Articles Posted in Litigation

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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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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 ›

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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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In 2020, we saw an explosion of federal lawsuits against hotels alleging that they failed to comply with 28 C.F.R. 36.302(e) of the Americans with Disabilities Act (ADA) by not identifying accessible features on their own and third party booking agents’ websites.

Twice this year, we reported that ADA website lawsuits filed against hotels by serial plaintiff Deborah Laufer were dismissed as she failed to show she had standing to sue. Is the third time a charm, or is it the prelude to an appeal?

On November 19, 2020, a federal district court judge dismissed yet another ADA website lawsuit because Ms. Laufer failed to show she had standing to sue under Article III of the Constitution because she did not show “individual” or “particularized” injury.

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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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See Part 1 – What you need to know about how we got here
See Part 3 – Website litigation specific to hotels

This article was first published by Law360® Expert Analysis, © 2019 Portfolio Media Group Inc. and is reprinted with permission. 

The Supreme Court and the Ninth Circuit: Rights to due process

On October 7, 2019, the U.S. Supreme Court declined to hear an appeal by Domino’s Pizza LLC, sending Domino’s back to the trial court to determine if it can be held liable under the ADA for website accessibility. The high Court’s refusal to accept certiorari in this case was a disappointment to the hospitality industry and others. What happened?

In 2017, a federal district judge dismissed the website accessibility suit filed against Domino’s by a prolific ADA plaintiff (Robles v Domino’s Pizza LLC) on grounds that the failure of the DOJ to issue clear guidelines for website accessibility standards violated Domino’s constitutional right to due process. It appears that the DOJ was unaware of the lawsuit or that Domino’s filed a dispositive motion in the case, otherwise it likely would have intervened or filed an amicus (friend of the court) brief in opposition to the motion. Domino’s convinced the court that the DOJ had inconsistently applied the WCAG criteria in settlements, Consent Decrees and litigation. Domino’s convinced the court that such inconsistent application left businesses guessing which criteria to follow when developing their websites – the due process violation.

However, the Ninth Circuit Court of Appeals reversed the lower court’s decision and on January 15, 2019, determined that the ADA applies to Domino’s website, writing in its Opinion that: “Finally, the lack of specific regulations, not yet promulgated by the Department of Justice, did not eliminate Domino’s statutory duty.”

Now that the Supreme Court has declined to review the Ninth Circuit’s decision, the case returns to the District Court to be tried on its merits. Whether that will happen is yet to be seen – it’s possible the case will be settled soon after remand. Continue ›

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See Part 2 – Rights to due process and standing requirements
See Part 3 – Website reservations: ADA litigation specific to hotels

This article was first published by Law360® Expert Analysis, © 2019 Portfolio Media Group Inc., and is reprinted with permission.

Part 1 – What you need to know about how we got here

When the Americans with Disabilities Act (ADA) was enacted by Congress in July 1990, the Internet was in its infancy and few, if any, considered its applicability to cyberspace. But in 2006, a California federal judge ruled that the ADA applied not just to brick and mortar establishments, but to websites: National Federation of the Blind v. Target Corp brought the ADA into the digital age. Application of the ADA to mobile apps would follow nearly a decade later.

In October of this year, thirteen years after Target, the U.S. Supreme Court’s declination to hear an appeal by Domino’s Pizza LLC to determine if it can be liable under the ADA for website accessibility, was a blow felt throughout the hospitality industry and others, which hoped to gain clarity on accessible website standards under the ADA. (See Robles v. Domino’s Pizza LLC.)

Following Ninth Circuit rulings, the decision reaffirms the principle that companies whose Internet activities are related to their brick and mortar stores may be held liable for violating the ADA even though the Department of Justice (DOJ) has yet to issue express website guidelines.

What’s going on?

Since Target, thousands of businesses – including hotels and restaurants – have been the subject of lawsuits claiming violations of Title III under the ADA because their websites and mobile applications are inaccessible to individuals who are blind and sight impaired and use screen reading software. Continue ›

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When will businesses get clear direction on ADA website compliance?

On October 7, 2019, the U.S. Supreme Court declined to hear an appeal by Domino’s Pizza LLC, sending Domino’s back to the trial court to determine if it can be sued under the Americans with Disabilities Act (ADA) by a blind customer who alleged Domino’s website and mobile application were not accessible to people who are blind or sight impaired and use the website and mobile app with standard screen reading capabilities.

The high court’s refusal to accept certiorari in this case was a blow felt not only by Domino’s – but throughout the business community, which hoped to gain clarity on accessible website standards under the ADA.

Continue ›

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A growing number of U.S. District Court judges in the Central District of California have taken steps to manage the growing number of Americans With Disabilities Act (ADA) lawsuits, particularly against hotels and retailers, and to curb ADA abuse.  Since June 2019, five Central District judges have issued over 80 Orders to Show Cause (OSC) why the Court should exercise supplemental jurisdiction over their state law claims – the claims that can make ADA litigation a lucrative endeavor for serial plaintiffs and their counsel.

How did we get here?

Federal Courts have original jurisdiction over federal ADA cases.  Under the ADA, a private litigant can only obtain injunctive relief, attorneys’ fees and litigation costs.  Damages are not recoverable under federal law.

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Serial Plaintiff Who Filed Nearly 3,000 Americans with Disabilities Act (‘ADA’) Lawsuits is Indicted by a Federal Grand Jury
and Faces Possible Imprisonment and Fines for Income Tax Evasion

In an ironic twist of fate, Scott N. Johnson, Esq., a disabled Sacramento attorney, who has filed nearly 3,000 ADA lawsuits as plaintiff, starting in the United States District Court for the Eastern District of California, now faces possible jail time for felony income tax fraud according to a Federal Grand Jury Indictment.

On May 23, 2019, United States Attorneys filed a Grand Jury Indictment, United States of America v. Scott Norris Johnson, accusing Johnson of three counts of “Making and Subscribing a False Tax Return” by failing to declare substantial income derived from ADA settlements on his U.S. Individual Income Tax Returns and his U.S. Corporation Income Tax Returns for the tax years 2012-2014.

According to the Indictment, from no later than “on or about January 28, 2008, SCOTT NORRIS JOHNSON owned and operated Disabled Access Prevents Injury, Inc. (“DAPI”), a corporation registered in the State of California. DAPI was treated as a C corporation for tax purposes.” The Indictment alleges that Johnson was DAPI’s sole shareholder and that DAPI “provided legal services associated with lawsuits that it filed on behalf of SCOTT NORRIS JOHNSON as the plaintiff.” Continue ›