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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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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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There has been a sharp rise in the number of Americans with Disabilities Act (ADA) lawsuits filed in 2020 and 2021 thus far alleging a lack of compliant passenger loading zones. Many of these lawsuits have been filed against hotels in California throughout the state. The lawsuits are generally filed by serial ADA plaintiff Theresa Brooke. She is generally represented by attorney Peter Strojnik.

All hotels should be aware of the law and potential for litigation. The ADA requires if any passenger loading zones are offered to guests, there must be at least one passenger loading zone provided for people with disabilities. Below is an excerpt from the most recent ADA Standards (the 2010 ADA Standards) for reference.

2010 ADA Standards Re Passenger Loading Zones:

209.2 Type. Where provided, passenger loading zones shall comply with 209.2.

209.2.1 Passenger Loading Zones. Passenger loading zones, except those required to comply with 209.2.2 and 209.2.3, shall provide at least one passenger loading zone complying with 503 in every continuous 100 linear feet (30 m) of loading zone space, or fraction thereof. Continue ›

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Title III of the ADA allows customers and visitors to sue businesses and landlords for disability discrimination in court. The alleged violations range from everything from parking lot slope to website design. What should you do if you’ve been sued under Title III of the ADA?

  1. Take a deep breath.

Title III ADA cases are very seldom “bet the business” size cases. They can generally be resolved through settlement negotiations or court motions without threatening continued operation of the business. But you need to take action as soon as you’re aware of the lawsuit or threatened lawsuit.

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Many hotels are not aware that the ADA imposes several requirements during the reservations process, including posting descriptions of the hotel’s physical accessibility features on its online reservations system.  Starting around early 2018, serial ADA plaintiffs have filed significantly more lawsuits against hotels regarding this issue.

In addition to the many physical accessibility requirements at places of lodging (hotels), such as accessible parking and accessible guest rooms, the ADA also requires places of lodging to take certain actions during the reservations process to help individuals with disabilities obtain an accessible guest room.  Specifically, places of lodging are required to do the following:

  • Ensure individuals can reserve accessible guest rooms in the same manner and time as other guests;
  • Provide descriptions of accessible features of the hotel and guest rooms as part of any reservations process (such as website booking);
  • Ensure that the hotel’s accessible guest rooms are held for individuals with disabilities and not rented out to those not requesting an accessible room (unless all non-disabled rooms have been booked); and
  • Once reserved, ensure that the accessible guest room is hard booked and not rented to anyone else.

These requirements derive from 28 C.F.R. § 36.302(e)(1), which is provided in full below.

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