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Recently, there has been a flood of ADA lawsuits against small businesses in the City of Berkeley. Berkeley has historically been overlooked by serial ADA plaintiffs, seeing only about a few cases each year. However, it seems like these serial ADA plaintiffs have turned their attention to the City, which should, at the very least, force all Berkeley public establishments to take notice of ADA issues.

Below are three basis tips that can help protect your restaurant or business from being subjected to these serial ADA lawsuits.

CASp Inspections

A Certified Access Specialist (“CASp”) inspection is the first line of defense that should be conducted on all properties that are used as a public accommodations. Public accommodations are any and all commercial or noncommercial entities that are open to and serve the general public. These include restaurants, clothing stores, record stores, bars, hotels, etc. Continue ›

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As many business owners and commercial landlords know all too well, the number of Americans with Disabilities Act (ADA) lawsuits appears out of control, particularly in California where approximately 40 percent of ADA lawsuits are filed. Why is this?

ADA_Signing-300x202The answer lies in the legislative design. The ADA was signed into law under the George H.W. Bush administration in 1990. It was designed to avoid further government bureaucracy by allowing aggrieved individuals to enforce the law by filing private lawsuits with the courts, rather than having a governmental agency enforce the law.

While this approach sounded attractive on paper, and perhaps could have been if executed properly, it has instead given rise to a cottage industry of serial ADA plaintiffs who file dozens, hundreds, and sometimes thousands of ADA lawsuits.

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Recently Thomas Dorobiala, through his law firm Apex Trial Law, has been sending a large number of complaint letters to various types of businesses alleging that the business’ website fails to comply with the California Unruh Civil Rights Act.

Specifically, the letter states that Mr. Dorobiala is hearing impaired and “unable to fully access your website because the website is not fully accessible to the hearing-impaired.” Generally, the letter will reference a video available on the website and the lack of closed captions available for that video. The letter is usually signed by Ryan M. Ferrell, Esq. or Thomas W. Kohler, Esq.

The Department of Justice has not yet clarified exactly what a website requires to be compliant with the law. The WCAG 2.1 AA standards were published by the nongovernmental W3C organization and are not legally binding. However, many businesses and some courts refer to them to help determine if features on a website are accessible. Generally, websites should be coded so that they are compatible for screen reading software, which blind users will use to listen to the website’s content. Hearing impaired users often seek closed captioning for video content. For more on website accessibility, see our blog here or the W3C introduction to WCAG standards here. Continue ›

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Recently, Pacific Trial Attorneys has been pursuing claims against craft breweries throughout California for alleged Americans with Disabilities Act (ADA) and California Unruh Act website violations.

Pacific Trial Attorneys is a well-known plaintiff’s law firm that has filed hundreds of ADA lawsuits against various businesses, often using the same few disabled plaintiffs, such as Dominick Martin and Rusty Rendon. The lawsuits essentially state that the craft brewery’s website is not accessible for blind users, and thus, violates the ADA and/or California Unruh Civil Rights Act.

The letter generally looks like this:

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Generally, individuals with vision limitations use screen reading software that scans a webpage and reads it aloud to them. Websites can be coded in such a way as to be more or less compatible with screen reading software. Continue ›

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JMBM is proud to announce that two of its Americans With Disabilities (ADA) Defense attorneys, Martin H. Orlick and Stuart K. Tubis, have recently been recognized for their professional excellence. Martin, a partner in the firm and Chair of the ADA Compliance & Defense Group, has been named one of the 2023 Best Lawyers in America® for Real Estate Law. Stuart, an partner in ADA practice, has been included on the “One to Watch” list for Civil Rights Law.

Best Lawyers in America is based on a comprehensive peer-review survey in which tens of thousands of top lawyers evaluate the legal abilities of other lawyers within their practice areas. The “Ones to Watch” list recognizes lawyers earlier in their careers who have achieved outstanding professional excellence. Continue ›

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In a recent decision by Judge William H. Orrick, the court reviewed a website for compliance with the Americans with Disabilities Act (ADA) and found that minor imperfections on a website that do not meaningfully hinder access to the business are insufficient to constitute ADA violations. Gomez v. Trinitas Cellars LLC, Case No. Case No. 3:21-cv-09006-WHO, Doc # 37 (N.D. Cal. June 17, 2022.

The ADA was passed into law in 1990, well before the popularization of the internet. Since then, of course, the internet has become an inescapable part of everyday life in America. The ADA, however, contains no mention of the internet. The closest it gets are generalized principles requiring businesses to provide “auxiliary aids and services” and ensure “effective communication.”

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Americans with Disabilities Act (ADA) lawsuits under Title III are often filed against businesses and landlords. They can be defended, however, if the plaintiff who filed the lawsuit lacks standing in court. This is more common than it might sound.

In law, standing is a requirement for the party seeking a legal remedy. That party must show that they have sufficient connection to the alleged violation and have, or will have, harm from it. Standing is what prevents someone from bringing a lawsuit over something that doesn’t affect them, or on behalf of someone they have no real connection to. A plaintiff must have a real stake in the outcome of the litigation.

If an ADA plaintiff does not have a bona fide intent to do business with the defendant, then there is no standing because there is no harm to the plaintiff. Someone with a disability cannot just sue a business that he/she has no actual intent to ever do business with. There would be no harm for the court to remedy, and standing would not exist. The same principle applies to accessibility claims under California’s Unruh Civil Rights Act. Continue ›

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Recently on March 18, 2022, the U.S. Department of Justice (DOJ) issued a “Web Accessibility Guidance” statement for state and local governments and public accommodations (including businesses) under Titles II and III of the Americans with Disabilities Act (ADA).

A copy of the Guidance document can be found here.

In the Guidance, the DOJ clarifies once again that the ADA applies to websites: “the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.”

The Guidance also provides some examples of website accessibility barriers, including poor color contrast, lack of text alternatives for images, lack of labels for forms, and mouse-only navigation design. Continue ›

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On April 11, 2022, San Francisco District Attorney Chesa Boudin and Los Angeles District Attorney George Gascon filed a lawsuit against Potter Handy for allegedly filing thousands of fraudulent Americans with Disabilities Act claims. The complaint can be found here.

The 58-page complaint alleges that Potter Handy filed thousands of ADA lawsuits on behalf of three primary serial litigants Brian Whitaker, Orlando Garcia, and Scott Johnson (whom the complaint designates as “Serial Filers”) against small businesses, primarily owned by minorities and immigrants, to pressure these owners for quick settlements between $10,000 and $20,000.

The complaint alleges that “[c]onservatively assuming an average settlement figure of $10,000 per case, Defendants have extracted over $5,000,000 from California’s small businesses from the cases filed on behalf of just one of their Serial Filers in just over two years.” The complaint further alleges that “it is reasonable to assume Potter Handy has drained tens of millions of dollars from California’s small businesses during the statute of limitations period alone.” Continue ›

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After nearly two decades of peace in the vineyards, California wineries are once again the targets of ADA litigation. ADA lawsuits are being filed almost daily against wineries large and small by a single plaintiff, Andres Gomez. Mr. Gomez, a Miami resident, has sued more than 100 wineries in Northern California and the Central Coast, claiming their websites violate the ADA.

You may recall the late 1990s, when wineries in the Napa, Sonoma and Anderson valleys offering tasting rooms, vineyard tours and special events were the targets of ADA architectural barrier lawsuits. Those lawsuits involved physical barriers such as inaccessible parking, tasting rooms, and bathrooms.

Focus now is on cyber accessibility

Well, wineries are back in the crosshairs of serial ADA plaintiffs. These recent ADA lawsuits focus on website accessibility for people who are visually impaired. They allege these wineries discriminate against individuals who navigate websites using the assistance of screen-reader software. Screen reading software is an assistive technology that interacts with an application’s digital components – such as images, text, links and buttons – by converting these and other elements to audible synthesized speech outputs. Web developers need to code websites to be screen-reader compatible. Continue ›