The last six weeks have seen some important or at least interesting decisions under the Fair Housing Act and Title III of the ADA. If there is any common thread, it is that courts in general seem increasingly reluctant to give serial plaintiffs the benefit of the doubt on dubious pleadings while some judges continue to treat private enforcement as a legitimate means to advance the policy goals of these statutes. This is part 1 of a 2 part blog, so stay tuned . . . More
FHA Defense
Laufer v Looper – the death of tester standing, and not just in ADA cases.
By Richard Hunt in ADA - drive-by litigation, ADA - Standing Tags: ADA defense, ADA standing, FHA Defense, FHA standing, Laufer v Looper, Transunion v Ramirez
I’m the last of the ADA bloggers to discuss Laufer v Looper, 21-1031, 2022 WL 39072, at *6 (10th Cir. Jan. 5, 2022) but reading the analysis by Bill Goren (Is Tester Standing a Thing When it Comes to Title III of the ADA) and Seyfarth Shaw (A Status Update on Hotel Reservations Website Lawsuits) has given me some perspective on what the decision means for tester standing in ADA and FHA cases. I think the discussion of tester standing in Laufer v. Looper exposes the fatal flaw in all tester standing cases; that is, testers never suffer the kind of injury that is now required by the Supreme Court to meet the requirements of Article III. Like Yorick, a fellow of infinite jest who bore young Hamlet a thousand times, tester standing should be dead (5).
Looking backward and looking forward – ADA and FHA prognostications
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA Internet Web, ADA Website Accessibility, FHA Tags: ADA defense, Denaryle Williams, FHA Defense, Pursuit of Justice, Pursuit of Respect, Transunion v Ramirez, Winn-Dixie
Janus, the Roman god who gave his name to January, famously had two faces, one looking to the future and the other looking back. I’m a little late for the New Years predictions and 2021 wasn’t all that much fun, but as long as we are still in Janus’ month I thought I would briefly provide some observations about what the old man in the beard has seen and what his younger counterpart is likely to see.
There were important decisions about standing from the Fifth Circuit¹ and the Supreme Court² but neither seems to have slowed the pace of ADA filings. A brand new ruling from the 10th Circuit that agrees with the Fifth Circuit that testers do not have standing as such(7) probably won’t have any effect either. This is because ADA lawsuits are filed to be settled, and the cost of settlement is ordinarily lower than the cost of even the cheapest effective defense. I believe the settlement value of ADA website cases has declined because they have always cost more to settle than run-of-the mill drive-by cases, but they are likely to still have a good ROI for plaintiffs’ firms and as long as the business is profitable it will continue. More
Quick Hits – Who needs the Grinch when you’ve got Bowser?
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA Internet, ADA Internet Web, FHA, Internet Accessibility Tags: ADA defense, ADA personal jurisdiction, FHA Defense, Legal Ethics Today, recovery homes, sober living, Uber Technologies, William Goren
Almost everyone who ever was, had or has a child probably knows Bowser, the character from many Nintendo games. In Mario Party he often offers “gifts” that don’t always (or ever) turn out to be something you might want. Recent developments in accessibility law are, as usual, a mixed bag. Here’s what I found underneath the tree. Bwahahahaha!
A shiny new article about the ethics of communication.
My partner, Jeanne Huey and I collaborated on an article about ABA Formal Opinion 500 that was published by the American Bar Association Litigation Section Professionalism and Ethics Committee, but is easiest to find at her blog, Legal Ethics Today. Communication with those who are disabled is a statutory obligation under the ADA for all businesses open to the public as well as the Fair Housing Act for housing providers. For lawyers it is an ethical obligation as well. More
ADA and FHA Quick Hits – Wild Turkey edition.
By Richard Hunt in ADA, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Mootness, FHA, Uncategorized Tags: ADA defense, ADA standing, ADA statute of limitations, ADA website, FHA Defense, serial litigation
It turns out that the story about Benjamin Franklin wanting the wild turkey to be the U.S. National Bird is a myth, I’m not willing to get into the politics of the annual pardoning of turkeys by the President, and I don’t have Wild Turkey in my liquor cabinet so here instead are the latest ADA and FHA decisions.
Another critical case on injury and standing, this time in the context of limitations.
In Karantsalis v. City of Miami Springs, Fla.,2021 WL 5279406 (11th Cir. Nov. 12, 2021) the Eleventh Circuit made a critical distinction between having a disability and being injured because of that disability that has implications beyond the immediate limitations issue. The question was when the plaintiff’s ADA claim against the City accrued. If it accrued when he first learned that he had multiple sclerosis in 2008 then his claims were barred by limitations. If it accrued when his symptoms progressed to the point that he could no longer use City facilities in 2019 then his lawsuit was timely. The Court found that despite having a disability the plaintiff had not been injured until his disability interfered with use of City services:
Karantsalis argues on the other hand that the district court incorrectly determined that his claims accrued in 2008. Instead, he contends that his claims did not accrue until he had suffered both (1) a disability, and (2) an injury (his inability to readily access and use the City’s services by reason of his disability). Under the ADA, Karantsalis was not injured (and therefore did not have standing) until after he was denied the benefits of the City’s public services.
As a statute of limitations case this decision is important for any municipality faced with ADA litigation over services like sidewalks that are in place for decades. It is equally important as part of the trend of recognizing that standing to sue requires a real, rather than a hypothetical injury. More