Articles Posted in Litigation

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?

The 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.

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 ›

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 ›

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 ›

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 ›

In a unanimous published opinion, the United States Court of Appeals for the Ninth Circuit (Ninth Circuit) affirmed the District Court’s dismissal of Whitaker v. Tesla Motors, for failure to state a claim of an action under Title III of the Americans with Disabilities Act (ADA). This case may have broad application for ADA defense lawyers because very similar “form” complaints are used widely in Southern California. According to the Ninth Circuit, these complaints are defective. There are literally hundreds, if not thousands, of virtually identical Complaints on Federal Court dockets in California and across the country.

About Whitaker v. Tesla Motors

Brian Whitaker, whose complaint states he uses a wheelchair for mobility, is a “tester” who visits businesses to ascertain whether their facilities comply with the ADA. Whitaker files lawsuits against those he determines are non-compliant, using complaints that are little more than a “fill-in-the-blanks” form.

In this case, Whitaker visited a Tesla dealership and alleged its service counters denied him full and equal access and “created difficulty and discomfort”. He further alleged that Tesla’s failure to provide accessible service counters prevented him from returning to the dealership. Continue ›

The Court Dismisses ADA Lawsuit for Lack of Standing – Proving Once Again These Cases Can Be Won

Anthony Bouyer v. LAXMI Hospitality, LLC

By Martin H. Orlick

It’s important to remember federal courts are courts of limited jurisdiction.  That limited jurisdiction derives from Article III of the U.S. Constitution. To establish standing under Article III, an ADA plaintiff must show actual or imminent injury. Injunctive Relief to remove access barriers is the only relief available to an individual ADA plaintiff in Federal Court.

In August, 2020, the plaintiff in Anthony Bouyer v. LAXMI Hospitality, LLC filed an action alleging the defendant’s hotel in Woodland Hills, California violated the Americans with Disabilities Act (ADA).  According to the Complaint, the plaintiff is substantially limited in performing regular life activities and uses a wheelchair when traveling in public.  The Complaint alleges that the plaintiff visited the hotel where he encountered ADA violations.  The hotel had no record of the plaintiff’s alleged visit.  The plaintiff’s Complaint sought injunctive relief requiring the defendant to make the hotel accessible.
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