805 F.3d 34
2d Cir.2015Background
- TAG (The Anderson Group) planned Spring Run Village, a 250–300 unit development with ~20% workforce-affordable rental units; the City rezoned the parcel in 2005 and denied necessary permits, preventing the project.
- TAG sued under the Fair Housing Act (FHA), alleging disparate impact on African‑Americans and families with children and perpetuation of segregation; trial occurred in July 2010.
- The July 2010 jury found TAG liable on the disparate impact claim (but not on perpetuation of segregation as to the City’s affirmative defense) and awarded $1,000,000 in compensatory damages; judgment was entered for TAG July 6, 2010.
- The City moved post‑trial, arguing the verdicts were inconsistent and seeking a new trial; the district court granted a new trial (June 21, 2011) on inconsistency grounds and suggested remittitur to $81,000 if its new‑trial decision failed.
- A second jury in 2012 found for the City; both sides appealed. The Second Circuit held the City waived the inconsistency objection, reinstated liability on the disparate impact claim, but found the $900,000 portion of damages for a speculative developer’s fee unsupported and ordered a damages‑only retrial unless TAG accepts remittitur to $100,000.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue under FHA | TAG: incurred $81,000 in development costs and was denied a special‑use permit — a concrete injury | City: TAG lacked an ownership/contractual interest and thus no concrete injury | Held: TAG has standing based on actual expenditures and denied permit for a specific, viable project |
| Waiver of inconsistent‑verdict objection | TAG: City failed to object before jury discharge, so objection waived | City: complexity and futility justified raising the issue post‑trial; verdict was irreconcilable | Held: City waived the objection by not timely objecting; district court erred in ordering a new trial on that ground |
| Admissibility/weight of plaintiffs’ experts | TAG: experts supported disparate‑impact showing; testimony admissible and weighed by jury | City: experts failed to analyze facially neutral policy/statistically tie zoning to discriminatory effect; should have been excluded | Held: City largely waived new expert arguments on appeal; district court did not abuse discretion in admitting experts as litigated below |
| Damages — lost developer’s fee and reputational harm | TAG: presented testimony showing a likely $900,000 developer’s fee and reputational harm supporting $1,000,000 award | City: $900,000 developer’s fee and reputational damages speculative and unsupported | Held: $900,000 for lost developer’s fee was too speculative and vacated; $100,000 (including $81,000 actual costs and some reputational harm) sustained; remand for damages trial unless TAG accepts remittitur to $100,000 |
Key Cases Cited
- Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (recognizes developer expenditures and permit applications as cognizable injuries and frames disparate impact analysis)
- Warth v. Seldin, 422 U.S. 490 (developer standing requires a concrete specific project and injury; general business loss insufficient)
- Story Parchment Co. v. Patterson Parchment Paper Co., 282 U.S. 555 (damages must not be speculative; plaintiff must prove fact of damage; uncertainty as to amount is defendant’s risk)
- Casella v. Equifax Credit Info. Servs., 56 F.3d 469 (lost‑opportunity damages are speculative absent concrete attempts to obtain the opportunity)
- Kosmynka v. Polaris Indus., Inc., 462 F.3d 74 (party waives jury‑verdict inconsistency claim if not raised before jury discharged)
- Fabri v. United Techs. Int’l, Inc., 387 F.3d 109 (forfeited objections to jury instructions or verdict sheets may be reviewed only for fundamental error)
- Jarvis v. Ford Motor Co., 283 F.3d 33 (de novo review of waiver; discussion of when objections must be made under Rule 51)
- Stampf v. Long Island R.R. Co., 761 F.3d 192 (remittitur authority; vacating speculative portions of damage awards)
- Kirsch v. Fleet Street, Ltd., 148 F.3d 149 (remittitur standards: identifiable quantifiable error or intrinsically excessive award)
- Huntington Branch, N.A.A.C.P. v. Town of Huntington, 844 F.2d 926 (describes discriminatory effect categories and the defendant’s burden to justify neutral policies)
- Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, 135 S. Ct. 2507 (Supreme Court’s disparate‑impact framework reaffirmed; context for causation in FHA claims)