Articles Posted in Litigation

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ADA Lawyer Update: California Supreme Court decision likely to fuel increased ADA litigation, but the Certified Access Specialists program (CASp) offers some protection


A step backward

In a decision that is likely to lead to more lawsuits filed under the Americans with Disabilities Act (ADA) and California’s disabled access laws, the California Supreme Court unanimously ruled on June 12, 2009 that plaintiffs do not have to prove “intentional discrimination” to recover the $4,000 minimum statutory damages provided, per occurrence, under California’s Unruh Civil Rights Act.

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The Department of Justice “ADA Sweeps” in NYC’s Times Square theater district

I have been defending clients in a number of the Department of Justice’s (DOJ’s) ADA investigations. A number of our clients have properties in New York City, and one of them was included in the DOJ’s “Manhattan Hotels/Time Square Theater District ADA Compliance Review Survey”, a sweep of hotels around Time Square. I am the only California lawyer involved in this DOJ investigation. A complaint was lodged by a disabled tourist with the DOJ against one of the 60 Theater District hotels, not our client’s property. Some of the hotels are over 100 years old, while others are newly built or renovated properties. Below are some of the questions I have been asked about this “ADA Sweep”.

Why is the DOJ auditing hotels about ADA compliance?

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Target Corporation was sued under the ADA for inaccessibility of its website

We gave you an early heads up about how lawsuits brought under the Americans With Disabilities Act (ADA) can target your website or online reservation system . . . and what you should do about it now. (See “How your company’s website can make you a target for ADA lawsuits”.)

Now there is much more.

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A “professional plaintiff” that has filed more than 400 nearly identical lawsuits against hotels, restaurants and other businesses in California may have to find a new line of work. The U.S. Supreme has let stand a prior ruling that this serial plaintiff, and his lawyer, cannot file ADA lawsuits without first obtaining the court’s permission.

On November 17, 2008, the United States Supreme Court let stand a key Ninth Circuit Court of Appeals ruling that a “serial plaintiff” and his attorney, who had filed more than 400 lawsuits against California businesses, could not file repeated Americans with Disabilities Act of 1990 (ADA) lawsuits against business owners without first obtaining court permission. In all but one of the 400 cases, the businesses settled out of court, avoiding substantial defense costs and time needed to fight the litigation.

A federal judge in Los Angeles called these litigation tactics “extortion” and based on trumped up claims of injury. The United States Supreme Court refused to grant a hearing to review the appellate court’s highly extraordinary ruling in the case, Molski v. Evergreen Dynasty Corp., 08-38, which found the plaintiff and his attorney to be “vexatious” for filing over 400 virtually identical ADA lawsuits in federal court.

The ruling is important because the lower courts found that the lawsuits were filed for improper purposes, even though barriers to accessibility existed at many of the businesses. Continue ›

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The ADA Compliance and Defense Blog asks Marty Orlick, Chair of JMBM’s ADA Compliance & Defense Group about ADA litigation involving pool lifts

ADA lawsuits regarding pool lifts sound like a very specialized and narrow category of claim.  Is this a threat of any real significance?

Last year, I would estimate that there were 50-100 ADA lawsuits in California alone, involving pools for hotels, health clubs and spas. I personally handled 5 ADA lawsuits involving hotel pools in 2006.

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How can the ADA apply to web sites?

While most hoteliers are aware of how the ADA affects architectural barriers, paths of travel, parking spaces, swimming pools and even guests’ service animals, a recent court ruling has opened up an entirely new area to litigation: websites.

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 a San Francisco Federal judge’s recent decision not to dismiss a discrimination case against retailer Target Corporation has brought the issue to the forefront. Believed to be the first court ruling determining that the ADA’s architectural barrier requirements can apply to the Website of a private business, the stage is now set for increased ADA litigation involving Web accessibility.

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On October 26, 2006, the California state Court of Appeal ruled that disabled plaintiffs suing for damages under California’s Unruh Civil Rights Act (Unruh Act), must prove intentional discrimination in order to recover the $4,000 minimum damages per offense” that makes this kind of litigation so lucrative to plaintiffs and their lawyers.

In California, litigation filed under the Americans with Disabilities Act (ADA), and the related Unruh Act and Disabled Persons Act (DPA) — which allows for a minimum of $1,000 per offense — has allowed plaintiffs to recover damages for multiple offenses from one defendant, plus attorneys’ fees. It is no wonder that, in California, filing this kind of litigation — which often focuses on highly technical violations — has become a cottage industry for plaintiffs groups and their lawyers. Because hotels are designated as “places of public accommodation” under the ADA, their owners have been routine targets of these groups.

What happened in this case?

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Hotels and other targets of ADA lawsuits have found a friend in the U.S. Constitution: Article III.

Many thousands of ADA lawsuits have been filed in federal District Courts in the past few years. A large percentage of the plaintiffs filing these lawsuits are represented by a handful of plaintiffs’ organizations that specialize in ADA lawsuits. Because plaintiffs can recover attorneys’ fees and litigation costs and — in California and several other states — damages, in addition to injunctive relief, plaintiffs’ organizations have become a cottage industry.

However, some federal courts have recently determined they have no authority to award attorney’s fees, because the plaintiffs failed to establish “Article III standing”.

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