This is being provided in a rough-draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.
And now, at long last, I will hand it over to our presenters before I visit with you again in just shy of 90 minutes.
And I will outro this group and introduce what comes after the break.
But at the moment, it is again my honor and privilege to introduce to you Michael Allen, partner at Relman Colfax, PLLC; Ashley Brickhouse, a fellow at the same firm; and finally Zoila Hinson, partner at the same firm.
This is Big Litigation Big Results.
(Applause)
MICHAEL ALLEN: Sanho, do we need to do something to display this? Oh. Perfect.
>> Thank you for that wonderful introduction. My name is Ashley Brickhouse, and I am a fellow at Relman Colfax.
And it's been a great experience. I'm very excited to be here with you all. Looking forward to today.
MICHAEL ALLEN: I'm Michael Allen, also at Relman Colfax.
ZOILA HINSON: And Zoila Hinson also at Relman Colfax.
ASHLEY BRICKHOUSE: I just want to note at the outset that we will open for Q&A at the end of our presentation, so if you do have any questions along the way, please feel free to jot them down, and we're excited to continue and start some conversations and hope that they continue post today.
So Relman Colfax is a plaintiff-side civil rights law firm based in Washington, D.C. We utilize high impact litigation and strategic advocacy to fight against discrimination in housing.
And we've also built a robust docket in disability advocacy and use litigation to address accessibility barriers.
Ultimately Relman Colfax aims to dismantle longstanding barriers to access that seem insurmountable.
A brief overview of some of the cases that we have litigated or are currently litigating that we will touch upon today include the Independent Living Center of Southern California versus the city of L.A., and the city of California. City funded housing didn't comply with federal accessibility standards. This matter settled and is in its 10th year of remediation.
The next case alleges violations of federal and D.C. disability rights laws because of the District's failure to provide accessible signals to blind and low vision pedestrians. This case is currently in settlement discussions. And this case was also filed alongside Disability Rights Advocates and the Washington lawyers committee.
Next we'll discuss a little bit about the fair housing rights center versus Morgan properties filed in the eastern district of Pennsylvania, charging a large company of not waiving late fees as a reasonable accommodation for SSDI recipients whose disabilities checks arrive in the middle of the month. This case settled with a change in policy.
Next is Bash and V Conduent in California Alameda County, challenging the accessibility of a state website under California False Claims Acts and Unruh, Civil Rights Acts and the ADA. This case has settled with an agreement of remediation of the inaccessible features on the state website and was cocounseled with Tim Elder.
Lastly we have the fair housing council of Southern Texas versus DR Horton. This was filed in the western district of Texas and it challenged a nationwide company policy for discrimination on the basis of disability and failure to provide both reasonable accommodations and modifications on behalf of individual and organizational plaintiffs.
This case is in active negotiation discussions.
Okay. So what do we mean by big litigation? While our title may be a little audacious, hopefully it captured your attention. When we say big litigation, our goal is for organizations and law firms of all sizes to consider a case that they would normally take and potentially take that case one step further to attain even more systemic change.
Oftentimes big litigation starts from an individual intake or referral of an issue that may seem small, but it actually affects an entire community. Whether from a partner building failing to comply with accessibility standards, a companywide discriminatory policy, or a neutral policy with that same effect, or a city failing to comply with requirements. The list goes on.
But these issues are likely to trigger a legal avenue to remedy these injustices on a systemic scale such as by federal and state Fair Housing Acts, Section 504 of the Rehabilitation Act, and Americans with Disabilities Act, and other statutes.
We will be discussing the inception of the case, assessing claims, litigation, and ultimately settlement.
As a consideration, when you get into the litigation portion of the case, as many of you may know, there is no one size fits all timeline for a case. Some cases may settle early in discovery. Others may be in discovery for years because of the complexity of the case. It is important to keep these considerations in mind as they pertain to the particular facts and parties of your case when strategizing about potential litigation.
As I mentioned, big litigation can start with an intake.
Someone comes with an issue and through question be and investigative work, you realize many people are having the same issue. This happened in the past month. I was following up with a tenant using a wheelchair denied access to metro transportation van because of the apartment building's refusal to give access to the back entrance of the apartment when the front entrance was inaccessible.
After doing some digging, we learned that the refusal of access not only affected this particular tenant but several others in the building who also use wheelchairs or had a disability of some kind. In an instant, this case escalated from a potential action to a more systemic building-wide action that could target a discriminatory policy or practice.
Taking this example a step further, let's consider the potential scale of litigation. This instance was a single building that could potentially be held to account.
But what if we learned that the policy was implemented by the property management company across all their buildings across the country, or if we learned that this was one of several public housing developments funded by city or local governments that implemented this discriminatory policy to varying degrees?
One intake had the power to go from recognizing an injustice to one individual to a single building to a nationwide corporation to potentially an entire municipality. That's pretty big.
MICHAEL ALLEN: So I'm going to pick up the next piece here and I'm going to say, apologize for our being late this morning. I was thinking of subtitling our conference: Big Accident on 95; Big Delay.
(Laughter)
But anyway, we're here and thank you for your patience.
So Relman Colfax, as Ashley said, is about 30 lawyers based in D.C. We have a nationwide practice. We have the good fortune to have been around for about 26-27 years now, and to be able to diversify our docket in a way that allows us to take on some small cases, some medium cases, and then a bunch of sort of big cases that have systemic impact.
So we have focused historically over the life of the firm on systemic cases and looking for systemic relief because we realize that this may be the most efficient way to get larger amounts of relief to larger numbers of people.
And so our cases tend not to be over and over again the same individual representation, but trying to seek out ways to get that broader relief that we're looking for.
The one thing I was really conscious about when we picked this topic and were invited to do this presentation was that we not come off as a bunch of big fish stories, because at our size, we can do things that a nonprofit or a smaller firm probably can't sustain.
But a theme we want to sound throughout today is, we would like to partner with you all as you see these cases come up, as you're testing the question of whether or not we could go one step bigger to try to get more relief. So we're available to help with case assessment, you know, legal theories, whatever the case may be, all the way up through cocounseling if that's something that appeals.
And I know there are other firms and organizations in the room that are also willing to do that same sort of thing because particularly in this day and age when we see the federal government retreating from enforcement and actively getting in the way of our efforts, we need more and more folks out here collaborating so we can take on some of these bigger systemic issues.
Because of the way we do cases, right, the implication of looking for broader relief is that there's certain kinds of cases that we are most interested in taking.
It has implications for how we frame our litigation, who the plaintiffs are, how we do our pre-suit investigation and testing, the kinds of claims that we assert, what our representation agreements look like. So what we want to do today is share some lessons of what we've learned, some of which have been successful and some of which have fizzled out, but we think by sharing this kind of information, it's useful to others who are considering this same kind of work.
And when we think about all of the things we're trying to aspire for in big litigation, we want to make sure that people are anything all the way back to the beginning in terms of the initial relationships with clients, the understanding of the objectives in a particular case, and trying to be clear and maintain clear communication from the time you sign that first representation agreement all the way up through the end of a case, whether it's judgment, settlement, or otherwise.
So as Ashley said, there are a number of cases that we sort of put out there as big cases that we've worked on. I'll talk mostly about the Los Angeles housing accessibility case, a little bit about the accessible pedestrian signals case in D.C., and about the Morgan properties case, not to give SSDI recipients a break on late fees.
First, though, when we talk about potential plaintiffs, obviously a plaintiff must have standing in order to bring a claim. Right? It's obvious. It requires that there be some legal injury caused by the defendant for which relief can be granted by a statute through litigation.
Plaintiff has to have standing for each element of the relief, he/she/it is asking for, so that if you're looking for damages, you have to establish you have standing for damages.
And if you're seeking injunctive relief, which is often what we're looking for, in terms of broader systemic relief, a plaintiff will also have to have standing to seek that kind of relief. So what that means is, when you get to a case like Los Angeles, and I'll say a few words about that. Early on, a disability advocate and a small fair housing group that was concerned about disability issues came to us and said, we've been trying with our limited resources to figure out where the accessible units are that have been funded by the city of Los Angeles. So accessible and affordable housing, that intersection, because so many folks with disabilities have low incomes and are not going to be able to afford market rate.
They heard over and over again, we have no such units or we're not required to have such units. They knocked on doors. They checked at apartment complexes.
They eventually went to the two city agencies that were funding and overseeing this portfolio of affordable housing.
At some point what they got was a pat on the head, oh, you dear folks, I know you're so concerned about this, but you don't understand, we just give out the money, we're not responsible for anybody's compliance with accessibility requirements.
If you can't find the accessible units, well, sorry, you know, look somewhere else for relief.
In that scenario, the question of who a potential plaintiff might be could extend everywhere from a single individual who is unable to find an accessible affordable housing when there was an obligation to have those, or we could have pursued it through a class with class representatives, or we could have pursued it through an organization, with an organizational plaintiff. And for organizational plaintiffs, we have two theories, right? One is that the organization itself can claim that it is injured because the absence of accessible housing hurts its mission or requires it to divert its resources, or, secondly, associational standing, that is to say it has members who are harmed by the lack of accessible housing but the organization wants to proceed in its own name.
So we thought about all of those options, and I'm going to tell you a little bit later about how we came to decisions there.
In the D.C. council of the blind versus D.C. case, the accessible pedestrian signal case in D.C., we also had this sort of range of options in terms of plaintiffs. We had individuals who came to us who expressed exactly what their experiences had been, their lived experiences of not being able to safely cross the street in the District.
We also had the D.C. Council of the Blind, an organization whose members are all affected by this.
In this case, we ended up doing a hybrid. We represent an organizational plaintiff who has both associational and organizational standing, and we represent five individuals who are class representatives that represent the interests of all blind and low vision residents in the District of Columbia.
Let's go to slide 7, if we could.
Okay.
So after you think initially about what it is that you're trying to achieve, in Los Angeles it was people with disabilities can't find accessible housing. Is that a small problem or a big problem? The more the individual advocate and the fair housing group dug into it, the bigger the problem seemed to be. They got out to see dozens of apartment complexes but got the same answer over and over again. They eventually went to the city, and the answer was: Not our problem.
At that point it began to seem like a much broader problem. Once a lawsuit is filed, the Federal Rules of Civil Procedure and discovery rules give you lots of tools to prove compliance or noncompliance. There is no effective communication to safely cross the street or no equivalent to what sighted pedestrians get.
Once you get into litigation, you could have interrogatories, you can have depositions, you can issue subpoenas to get into third-party properties like apartment complexes to see whether or not they're actually accessible.
But before filing suit, particularly in a systemic case, you need to develop a comfort level that there's enough there. You see some smoke, you want to be sure there's some fire before you decide to file a piece of litigation, particularly when you're looking for broad systemic relief.
So what do we do informally before we can file suit to decide whether or not it's something worth going for? Our clients' lived experience informed this.
In Los Angeles, we can't find accessible housing. In D.C., you know, I'm run over by a car because I'm not warned that it's not safe to cross the street. So those lived experiences are important whether it comes from individuals or from the nonprofit organizations and disability rights groups that are active in a particular community.
Public statements, right? In some circumstances an agency, particularly municipal agency, is going to be required to say what the condition of things is, right? Under the ADA and Section 504, there's an obligation to have something called a self-evaluation and transition plan.
So if there are accessibility barriers, obstacles to full participation by people with disabilities, the self-evaluation is supposed to identify those things and the transition plan is supposed to be a step-by-step process, maybe not all at once but over a period of years to solve those problems. That's one ready source of information about what the current conditions are on the ground.
In the case of the District of Columbia, the self-evaluation and transition plan revealed that there was very little coverage of APS devices across the 1700 or so signalized intersections.
In the Los Angeles case, the equivalent requirement was periodic reports to HUD about the number of accessible units that the city had funded. Those reports revealed both that there was a huge dearth of accessible affordable housing, and that the city was not hitting its marks in terms of what Section 504 required for a percentage of highly accessible units.
So we had that going for us as well in understanding that there was some there there.
In Los Angeles, a number of individual people with disabilities filed complaints with HUD.
Now, these days I think HUD's housing of fair housing and equal opportunity is nonfunctional, but back then, we could investigate individual complaints about the lack of accessibility.
Finally, our clients in that case actually went out to units, showed up, and said I am here to apply for a unit. I need it to be accessible.
Please show me the units. So they were able to get into common areas, they were able to get into individual units, they were able to record informally the fact that there were conditions that simply didn't comply with the requirements.
We got to the point prelitigation where we had a comfort level that if we're going to spend hundreds or thousands of attorney and paralegal hours and a bunch of money on experts and depositions, that there was enough there to proceed.
So in Los Angeles, we did proceed.
The end of the story in Los Angeles is basically, we settled that case.
As Ashley said, we're in year 10 of settlement. We got to a great outcome. The city agreed to provide 4,000 highly accessible units over a period of years, and put together a compliance team to make sure that all of the private owners and managers of those units are actually complying with all of the programmatic accessibility requirements of the ADA 504 Fair Housing Act, etc.
Carrying forward this idea of what we need to do before we file litigation, Access Living, a case we're currently litigating in the city of Chicago, that's also accessible affordable housing city-wide, we realized we needed to add one more feature. We had the consumers at Access Living, go out and formally test 18 apartment complexes complete with not just kind of it was inaccessible to me but actually reports that showed what the inaccessible features were.
So we were able over the visits at those 18 properties to articulate in a complaint the precise kinds of accessibility problems that were happening over and over again, and we were able to establish not just that they were individual problems at individual apartment complexes but that there were themes, and that the themes suggested that it wasn't just the individual owners that were problematic here; it was that the city's oversight of all of these developments in Chicago hundreds of developments in fact, had a common theme, which was, nobody was watching the store. Nobody was policing the requirements against the private owners.
Let's go on if we could to the next slide.
When we think about claims, much of what Relman Colfax does is in the housing space. Not exclusive.
But much is there. We think a lot about the Fair Housing Act. The value of the Fair Housing Act is that there are nondiscrimination requirements but there are also specific accessibility requirements for buildings built after 1991, apartment buildings. While the standards of accessibility are fairly modest, fairly low, that is somebody with a profound physical disability, mobility disability, might not be able to find those places accessible, they do provide a basic level of accessibility across all multi-family units.
So the definition of disability is very broad under the Fair Housing Act. The definition of who is an aggrieved person who can sue is broad. Case law has been very broad. There's declaratory injunctive and monetary relief available. There's punitive damages available under the Fair Housing Act.
There is a 2-year statute of limitations. So this plays into some of the decisions that we've made about systemic cases, because if you're an individual who goes into a building that got its last certificate of occupancy in 2019, it may be inaccessible to you, but the courts have said as an individual, you come too late to the table. Two years after that certificate of occupancy was issued is the last time you can sue on inaccessibility in an individual building.
So as an individual, you're harmed but you have no remedy. If you can trace it back to some broader scheme, right, either a player at the top of the pyramid who caused inaccessibility to happen over a number of developments, or a repeat player where you have at least one instance within the 2-year statute of limitations, you can proceed.
But one of the reasons we've looked particularly at these municipal housing cases is because we can trace it back to the top of the pyramid. When the city doesn't fulfill its obligations under the ADA, 504, and the Fair Housing Act and it flows down to hundreds of developments, there's greater leverage and it's more likely that we'll find this is a continuing violation. It may have happened within 2 years, so we have a right to sue, but it lets us look back 20 or 30 or 40 years to a practice of inaccessibility over that entire period of time. So the ADA and 504 have many of the same principles and coverage as the Fair Housing Act.
Punitive damages are nonexistent or really difficult there. The statute of limitations may be a little different here or there.
But typically a municipal housing program will be under all three laws where a private owner may only be reachable under the Fair Housing Act.
We've experimented with -- I was going to say pioneered but that may be the wrong word. We've experimented with the use of the False Claims Act to try to enforce some of these accessibility obligations as well.
I'll tell you, sometimes it works. Often it doesn't. I made a presentation here years ago about the False Claims Act. Tim Elder brought the case that Zoila will be talking about later, the Bashin case, and we got some relief in that case.
It is a fabulous law which provides for treble damages against people who commit fraud against the United States including lying about accessibility.
Your client, your private client, can bring the case and can get a bounty, can get up to 30% of what the government recovers from the fraudster. That's great.
The problem is, there's no injunctive relief under the False Claims Act and it depends on the government caring about the inaccessibility as much as you do. And let's just say, even in progressive administrations, some of our experience has been the government doesn't give a damn, right? They gave out the money.
Yeah, whatever. So let's just say the False Claims Act has some promise but also there's a lot of rocks on which you can crash.
Finally, when we're considering claims, we look at small claims too. You have the Unruh Act, you have it easier to bring disparate impact claims in some cases, in D.C. the consumer protection procedures act is this fabulous statute that says if you're a nonprofit and you encounter some unfair practice in the context of a consumer transaction, you can sue as an organization without having to jump through all of the associational and organizational standing hoops. The Equal Rights Center filed a case just yesterday against a developer in D.C. It's basically a housing accessibility case but they brought it just under the D.C. consumer protection practices act which allows the ERC, a nonprofit, to avoid some of the difficulties we'll talk about later with organizational standing.
So look at state and local claims because they will be subject to jurisdiction of a federal court if you're bringing federal claims anyway.
I'm going a little slower than I would like to so I'm going to talk faster now. I will say less.
I said at the beginning, figure out who your plaintiff is.
Where the problem is narrow, like the inaccessibility of a single building which I posited before, that individual plaintiff probably has standing and probably can get relief but it's going to be narrow, right? You could certainly get injunctive relief. This place should have been accessible, I sued in time, it's not accessible, give me the relief of making it accessible and you could probably get damages too.
That individual can't get damages or injunctive relief in multiple places. That individual can live in one place.
She might be harmed by the inaccessibility somewhere else, but there will be some limitations on the scope of what an individual can get in terms of systemic relief. When the problem is widespread, and I mentioned the example of Los Angeles, for instance, or the example in the Morgan Properties case, where a big Mid-Atlantic management company said, we don't care when your SSDI check arrives. And you all know that social security staggers them so that one quarter of the checks are sent out each Wednesday during the month, and if you get the second, third, or fourth Wednesday, you can never pay your rent on time.
And if you're depending on your disability income, you won't have a bunch of extra to pay early.
And then you have a late fee.
So in this case, the policy was, we don't give anybody a break. Disability or no disability. We challenged the policy on behalf of not an individual, although we found the case through an individual, but the Fair Housing Rights Center said we exist to make sure that people with disabilities have an equal opportunity to use and enjoy housing. When you get a disability benefit, which you only get because of a, I don't know, disability, then you should be entitled to a reasonable accommodation when it comes beyond your control on the second, third, or fourth Wednesday of the month and not have to pay a penalty for it.
An individual might have gotten relief for him or herself in that circumstance.
The Fair Housing Rights Center got Morgan Properties to change policy not just at the individual development but at 52 developments throughout the Mid-Atlantic.
Again, it seems like a small thing, but for people with disabilities whose check arrives late, it's the difference often between being able to maintain your housing and not.
We've considered some cases representing more than one individual plaintiff because, you know, as Ashley said, in a particular building if the elevator doesn't work or you don't have access to the accessible entrance, it hurts a lot of people.
The difficulty of multiple individual plaintiff litigation is that people may have different objectives. Some may want to get the thing fixed.
Some want to get paid. Some want out of it. Some don't want to deal with it at all. So it's complex representing more than one plaintiff. It raises potentials of conflict.
At the beginning, middle, and certainly at the settlement stage of the case. That's another thing to consider, both in terms of individual multiple plaintiffs and also organizational multiple plaintiffs. We encountered circumstances where we had two or three plaintiffs in a case, and sometimes it gets difficult to manage.
One of the lessons we learned in the Access Living case is that when you represent one organization with one decision maker and one process for figuring out whether litigation decision goes this way or this way, do we settle for this or this, can be much cleaner.
Let's move on if we could and talk a little bit about defendants.
Who should a defendant be? Examples I've given you, it isn't always obvious. In the Los Angeles case, the first two or three landlords, apartment complexes that our clients encountered could have been the defendants in a case. Maybe, right? Unless the building was built more than 2 years ago and the statute of limitations kicks in.
So we thought through the possibilities here, and when we hit on the idea that ultimately the defendant was at the top of the pyramid and that the defendant, the city of Los Angeles, continued to do the same thing over and over and over again over a period of 40 years but had been doing it very recently so that we could beat the statute of limitations, we decided the city of Los Angeles and its redevelopment agency were the appropriate defendants in that case.
So our objective was to figure out how to get broader relief. It didn't answer the question necessarily of who the defendant would be, but in the end we realized we had to go to the top of the pyramid.
In the D.C. case about the accessible pedestrian signals, it was clear pretty early on that the District of Columbia controls all of the intersections and signalized intersections so there was no other kind of defendant to look at really. We thought maybe the park service or the feds or somebody. We got an answer pretty quickly, no, D.C. controls it all. So the D.C. Department of Transportation is our single defendant in that case. Makes it pretty clean.
Also means that it's pretty clean when we're in settlement negotiations which we're in now to sort of speak to one party on the other side and to be able to seek relief.
In the Morgan Properties case, it was obvious that this policy because it was company-wide, that the policy was against the Morgan entity itself and not any of its individual LLCs, so we were able to determine that the defendant should be that single company.
I want to say just a couple words about municipal defendants before I move on to talk about relief.
I've been at the firm now going on 20 years. These dents in my forehead here are from banging my head against the brick wall of municipal defendants. Those of you in the audience, probably similar experiences.
Sometimes when you figure that out the municipality or some entity or agency is your defendant, you have no choice. Municipality defendants have lawyers in house, already paid for.
The incentives to settle cases are much different than against private defendants.
But we keep banging our head against the wall because I guess it's like Capone, why do you rob banks, because that's where the money is. Relman, why do you sue municipal defendants, that's where the relief.
So it can be very complicated. It can take a long time.
Some nonprofits are concerned about going up against a municipal entity because it may fund them in some way or another or have some regulatory approval or land use approval. Those are all things that we help our potential clients to navigate. They're complicated, but that's where the relief.
Slide 12, please.
The kinds of relief that you can get under these statutes is broad.
As I said before, declaratory and injunctive relief is available under all of the statutes.
In Los Angeles, what we did, because of the strength of our experts' findings, when we tested first to see what was going on, and then determined that it was worth investing in, and then when we got into discovery, used an expert, and the experts' findings were that there was massive noncompliance, we were able to secure relief in that case, broad declaratory and injunctive relief. 4,000 units.
As of late 2024, which was the last time I could see a public report, the city of Los Angeles represented that it had spent more than 1 billion dollars fixing the problems. This didn't even count the relief, the monetary relief or our attorneys’ fees.
So broad injunctive relief not only theoretically available but Eve actually secured it in a number of our cases.
Morgan Properties, it was injunctive, not monetary relief, but we got it changed across 52 properties, affecting hundreds or potentially thousands of people who were entitled to reasonable accommodations.
In the APS case in the District of Columbia, early on we're trying to settle it. We moved into a structured negotiation agreement.
Thank you, Lainey Feingold for the inspiration. Pretty early in that case and we are working through relief.
We are seeking and the D.C. government seems willing to consider remediation of 100% of the problem, right? We don't want to solve 50 or 20%. 100% of signalized intersections in the District of Columbia. The question as Rachel Weisberg in the audience knows, is what comes next.
In Los Angeles, our three nonprofit clients ended up with 7.5 million dollars in damages to reflect the diversion of their resources and the frustration of their missions. We've had other cases in the housing accessibility space where fair housing clients have gotten in the neighborhood of about a million dollars in diversion frustration damages.
In Los Angeles, it was useful because we represented two Independent Living Centers whose annual budgets were in the neighborhood of 400,000 dollars. With each of them getting over 2 million dollars, let's just say it helped them to do other things going forward.
Punitive damages are available under the Fair Housing Act. And in the case that we haven't talked about but some of you know about, the second circuit this year or late last year affirmed a jury award of 2 million dollars in punitive damages against a town that ran a group home out of town based on NIMBYism. This is rare but we think it is a cautionary tale and something we could use in appropriate circumstances to blow back defendants' resistance to our claims.
The last thing I want to talk about before I turn it to Zoila is attorneys' fees, the relief that's available and that allows a firm like ours or quite frankly Brown, Goldstein & Levy, DRA, etc., the other sponsors of this event, is the availability of fee shifting under all of these statutes. We keep our time in 6-minute increments which for me was a huge transition from my days in nonprofits.
But I do that religiously because when we make a fee demand or file a fee petition, we want to be sure we are compensated for our work. It helps us keep the lights on and do the next case and cocounsel with others. It helps us do case assessments.
It helps us to have a little bit in the bank so we can fund the investigations that we do prelitigation.
We have a number, 7, 8 figure attorneys' fees recoveries in some of our big litigation. It's available in cases of all sizes. When Congress passed the fee shifting provision in civil rights laws, it did so to incentivize nongovernmental entities to come forward and take on these important cases, and so the availability of fee shifting allows us to do what we do.
And I think will allow you to do and fund some of the important advocacy that you do as well.
So thank you for bearing with me. I turn it over to Zoila.
ZOILA HINSON: Great.
Okay. So you filed your complaint. You've made all these strategic decisions.
And now you're in everyone's favorite part of litigation: Discovery.
And I actually think this is in some ways where the biggest practical differences are between filing on behalf of one person seeking to get damages for that one person versus the more systemic claims. And there's three key reasons for that.
The first, if you're going to challenge a policy or practice, you need to know what that policy or practice is and you need to know the scale that its operating at.
Is that one building or all of Morgan Properties? Is it one manager? Is it the regional subsidiary? Or the nationwide parent company? Because the broader that you can show that the policy exists, the broader the relief is that you can get.
And of course you're entitled to this discovery if you plead this in your complaint and of course defendants are not going to want to give it to you. Some of that is simply, they don't want you to get the information you need to prove your case. Sometimes it's just expensive. And sometimes it's stuff like executives don't want to be bothered so they're going to kind of throw their regional subsidiary under the bus to allow the national parent company to go about its merry way.
In one of the cases that Ashley mentioned that she and I are both working on right now, this has become one of our major discovery issues.
We brought a case against a company called DR Horton and its Texas regional subsidiary. They build inventory homes, they call them. Basically you go and pick the new built home that you want or say I want this model and they assign you the house. So they're not building it for you, but they are building it.
By its own admission, the Texas-based subsidiary will not modify its homes during the construction process for any reason, including disability accommodations.
And one of the major fights we've been having with the other side is how much information can we get about the parent, is this a national policy, can we prove it's a national policy. It's an ongoing dispute with them because of course if it's a nationwide policy, we want to change it nationwide, not just in Texas.
Second, establishing a problematic pattern may require a lot of analysis of data or an expert analysis. I'll briefly toss it back to Michael to talk a little bit about the expert analysis they had in Access Living.
MICHAEL ALLEN: After we understood that there was something there to go after, we hired an architectural disability consultant, Bill Hecker, out of Birmingham, Alabama, to come in and look at this portfolio. In Chicago, we think there are 550 buildings and just over 50,000 total units that have been funded by the city during the relevant period, going back about 35 years or so. There's no way that we could get in to do architectural accessibility reviews on site at 550 buildings. There was not enough money or time.
At some point we needed to decide, how can we pick, how can we draw a random sample of those 550 so that when you test the random sample, you could later represent to a court, it is likely that the balance of the portfolio would have the same characteristics.
And so we had a statistician come in and randomize the entire list of properties, and from that randomized list, our expert looked at 100 on-site surveys. They went on site, took measurements and photographs and looked at 100 sets of building plans that had been submitted for permits.
In the end, I'm not sure we had to pick that many because our expert found that 100% of both the site reviews and the plan reviews failed the accessibility standards, which means there was a very high level of confidence as to the balance of the portfolio.
But that confirming evidence made it possible for us, you know, still in the discovery phase to decide that going, you know, going big in terms of an investment of time to get this case to the finish line was important.
ZOILA HINSON: The third big discovery issue is that given you've gone out, gotten all of the documents from the municipality or parent company, you're going back ten years and collected all the documents and now you have 700,000 documents and three lawyers. You're probably not going to be able to manually review 100% of those documents.
And I think there are many, many conversations to be had about the role of technology in the practice of law. I'm generally pretty opposed to it.
But I think that technology-assisted review or continuous active learning or some other tool that can help speed up or focus the document review process can be helpful when you're dealing with hundreds of thousands or even millions of documents. You have to be really thoughtful about how you set it up.
You have to be running all sorts of checks and make sure you're getting a good sample across custodians but if you can do it well, it helps you get to the key documents a lot faster.
One thing I've heard another partner at our firm say, we tend to kill ourselves over the last 10%. There's 10% more we could get! We can't let it go! Sometimes you lose a lot of time looking for the 10% and not focusing on the 90% that's actually going to be the base of your case, and I think technology can help us all do that.
Next slide.
So what's the upshot of all of this? It's so important, we gave it its own slide. The bigger the case, the more resources you're going to need.
That is sort of a multidimensional issue. For the attorneys, that can be hours. Funding for experts, like Michael was talking about. The timeline of discovery and litigation. Or even something mundane like the cost of hosting the document review platform that is going to have all of those documents you're looking at.
If you're an advocate and thinking of becoming a plaintiff or having your organization become a plaintiff, it can mean the amount of time you're spending explaining what this issue is to your lawyer, gathering your own documents, preparing for deposition. There is work that goes into being a plaintiff.
And I think we all need to be thinking about resource distribution when we are thinking about bringing these cases. So if you're pouring time and energy into a big systemic case, that might take away time that you would otherwise spend on advocacy work or other individual cases. And certainly for-profit firms like ours need to be thinking about, that case Michael mentioned that we got that good decision in the second circuit, we have now settled and been paid and it was about 8 years, right?
We can't have only 8-year long cases, right? We have to have something in the meantime keeping the lights on. So in some ways the small cases are important to fund yourself to do the big systemic work.
And I do want to be clear, this is not at all to talk people out of bringing these cases. It's exactly the opposite and I don't want to suggest that a solo practitioner or very small firm can't bring them.
But I know that when we're thinking about are we going to bring any of our cases including the big systemic ones, it's do we have the resources to do this, do we have the right balance to allow us to pay for the expert that can lead to the good result in the end.
I would also say I think there are, as Michael was alluding to earlier, a lot of opportunities for partnership in the room, be it with a firm like ours or an organization like DRA, and that could look like a cocounsel arrangement or also could be, we're happy to have ideas bounced off of us, talk through what bringing some of these bigger cases looks like and what planning for them could look like. We're happy to have those conversations.
Next one?
Turning back a little more to the substance of actually doing the case.
And I'm sorry, this one really is a little more for the lawyers or almost exclusively for the lawyers in the room, I apologize. This question of scale also affects how you have to think about planning for summary judgment in a really mundane way. The slide just sort of shows document tagging, deposition tagging, researching key issues, and drafting opposition. The point is just, the more discovery materials you have, the more organized you have to be and the earlier that organization has to start.
Maybe that's obvious. I think lawyers tend to do a pretty good job of tagging our documents if only because we need them for depositions. I do think when you have a great transcript you know there's a great quote in there and you'll leave it there until you get that motion for summary judgment and totally know exactly where that incredible quote is. It's really hard to do if you have dozens of depositions. We use Case Notebook to tag our depositions.
There's probably a better tool out there. There's probably AI.
But you need a way to sort through the materials quickly and do a lot of that work up front probably while discovery is ongoing so you can pull everything together quickly when you get the motion for summary judgment.
To talk a little bit about a case Ashley alluded to earlier which was the Bashin case that we worked on with Tim Elder to challenge the claim that a California state website was inaccessible, I have that in my head as a medium sized case but I actually went back when we were preparing for this and thought we probably did 20 depositions in that case. There were 40 depositions in that case.
I think we had 350,000 documents.
And we did a huge amount of work to tag all of those depositions before discovery. Lest you think that is me bragging about how great we are, I will say we filed our oppositions and there were two we filed at the same time, at 2:30 a.m. which is okay because it was before midnight California time, but we really needed all of that work to get done so that we could turn both of those briefs around quickly and it really was down to the wire in getting them done.
So we're not really going to talk through trial in this presentation, but we did want to talk a little bit about settlement. I think it will pick up on a lot of the themes that Michael was flagging earlier on. The first is that it's particularly important when you're going into a settlement or mediation to make sure you and your clients are on the same page in terms of your goal. Is the goal to get the individual client compensation to make the modification that they need?
Or is it to change the policy that is company-wide or city-wide? An individual might be more incentivized to get that compensation, and that's completely logical and understandable. What's tricky is sometimes that comes into tension with the injunctive relief that is the reason you brought the case in the first place.
The point is basically there's a lot of work and conversations between the client and lawyers well before the settlement process to make sure that those goals are aligned..
And second, there can sometimes be a tradeoff between getting that injunctive relief and the monetary award you're going to get from the defendant, particularly if the injunctive relief is going to cost the defendant money. That's not always the case, but it is something that we need to be keeping in mind.
In a lot of our cases, the attorneys' fees can be the driver of the monetary award. And at the same time, we want to prioritize the client, right?
We want to make sure they're getting the compensation they need. So sometimes that does mean some of the award comes out of our pockets first. I don't want to discourage the attorneys. These cases can be hugely remunerative. Thinking through the tension but also the ethical issues that can be involved when there is that tradeoff between the fee shifting attorneys' fees and the compensation to the client.
So I think there are three issues here. One is that ethical issue that I just named. The other is hearkening back to my first point. We find sort of as a practice point, we always want to negotiate one award.
And we are going to have a conversation with a client about how things are getting split up between attorney and client, but that is not a conversation that defendants get to be a part of.
Having that be part of the open negotiation just lets a defendant drive a wedge and potentially position you and your client against one another.
And third, maybe I'm just repeating myself. We as lawyers have to be having these conversations early. We can't be leaving these conversations to the last minute with a client. So talk about what are your goals, the money damages, the injunctive relief, and what all of those tradeoffs are so you can move through the settlement process that gets the best result for your client.
And the final point with respect to settlement, we found that if the goal is to change the policy, it's often best to start with that in settlement negotiations instead of doing the monetary damages first, which defendants are going to want to do.
And that's for a few reasons. First, defendants often don't think you're serious about changing the policy and kind of think you're going to walk away once the monetary piece is settled and they start checking out and it can be hard to shift momentum back to, no, no, no, we have not settled this case yet, there's still work to be done.
On the flip side, we found that if we're able to get that injunctive relief which can sometimes be a lot of work, then you've built momentum with the other side, with the mediator, and people don't want to walk away from the agreement that they finally reached some agreement on.
And just to wrap up, I did want to flag two emerging issues that we've seen come up in our cases. Organizational standing and confidentiality.
But I'm going to take them in reverse order because confidentiality is really coming up a lot in our settlement conversations.
So one thing we've observed is that both mediators and defendants are assuming that settlements are going to be confidential. Sometimes they're assuming that even when we say, we will not agree to a confidential settlement.
If you are seeking to create systemic change, you don't want a confidential settlement.
(Light applause)
Great, I'm glad we agree.
You want to be able to point to the example so other defendants know if they do something illegal, they can get sued.
And we want to say, look at these huge settlements we have gotten. Don't you want to negotiate with us instead of having us sue you and we'll get a lot of money in 5 years.
But there has been this trend where both the mediator and defendant will assume you've kind of given it up if you don't bring it up early and often.
They assume you're backing away from an agreement. So really, the practice point, raise it early and often and keep bringing it up if it's important to you.
I'll also flag, some nonprofits and organizations can't agree to a confidential settlement. That can be useful because you can just say, oh, I'm sorry, we just can't do it.
But again, you do need to raise that more aggressively than we've had to in the past at least.
The other issue is organizational standing which Michael touched on and is a huge issue, a recurring issue in our fair housing practice. So to take a step back, standing for any nonlawyers in the room is who can bring a case.
And it means at high level you have to be injured by the person or entity that you are suing. So if you don't get a reasonable accommodation from your housing provider, you can sue them.
But I can't sue them because they didn't give you a reasonable accommodation.
I wasn't injured.
Organizations have standing to sue if they're injured the same as someone else. If someone steals from them, if someone cuts their funding, they have the right to sue.
But for many decades an organization could also sue based on the frustration of their mission or the diversion of their resources to fight discrimination. And what this meant is that advocacy organizations, fair housing organizations, could sue entities that were engaged in discrimination based on these two factors.
In 2024, the Supreme Court issued an opinion in a case called FDA v Alliance. You may have heard of this as the mifepristone case, where the core organizational activities were impaired according to them. What does that mean? Great question. The juris prudence is very much still in flux.
But we have argued and think based on the case law it's fair to say that it at least includes situations where the activity is literally harder to do or less effective.
What it does not include is a case where an organization disagrees with a policy or just spends money because it disagrees with a policy. That's really not enough anymore.
And that's true even when you are an organization that opposes discrimination and the defendant is discriminating.
So we think that the organizations where it will be easiest to bring lawsuits or clearest are service providers because those are activities we can clearly point to and say that's been impaired.
We don't think those are the only organizations.
But we do think it's an issue that is continuing to develop and that has to be developed really thoughtfully and carefully.
So this is another area where we would be happy to just talk through the issues with anybody. We care about this a lot and we are really invested in making sure that organizational standing develops in the best and most positive way possible because I think we all benefit from that.
As Ashley said up front, our goal for today was to lay out the ways that people in this room can be using systemic litigation to advance disability rights and disability justice. And as part of that effort, last year our firm launched our campaign for accessible housing, specifically seeking to bring cases to ensure housing accessibility.
And if you would like to learn more about the campaign, we have it linked in the materials and up on the slide.
Also, please feel free to reach out if you have ideas for systemic litigation, if there are cases you think we should be bringing, or if you want to talk through any of the issues we're raising today. We're always happy to have a conversation.
And I think now we're opening up for questions.
(Applause)
I didn't conclude well.
ASHLEY BRICKHOUSE: Do you have a question in the back?
ZOILA HINSON: Is there a mic?
ASHLEY BRICKHOUSE: Oh. Mic.
>> Hi, I'm Julia, a white person with brown curly hair. My question was, you kind of touched on it, but balancing between pursuing litigation with fast action, housing is an urgent need. So I was curious what legal tactics or social systems you use to alleviate the immediate harm so that you can continue to do a systemic approach?
For example, like I get clients all the time where I kind of have to, they don't really have the resources and so then I need to choose the faster maybe informal administrative approach but then I know there's a systemic issue happening. So that's just a Band-aid for when is it going to happen to someone else.
So I'm curious about creative solutions you've thought about.
MICHAEL ALLEN: I -- you know, one of the problems of being a litigation firm is that we have tools that we use. I think it is often very difficult, and speaking as somebody who started a career in legal services with all individual representation, it's often hard to sustain that interest in systemic reform when you have the client right in front of you and it's an emergency of some sort. It is pretty clear that if you seek relief for that particular person and that person gets relief, right, one of two things is going to happen. Either that's going to solve the problem and it will move forward but if it doesn't solve the problem, now you've got a kind of issue and claim preclusion that that's already been resolved and litigated for that person.
That person won't have the ability to carry that thing forward.
I do think that one of the important things that we try to do when we're talking to fair housing groups, centers for independent living, disability advocate nonprofits is to make sure that people are talking to one another in a particular jurisdiction to make sure that if there is kind of an aggregative effect or if there is some organization that can step forward as an organizational plaintiff, that we pursue that.
But I don't have an easy answer to that question because your duty and your zeal is for that client who is in front of you and not for the cause.
ZOILA HINSON: One thing I'll add, I've had a few cases, and I'll say none of these have been cases dealing with disability, where there was -- this was a case where the individual was going to lose their home. They couldn't keep up with payments under the predatory products. And actually, there's at least one other example in a case where we were able to basically prevent the foreclosure of the eviction while the litigation was ongoing. That did require us to get the good result at the end of the litigation but also kept people in their homes in the meantime.
The other thing I've done is reach out and do some work to try and find, like if we brought a class case already and there's someone who calls us and says, hey, man, I'm losing my house tomorrow or this is happening right now, we can't then go represent the individual but we can invest some time in trying to find a good attorney for them. Especially if we have local counsel that we're already working with. We've had some cases where local counsel agreed to take on those individuals or some number of individuals pro bono and make sure they can stay in their housing in the meantime.
But I think you guys are talking -- it's hard, right, I mean, there's no easy answer.
MICHAEL ALLEN: Who are we waiting on?
>> Folks who have questions, there are a couple of mic runners, but one of us at least can't see you, so if you have a question, it's more helpful if you shout out your name than if you raise your hand.
>> Over here. Thank you. Eve Hill.
You talked a lot about organizational plaintiffs, and I proudly represent an organizational plaintiff, the National Federation of the Blind.
(Applause)
But I am finding that courts are really limiting standing for organizational plaintiffs by arguing, for example, no, we are not diverting resources away from your mission because your mission is in fact to challenge discrimination and therefore we are helping you by discriminating against your members.
(Laughter)
And while you can't bring associational, you can't have associational standing based on your members unless you can identify every member that is experiencing this.
Another periodically difficult thing when you don't keep track of exactly what school every member goes to or where they vote or any of these things that you then have to do.
Do you have strategies that are working for you in challenging these limitations from the courts and defendants?
ZOILA HINSON: I think what we've been trying to do with the sort of organizational standing, the frustration diversion stuff, we're not bringing -- we're not claiming frustration and diversion, right? Everything is impairment of activities.
I think there's a separate question of like we haven't had to -- we haven't had a trial yet where we actually had to prove this. We've gotten past motions to dismiss, and I think that's something where you need to get really concrete.
I think the more concrete, the better. What is the activity they're doing.
I think we have a lot of fair housing clients, so we do tend to plead -- this is getting, I'm sorry, very, very into the weeds. The organizational client in the case that first recognized organizational standing was a fair housing organization, they were engaged in counseling and referrals, so we are trying to fit everybody, at least some of it into a counseling and referrals box and then do other things and try and really explain, say, for example -- sorry, this is also not a disability case. We sued Florida over a law that restricts when people from certain countries can buy houses and we have fair housing clients who do homeownership promotion, they do cost assistance programs and also do counseling and referrals.
So the complaint has a lot about these are the activities that they do and this is like the really specific way or our theory of the really specific way that those get disrupted or impaired by the state of Florida preventing people from freely purchasing homes in violation of the Fair Housing Act.
I think that we just need to all be a lot more careful frankly than we've been in the past and get out of some of those ruts.
I will say I find the sort of, you're not really being harmed because your goal, your mission is to fight discrimination, particularly insidious. We're still arguing that you can base damages on the diversion of your resources.
And I think we're asking clients to be a lot more disciplined about not just, okay, I'm keeping track of what they are doing with the funds but keeping track of what they're not doing with those same funds, the diverting from and also diverting to piece.
And then we've also been trying to frame missions and activities more in sort of positive terms than in anti-discrimination terms so our fair housing clients aren't fighting discrimination but ensuring equal access to housing for everyone. It sounds dumb.
But I think frankly a lot of courts don't have experience with this and don't actually dig that deep once you put it in the right framework, but they know, okay, well, it's not diversion anymore. You can't spend your way into standing.
And sort of fitting yourself at least initially into that box.
I think how we're going to prove it is a much harder question.
And I don't know that we have a clearance on that. Outside of the sort of really concrete, we would refer someone to this housing but this housing is inaccessible so it makes our referrals harder.
But yeah, I realize that's not totally an answer to the question.
EVE HILL: I'm glad I'm not the only one.
MICHAEL ALLEN: I'll add a couple of things. In the context of a fair housing group, it isn't just that we've pleaded differently; it's that we've worked with them in their bylaws and articles of incorporation and mission statements to make sure that all of the public information about what they do projects this sort of different approach rather than what the courts began to think was a kind of lazy approach of getting to standing.
Second thing is, in the context of a fair housing group, if for instance you have an accessibility fund, right, which you have to help people deal with reasonable modifications in the community, if you have to draw down on that fund because some new developer, new construction developer, didn't do what it was supposed to do, then you're sort of closer to what Zoila said about providing services.
And the third thing I would say is when I think about the big housing accessibility cases that I might have brought on behalf of a fair housing, private fair housing group, I'm now thinking, Center for Independent Living which is commanded by federal law to provide five core services, at least two or three of which are completely disrupted by the failure to provide at least at the municipal level accessible housing, that's a pretty good plaintiff, pretty good argument for standing.
So not just service provider so much but where the core mission goes to something that is harmed by the violation, the underlying violation.
ZOILA HINSON: Sorry. I'm going to pick back up on this. If you have time and aren't actively suing someone right now, this is the time to work with the client. If the client is not actively a plaintiff.
That's a better way to say it. This is the time to work with them and say, let’s get those bylaws in order and public statements in order, because it sets you up so much better than if you're trying to sort of backfill what they've already said on their website for 30 years.
SANHO STEELE-LOUCHART: Maybe one more?
>> Good morning. I'm with the National Health Law Program. Thank you for your work and all the helpful information.
I have a follow-up question on discovery, which your description of the magnitude of the productions as well as the number of depositions really resonates with a number of the kids' mental health cases that we've done and other disability work.
Finding, however, that even in systemic cases that are class based, courts are increasingly reluctant to recognize the need for and enforce discovery that would be commensurate, even judges who are presiding over a comparably or more complicated commercial cases where they understand the scope.
So my question for you is just, I'm wondering if we're seeing this just in our cases or if you are seeing courts more reluctant to award or really and I'm thinking motions to compel and follow up, the kind of discovery that you need or exceed the presumptive limits under the federal rules for depositions, etc., and if so, other than the arguments that you would ordinarily make in favor of relevance and materiality and proportionality, are there things that are working for you?
ZOILA HINSON: I guess I can start. I don't think I've seen as much the courts sort of in the motion to compel phase like not letting us get discovery there.
What I have found more is it's even harder to get to the motion to compel phase in the first place. I have a case right now where you have to have a hearing with the court, you can't file a motion to compel without permission from the court to file.
You have to essentially have a little hearing where you haven't briefed anything and go in and say, your Honor, defendants have refused to give me any documents like how can I -- what more can I do.
So that I think is actually the thing that I've been seeing the most of.
I think the biggest thing I could suggest, and I will toss it to Michael, is really meticulously building the record of, it's not just I think this person might be important or their name came up, but like this other deponent said this specific thing about this person. This person shows up on this document, I have a really specific reason to believe that this person has information that is crucial to the case. That's I think the best thing that I can think of.
MICHAEL ALLEN: Yeah, I don't know if I have a whole lot more to add. I mean, to say that in the two big housing cases, the Los Angeles and Chicago cases, we've had judges or magistrates who understand that the size of the case being what it is, it's kind of hard to put, you know, hard to accept the defendant's sense of what the limitations should be and how far back it goes.
I will say, though, in both cases we had multiple hearings with the magistrate about the production of very simple things. In Los Angeles, we learned that the city had actually sent its own architects out to survey many of the buildings that our expert had surveyed and we said we're entitled to those.
So we had a big fight over whether that was the mental impressions of the expert or not, and then we had a magistrate who just said, listen, give them the photographs and the measurements which are of course just facts as opposed to any impressions. That kind of broke the case open for us.
In Chicago, we ended up spending a godawful amount of money because we couldn't get the magistrate to compel the city to produce loan and regulatory agreements that were comprehensive. So we actually had to subpoena them in the hands of all of the third-party owners which involved a lot of time and resources, etc.
But again, I think it eventually set us up.
So it doesn't go directly to your question. It's sort of like my experience has been all over the board in terms of how we can compel these sorts of things.
ZOILA HINSON: I guess I will also say having earlier advocated for broad discovery, I think it can be helpful to say, we initially asked for everything under the sun but we're here asking for these specific things and not trying to fight over getting the emails of the 37th most important custodian or something like that.
SANHO STEELE-LOUCHART: All right. Please join me in thanking the Relman Colfax team.