In the last days of the Trump administration HUD promulgated a new regulation concerning disparate impact claims under the Fair Housing Act whose intent was very clearly to make such claims difficult even to plead, let alone prove.¹ Its implementation remains stayed by a federal court, but in the Fifth Circuit that may not matter because earlier Fifth Circuit cases are even more restrictive. Prompted by the discussion in Treece v. Perrier Condo. Owners Assn., Inc., 2021 WL 533720 (E.D. La. Feb. 12, 2021) I decided to take a hard look at the Fifth Circuit’s decision in Inclusive Communities Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 895 (5th Cir. 2019), cert. denied, 140 S. Ct. 2506 (2020). That turned out to be a bigger project than I expected, because as interpreted Lincoln Properties is incredibly restrictive, but those interpretations are almost certainly wrong. Clarification seems inevitable even with the existing conservative Supreme Court. Here’s why. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Mootness, ADA Public Accommodation, ADA Web Access, FHA, FHA Reasonable Accommodation, Interactive Process Tags: ADA defense, ADA Multidistrict Litigation, FHA Defense, Hotel accessibility litigation, WCAG 3.0
Valentines Day, which has been in the stores since December 26, has finally arrived in reality. Since I last blogged a few weeks ago the courts have continued to decide cases and the blogosphere has continued to cover, or mis-cover, accessibility related news. Here’s a sweet collection of matters to read after you’ve finished your celebration of the day.
WCAG 3.0 – Will it really matter at all?
The preliminary draft of WCAG 3.0 has generated a lot of attention. From a litigation defense standpoint the possible new standards are irrelevant, as is compliance with existing standards. Lawsuits are not filed to make the web more accessible; they are filed to make lawyers rich (or richer). As long as it is cheaper to settle than fight most businesses will continue to pay off the plaintiffs lawyers regardless of how accessible their websites might be. For those who do care about accessibility the new standard adopts a different approach that is focused less on specific technical requirements and more on the actual experience of the disabled user. Lawyers will recognize this as similar (though with much more detail) to the meaningful access standard required by Title II of the ADA. It remains to be seen whether DOJ, which will almost certainly restart the regulatory process under the Biden administration, can balance the certainty of strictly technical standards against the purpose of the ADA, which is meaningful access. That balance and the courts’ willingness to require plausible allegations concerning web access in order to meet the Iqbal / Twombly pleading standard will determine the future of website accessibility litigation. If courts are willing to require plaintiffs to plead facially credible claims that they were denied meaningful access to the content of a website than a new regulatory standard based on meaningful access could slow down the litigation industry and help businesses make their websites accessible in a meaningful way. If not the abuse of the ADA for the benefit of lawyers will continue unabated. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Mootness, ADA Web Access, ADA Website Accessibility, Reasonable accommodation, Title II Tags: ADA arbitration, ADA defense, ADA Negligence, ADA supplemental jurisdiction, Center for Disability Access, COVID-19, Deborah Laufer, FHA Defense, Judge Olguin, Model Home Sales Offices, nexus requirement, unruh act
With more than 40 new decisions in the last two weeks it hasn’t been easy getting this blog out. I’m not the only lawyer with too much to do too fast, as the following cases demonstrate.
The problem with industrial litigation
In a classic episode of “I Love Lucy” she and her friend Ethel get a job in a chocolate factory but find they can’t keep up with the assembly line and have to resort to stuffing chocolates in their mouths and shirts.³ I thought of their predicament when I read Garcia v. Hwangbo, 2021 WL 149086 (C.D. Cal. Jan. 15, 2021), one of hundreds of cases filed on behalf of Orlando Garcia by the “Center for Disability Access.” The problem with an assembly line practice is keeping up with the speed of the line, and Garcia’s lawyers found they couldn’t keep up on January 15 when Judge Olguin dismissed the Hwangbo case under the terms of a docket control order that required the defendants be served within 90 days of filing. More
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA regulations, ADA Website Accessibility, Animals, Animals, FHA Emotional Support Animals, FHA Guidance, FHA Regulation, Internet Accessibility Tags: ADA 2020, ADA defense, COVID-19, Emotional Support Animals, FHA 2020, FHA Defense, Usablenet
Here’s a toast to the end of a bad year. I don’t know anyone who won’t be happy to see 2020 behind us, but it’s worth looking back at how the law of accessibility developed in the last year.
Fair Housing Act developments were bracketed by two events, one of which was scarcely noticed but could be important. In February, to considerable fanfare, HUD rolled out its new Guidance on requests for accommodation concerning animals.¹ Its many disclaimers about not being a regulation and not having any binding effect were not enough for the U.S. Government Accountability Office, which opined on December 17, 2020² that the Guidance violated the Congressional Review Act because it was not submitted to Congress for approval before it took effect. It is not surprising that HUD ignored the law, but HUD often ignores both science and the law, so to the extent the Guidance reflects what HUD’s investigators will do it provides some useful information on staying out of trouble in a HUD investigation even if it isn’t helpful as a guide to complying with the FHA. More
Jeremy Horelick of ADA Site Compliance called my attention to a recently filed lawsuit making a novel ADA claim. In Panarra v. HTC Corporation and HTC America, Inc., Case No. 6:20-cv-06991 (W.D.N.Y.) the plaintiff claims that because he is deaf he is denied equal access to the virtual reality games and experiences offered by defendants’ website, https://www.viveport.com/infinity. This, he claims, violates the Americans with Disabilities Act and New York law.² The lawsuit can be seen as just the latest in a line of cases stretching back at least to Arizona ex rel. Goddard v. Harkins Amuse. Enterprises, Inc., 603 F.3d 666 (9th Cir. 2010), a case arguing that a chain of movie theaters was obliged to provide closed captioning for the movies it showed and even to Stoutenborough v. Natl. Football League, Inc., 59 F.3d 580, 582 (6th Cir. 1995), a case claiming that the NFL’s “blackout rule” discriminated against the deaf in violation of the ADA because it meant that for many games the only broadcast available was a radio broadcast. That chain of cases certainly includes Natl. Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012) since at the center of Panarra’s argument is the fact that since Netflix provides captions for its content it must be possible for HTC to do so as well. More