A few careless words in an opinion can spawn dozens of lawsuits and may create precedents that cost property owners and operators tens of thousands of dollars in legal fees if not in remediation costs. The question of whether compliance with ADA Standards and Guidelines is sufficient to avoid an ADA claim illustrates just how this can happen. More
Accessibility Litigation Trends
It’s time to apply Iqbal and Twombly to ADA pleadings
Defendants are frequently and justifiably annoyed by the usual style of pleading in ADA accessibility cases. It appears that a few courts, although a minority, have begun to apply ordinary federal pleading standards to these claims, which will make it much easier to obtain dismissal of those without real merit.
Many ADA plaintiffs are cagey, to say the least, about exactly what barriers they encountered, when they encountered them, and what effect the encounter had. A typical shopping center lawsuit, for example, may allege that there are cross slopes, improperly marked handicapped parking, and ramps that are too steep, but will not identify the location of the cross slopes, parking or ramps. The date or dates on which the plaintiff encountered these barriers will not be stated, and there will be only the most general allegation that the plaintiff was, as a result of these conditions, unable to have access to the center. More
The Elephant in the Room
In the last few weeks there has been a vigorous discussion in various blogs and other forums concerning disability law about the pool lift requirement in the 2010 ADA Standards. These discussions were prompted by the January 31, 2013 deadline for compliance. Hotel and motel owners are concerned with the expense of compliance and in particular what constitutes a “readily achievable” barrier removal for a small business with limited resources. This prompted me to look back at the cases defining what is “readily achievable.”
What I found was of little practical help. The ADA itself outlines the factors to be considered, including cost, but doesn’t say just how to balance them. Various district courts have looked at revenues, gross profits and net profits to determine if the cost of barrier removal was excessive, but always end up saying that the inquiry is “fact intensive.” That, of course, is shorthand for there will be an expensive trial of the case. More
The Nitty Gritty – regulatory details that matter in the defense of ADA and FHA lawsuits
I’ve observed that in many ADA and FHA cases there is little dispute about the existence of barriers to access, but this isn’t always true. A decision from the Seventh Circuit in the first week of January serves as a reminder that sometimes the outcome of a case turns on the nitty gritty of the regulations about accessibility rather than on procedural battles over standing or limitations. More
Professionals take note – there is more to the ADA than physical access.
On January 3rd the Justice Department announced a settlement that reminds professionals of our obligation under the ADA to be prepared to communicate with clients and others who may want to sue our services. The settlement involved a law firm with a debt collection practice. (The full text of the settlement is at http://www.ada.gov/peroutka_sa.htm). When deaf or hearing impaired debtors called to discuss their cases using telephone relay services (TRS) the firm’s employees directed the debtors to call back when a manager was available. This differential treatment violated Title III of the ADA. The firm ultimately agreed to pay $30,000 to the complaining parties and revise its procedures.
The settlement serves as a good reminder to law firms and other professional firms that we too are public accommodations subject to all of the requirements of the ADA, including those concerning communication. More