95% of the ADA lawsuits filed in Texas and elsewhere seem to start with barriers to access in the parking lot. It isn’t hard to understand why. Before the effective date and for many years afterwards business owners believed that a ramp up to the existing curb next to a marked parking spot was all the law required. The picture at left shows the typical ramp that resulted. I recently visited a client site and between the highway exit ramp and the his location I noticed more than a dozen strip shopping centers and small businesses with precisely this “solution” to the problem of accessible parking.
private lawsuits
Patience pays off when defending ADA cases
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA Litigation General, Retail, Shopping Centers Tags: ada litigation, ADA standing, FHA Litigation, private lawsuits, private litigants, retail
“Don’t fire till you see the whites of their eyes” was William Prescott’s famous advice to the colonial soldiers defending Bunker Hill, and that kind of patience can be important to ADA defendants as well. Property owners and operators sued under the Americans with Disabilities Act always face a strategic choice: Should they simply remediate and settle, or should they attack the plaintiff’s standing to bring the lawsuit, which is frequently dubious at best. In most cases remediation and settlement is the best choice because the cost of defending the lawsuit and winning is more than the cost of remediation. Sometimes, though, a plaintiff just won’t settle. He or she may insist on work that the ADA doesn’t require or attorneys’ fees that are too high for the settlement to be reasonable. When that happens, and a legal battle is inevitable, choosing the right strategy is the key to minimizing expense while achieving a good outcome. A California case, Feezor v Patterson, 896 F.Supp.2d 895 (E.D.Cal. 2012) shows how patience worked to the defendant’s advantage and lead to a complete win without unnecessary expense. More
DOJ Rules on ADA web access – never would be a really good time.
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, ATM Litigation, DOJ, Internet, Public Facilities Tags: ada litigation, DOJ, Intenet, private lawsuits, World Wide Web
Since 2010 the Department of Justice has been in the process of creating rules for web access under the ADA. No rules have been proposed, and this month the DOJ announced that it was splitting the proposed rule making into two parts and delaying the issuance of a notice of proposed rule making for both. The original proposed rules were to cover both Title II entities (cities other municipalities) and Title III entities (private businesses operating as places of public accommodation. The Title II rules will now proceed as a separate process with an earlier proposed date. More
Pleading ADA defenses: What’s sauce for the goose . . .
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, Restaurants, Retail Tags: ada litigation, ADA pleading, ada violation, FHA Litigation, private lawsuits, private litigants, real-estate, restaurants
A case decided just last week, Dodson v. Strategic Restaurants Acquisition Co., 2013 WL 3120322 (E.D. Cal. 2013) is worth study for any ADA or FHA defense attorney. There is plenty of technically useful information because the Court has provided an extensive survey of cases discussing whether Iqbal and Twombly apply to affirmative defenses. This is an unsettled question, and the Court lists many of the pro and con authorities. There is also an important moral lesson for defense attorneys. The Court isn’t likely to hold the defendant to a lower pleading standard than the standard for the plaintiff. What’s sauce for the goose is sauce for the gander.
Starbucks and the ADA – more perilous settlements and temporary victories
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, Restaurants, Retail Tags: ada litigation, ADA pleading, ADA standing, private lawsuits, restaurants, retail
Starbucks has a long history of litigation about the height of its pickup counters. In 2003 Starbucks settled a claim by a California disabilities rights group concerning the height of its pickup counters. In 2011 Starbucks obtained the dismissal of another pickup counter height lawsuit, Chapman v. Starbucks, 2011 WL 66823 (E.D.Cal. 1022) based on mootness. The counter had been lowered to comply with the ADA requirements. In 2012 Starbucks settled a case that included counter height allegations in the Southern District of Florida. Access 4 All, Inc. v. Starbucks, Case No. 0:11-cv-61010 (S.D. Fla.). The settlement terms do not appear in the record, but most ADA settlements include remediation plus attorney’s fees, so it is a reasonable guess that Starbucks had to lower the counters in the 4 stores at issue. Just a few days ago, on June 5, 2013, a different District Court awarded Robert Cruz some $145,960.07 in attorney’s fees for his successful action against Starbucks concerning one Starbucks store. The Consent Decree in that case called for lowering the pickup counter. Cruz v. Starbucks Corporation, 2013 WL 2447862 (N.D. Cal. 2013) and see Docket 29-1 in the underlying case, 3:10-cv-01868. More