The ADA and FHA decisions handed down in the last few weeks share a common theme: technicalities matter. Sometimes the lack of technical standards increases the time and money spent in litigation, as in the first entry below, but more often technical matters of procedure and expert testimony determine the outcome of a case. The ancient Greek dramatist Aeschylus famously said “wrong must not win by technicalities,” but it is easier to sort out right and wrong when you get to write the play and decide who says and does what. When people don’t agree they go to court, and a commitment to the rule of law is a commitment to deciding disputes based on technicalities instead of fluctuating political and individual notions of what is right and wrong. More
I’m re-cycling a picture from April because there’s another lawyer recycling a money-making strategy that’s been in use for quite a while. I’ve been hired in the last few weeks by four clients who received demand letters from Aluko Collins Sr., a freshly minted one year lawyer in Alabama who claims to represent a vision impaired gentleman named Donald Wilson. Mr. Colllins claims Mr. Wilson is prepared to file suit in the Eastern District of New York against businesses with websites that are not accessible. We’ve seen this before.¹ Collins’ demand letters seem to be cut and paste copies of demands from various serial filers, as is the draft complaint that accompany his letters. Although Mr. Collins was only admitted to the bar in 2020 and he does not appear to be a member of the New York bar the draft complaints are captioned to be filed in the Eastern District of New York. In addition to my own clients I have fielded calls from lawyers and businesses all over the country who received Mr. Collins’ demand letters, so he seems to regard the entire U.S. as his territory. I could find no record of Mr. Collins having filed a lawsuit in federal court anywhere in the United States. The letters do not suggest any in-depth knowledge of what website accessibility means or of the law concerning website accessibility.
There is no doubt that under one theory or another most websites associated with a physical place of business are required by the ADA to be accessible. At the same time, recent decisions in the Supreme Court, Fifth Circuit and other courts make it clear that serial plaintiffs are unlikely to have standing to sue or seek injunctive relief.² This is especially true of a plaintiff like Mr. Wilson who presumably lives in Alabama and cannot plausibly claim he wanted t0 buy furniture from stores that sell only locally. Serving customers with disabilities is a good practical reason to make your website accessible. Doing the right thing is a good moral reason to make your website accessible. Responding to a demand from someone like Mr. Collins is not.
¹ See my blogs Same old wine in a brand new bottle, Legal Justice Advocates – a New Kids on the Block Update and others that these link to.
² See my blogs Transunion v Ramirez – has the Supreme Court put an end to cheap standing in ADA litigation?, and the other blogs referred to in the footnotes.
*In just the last 10 days two different courts have taken completely different approaches to Point of Sale (POS) terminals commonly used for self checkout lines. In the more recent decision, National Federation of the Blind, Inc. v. Wal-Mart Associates, Inc. 2021 WL 4750521 (D. Md. Oct. 12, 2021) a carefully reasoned opinion rejects the notion that because these devices require assistance in selecting a cash back amount they violate Title III of the ADA. A much briefer opinion issued a week earlier reached the opposite conclusion. Dalton v. Kwik Trip, Inc. 2021 WL 4554362 (D. Minn. Oct. 5, 2021). The cases are the latest in a line of cases concerning touch-screen POS terminals that goes back at least as far as 2014’s New v. Lucky Brand Dungarees Stores, Inc., 51 F. Supp. 3d 1284 (S.D. Fla. 2014).¹ These cases raise, but do not resolve important issues concerning the ADA, technology, and regulation. More
My next Quick Hits blog will discuss federal court decisions in the last month; this special is about only one thing – HUD’s very active enforcement activities concerning the Fair Housing Act, especially with respect to disability rights claims. Here are the press release headlines from September 1 to the present:
HUD AWARDS OVER $47 MILLION TO FIGHT HOUSING DISCRIMINATION
These grants go to local organizations that file FHA lawsuits, engage in FHA testing, and help process FHA Complaints. Most of the money is going to organizations that conduct testing campaigns in which they either expose discrimination or trap innocent landlords using calculated deception, according to how you view tester tactics. It may be a little of both since not all organizations are equally committed to fairness in fair housing. It is telling that litigation related activities will get three times as much money as education related activities. HUD seems to be more interested in punishing landlords than in helping them understand the law. This is an attitude left over from the decades in which most FHA complaints were based on obviously wrong conduct in the form or racism. Disability discrimination is far more difficult for landlords to understand because it is usually in found in failures to grant modifications or accommodations in situations where the morally correct choice is not necessarily the same as the legally correct response. HUD might take note that the education to enforcement ratio is backwards in an era where most claims arise out of ignorance rather than obviously evil conduct. If you are a landlord or HOA you need to be aware that more money means more testing, so you need to be careful in dealing with callers who claim to have a disability or fall into a protected category under the FHA. They really are out to get you. More
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA FHA General, ADA FHA Legislation, DOJ, FHA, FHA design/build litigation, FHA Emotional Support Animals, Uncategorized Tags: ADA defense, Emotional Support Animals, ESA fraud, FHA Defense, Pursuit of Respect
“Odd and Ends” is the title of a Bob Dylan concert compilation film that was recently released in digital format.³ My odds and ends are probably not as interesting, but I’ve been busy for the last month litigating claims under the FHA and ADA, so this blog is part one of a two part effort to catch up. I’m hoping to release a “greatest hits” blog in the near future.
Pursuit of Respect keeps sending demands
I’ve gotten a dozen calls in the last few weeks from businesses in Pennsylvania, California and Florida who got demand letters from one attorney or another claiming to represent Pursuit of Respect. When I last checked none of those lawyers had filed a lawsuit, which I believe is because their client is fictitious and they’d rather not expose themselves to any kind of judicial inquiry. They will, however, keep harassing businesses that don’t respond with calls and additional letters. If anyone reading this knows of a lawsuit filed on behalf of POR I would be very interested in hearing about.¹ More