Hard on the heels of the news about a newly filed lawsuit demanding closed captioning and audio descriptions* the Department of Justice has announced its rules concerning accessibility for movie theaters**, which will become effective sometime in the next few months. This is clearly good news for movie theaters who want certainty about their legal obligations, but will it put an end to the pending lawsuit, or prevent future claims? The disturbing answer is likely “no.” More
ADA Attorney’s Fees
On July 7 H.R. 3765, the ADA Education and Reform Act of 2015, passed out of the House Judiciary Committee. H.R. 3765 is one of several pending ADA reform bills targeting “drive-by” or serial litigants. They share a common approach, requiring that plaintiffs give notice before filing suit so the problem can be fixed. They also share a common reaction from the disabilities and business communities. Disability advocates vehement oppose the bills while business groups support them.
We’ve blogged about H.R. 3765 before (click HERE and HERE to read the earlier blogs). Our prediction that the bill would go nowhere is proving wrong, but our criticism of the bill’s likely effectiveness hasn’t changed. Serial litigation is driven by cheap standing and the economics of defending a lawsuit in federal court, neither of which will be changed by this bill. There is something in the bill that all sides should agree on – a requirement for more ADA education. Unfortunately, this requirement comes without any funding, so it is unlikely to be effectively implemented. The best way to reduce litigation and help the disabled involves seriously funded education for business and coordination of ADA compliance requirements with the building inspection process at the local level. This would improve ADA compliance before a suit was filed or demand letter sent, and that would have the effect of moving resources from attorneys fees to accessibility. Private enforcement of the ADA through litigation is the most wasteful way to achieve the goals of the ADA, and as long as litigation is the main tool for enforcement the lion’s share of money will go to lawyers instead of improvements in accessibility.
Marianne Wilson of Chain Store Age Media reported that a new effort at ADA litigation reform, the “ADA Education and Reform Act of 2015”, H.R. 3765, was introduced on October 20, 2015, by Representatives Ted Poe (R-TX), Doug Collins (R-GA) and David Jolly (R-FL). Like previous attempts to amend the private remedy provisions in the ADA this one requires notice and opportunity to cure as a prerequisite to a private lawsuit. I won’t speculate on the odds that it will pass in the current legislative climate, but it does provide a reason to look at real problems with private ADA enforcement, none of which are addressed by this legislation. Instead of treating plaintiffs as the problem, Congress should look at defects in the ADA and the way the courts interpret it. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA Attorney's Fees, ADA FHA Litigation General Tags: ada litigation, ADA pleading, ADA standing, private lawsuits, private litigants, restaurants, retail, serial plaintiffs
This post was inspired by an article forwarded from fellow ADA blogger William Goren, whose blog contains excellent analysis of current cases. The article describes a Florida hotel’s fight against a local serial ADA complainant who, it appears, may be afraid to go to trial on the lawsuit he filed. It isn’t clear how the case will end, but the defendant has William Norkunas on its side. Norkunas is himself a frequent ADA plaintiff and has served as an expert witness in more than a thousand cases. He is clearly an advocate for ADA enforcement, but is quoted as saying that the plaintiff in this particular case is operating a “continuing criminal enterprise that boils down to extortion.” More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA Attorney's Fees, ADA FHA Litigation General, ADA Policies, Policies and Procedures FHA ADA, Restaurants, Retail, Shopping Centers Tags: ada litigation, ADA Policies, private lawsuits, restaurants, retail
One of the many ADA risks that businesses face is the risk of sliding into non-compliance through maintenance failures. This seems to come up most often in the context of parking, because the markings required for accessible parking are exposed to the weather and to wear from car tires. I recently settled a case of this type, and a reported opinion from California was a reminder of how important maintenance can be.
In Lozano v. C.A. Martinez Family Ltd. P’ship, 2015 WL 5227869, at *4 (S.D. Cal. Sept. 8, 2015), the complaint concerned nothing more complicated than striping accessible parking. The paint had faded and on repeated occasions over months the access aisles were blocked. As soon as the lawsuit was filed the owner repainted, but that was too late for the Court, which found that a policy of re-striping that apparently had not been followed would not let the owner escape an injunction and, of course, paying fees to the plaintiff’s attorney. More