Accessibility litigation under the ADA and FHA always seems to have a moral component. This is partly because plaintiffs almost always preface their complaints with a lengthy and unnecessary recitation of Congressional intent about the ADA and FHA, frequently accompanied by statistics about the number of disabled Americans and the discrimination they suffer. Defendants for their part are almost always outraged at being sued without notice over what they regard as purely technical violations that have often been present for decades without complaint. More
ada litigation
Booths, tables and discrimination beyond the ADA Standards.
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Hospitality, Hotels, Restaurants, Retail, Shopping Centers Tags: ada litigation, ada violation, private lawsuits, private litigants, restaurants, retail
A few careless words in an opinion can spawn dozens of lawsuits and may create precedents that cost property owners and operators tens of thousands of dollars in legal fees if not in remediation costs. The question of whether compliance with ADA Standards and Guidelines is sufficient to avoid an ADA claim illustrates just how this can happen. More
It’s time to apply Iqbal and Twombly to ADA pleadings
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, ADA FHA Litigation General, Retail, Shopping Centers Tags: ada litigation, ADA pleading, ada violation, FHA ADA litigation "statute of limitations" strategy DOJ "attorney general" enforcement, private lawsuits, private litigants
Defendants are frequently and justifiably annoyed by the usual style of pleading in ADA accessibility cases. It appears that a few courts, although a minority, have begun to apply ordinary federal pleading standards to these claims, which will make it much easier to obtain dismissal of those without real merit.
Many ADA plaintiffs are cagey, to say the least, about exactly what barriers they encountered, when they encountered them, and what effect the encounter had. A typical shopping center lawsuit, for example, may allege that there are cross slopes, improperly marked handicapped parking, and ramps that are too steep, but will not identify the location of the cross slopes, parking or ramps. The date or dates on which the plaintiff encountered these barriers will not be stated, and there will be only the most general allegation that the plaintiff was, as a result of these conditions, unable to have access to the center. More
The Elephant in the Room
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, ADA FHA Litigation General Tags: ada litigation, FHA ADA litigation "statute of limitations" strategy DOJ "attorney general" enforcement, FHA Litigation, private lawsuits, private litigants
In the last few weeks there has been a vigorous discussion in various blogs and other forums concerning disability law about the pool lift requirement in the 2010 ADA Standards. These discussions were prompted by the January 31, 2013 deadline for compliance. Hotel and motel owners are concerned with the expense of compliance and in particular what constitutes a “readily achievable” barrier removal for a small business with limited resources. This prompted me to look back at the cases defining what is “readily achievable.”
What I found was of little practical help. The ADA itself outlines the factors to be considered, including cost, but doesn’t say just how to balance them. Various district courts have looked at revenues, gross profits and net profits to determine if the cost of barrier removal was excessive, but always end up saying that the inquiry is “fact intensive.” That, of course, is shorthand for there will be an expensive trial of the case. More
The Nitty Gritty – regulatory details that matter in the defense of ADA and FHA lawsuits
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, FHA Tags: ada litigation, ada violation, FHA Litigation
I’ve observed that in many ADA and FHA cases there is little dispute about the existence of barriers to access, but this isn’t always true. A decision from the Seventh Circuit in the first week of January serves as a reminder that sometimes the outcome of a case turns on the nitty gritty of the regulations about accessibility rather than on procedural battles over standing or limitations. More