It is illegal to fail to design or construct multi-family housing that does not meet those standards. The parties that can be liable for this kind of illegal contract are the architect, the general contractor (and perhaps subcontractors) and the owner. Among these three parties  liability may or may not overlap. It is not uncommon for the plans to be wrong, for the general contractor to have made mistakes on things where the plans were correct and for the owner to have ignored the need for accessible design altogether.

      In ordinary construction defect cases, liability is divided among these parties based on state law rules of contribution and indemnity. With contribution liability is shared based on the relative degree of fault. With indemnity one party takes all the liability.  These are matters of state law, not federal law, and they vary from state to state. It is also common for these parties to agree among themselves on who will be liable for what. This is especially true where everyone has insurance and dividing up the insurance coverage makes sense.

      This very common division of liability is a source of disagreement in cases brought for violations of the FHA’s design and construction rules. Some courts hold that one of the liable parties – usually the owner or developer – cannot transfer their liability to another party even if that party is completely at fault for the design/build failure. This is directly contrary to the state law principle that every party bears their fair share of the liability, or at least the share they agreed to bear in a contract.

      This brings us to Judge Sannes’ opinion in Clover  Communities. She begins with a look at Equal Rights Center v. Niles Bolton Associates, 602 F.3d 597 (4th Cir. 2010), the leading case on this subject.² In Niles Bolton the Forth Circuit considered what would happen in the very common situation in which the owner blames the architect because the plans were defective. Although the Fourth Circuit didn’t say it quite this directly, it held that the FHA preempted all state law indemnity claims because the purpose of the FHA was to punish people who made mistakes and if you could escape punishment you would not be incentivized to do better in the future. Shifting liability based on indemnity would undermine the FHA and so any state law of indemnity had to yield to the punitive purpose of the FHA’s liability provisions. The innocent owner has to pay 100% of the loss caused by the guilty architect to encourage the owner to be more careful in the future.

      This decisions was limited to indemnity; that is, shifting 100% of the loss to someone else. Contribution – shifting only part of the loss – was not addressed. However, after the decision in Niles Bolton a number of district courts extended this rationale to contribution claims, holding they were preempted as well. Under these cases, the owner could not shift even a small part of the liability to the responsible parties. Based on these decisions the plaintiffs in Clover Communities, who were owners and developers suing the designers of the various apartment complexes, would be out of luck and have to bear the entire loss.

      Recognizing that Niles Bolton was really only about transferring liability through indemnity rather than sharing liability through contribution Judge Sannes next turned to the Ninth Circuit’s decision in City of Los Angeles v. AECOM Servs., Inc., 854 F.3d 1149, 1161 (9th Cir. 2017). In City of Los Angeles the City was sued because some of its facilities were not accessible. Those not accessible facilities were built or designed by AECOM and so the City filed a third-party complaint seeking to make it pay for its failures. Rejecting Niles Bolton the Ninth Circuit pointed out that the City had to rely on third parties and shifting their share of the blame to them was likely to make them more cognizant of their own obligations under the ADA. It was good for ADA compliance to make those responsible for design and construction liable for their mistakes.

      Judge Sannes agreed with the reasoning in City of Los Angeles with respect to contribution under general state laws. As long as the plaintiff is not seeking to recover 100% of what it costs them to comply with the FHA, then bringing in all the responsible parties encourages everyone involved to be more careful about their FHA obligations in the future. The Judge writes, citing City of Los Angeles, that if the FHA preempted contribution claims this would reduce the “incentives to comply with the FHA, which in turn frustrates the objective of the Act to provide fair housing, including by designing and constructing multifamily dwellings in accordance with the Act’s accessibility guidelines.”  2023 WL 3864965, at *7.

      So much for claims created by state law. Judge Sannes then turned to claims for breach of contract and architectural malpractice. Here she observes an important distinction between the breach of contract claims and the malpractice claims. An architect or contractor can breach their contract in ways that have nothing to do with the FHA. For those claims the entire question of what the FHA can or should allow don’t matter. Those claims were not subject to dismissal. Finding that the breach of contract claims included some non-FHA claims, the judge kept them alive.³

      She reached a different result with the architectural malpractice claims because she found they were based entirely on the FHA defects and did not shift only some, but rather all of the liability to the architect. Going back to the standard in Niles Bolton, she found that these were indemnity claims and were preempted by the FHA.

      The opinion in Clover Communities leads the reader through all the steps and the most important cases analyzing contribution and indemnity for claims arising out of FHA design and construction failures. Based on Clover Communities and similar cases the rules for contribution and indemnity in FHA design build cases are simple. If the claimant seeks to shift all of its liability to the architect or contractor or some other party they cannot do so, even if they have a contract. These are indemnity claims and they are preempted by the FHA. If, on the other hand, the claimant only seeks to share liability then the claims are for contribution and are not preempted. Finally, of course, if the claims are not based on an FHA design/build failure then the FHA simply is not in play, regardless of whether the claim is for contribution or indemnity.

      Clover Communities provides a good outline of the law, but never asks whether the Niles Bolton rule about indemnity makes sense. Niles Bolton relied on the notion that a property owner has a “non-delegable duty” not to discriminate and that even an innocent owner can be liable for the acts of its agents. It took this notion from a housing sex discrimination case, Walker v. Crigler, 976 F.2d 900 (4th Cir. 1992).  In Walker v. Crigler both the owner and the owner’s agent were sued. The owner’s agent was found liable but the owner was not because the jury found the agent engaged in discrimination without the owner’s knowledge or authority. Under traditional common law rules an owner is only liable for the agent’s misconduct if it was authorized, and in this case it was not. The Fourth Circuit said traditional rules do not apply in sex discrimination cases. It said the owner was also liable because as between the innocent owner and the innocent renter it made sense for the owner to “bear the burden” of the harm the renter suffered. The owner was responsible for his agents even if he not not authorize them to discriminate. The Fourth Circuit cited a number of situations in which an owner is liable for the unauthorized misconduct of its agents to support this idea.

      Walker v. Criger is a poor analog for the design/built discrimination at issue in Niles Bolton. First, and most important, in Walker v Criger both the agent and the landlord were sued.The agent was found liable and presumably had to pay the judgment against her. Under common law rules when there is a judgment against two individuals and only one is at fault then the party who is not at fault can usually recover what they have to pay from the other party. In other words, the agent wasn’t going to get off the hook just because the owner might also be liable. The court did not hold that the person who is primarily responsible for discrimination  should be exempt from liability just because of the plaintiff’s choice of whom to sue.

      Equally important, the discrimination in question is a kind that any landlord can know and understand. The landlord can can “control the acts of the agent” with respect to sex discrimination because the landlord knows what it is and how to forbid it. In a design/build case the owner cannot meaningfully “control the acts” of the architect and contractor; indeed, they are hired precisely because the design and construction of an apartment complex requires specialized skills and knowledge the owner does not have. If a leasing agent tells the owner she isn’t going to lease to an unmarried mother the owner knows it is wrong. If an architect gives the owner dozens of drawings to review the owner is not likely to know that the toilet centerline must be 18″ from the adjacent wall, or that there must be blocking in the walls behind the shower for future grab bars. The best an owner can do is hire another expert to check the work of the first, but under Niles v Bolton that second expert also cannot be sued for doing a bad job. In a design/build case the only way an owner can try to insure the architect and contractor do a good job is by making them contractually liable for their mistakes, but that is the very thing Niles v. Bolton says the owner cannot do.

      Most important though, the rule in Niles v Bolton tends to discourage rather than promote accessibility because it insulates the most responsible parties from liability rather than exposing them to it. In Walker v Criger and other similar cases holding the owner liable expanded the reach of the Fair Housing Act. Niles v Bolton reduced the reach of the FHA, leaving decisions about who would be liable in the hands of private plaintiffs whose personal incentives might have nothing to do with improving the accessibility of multi-family housing. Punishing the innocent, which is what Niles v. Bolton certainly does, cannot be justified if the result is to leave the guilty untouched.

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      ¹  I’ve written about this before. See, Contribution, Indemnity and Disability – Does the FHA make sense?, What were they thinking? Indemnity and accessibility under the ADA and FHA

      ² That is a little bit of an oversimplification. She begins by noting that the FHA itself has no right of indemnity or contribution, something on which there appears to universal agreement. With federal contribution or indemnity out of the way she only has to deal with claims arising out of state law.

      ³ You may wonder why anyone would care about breach of contract if state law contribution gets the same thing. The reason is probably attorneys’ fees, which are usually not awarded in cases brought under state law contribution statutes and often are provided for in contracts.


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    • Can an ADA website accessibility claim be mooted?

      painting of the battle of bunker hillIn ADA website litigation failure  can teach us as much as success, and the plaintiff’s failure in Tavarez v. Extract Labs, Inc., 2023 WL 2712537, at *2 (S.D.N.Y. Mar. 30, 2023) is no exception.¹ Before getting into the details, here’s a primer on the doctrine of “mootness.”

      Article III of the Constitution gives federal courts jurisdiction over “cases and controversies.” Just what this means has been the subject of many cases in the last two hundred years, but one thing it certainly means in the context of an accessibility lawsuit under Title III of the ADA is that if there is no accessibility problem to fix there is no case or controversy and the lawsuit is “moot.”  This kind of mootness is almost unique to ADA Title III lawsuits and comes from the fact that that the only thing a federal court can do in an accessibility lawsuit under Title III is order that the problem be fixed. I call this the “if it ain’t broke you can’t fix it” defense.

      Mootness is a great defense because it concerns the power of the court to hear the case and it can therefore be raised at any time, even while the case is on appeal. If the case is moot the only thing the court can do is dismiss the case. And even if the lawsuit was the reason the accessibility problem got fixed the plaintiff and the plaintiff’s lawyers get nothing. This is obviously a very gratifying result for those of us who don’t think serial litigation does anything but make lawyers rich.

      Mootness is a great defense, but it is not an easy defense to establish. As the court observes in Extract Labs, a case can be found to be moot only if the defendant meets the:

      ‘formidable burden’ of demonstrating that it is ‘absolutely clear the alleged wrongful behavior could not reasonably be expected to recur.’

      This is not easy with website cases because websites are complicated and dynamic. Because they are complicated it can be hard to show that there is literally nothing wrong that interferes with meaningful access, and because they are dynamic it is hard to prove something won’t go wrong in the future. Nonetheless, mootness has been successful as a defense. Diaz v. Kroger was the first case to find for a defendant on mootness and shows just how hard it can be.² The defendant in that case succeeded because it proved that its website conformed to WCAG 2.0 AA, the best available standard at the time, and that none of the barriers to access specifically alleged in the Complaint existed. It dealt with the possibility of future inaccessibility by proving that even before it was sued it had a policy of keeping the website in conformance to WCAG 2.0 AA, a policy that the plaintiff had no proof would not work.

      For a trial lawyer it isn’t hard to see how a plaintiff can avoid a mootness defense. You need one of two things. First, you need to find a defect in the website that wasn’t fixed. The Diaz decision cites several cases where this was the problem. As an alternative, you can provide some evidence that the policy of keeping the website accessible is not trustworthy. Courts are suspicious of policies that are enacted only after a lawsuit is filed. In addition, if the policy has already failed that is pretty good evidence it doesn’t work.

      At first glance it would seem the plaintiff in Extract Labs did what he needed to do. The defendant had a declaration that was modeled on the successful declaration in Diaz v Kroger, but unlike the plaintiff in Diaz v Kroger, the plaintiff in Extract Labs had an expert with a declaration that said there were problems with accessibility. Despite this, the defendant won and the case was dismissed. Why?

      The problem was not in what the plaintiff’s expert said, it was that he didn’t say it in a way the court believed. Courts are not technical experts in website accessibility so they rely on experts who tell them what the expert found. This comes in the form of an opinion that summarizes a lot of facts – something like “in my expert opinion the website is not accessible.” Facts are also needed as examples to support the opinion, and the rules about balancing opinions and supporting facts are complicated, but one thing about this process is not. Only experts get to give this kind of opinion and so they have to prove they really are experts. That requires some facts as well, like what training they had, or what experience they bring to the table.³

      In this case the plaintiff’s expert and the plaintiff’s lawyers appear to have just messed up. The expert did not include his resume, so there wasn’t specific evidence he was an expert. He also left out his “audit report” that would have provided fact to back up his opinion. Finally, and perhaps worst, he failed to fix these problems even though he had eight months to do so. The net result:

      Evidentiary deficiencies with Plaintiff’s submission of Moody’s declarations compel the Court to grant Defendant’s request to strike the Moody statements as unreliable and lacking foundation.

      With no competent evidence of website problems from the plaintiff the defendant was bound to win.(5)

      The takeaway for businesses concerned with website accessibility is simple: Hope you get sued by a plaintiff whose lawyers are not on the ball. But even if the opposition isn’t up to snuff you need to give yourself the best chance to establish mootness by:

      • Adopting and  implementing a policy to have an accessible website now, before you’ve been sued.  That will fit you into the winning model found in Diaz v Kroger.
      • If you get sued, make sure you both meet WCAG 2.1 and take care of every specific problem listed in the Complaint. Remember that because WCAG 2.1 has subjective elements just saying you meet WCAG 2.1 does not mean you will have fixed everything in the Complaint. You have to do both.

      I’ll add my opinion of one more strategic decision. Don’t fire until you see the whites of their eyes.(4) A defendant can win a case at three times; at the beginning with a Motion to Dismiss, in the middle with a Motion for Summary Judgment, and at the end by proving the truth at trial. Winning based on the truth gets easier at each step, though at the cost of spending more money to get there. I think legal fees for a mootness defense are best spent at the Motion for Summary Judgment stage where the odds are better. This defendant won on a Motion to Dismiss that was treated like a Motion for Summary Judgment, but only because the plaintiff’s lawyers made a mistake. The odds are better later in the case.

      ++++++++++++++++++++++++++++++++++++

      ¹ My friend Bill Goren (https://www.understandingtheada.com/) called this case to my attention, along with the blog post from Jeff Singleton at Converge Accessibility (https://convergeaccessibility.com/2023/04/19/can-using-an-overlay-win-a-lawsuit/)

      ² See my blog: Accessibility moots a website accessibility claim – a surprising decision that shouldn’t surprise anyone. As for the Battle of Bunker’s Hill, the subject of the painting at the left, just keep reading.

      ³ This is all based on Federal Rule of Evidence 702 and 703 and some important cases from the Supreme Court saying what they mean.

      (4) See https://www.encyclopedia.com/history/dictionaries-thesauruses-pictures-and-press-releases/dont-fire-until-you-see-white-their-eyes if you are interested in the history of this saying.

      (5) it is worth emphasizing that this opinion doesn’t tell us much about what it means to have an accessible website because there was, in effect, only one side of the story being told.


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    • Like death and taxes – an ADA serial filer roundup.

      image of IRS Form 1040Like death and taxes, serial ADA litigants seem inescapable, but if the lawsuits remain the same the players change from time to time. It’s worth knowing who’s who when you or your client gets sued.

      First, in the just rewards category, Scott Johnson, whose name appears dozens of times in my blog posts, and thousands of time as the plaintiff in ADA lawsuits has been sentenced to 18 months of home detention and a healthy fine for tax evasions. You can read about it here: Carmichael attorney known for suing under ADA sentenced for filing false tax returns. I recently wrote about the Ninth Circuit’s unwillingness to treat the truth as something important in ADA serial filer cases.¹ Of course just because the Court found he lied on his taxes doesn’t mean Johnson was being untruthful when he swore, thousands of times, that he intended to go back and patronize businesses he had never patronized for any reason other than filing ADA lawsuits, right?

      Now on to Florida. Like others who follow ADA developments I have known from my research that Florida is a hotbed of serial filer activity. I only recently had to deal with a Florida serial filer and really got a first-hand view of the extent of the industry. Douglas Longhini, for example, appears to have filed hundreds of lawsuits in the last several years, which isn’t up to Deborah Laufer or Scott Johnson rates, but is more than enough to cast doubt on his claim that he is doing anything but trolling for lawsuits. Longhini is far from alone in this enterprise; other names with multiple lawsuits include Renzo Barberi, Howard Caplan and Ryan Turizo. There is also an entity serial filer, Florida Fair Housing Alliance, Inc. that was incorporated by Turizo and represented by his attorneys. It was incorporated in 2020, filed a number of lawsuits based on “testing” apartment complexes by making pretextual phone calls, and then dissolved in January of this year. It dismissed its last case on the day of the scheduled hearing on the defendant’s motion to dismiss. The dismissal was without prejudice; an almost sure sign that FFFA surrendered rather than face scrutiny by the Court. I also can’t say I know of any legitimate non-profit disability advocacy groups that exist only long enough to file lawsuits and then dissolve.

      The other news from Florida is that Sarah Murray of Murray & Associates is continuing to send demand letters claiming she represents Pursuit of Respect. The last time I checked into Pursuit of Respect and Ms. Murray neither ever appeared to have filed an ADA lawsuit and checking today showed the same thing. Pursuit of Respect, Inc. seems to have a law office as its address, and a minimalist website that hasn’t been updated since I first looked at it in 2020. Ms. Murray’s demand letter continues to invoke the Fair Housing Act, which has no requirement for website accessibility. I don’t find her demands credible.

      Speaking of Pursuit of Respect, I learned on October 27, 2023 that the Sarkissian Law Group filed a small claims court action against a local mortgage broker asking for $5,000 in attorneys fees based on a lack of website accessibility. This is a first as far as I know, but it tells you something important about these claims that the plaintiff does not ask for any relief other than attorneys’ fees. You can draw your own conclusions about how much the lawyers care about those with disabilities or their supposed client, for whom they don’t even seek statutory damages.

      Headed north to New York, lawyers and their clients continue to exploit the fact that most district judges in the Second Circuit continue to believe the ADA covers stand-alone websites and are reluctant to grant motions to dismiss. Barclay Damon recently blogged about a new crop of plaintiffs represented by Stein Saks: ADA Accessibility Lawsuits: New “Tester” Plaintiffs—Bryan Velazquez, Daniel Rodriguez, Marina Iskhakova, Elbert Dawkins, Marta Hanyzkiewicz, and Warren Zinnamon—Targeting Businesses in Recent Flurry of Federal Lawsuits. Stein Saks is only one of several firms that continue to file these lawsuits. From my experience lawsuits filed in federal court in New York are generally filed by firms with a least some ability to prosecute the suit. They represent a real threat but I am told that four figure settlements are available.

      Speaking of New York, I recently heard a name I had not run across for several years, CityVision Services. The last time I blogged about this group was in 2017, when they were operating in Texas filing discrimination complaints against apartments that supposedly discriminated against individuals with service dogs.² Michael Hutter, an attorney in New York, told me about a recent decision against CityVision in a housing discrimination complaint filed against one of this clients. Besides a victory on the underlying discrimination complaint his client beat a retaliation claim. You can read the decision here: Court Decision. I had not been keeping track of CityVision since it more or less departed Texas, but based on ProPublica’s look at it it seems to be a shadow of its former self and reported revenues have tumbled since 2016. Propublica Article.³

      The Western District of Pennsylvania is, as it has been since 2015, a very hospitable place for serial ADA litigation. About 250 ADA lawsuits were filed in 2022 with the usual list of serial plaintiffs: Charlap, Douglass, Murphy, Jahoda, Kolesar, McCann, McMoreland, Niles and few others with fewer lawsuits. As long as judges in the Western District are receptive to these cases and willing to overlook the very obvious problems of standing for professional plaintiffs the filings will continue. As with New York, the lawyers involved are capable of prosecuting the cases and often demand five figure settlements.

      Here in Texas, the roster serial filers haven’t changed much in the last few years. Sapp & Sturgill PLLC and Duncan Strickland continue to file lawsuits in the Western and Northern Districts for plaintiffs who, amazingly enough, always live within 30 miles of the business they sue, no matter where it is. It isn’t clear where the plaintiff is going, but they always pass the business frequently although, boilerplate filings being the rule, the list of things they might have been looking to buy is the same for a sports bar as a pawn shop. In North Texas Douglas Shapiro files lawsuits at a steady pace and recently Ku & Mussman seem to have filed a few as well.

      I was surprised to hear the Bruce Tharpe, who I last mentioned in 2021 (4) has been very active  in the Southern District of Texas. He was notable in the Northern District for targeting Asian businesses located in a relatively small geographic area. I haven’t analyzed his filing pattern in the Southern District except to note that for his current plaintiff, Randy William Brast, he files on a monthly basis, with 8 to 10 lawsuits filed on the same day each month. I found it interesting that one of his recent complaints, filed against La Pupusa Loca (Case No. 4:23-cv-01340 in the Southern District of Texas) includes photos of the defendant restaurant intended to show it has no accessible parking. They also show pretty clearly that it was closed because the parking lot is completely empty. And they don’t show the accessible parking further along the building. Trying to eat at a restaurant that isn’t open is going to create problems that have nothing to do with accessibility.

      This sort of thing intrigues me, so I checked another case filed the same day, Brast v Columbian Cuisine, Case No. 4:23-cv-1339 (SD Tex). Pictures again, this time with the parking lot empty except for a single truck parked in front of the restaurant. Google Earth helpfully showed me that an accessible parking spot is two stores away, in front of Sherwin Williams. This isn’t surprising because major retailers are usually pretty careful about ADA compliance. A shopping like the one where Columbian Cuisine is located does not need an accessible parking space in front of every storefront – only the correct number in various locations. Mr. Tharpe, having filed hundreds of ADA lawsuits, presumably knows this and presumably doesn’t care.

      Next natural stop on a tour of serial filers would be California, but cases from California appear so frequently in this blog that I’m going to skip it. In the meantime, if you have a favorite serial filer that I’ve overlooked, or suspect you’ve gotten a lawsuit or demand letter from one, please let me know.

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      ¹ When it comes to ADA tester standing in the Ninth Circuit, the truth no longer matters.

      ² Good news for those attacked by CityVision’s FHA complaints

      ³ It is important to note that “CityVision” and “City Vision” are names used by several completely legitimate businesses and non-profits. CityVision Services, Inc. can be distinguished by the fact that it does not appear to have a website and is associated with Gary Lacey.

      (4) FHA and ADA Odds and Ends. Tharpe has an interesting personal story. You should Google him.


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    Richard Hunt, author