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JMBM is proud to announce that two of its Americans With Disabilities (ADA) Defense attorneys, Martin H. Orlick and Stuart K. Tubis, have recently been recognized for their professional excellence. Martin, a partner in the firm and Chair of the ADA Compliance & Defense Group, has been named one of the 2023 Best Lawyers in America® for Real Estate Law. Stuart, an partner in ADA practice, has been included on the “One to Watch” list for Civil Rights Law.

Best Lawyers in America is based on a comprehensive peer-review survey in which tens of thousands of top lawyers evaluate the legal abilities of other lawyers within their practice areas. The “Ones to Watch” list recognizes lawyers earlier in their careers who have achieved outstanding professional excellence. Continue ›

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In a recent decision by Judge William H. Orrick, the court reviewed a website for compliance with the Americans with Disabilities Act (ADA) and found that minor imperfections on a website that do not meaningfully hinder access to the business are insufficient to constitute ADA violations. Gomez v. Trinitas Cellars LLC, Case No. Case No. 3:21-cv-09006-WHO, Doc # 37 (N.D. Cal. June 17, 2022.

The ADA was passed into law in 1990, well before the popularization of the internet. Since then, of course, the internet has become an inescapable part of everyday life in America. The ADA, however, contains no mention of the internet. The closest it gets are generalized principles requiring businesses to provide “auxiliary aids and services” and ensure “effective communication.”

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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 ›

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Recently on March 18, 2022, the U.S. Department of Justice (DOJ) issued a “Web Accessibility Guidance” statement for state and local governments and public accommodations (including businesses) under Titles II and III of the Americans with Disabilities Act (ADA).

A copy of the Guidance document can be found here.

In the Guidance, the DOJ clarifies once again that the ADA applies to websites: “the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.”

The Guidance also provides some examples of website accessibility barriers, including poor color contrast, lack of text alternatives for images, lack of labels for forms, and mouse-only navigation design. Continue ›

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On April 11, 2022, San Francisco District Attorney Chesa Boudin and Los Angeles District Attorney George Gascon filed a lawsuit against Potter Handy for allegedly filing thousands of fraudulent Americans with Disabilities Act claims. The complaint can be found here.

The 58-page complaint alleges that Potter Handy filed thousands of ADA lawsuits on behalf of three primary serial litigants Brian Whitaker, Orlando Garcia, and Scott Johnson (whom the complaint designates as “Serial Filers”) against small businesses, primarily owned by minorities and immigrants, to pressure these owners for quick settlements between $10,000 and $20,000.

The complaint alleges that “[c]onservatively assuming an average settlement figure of $10,000 per case, Defendants have extracted over $5,000,000 from California’s small businesses from the cases filed on behalf of just one of their Serial Filers in just over two years.” The complaint further alleges that “it is reasonable to assume Potter Handy has drained tens of millions of dollars from California’s small businesses during the statute of limitations period alone.” Continue ›

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After nearly two decades of peace in the vineyards, California wineries are once again the targets of ADA litigation. ADA lawsuits are being filed almost daily against wineries large and small by a single plaintiff, Andres Gomez. Mr. Gomez, a Miami resident, has sued more than 100 wineries in Northern California and the Central Coast, claiming their websites violate the ADA.

You may recall the late 1990s, when wineries in the Napa, Sonoma and Anderson valleys offering tasting rooms, vineyard tours and special events were the targets of ADA architectural barrier lawsuits. Those lawsuits involved physical barriers such as inaccessible parking, tasting rooms, and bathrooms.

Focus now is on cyber accessibility

Well, wineries are back in the crosshairs of serial ADA plaintiffs. These recent ADA lawsuits focus on website accessibility for people who are visually impaired. They allege these wineries discriminate against individuals who navigate websites using the assistance of screen-reader software. Screen reading software is an assistive technology that interacts with an application’s digital components – such as images, text, links and buttons – by converting these and other elements to audible synthesized speech outputs. Web developers need to code websites to be screen-reader compatible. Continue ›

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You’re about to see a lot more Electric Vehicle Charging Stations (EVCS) on your daily drive. Within months of taking office, the Biden Administration announced an initiative to build half a million new charging stations across the country. The Infrastructure Investment and Jobs act, which passed in November 2021, includes $7.5 billion towards this goal; the Administration’s signature domestic policy bill, the Build Back Better act, also includes funding to promote electric vehicles and expand the public charging network. California’s governor is promoting an ambitious plan of 500,000 electric vehicles on the state’s road in five years.

This is exciting news for the owners, operators and designers of EVCSs, and a welcome boost for a rapidly growing industry. What many companies are not considering, however, are the needs of the disabled drivers who will need to be able to access their electric vehicle charging stations. Continue ›

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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 ›

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Sales of electric and hybrid vehicles are on the rise, as is the need for electric vehicle charging stations (EVCS) to charge those vehicles. More and more, we see hotels, hospitals, theaters, shopping centers, stadiums, apartment communities, and other commercial establishments that provide EVCS as a service to their guests, patients, and residents.

Although there are no federal standards for EVCS accessibility, provisions are being proposed. Consistent with general guidance provided by the U.S. Access Board, if your facility provides EVCS for use by the general public then it must also be accessible to individuals with disabilities.

California’s Standards for EVCS Accessibility

In California, if you provide EVCS for use by the general public, a number of those charging stations must be accessible to individuals with disabilities. If you are thinking of installing EVCS in your development, you should be aware that the accessibility requirements for EVCS are different than the accessibility requirements for parking, both of which are detailed in the California Building Code (CBC). Continue ›

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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 ›