Most of the 37 ATM lawsuits filed in Texas since June of 2012 have been dismissed or settled, but two have just moved past the motion to dismiss phase and may become significant as models for later class actions concerning ATMs and other facilities. The decisions denying the defendants’ motions to dismiss point to some of the problems with this kind of case and suggest strategies for dealing effectively with them. More
A statute of repose proposal for FHA and ADA design/build liability
Last week I described how liability for design/build claims under the FHA can last forever. The same problem exists with design/build claims under the ADA, as shown by the decision in Frame v. City of Arlington. There are even surprises with the statute of limitations for barrier removal cases. For example, after a plaintiff encounters an access barrier he can wait as long as he wants before filing suit. In Pickern v. Holiday Quality Foods the Ninth Circuit said that as long as the plaintiff is aware of the discriminatory condition and is deterred from returning to the building the violation of the ADA continues. In Pickern the plaintiff had driven to the store within the limitations period, and although he remained in his car there was some evidence of real deterrence. Nonetheless, the rule stated in Pickern would allow a plaintiff to stew at home for as many years or decades as she chose before filing suit. More
Endless liability for FHA design/build claims is alive and well
The apartment complex is complete, the construction crews have gone home, and a certificate of occupancy has been issued. A decade passes, and then another. The apartments are sold and the developer, contractor and architect move on to other projects. Any complaints about construction of the apartments in compliance with FHA accessibility requirements seem lost in the mists of time. And then comes the lawsuit. A disabled renter has discovered that the individual units are not FHA compliant and sues the entire original development team demanding that they renovate the entire complex. Surely such a claim is barred by the FHA’s two year statute of limitations. Unfortunately, in most of the U.S. it is not. More
Squabbles and Battles – when winning matters.
This week two district courts, one in Oregon and one in Florida, confronted defendants determined to make sure that no one would be allowed to know whether they had violated the FHA or ADA. One seems to involve only a pointless squabble that increased legal expenses for no good purpose. The other shows how a battle over discovery can provide a real victory for the property owner. More
How courts have missed the point on ADA and FHA indemnity issues
No one person can usually make all the mistakes needed for design/build liability under the ADA and FHA. At a minimum the architect, builder and owner probably made mistakes, and in many cases there are subcontractors involved as well. In traditional litigation this would be a plaintiff’s dream. The more defendants, the bigger the pot of money for settlement and attorney’s fees. Despite this common wisdom courts looking at indemnity and contribution issues under the ADA and FHA have generally limited the ability to bring in additional defendants in ways tend to defeat the purpose of these laws and do so primarily at the expense of property owners and developers. More