A couple of district court decisions from late February should both comfort and warn ADA defendants. Gutierrez v. Chung, 2013 WL 655141 (E.D. Cal. 2013) reminds us that settlement alone doesn’t resolve an ADA violation. The only permanent solution is remediation. National Alliance for Accessibility, Inc. v. Millbank Hotel Partners, 2013 WL 653955 (D. Md. 2013), on the other hand, shows how to attack the boilerplate pleadings found in almost all ADA lawsuits. More
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, ADA FHA Litigation General, Retail, Shopping Centers Tags: ada litigation, ADA pleading, ada violation, FHA ADA litigation "statute of limitations" strategy DOJ "attorney general" enforcement, private lawsuits, private litigants
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
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, ADA FHA Litigation General Tags: ada litigation, FHA ADA litigation "statute of limitations" strategy DOJ "attorney general" enforcement, FHA Litigation, private lawsuits, private litigants
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
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA Litigation General, Professional services Tags: ada litigation, ada violation, communication disabilities, FHA ADA litigation "statute of limitations" strategy DOJ "attorney general" enforcement
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
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, ADA FHA Litigation General, Apartments, Condominiums, FHA, Hospitality, Hotels, Multi-Family, Residential Development, Restaurants, Retail, Shopping Centers Tags: ada litigation, ada violation, FHA Litigation, private lawsuits, private litigants, real-estate, restaurants, retail
2012 brought with it the final effective date for the 2010 Accessibility Standards and with that new possibilities for claims under the ADA and FHA. The most significant change in the standards from a litigation standpoint was the imposition of long pending requirements for ATM’s, which brought a wave of new cases around the nation. There were important trends for more traditional claims that will continue in 2013.
There will be an increased emphasis by plaintiffs on claims based on alleged policies regarding regarding FHA and ADA compliance as opposed to incidents of non-compliance. Once of the basic economic problems for ADA and FHA plaintiffs is that the barriers to access encountered by any individual plaintiff may be modest, and once such modest barriers are remediated the case may become moot. Unless there is a substantial controversy the fees awarded even by a generous court may be less than what is needed to justify the lawsuit in the first place. Alleging a policy of discrimination allows an individual plaintiff to assert claims based on barriers to access he or she does not know exist and may never encounter. The case law in this area is mixed at best, and plaintiffs can be expected to expand the availability of policy and practice claims in the accessibility context. More