Welcome to the Alice in Wonderland world of HUD reading the FHA. We can start with a quote from the novel by Lewis Carroll that sums up the problem: “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all. Like Humpty Dumpty, HUD believes it is the master of the word “handicap.” Among the many lessons to be learned from HUD’s recent charge of discrimination ..read more

Back in 2022 a plaintiffs’ firm filed a national class action in Florida against Starbucks claiming that it discriminated against those with lactose intolerance by charging extra from non-dairy milk alternatives. The case progressed in fits and starts, as most such cases do, until February 27 of this year, when the Court gave the plaintiffs seven days to explain how one of them could establish the requirements for asserting that the Court in Florida had personal jurisdiction over Starbucks. On March 6 the plaintiffs dismissed the lawsuit entirely rather than meet the Court’s demand for an expl ..read more

I don’t usually blog about my own cases because it requires that I put in a disclaimer.¹ However, a trio of district court decisions, including two in cases where I represent the defendant, justify another look at standing after  Transunion and the Laufer cases.² I’ll start with the good news of an apparent trend in ADA website cases filed in the Southern District of New York. The most recent case is Martin v. Second Story Promotions, Inc., No. 1:22-CV-10438 (MKV), 2024 WL 775140 (S.D.N.Y. Feb. 26, 2024), a decision by Judge Vyskocil. The case was a typical³ serial filer suit alleging tha ..read more

Circuit court decisions on ADA cases are sparse when compared to the number of suits filed, and cases involving self-service kiosks are rare, so it isn’t surprising the Ninth Circuit’s decision in Davis et al v. Laboratory Corp. of America Holdings, Case No. 22-55873 (Ninth Circuit, February 8, 2024) has gotten a good deal of attention. Others have looked at the holding itself, but I thought it would be a good opportunity to look at the issue of accessible kiosks generally to see how this case fits with earlier decisions and ask whether it marks a significant change in the law.¹ The earli ..read more

My Google News feed has had dozens, maybe hundreds of articles about the Supreme Court’s decision to dismiss the Laufer v Acheson Hotels case. When written by disability rights advocates the positions are what you’d expect; either “whew we dodged a bullet” or “Laufer has standing and the Court saved itself from a horrible mistake.” Business oriented writers, knowing that if the Court had addressed the issue it would almost certainly have confirmed that Laufer did not have standing, wish the Court had ruled instead of dismissing based on mootness. I found a good analysis of the issues in D ..read more

On October 13, 2023, Magistrate Judge Peter Bray of the Southern District of Texas released a Memorandum and Order that analyzes the reasons for permitting an owner of multi-family properties to bring in every party that contributed to an FHA design/build violation. It is the right decision for the right reason, but also provides an opportunity to look again at the irrationality of earlier cases and the indemnity/contribution distinction.¹ The story is a familiar one. A serial plaintiff, Dana Bowman, sued the owner of an apartment complex and one of its principals for failing to design and con ..read more

In my last blog I looked at why testers became embedded in the enforcement of civil rights laws from a practical standpoint. Now it’s time to look at the law of standing as it relates to testers.¹ The Supreme Court recognized long ago that Article III of the Constitution only gives federal courts the right to decide “cases” or “controversies.” Those words are in the text of Article III itself. By the 1960’s this requirement was interpreted to mean that the plaintiff had: such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction and to j ..read more

Now that everyone (and I mean everyone¹ ) has weighed in on tester standing as presented to the Supreme Court in Acheson Hotels v Laufer I thought I might as well try to explain the issue for those who don’t live and breathe disabilities rights litigation. In my next blog I’ll look at the legal arguments about tester standing, but first I want to talk about a more practical question. Why did this case generate 16 amicus briefs filed by a total of 47 organizations?  The legal questions are fascinating, but the intense interest in the case has nothing to do with those questions. It stems in ..read more

Several other sources have reported on recent legislation in California that would establish WCAG 2.1 AA as the minimum accessibility requirement for websites that do business in California.¹ The bill is a disaster in many ways, but rather than look at its many individual flaws I think it is useful to ask whether the entire law is invalid as an improper attempt to regulate interstate commerce. That’s right, the “dormant commerce clause” could make this and any similar effort by other states invalid. The dormant commerce clause, for those who did not take Constitutional Law at some point in the ..read more

A recent decision from the Northern District of New York has  a useful summary of the law of contribution and indemnity in Fair Housing Act cases. Clover Communities Beavercreek, LLC et al v. Mussachio Architects P.C. et al, 2023 WL 3864965 (N.D.N.Y. June 7, 2023). For the plaintiffs, who were developers and owners, there is a happy ending, but the sunny result is shadowed by an important mistake carried on from earlier cases. Before we get there, a little backgound is in order.¹ The FHA establishes accessibility standards for multi-family housing. It is illegal to fail to desig ..read more