Articles Posted in Litigation

Published on: | by

On November 9, 2010, the U.S. Department of Justice’s Civil Rights Division (DOJ) and Hilton Worldwide, Inc. (Hilton) announced that they entered into a 45-page “comprehensive precedent-setting agreement under the Americans with Disabilities Act of 1990 (ADA) that will make state-of-the-art accessibility changes to approximately 900 hotels nationwide.”

More than the usual removal of architectural barriers, the changes include providing disabled guests the same room choices as other guests, guaranteeing accessible rooms will be available when they have been reserved, and making the central Internet reservation system more accessible. The agreement includes not only Hilton-owned properties, but properties where Hilton is the manager or franchisor.

The lawsuit was filed after the DOJ completed ADA surveys of 13 Hilton-related hotels. Hilton denied all allegations, but cooperated with DOJ investigators throughout the extended investigation and agreed to pay a $50,000 civil penalty.

Background of lawsuit
The Court-approved Consent Decree and Final Judgment resolved the lawsuit United States of America v. Hilton Worldwide, Inc., filed in the United States District Court for the District of Columbia. The lawsuit alleges that Hilton, Conrad Hotels and Resorts, Doubletree, Embassy Suites, Hampton Inn, Hampton Garden Inn, Hilton Grand Vacations, Homewood Suites, the Waldorf Astoria, the Waldorf Astoria Collection and Home2Suites by Hilton have policies, practices and procedures which discriminate against individuals with disabilities.

The lawsuit also alleges that Hilton either owns, manages, or enters into franchise license agreements with the owners of hotels that failed to design and construct facilities built after January 26, 1993, (the date the ADA was fully effective), that were in compliance with the “new construction standards” of the ADA. The DOJ focused on hotels built after the 1993 date because those properties were required to be constructed without any access barriers. This strategy enabled the DOJ to avoid the more complex litigation issues involved in “readily achievable barrier removal” that is required of properties built prior to 1993.

The Complaint alleged that hotels were designed and built without the federally mandated number of accessible guestrooms dispersed among the different categories of available accommodations (suites, deluxe rooms, view rooms, etc.).

Complaints, sweeps, and system-wide investigations

Typically, a DOJ hotel investigation begins with a guest complaint at a particular hotel which is ignored or poorly handled by the owner or operator. Matters commonly escalate if the guest files a formal ADA complaint with the DOJ’s Civil Rights Division. All complaints are investigated.

The DOJ may also institute geographical “sweeps” such as the New York Times Square/Theater District investigations that took place several years ago. This comprehensive ADA investigation of 60 Times Square hotels — including boutique hotels and international flag properties — was initiated after a single guest’s complaint. A similar sweep of apartment complexes took place in Louisville, Kentucky.

The DOJ has also initiated a number of system-wide investigations against the nation’s leading hotels and retailers. Over the years, the DOJ has litigated or otherwise negotiated Consent Decrees with such prominent hotel flags as Ramada Ltd. (2010), Days Inns of America, Inc. (1999), Marriott International, Inc., Courtyard Management Corporation (1996), Motel 6 Operating LP (2004 and 2007) and Bass Hotels and Resorts (1998). Continue ›

Published on: | by

ADA enforcement “sweeps” hit the West Coast — Exactly what does this mean to the lodging industry?

If I am the owner or manager of a hotel and get an envelope from the DOJ with one of its ADA Compliance Review questionnaires, what should I do?


First, take it very seriously! Get the questionnaire to the right person as quickly as possible. You want an experienced ADA defense lawyer to walk you through these deceptively simple questions. DOJ is surveying both hotel owners and managers, and the last thing you want is for this document to be sitting in someone’s inbox while the person tries to figure out what it means and who should be dealing with it. Every question on the form has been carefully drafted to elicit important information about ADA compliance. The survey is specifically focused on identifying architectural and communications (e.g., signage) access barriers and, equally important, your hotel’s ADA policies and procedures. It is very detailed. Completing the questionnaire will take time and careful thought.

Continue ›

Published on: | by

Mass-produced ADA litigation: Plaintiff and his lawyer sanctioned

The end to sue-and-settle “drive bys”?

A couple of weeks ago, a Los Angeles County Superior Court Judge granted a business owner’s motion for sanctions under California Code of Civil Procedure Section 128.7 against a plaintiff who has filed many ADA cases against Southern California businesses.

Continue ›

Published on: | by

What to do when you receive an ADA Compliance Questionnaire from the U.S. Department of Justice

Earlier this year, I wrote about the the sweeping scope of the DOJ’s ADA Compliance Review Survey of Manhattan hotels.  Today, I’ll answer questions about what to do if you receive such a questionnaire from the DOJ.  Be aware that if you receive an ADA questionnaire from the DOJ, it is very likely its investigators have already been to your establishment and have identified some issues of concern.

If I am a hotel owner or manager and I get an envelope from the DOJ with the ADA Compliance Review questionnaire inside. What do I do?

Continue ›

Published on: | by

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.

Continue ›

Published on: | by

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?

Continue ›

Published on: | by

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.

Continue ›

Published on: | by

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 ›

Published on: | by

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.

Continue ›

Published on: | by

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.

Continue ›