Articles Posted in Litigation

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Since at least 2000, the U.S. Department of Justice (DOJ) has been advocating standardized website development and content to promote access to blind and low vision internet users.  In 2013, the DOJ withdrew its proposed Advanced Notice of Proposed Rule Making (ANPRM) which would have established standardized internet protocols by adopting the Web Content Accessibility Guidelines (WCAG) 2.0.

In 2006, we reported on the landmark case National Federation of the Blind v. Target Corporation, regarding “cyber accessibility” (a term we coined). Target was the first case in which any court ruled that the ADA applied to a retail website. With limited exception, the few courts that had addressed the subject uniformly held that the ADA only applied to brick and mortar architectural barriers, not to internet retail channels (Access Now, Inc. v. Southwest Airlines.)

Target argued that it complied with the ADA because its retail stores were fully compliant and that its website channel was not covered by the ADA standards.  The Court disagreed.  Plaintiffs’ class certification motion was granted.  Target paid a hefty sum and implemented WCAG standards to make its website accessible to blind and low vision customers.  The Target decision was followed with Rendon v. Valleycrest Productions Ltd.  Since Target, the DOJ and other agencies have imposed accessibility requirements for web content and services in Consent Decrees and Settlement Agreements with such industry leaders as Amazon.com, Netflix, H&R Block, Hilton International and others.

Website standards are imminent

The DOJ’s issuance of website standards is not a matter of “if”, but “when.” The regulations will “establish requirements for making goods, services, facilities, privileges, accommodations, or advantages” offered by state and local government agencies and businesses via the Internet, “specifically at sites on the World Wide Web,” accessible to persons with disabilities.
On November 25, 2014, the DOJ Civil Rights Division issued its Advance Notice of Proposed Rule Making entitled “Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations.”  These revised regulations, when adopted, will implement web site development standards which the DOJ has been working on for nearly a decade.

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FedEx sued for failure to provide effective auxiliary aids and services for hearing and speech impaired employees and job applicants

Effective communication with blind, low vision, deaf, hard-of-hearing, speech impaired and cognitively challenged employees, potential employees, customers and guests is one of the fundamental tenets of the Americans with Disabilities Act of 1990 (“ADA”). For nearly 25 years, the ADA has been the most sweeping civil rights legislation designed to provide persons with disabilities full and equal access to public accommodations, employment and potential employment.

In its latest effort to enforce the ADA’s effective communication requirements, the Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit in a Baltimore federal court against FedEx, charging the overnight delivery giant with failing to provide basic auxiliary aids and services to effectively communicate with its deaf, hard-of-hearing and speech impaired employees and job applicants.

The suit accuses FedEx of not providing Qualified American Sign Language interpreters, Communications Access Realtime Translation (“CART”) services or closed captioned training videos during new hire orientation or staff and safety meetings to its employees and job applicants in violation of the ADA’s requirement that businesses provide such auxiliary aids and services.

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Failure to provide an Ounce of ADA Compliance is worth a Pounding by the DOJ
What you can learn from the DOJ’s settlement agreement with Starwood and The Phoenician

 

The Department of Justice (DOJ) continues to make the hospitality sector a target for enforcement of the Americans with Disabilities Act (ADA). Starwood Hotels and Resorts Worldwide, Inc. and The Phoenician are the latest to come to an agreement with the DOJ to make their properties ADA compliant. The settlement agreement was stunning to this ADA lawyer, because of its sheer simplicity and how an industry leader like Starwood could find itself the target of a DOJ investigation over these basic barriers. The compliance areas detailed in the agreement are routine, run-of-the-mill, ADA check-list items that could have been easily identified and corrected by Starwood itself. Instead, Starwood and The Phoenician were dragged through the expense, embarrassment and hassle of a 5-year government investigation. What were they thinking?

First, the DOJ investigation of The Phoenician and Starwood didn’t happen in a vacuum. Here is just a sample of what’s been going on:

  • At the recent 2013 National ADA Symposium which I attended, the former chief of the DOJ’s Civil Rights Division (the principal enforcement agency for the ADA), noted that the hospitality industry remains a prime focus of the Department’s civil rights investigations.
  • The DOJ recently announced that it settled an investigation of the Milford Plaza Hotel, NYC. The hotel’s owner agreed to bring the property into ADA compliance within a brief period of time, thus ending another multi-year investigation.
  • In September 2011, the owners of the top 50 Zagat rated restaurants in New York City received a 17-page survey form from the DOJ to determine their compliance with the accessibility requirements of the ADA. Most of the restaurants entered into voluntary compliance agreements, but in October 2012, the DOJ filed lawsuits against three of the restaurants. See DOJ sues 3 of NYC’s top Zagat-rated restaurants for ADA violations.
  • In 2010, the DOJ and Hilton Worldwide Inc. entered into a 45-page “comprehensive precedent-setting agreement under the ADA that will make state-of-the art accessibility changes to approximately 900 hotels nationwide.” The agreement includes not only Hilton-owned properties, but properties where Hilton is the manager or franchisor. In addition to the removal of architectural barriers, the agreement specifies changes in reservation policies and addresses website accessibility. See Hilton’s ADA Settlement with the DOJ: Precedent-setting agreement delivers more than removing architectural barriers.
  • In January 2009, I reported in the Hotel Law Blog the DOJ’s Times Square Manhattan Theater District “ADA sweep” of nearly 60 hotels. I represented one of those hotels and can tell you that DOJ investigations should be taken very, very seriously. See Is the DOJ’s ADA Compliance Survey Coming to Your City Soon? What to do when you receive the DOJ’s ADA Compliance Review questionnaire.

The DOJ settles 5-year ADA investigation of Starwood Hotels & Resorts Inc. and The Phoenician Hotel and Resort

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As we reported in January of this year, “The DOJ stunned both the hospitality industry and pool manufacturers when it proclaimed that only “fixed” or permanent pool lifts would comply with the new 2010 ADAAG Standards) to the extent “readily achievable.” (See ADA Defense Lawyer: Pool lift deadline of January 31, 2013 looms, but may be a diversion from enterprise-wide ADA compliance.)

The 2010 ADAAG Standards went into effect on March 21, 2012, but through the efforts of the American Hotel & Lodging Association and other industry organizations, the Department of Justice (DOJ) postponed the effective date for requiring fixed pool lifts to January 31, 2013.

Since January 31, 2013, a growing number of accessibility lawsuits against hotel owners and operators, alleging pool lift violations, have been threatened or filed in California by a single plaintiff living in Los Angeles County. Five such lawsuits were brought or threatened against Santa Monica, California hotel owners.

What is going on?

In each case, the same alleged physically disabled plaintiff visited a hotel and inquired about making a reservation. At that time, he also asked whether the hotel’s pool and spa had accessible pool lifts. If told the hotel lacked separate pool and spa lifts, the plaintiff (or the plaintiff’s retained investigator) visited the pool and spa to visually confirm the lifts were not available. Subsequently, the plaintiff threatened or filed lawsuits against the hotels claiming denial of full and equal access under the Americans with Disabilities Act (ADA). In addition to compelling the owners or operators to install compliant pool lifts, the lawsuits ask for attorneys’ fees, and minimum or actual damages under California’s Unruh Civil Rights Act and the Disabled Persons Act which laws are designed to prevent discrimination against persons with disabilities.

In California, serial plaintiffs and their lawyers have found these cookie-cutter lawsuits to be lucrative as plaintiffs can claim statutory damages, compensatory damages, treble damages and attorneys’ fees.

We expect to see the same in most other states were ADA lawsuit proliferate. For reference, the “Top 10” for ADA lawsuits are (from most to less) California, Florida, New York, Texas, Pennsylvania, New Jersey, Ohio, Hawaii, North Carolina and Michigan.

Our advice: Investigate, solve the problem with a swift defense, then look at the big picture. Continue ›

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Federal court condemns frivolous, serial ADA litigation which subverts the noble purpose of the ADA and the entire legal profession

On April 16, 2012, an article appeared on the front page of the New York Times about the proliferation of lawsuits brought under the Americans with Disabilities Act (or ADA) against small businesses and portending a wave of cases to come. Indeed, lawyers from Florida and other states have joined forces with local attorneys to file scores of ADA lawsuits against small businesses, many of which are owned by minority entrepreneurs.

On March 28, 2013, a Federal Judge in the Eastern District of New York excoriated plaintiff Mike Costello’s attorneys for filing scores of frivolous ADA lawsuits against mom-and-pop businesses over technical or non-existent deviations from the ADA Standards only to line their own pockets. Costello v. Flatman, LLC, 11-CV-287.

Dozens of “boilerplate” ADA lawsuits

In 2011, the plaintiff, Mike Costello, filed a complaint against a Subway franchisee and his landlord under the ADA and state and city New York Human Rights laws. The same day, the plaintiff and his lawyers filed seven other identical ADA lawsuits against small businesses located within a two-block radius of the Subway store. Costello later amended his complaint to bring in another defendant who ignored the lawsuit, resulting in a default being taken. After the Court issued a $14.31 default judgment, plaintiff’s counsel filed a motion for fees and litigation costs in the amount of $15,172 supposedly incurred in prosecuting the action. [Note: This is not a typographical error. The damages were fourteen dollars and thirty one cents. The attorneys’ fees sought were more than fifteen thousand dollars.]

The Judge noted that in a boilerplate complaint, Costello alleged that he is disabled, required a wheelchair for mobility, and that he visited a Subway restaurant where he encountered various ADA barriers which prevented him from enjoying the goods and services offered at Subway. The plaintiff was represented by two law firms, one from New York the other from Florida. The Court found that together, these attorneys filed dozens of boilerplate ADA lawsuits alleging very similar barriers only to force the defendants to pay money to settle the cases. Continue ›

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Since January 2005, 16,530 lawsuits alleging violations of the Americans with Disabilities Act (“ADA”) have been filed in federal courts across the country. More of these lawsuits were filed in California than in any other state. Some believe that California is a hotbed of ADA litigation because California law awards damages and attorneys’ fees to private plaintiffs for defendant’s ADA violations — treble damages, with minimum statutory damages of $4,000 (prior to the passing of this Senate Bill), and punitive damages. An unknown number of accessibility cases have been filed in California state courts, and countless more claims have been threatened against mostly small business owners.

Past efforts to curtail ADA litigation abuse in California have been marginally successful. Unfortunately, the latest California legislation (SB 1186) may also provide limited relief from abusive ADA litigation. Key provisions of the new law became effective January 1, 2013. California SB 1186, through comprehensive amendments to a number of California laws, including provisions of the California Civil Code (Sections 55.3 et seq.), was intended to provide protection for the owners and operators of public accommodations who are making a good faith effort to comply with the ADA.

An overview of the main provisions of the new California law and our ADA Defense Lawyer observations “from the trenches” regarding the new law follows. Continue ›

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Will your city and restaurant be next?

You have worked all your life to get top Zagat ratings for your restaurant. After years of hard work, you’ve made it! And because of that, food lovers from around the world will beat a path to your door.

But, so too will the Department of Justice (DOJ), as the owners and operators of Manhattan’s top 50 Zagat-rated restaurants found out in September of 2011.

That is when each restaurant received a 17-page survey form, courtesy of the Civil Rights Unit of the U.S. Attorney’s Office, Southern District of New York (SDNY), for the purpose of determining compliance of their establishments with the accessibility requirements of the Americans with Disabilities Act or ADA.

Then, in October 2012, the DOJ filed a lawsuit against the owners and operators of 3 of those restaurants. All of the named defendants are part of the Rosa Mexicano restaurant chain. The lawsuit alleges numerous violations of the Americans with Disabilities Act of 1990 (ADA).

Here’s what happened and how the Rosa Mexicano chain could have avoided the lawsuit. Continue ›

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January 31, 2013 is fast approaching and once again our phones are ringing off the hook and the emails are streaming in. Our hospitality clients want to know the latest action being taken by the Department of Justice (“DOJ”) on the Americans with Disabilities Act requirements for pool lifts at pools and spas at hotels, resorts, country clubs, golf and tennis facilities and other places of “public accommodation.”

So here is where things stand.

The pool lift controversy continues to make a splash, but is it a diversion from enterprise-wide ADA compliance?

The latest update is that the DOJ has not yet further delayed the January 31, 2013 implementation date.

The DOJ stunned both the hospitality industry and pool manufacturers when it proclaimed that only “fixed” or permanent pool lifts would comply with the new 2010 ADAAG Standards (effective March 21, 2012) to the extent “readily achievable.” Portable pool lifts installed on an as needed basis are prohibited unless it is not readily achievable, in which event a portable lift may be used if it is properly anchored.

Due to the efforts of industry groups like American Hotel & Lodging Association and pool and spa organizations, the DOJ postponed the pool lift effective date from March 21, 2012 to January 31, 2013.

The DOJ’s published position is that pool lifts need to be available at each pool and spa (although only one lift is required at a “cluster” of spas) during all pool and spa operating hours. The DOJ has mandated that only “fixed” pool lifts may be installed at each location unless the business can establish that such installation is not “readily achievable.” In such event, a portable pool lift may be permitted if it is properly secured and in place during operating hours.

All indications are that the DOJ remains intransigent that the pool lift requirement will be enforced on January 31, 2013 and pool lifts must be “fixed” to the extent readily achievable. A determination of what is “readily achievable” requires a legal opinion based on the facts of each case.

The ADA pool lift requirement — Situation summary
In September 2012, the DOJ announced it would extend the fixed pool lift requirement to January 31, 2013. Since then, the pool lift controversy has drawn little public attention, until now. Industry groups continue to work with legislators and DOJ officials to provide a greater degree of certainty and “real world” practicality to the pool lift controversy. Those close to the source believe that the DOJ will affirm the implementation date and its position that fixed pool lifts are required where readily achievable. The pool lift train left the station and those in the know believe the DOJ and disabled advocacy groups will enforce the “fixed” pool lift requirement January 31, 2013. We know of several lawsuits filed over the lack of pool lifts after March 21, 2012. We also know of a number of plaintiff’s lawyers who have been waiting for February 1, 2013 to make their splash into pool lift accessibility litigation.

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The DOJ extends pool lift deadline

Today, the Department of Justice announced that it is extending the ADA pool lift deadline from May 21, 2012 to January 31, 2013.

Amendment to ADA regulations
This morning, the DOJ formally published an “Amendment of the Americans with Disabilities Act Title II and III Regulations to Extend Compliance Date for Certain Requirements Related to Existing Pools and Spas Provided by State and Local Governments and by Public Accommodations” (ADAAG Sections 242 and 1009 Standards for Accessible Design).

The new pool lift Compliance Date is January 31, 2013. The Amendment acknowledges that the DOJ’s January 31, 2012 technical advisory caused “significant concerns and misunderstandings among a substantial number of pool owners and operators” with respect to the new technical requirements for pool lifts.

Background to the extension
The DOJ recently received and carefully considered comments from pool owners, operators and various industry groups and clarified a number of popular misconceptions about the new requirements. At the end of the day, the DOJ seems to have heard the public outcry, in part.

In its Technical Advisory Document of January 31, 2012, the DOJ sent tsunami-sized waves through the hospitality and pool and spa industries when it announced, for the first time, its interpretation that pool and spa lifts are required to be “fixed” (as opposed to portable) next to the pool or spa at all times the facility is open, unless it is not “readily achievable,” and they cannot be shared between water elements.

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On May 2, 2012, Charles Schwab & Co. announced an initiative to make its website more accessible for all customers, particularly those who are blind or have sight disabilities. This high-profile development was part of the settlement of a claim by Kit Lau, a Charles Schwab customer for more than 25 years.

While many have focused on the Americans with Disabilities Act’s (ADA’s) ever-changing pool lift requirements, we continue to see the DOJ and private advocacy groups driving to enforce the original regulations promulgated 20 years ago under the ADA. As of December 31, 2011, more than 13,130 lawsuits had been filed under the ADA, and the trend continues to grow.

Charles Schwab settlement is one of 15 prominent web site settlements

Charles Schwab, one of the nation’s leading securities broker-dealers, and a disability rights advocacy attorney, announced last week that they settled a year-long claim by a blind customer that its website was inaccessible to blind, low vision and cognitively challenged customers. The structured negotiations concluded this dispute short of trial.

With this settlement, Charles Schwab joins a list of 15 prominent companies which have settled website accessibility complaints. Charles Schwab agreed that it will make its website more accessible and inclusive for all customers, and agreed to implement the Web Content Accessibility Guidelines (WCAG) Version 2.0 Level AA which will make its website navigable by disabled customers.

An informal complaint backed by the threat of litigation and administrative investigations was lodged with Charles Schwab by the lawyer for a blind day trader. The claimant was a long-time Schwab customer and herself a computer programmer. One morning, she found that she could no longer navigate the Schwab website using JAWS software and was prevented from making trades on-line. The JAWs software reads aloud the text of the page so blind and low vision customers can access the website.

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