I had forgotten that this classic song was from Loggins & Messina until I looked it up after getting an old demand letter packaged by a new firm. I have blogged before about Legal Justice Advocates, a front for a group of attorneys who sent hundreds of demand letters making unsustainable claims about website accessibility under the Fair Housing Act.¹ Their business was taken over by the Portell Law Group² when the original members of LJA dropped out of sight and one of them, Ilya Torchinsky, lost his license to practice. Now another member of the group, Jerome Ramsaran, has incorporated a new supposed disability rights group, Pursuit of Respect, Inc., which is pursuing the old business of making demands on website owners in different real estate related businesses. I know this because I was recently provided a demand letter sent by a lawyer in Chicago who also practices in Florida, the original home of Legal Justice Advocates. J. Kevin Benjamin is the lawyer sending demands on behalf of Pursuit of Respect, Inc. Unlike the claims from Legal Justice Advocates and the Portell Law Group Benjamin’s claims include ADA allegations, and unlike the LJA and Portell Claims the letters from Benjamin give the recipient fourteen days to correct the supposed website violations before there is a threat of a money demand. Of course the demands do not include any details about the supposed problems, and fourteen days is an impossible period for website remediation under the best circumstances. I expect the soft touch is intended to get an equally soft response that lets Benjamin solicit some kind of payment, and once the fourteen days are up there will probably be a stronger money demand. More
FHA Defense
Quick Hits – April Fools Edition
If foolishness were limited to one day a year this blog would be well overdue, but a glance at the news – legal, political or other, shows that every day in April can be April fools day, so I make no apologies for the delay in getting this out.
The difference between accommodation and modification under the ADA and FHA
Any discussion of S.W. Fair Hous. Council v. WG Chandler Villas SH LLC, 2021 WL 1087200 (D. Ariz. Mar. 22, 2021) must begin with a vocabulary note. The thing called “modification” under the ADA is called “accommodation” under the FHA and the thing called “modification” under the FHA doesn’t really exist under Title III of the ADA. The vocabulary matters because under the FHA a “modification” is a change to a physical feature that the tenant must pay for while an “accommodation” is a change in policy that the landlord must pay for on the theory that the costs will usually be nominal. In WG Chandler Villas the plaintiff, a fair housing organization that was testing local apartment communities for their responsiveness to the needs of the deaf, asserted that installation of a flashing doorbell was an accommodation rather than a modification, thus making the cost the landlord’s responsibility. The Court held that how to characterize such a request depended on what kinds of services the landlord already provided:
The Court finds that a flashing doorbell is a reasonable accommodation under the ADA—not merely a modification—in the context of Defendant’s housing facility, because one of the services that Defendant provides residents is safety checks.
Those safety checks included ringing the doorbell to see if the resident responded. Since deaf residents would not benefit from that safety check if they didn’t know the doorbell was being rung the addition of the flashing doorbell was better characterized as a change in policy about safety checks rather than a physical modification in the form of a new doorbell. This reasoning could apply to an array of services that any apartment complex might provide. If reserved parking is a service, for example, then a reserved accessible parking space would be an accommodation despite the physical changes (including using up an entire extra parking space) and their cost.² More
Quick Hits – Vernal Equinox edition
Madeira was traditionally aged in barrels that crossed the equator twice, the heat and time fortifying and sweetening the wine. Like a cask of Madeira the sun will cross the equatorial plane of the earth in a few days, but you won’t have to wait for the next crossing in the fall for a quick hits blog. Here’s the news.
What if someday never comes?
The classic Creedence Clearwater Revival song asks what will have if someday never comes. The Eighth Circuit had the same question in Smith v. Golden China of Red Wing, Inc., 987 F.3d 1205, 1209 (8th Cir. 2021). Following its earlier decisions involving the same lawyers and plaintiff the Eighth Circuit had little trouble concluding that the plaintiff, who visited the defendant only as a “tester” driven by his attorney and whose return would be as directed by his attorney did not have sufficiently concrete plans to return for there to be a likely future injury that would support standing for injunctive relief. Since the ADA only provides for injunctive relief that was fatal to this claim as it had been to others in the past. The Eighth Circuit has seen dozens, rather than tens of thousands, of ADA lawsuits because the Court takes Article III standing seriously. If the Ninth Circuit ever does the same my blogs will start getting much shorter. More
Murder or just a misunderstanding? The Fifth Circuit on disparate impact discrimination
ICP v Lincoln Properties and its “progeny.”
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
Quick Hits – Hearts and Flowers Edition
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