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The prevailing wisdom in Americans with Disabilities Act litigation is that defendants who successfully prevail in ADA and Unruh Civil Rights Act lawsuits cannot recover their attorneys’ fees or defense costs. This prevailing wisdom compels most businesses to settle, rather than pursue a meritless case to summary judgment or trial. The tide may just be changing as more courts are awarding successful defendants their attorney’s fees and defense costs.

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As we recently posted, a JMBM client was awarded over $100,000 in attorneys’ fees and costs in two separate cases. The first award of fees and costs was against high frequency litigant Orlando Garcia, and the second award was against the law firm representing him, the Center for Disability Access. Garcia and the Center for Disability Access appealed the awards; however, our clients will nevertheless seek to enforce the judgments pending the appeals. Continue ›

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Today, the US Access Board announced that it is seeking final public comment on its newly proposed Americans with Disabilities Act (ADA) guidelines for the use of lower transfer heights for medical diagnostic equipment in medical diagnostics and treatment. The US Access Board is the federal organization that develops guidelines for the ADA. It works with professionals and advocacy groups to develop guidelines for various aspects of the ADA to provide greater access to goods and services. The Access Board is required to seek public comment before finalizing its proposed guidelines. After receiving public comment, the Access Board presents its proposed guidelines to the Department of Justice (DOJ) which then adopts all or part of the proposed guidelines into the ADA.

The Access board has been working for some time on the development of formal guidelines for lower transfer heights of medical diagnostic equipment. Once implemented, these guidelines will have an immediate impact on diagnostic equipment manufacturers, hospitals, clinics, and doctors’ offices throughout the country. The lower height requirements are intended to provide easier transfer for patients using wheelchairs, walkers, or other assistive devices. These diagnostic devices typically include, among other things, examination tables, scanning devices, and chairs for diagnosis.

Historically, medical diagnostic equipment (MDE) has been, and continues to be, inaccessible to many people in wheelchairs, which can lead to misdiagnosis or barriers to basic care and examinations. Continue ›

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On June 12, 2023, the California Assembly’s Judicial Committee re-drafted the content of an existing bill, AB1757, to pertain specifically to website accessibility and the adoption of the Web Content Accessibility Guidelines (“WCAG”) 2.1 into disabled access law. AB1757 specifically permits plaintiffs the right to sue businesses if the business’s website fails to “meet all of the Success Criteria set forth in the” WCAP 2.1 guidelines. Furthermore, AB1757 also allows the business to sue its website developer for any of these failures.

Most significantly, a plaintiff who prevails under AB1757 will be entitled to collect all damages, including, but not limited to, any statutory damages and attorney’s fees paid as a result of a lawsuit.

Why is This Significant for Not Only California Businesses, but Potentially Every Website Owner in the U.S.?

Because the Americans with Disabilities Act (“ADA”) does not have official guidelines regarding website accessibility, it is very possible, if not inevitable, that AB1757’s impact will stretch far-beyond California law, and potentially be adopted as the governing website accessibility guidelines of the entire nation.

Who Does AB1757 Apply To? 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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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 ›

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You’re about to see a lot more Electric Vehicle Charging Stations (EVCS) on your daily drive. Within months of taking office, the Biden Administration announced an initiative to build half a million new charging stations across the country. The Infrastructure Investment and Jobs act, which passed in November 2021, includes $7.5 billion towards this goal; the Administration’s signature domestic policy bill, the Build Back Better act, also includes funding to promote electric vehicles and expand the public charging network. California’s governor is promoting an ambitious plan of 500,000 electric vehicles on the state’s road in five years.

This is exciting news for the owners, operators and designers of EVCSs, and a welcome boost for a rapidly growing industry. What many companies are not considering, however, are the needs of the disabled drivers who will need to be able to access their electric vehicle charging stations. Continue ›

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In another blow to serial ADA litigation against hotels, a judge in the Northern District of California has issued an opinion dismissing the case against JMBM client OCI, which owns and operates a Comfort Inn & Suites near the San Francisco International Airport.

Brian Whitaker, who has filed nearly 2,000 ADA lawsuits in the last two years, claimed that OCI failed to include enough detail in its online description of accessible features, violating the ADA’s “Reservation Rule.” JMBM filed a motion to dismiss on behalf of OCI, which was granted on January 6, 2022. This is the second Reservation Rule cases dismissed by this judge. The opinion is available here.

The Reservation Rule refers to ADA guidelines requiring that hotels include information about accessible rooms and features on their website, so that guests know before booking if they are able to safely and comfortably stay at the property. A hotel may be ADA compliant if it includes either a bathtub or roll-in shower, for example, but some guests may need to know which option is provided in order to determine if the room meets their needs. Continue ›

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Sales of electric and hybrid vehicles are on the rise, as is the need for electric vehicle charging stations (EVCS) to charge those vehicles. More and more, we see hotels, hospitals, theaters, shopping centers, stadiums, apartment communities, and other commercial establishments that provide EVCS as a service to their guests, patients, and residents.

Although there are no federal standards for EVCS accessibility, provisions are being proposed. Consistent with general guidance provided by the U.S. Access Board, if your facility provides EVCS for use by the general public then it must also be accessible to individuals with disabilities.

California’s Standards for EVCS Accessibility

In California, if you provide EVCS for use by the general public, a number of those charging stations must be accessible to individuals with disabilities. If you are thinking of installing EVCS in your development, you should be aware that the accessibility requirements for EVCS are different than the accessibility requirements for parking, both of which are detailed in the California Building Code (CBC). Continue ›

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Declining to exercise supplemental jurisdiction, the United States District Court Central District of California (Central District) is addressing high frequency litigants who file lawsuits in federal court alleging violations of the Americans with Disabilities Act (ADA).

The Central District has been inundated with ADA lawsuits by California plaintiffs. According to its Minutes of March 8, 2021 noted in James Shayler v. JPMorgan Chase Bank there were 419 ADA cases filed in the Central District in 2013, constituting 3 percent of the civil actions filed. Fast forward to 2019, when in the first six months alone, ADA lawsuits comprised 24 percent of its civil cases (1,868 matters). ADA cases filed in 2021 are on pace for even more.

Similar numbers of ADA cases are being filed in California’s Northern District which has seen a significant increase in ADA cases alleging 28 C.F.R. Section 36. 302 (e) hotel reservation lawsuits. In an effort to curb or streamline the plethora of ADA litigation, the Northern District recently revised its General Order 56. Continue ›