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
ADA Attorney’s Fees
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
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA Attorney's Fees, ADA FHA Litigation General, DOJ Tags: ADA Anniversary, ada litigation, ada violation, Department of Justice, private lawsuits
The Department of Justice and various disabilities rights groups are busy celebrating the 25th anniversary of the Americans with Disabilities Act. It is a peculiarly American kind of celebration, because much of the focus is on stepped up enforcement; that is, filing a lot of new lawsuits. The lead sentence from an article in the Austin American-Statesman sums up the party atmosphere:
“A quarter-century after the American Disabilities Act banned the discrimination of disabled Americans, the Texas Civil Rights Project filed 32 lawsuits across Texas.” — including 14 in Austin — that shared a common theme: Access is a civil right.”
This is a short follow-up to my May 14 blog “know when to fold ’em.” A couple of weeks after I published that piece a decision came out from the Northern District of Georgia that dramatically illustrates the risk of a vigorous defense in a losing case.
Defense counsel interested in the legal principles that guide attorney’s fee awards in ADA cases will find it useful to read the full opinion in Gaylor v. Greenbriar of Dahlonega: Shopping Center, Inc., 2014 WL 2195719 (N.D. Ga., May 27, 2014) . However, the gist of the holding can be found in one short paragraph: More