pointing fingers smallLast week’s decision in Shaw v. Cherokee Meadows, LP, 17-CV-610-GKF-JFJ, 2018 WL 3474082 (N.D. Okla. July 19, 2018) provides a good opportunity to revisit contribution and indemnity claims arising out failures to meet the design/build requirements in Section 3604(f)(3)(C) of the Fair Housing Act.* The question remains the same as always: does the law make any sense at all.**

The judge who decided Cherokee Meadows was faced with a split between two Circuit Courts of Appeal and no precedent from the Tenth Circuit, which Oklahoma is a part of. The leading case on contribution and indemnity in design/build cases was Equal Rights Center v. Niles Bolton Associates, 602 F.3d 597, 602 (4th Cir. 2010). In that case the Fourth Circuit held that the Fair Housing Act pre-empted any state law that might allow an owner to put off all or even part of the liability for design/build failures on a third party. The Court found that the owner had a “non-delegable duty”† to follow the law and that allowing any shifting of liability would encourage owners to evade that duty. Equal Rights Center punishes an owner who may be innocent while excusing those who are in fact guilty because, it appears, the Fourth Circuit views the purpose of the FHA as primarily punitive.‡ More