Seyfarth Synopsis: In yet another effort to limit predatory ADA lawsuits, California Governor Jerry Brown recently signed into law – effective immediately – legislation that will provide small business owners with some potential relief.

Another year, another attempt in California to reform disability access laws – which presently offer plaintiffs a $4,000 per violation bounty for suing businesses.  But this one might actually make a difference – for small businesses at least. The bill is significant as a demonstration of yet another effort at reform that will still likely have little effect on the big picture.  As the bill’s author has noted, it is a “watered down solution to this lawsuit abuse dilemma.”

On Tuesday, May 10th, Governor Jerry Brown signed into law Senate Bill 269.  The bill became effective immediately.

Most significantly, the legislation creates a third category of businesses exempt from full minimum statutory damages — businesses that have employed 50 or fewer employees on average over the past three years, with a facility that has been inspected by a CASp inspector before the filing of a lawsuit or receipt of a demand letter (and the business was not otherwise on notice of the alleged violations), and the business corrected, within 120 days of the CASp inspection, all construction-related violations noted by the CASp inspector that are the basis for the lawsuit or demand letter.  This third category is added to two other categories of businesses which are eligible for reduced statutory damages by virtue of 2012 reform legislation — the last earnest effort of reform that made it into law, which we wrote about here.

There are quite a few hoops for a small business to jump through to qualify for this new exemption, which is why we doubt it will make much of a difference.

SB 269 also allows an exemption from statutory damages for small businesses (25 or fewer employees and less than $3.5 million in gross receipts annually over the past three years), and only provides protection from enumerated technical violations (things like parking lot paint fading or signage) if the small business can manage to fix them within 15 days of notice of the alleged violations — a really short time.  Often it can take more than 15 days to get a contractor out to re-paint parking lot striping, and much longer than that to order and install proper, compliant signage.

A plaintiff can still recover damages if he shows that he did in fact experience difficulty, discomfort, or embarrassment on the particular occasion as a result of one or more of the technical violations.  This means that the plaintiff could just try to open the door and find a violation inside the facility, or find a violation that doesn’t fall into one of the “technical violations” specified in Civil Code section 55.56(e).

Last year’s reform effort, AB 1521, added Section 425.55 to the Code of Civil Procedure.  That section imposes procedural and substantive conditions (disclosure of number of previous lawsuits filed, the reason the plaintiff was in the geographic location of the alleged violation, and why he/she visited the site) before a “high-frequency litigant” can file a lawsuit in California state courts.  A “high frequency litigant” is a “plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation or an attorney who has represented as attorney of record 10 or more high-frequency litigant plaintiffs in actions that were resolved within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.”

AB 1521 also requires, in Government Code section 70616.5, a high-frequency litigant to pay at the time of filing a construction-related accessibility lawsuit in California state court, a $1,000 filing fee in addition to the court’s initial filing fee.  Finally, AB 1521 established state court procedures to evaluate cases that involve a high-frequency litigant as well as procedures for requesting a joint inspection of the premises as part of participating in an early evaluation conference.

We’re often asked what practical effect these California reform bills have on the big picture of ADA lawsuit abuse.  The response, unfortunately, is usually: very little because the statutory damages exceptions apply mostly to small businesses, and the procedural protections only apply to lawsuits filed in state courts, while many ADA cases are filed in federal courts.  On May 4, 2016, the United States District Court for the Eastern District of California issued an Order confirming that defendants sued in federal court are not entitled to a stay of proceedings and an early evaluation conference under California’s disability accessibility laws.

Despite efforts to reign in overzealous plaintiff’s attorneys and bring back the spirit of the ADA and California accessibility laws, the wheels of justice turn slowly.  These bills show the legislature’s attempts to chip away at this issue bit by bit.

Edited by Kristina M. Launey,  Minh N. Vu.

Seyfarth Synopsis:  In a refreshing breath of fresh air, a federal judge holds that an intent to return as a “tester” does not give a plaintiff standing to sue under Title III of the ADA.

gavelAs we’ve reported before, the number of ADA Title III lawsuits has surged in the past few years, mostly in part due to a handful of plaintiffs who file hundreds of lawsuits each year.   Because a court can only consider an ADA Title III claim when there is a threat of an imminent future injury, these serial plaintiffs typically allege in their complaints that they have an intent to return to the business as a patron and that they are “testers” whose sole purpose is to see if the business is complying with the law.  Some courts have held that a plaintiff’s status as a tester does not necessarily bar the suit, emboldening plaintiffs to file even more suits in these jurisdictions.

U.S. District Judge Nickerson, in the District of Maryland, held in an Order issued on May 4 that an intent to return to the business as a tester does not give a plaintiff standing to sue.  “This court is not aware of any authority showing that Title III of the ADA was intended to create such broad rights against individual local businesses by private parties that are not bona fide patrons, and are not likely to be bona fide patrons in the future.”  The court was not convinced that the plaintiff would be visiting the defendant’s shopping center as a patron in the future because he had filed twelve other lawsuits against other businesses in the same vicinity along the I-95 corridor.  Those lawsuits undermined his claim that he would be visiting this particular shopping center –as opposed to all those other businesses — as he traveled on the interstate.   

Kudos to Judge Nickerson for a sensible ruling.

Edited by Kristina Launey.

Our research department has crunched the numbers from the federal court docket and the verdict is that the ADA Title III plaintiff’s bar and their clients are still busy filing lawsuits.  Here are the findings:

  • In 2015, 4,789 ADA Title III lawsuits were filed in federal court, as compared to 4,436 in 2014.  That 8% increase is modest compared to the surge we saw, and reported in 2014.  In 2014, the number of ADA Title III lawsuits increased 63% over the 2,722 lawsuits filed nationwide in 2013.

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  • California, Florida, New York, Texas, and Arizona had the most ADA Title III lawsuits —  a total of 3,847 cases.  This accounts for 80% of the lawsuits filed nationwide.
  • Although California and Florida continue to be the most popular venues for ADA Title III lawsuits, the number of cases filed in those states in 2015 decreased by 11% and 14% respectively.
  • Arizona experienced a surge in lawsuits.  Plaintiffs in Arizona filed 25 times more cases in 2015 than they did in 2014, for a total of 207 lawsuits in 2015.  Other states with substantial increases in the number of lawsuits were Georgia (from 20 to 96), Illinois (from 29 to 84), New York (212 to 366).

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  • Federal courts in Alaska, Montana, North Dakota, South Dakota, and Wyoming had no ADA Title III lawsuits.
  • Who are the plaintiffs filing these suits? Our docket review revealed the top filers in 2015 were:
    • Howard Cohan (FL/IL/LA) – 429
    • Martin Vogel (CA) – 198
    • Theresa Brooke (AZ/CA) – 175
    • Patricia/Pat Kennedy (FL) – 173
    • Tal Hilson (FL) – 136
    • Jon Deutsch (TX) – 113
    • Michael Rocca (CA) – 102
    • Shirley Lindsay (CA) – 83

We do wish to add a disclaimer:  Our research involved a painstaking manual process of going through all federal cases that were coded as “ADA-Other” and culling out the ADA Title II cases in which the defendants are state and local governments.  In other words, there is always the possibility of some human error and we hope you’ll forgive us if the numbers are slightly off.  And, we only counted federal filings.  Some plaintiffs — such as those in California, which has ADA Title III-corollary state statutes — may file lawsuits in state court that never make it to federal court, and thus, are not included in our numbers.

We’ve done the review and crunched the numbers:  It appears that the surge of ADA Title III lawsuits we saw from 2013 to 2014 is holding strong, though possibly leveling off.

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You may recall that there was a 60% increase in the number of ADA Title III lawsuits between 2013 and 2014 (2479 vs. 4436).  In the first six months of 2015, 2114 Title III lawsuits were filed.  While we think that the number of lawsuits filed in the second half of 2015 will be slightly greater than the first half, the total will not likely be much different from the 2014 total.  This means that the 2014 surge was probably not an aberration but, more likely, the new normal.  Although we did not analyze the types of ADA Title III lawsuits filed in 2015 (e.g. architectural barriers, operational issues, or digital accessibility), our practice has seen a surge of private litigant claims based on allegedly inaccessible websites.

Where are the lawsuit hotspots?  The favorites remain the same:  California, Florida, and New York.  That said, a few states are seeing more action than before.  For example, Idaho had four lawsuits in the first half of 2015 even though it had none for 2013 and 2014.  Arizona had 19 lawsuits filed during this six month period even though it only had 8 in all of 2014.  Minnesota had 42 lawsuits in the first six months of 2015 as compared to the 14 it had in all of 2014.  Wyoming, Dakota, Montana, and Nebraska continue to be ADA Title III lawsuit-free.

We’ll keep tracking the filings and update our findings for all of 2015 in January 2016.

By Minh N. Vu and Susan Ryan

In August 2014, we reported that the number of ADA Title III lawsuits filed against public accommodations rose by nearly 9% in 2013 over 2012. At that time, we predicted that there could be a 40% increase in the number of lawsuits filed in 2014 based on 6 months of data. Now that we have all the data, the actual number is far higher: There was a 63% surge, resulting in a grand total of 4,436 ADA Title III lawsuits filed in 2014.

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How Does This Compare to The Number of ADA Employment Lawsuits?

Just to put this into perspective, for comparison purposes we looked at the number of lawsuits filed under Title I of the ADA which prohibits discrimination on the basis of disability in employment. As the below chart shows, those numbers remained very steady in 2012-2014, and numbered well under half the total Title III cases filed in 2014.

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Where Are Most of These Cases Filed?

California continues to lead the country with the highest number of ADA Title III lawsuits (1866), with Florida coming in a close second (1553). New York (212), Pennsylvania (135), and Alabama (117) hold the distant third, fourth, and fifth place slots. These five states also saw the largest percentage increase in the number of lawsuits.

In stark contrast, there was not a single ADA Title III lawsuit filed in 2014 in Idaho, Montana, Nebraska, North Dakota, South Dakota, and Wyoming.

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What is driving these higher lawsuit numbers, 25 years after the passage of the ADA?

Although we have not studied every complaint to answer this question, we did notice some trends in 2014 in our own practice. In addition to the usual lawsuits alleging physical access barriers at hotels, retailers, and shopping centers, we handled a number of cases brought by plaintiffs alleging a failure to provide accessible pool lifts, mostly in Florida. Some of these cases were clearly frivolous because the hotels did have pool lifts. Plaintiffs represented by one law firm filed more than 60 class action lawsuits in the Western District of Pennsylvania. Many of these alleged that the parking lots of various retailers, restaurants, and banks do not have compliant accessible parking spaces.   We also handled federal class actions alleging that some retailers’ point of sale devices are not accessible to the blind.

Who is filing these lawsuits?

We looked at our top five jurisdictions to see who some of the repeat filers were in 2014 under both ADA Title II (state and local government defendants) and Title III (public accommodations (private sector businesses)). In Florida, a plaintiff named Howard Cohan filed 529 such suits. In California, a plaintiff named Martin Vogel filed 124 suits. In Pennsylvania, a plaintiff named Christopher Mielo brought 21 lawsuits. In New York, a plaintiff named Zoltan Hirsch brought 24 lawsuits. In Alabama, a plaintiff named David Higginbotham filed 16 lawsuits.

A Note About Our Methodology

Our data comes from PACER, the federal court electronic docket system. When filing a new lawsuit, a plaintiff has two ADA codes to choose from: “Americans with Disabilities: Employment” or “Americans with Disabilities: Other.” The “other” category refers to ADA Titles II or III. Our diligent librarian, Susan Ryan, obtained the ADA Title III case numbers by reviewing each of the case names (and where necessary, the complaints) to eliminate all Title II cases. As far as we know, no one else has undertaken this task, so you are hearing it here first on this blog.

Edited by Kristina M. Launey

By Craig B. Simonsen and Kristina M. Launey

This blog, as the “ADA Title III” name indicates, is primarily about a business’s obligation to individuals with disabilities who may access its goods, services, benefits, and accommodations, rather than employees with disabilities.  However, we also frequently receive questions from entities that are subject to Title III about their obligations to provide accessible technology to  their employees, so we thought this news would be of interest to our readers. 

The U.S. Department of Labor’s Office of Disability Employment Policy recently announced the launch of a Web portal, spearheaded by ODEP’s Partnership on Employment & Accessible Technology (PEAT). PEAT is an initiative to promote the employment, retention, and career advancement of people with disabilities through the development, adoption, and promotion of accessible technology. The portal is intended to provide everything “from educational articles to interactive tools.” The content “aims to help employers and the technology industry adopt accessible technology as part of everyday business practice so that all workers can benefit.”

Available on the portal Resources & Tools is the “Accessible Technology Action Steps: A Guide for Employers.” The Guide aims to provide a “roadmap to ensure that the technology in your workplace is accessible to all employees and job applicants.”

This issue is not just on the government’s radar.  At least one plaintiff’s firm in California is forcing businesses to deal with the issue of website accessibility in the employment context, recently filing a lawsuit against multiple retailer defendants alleging that the plaintiff was discriminated against in violation of the California Fair Employment and Housing Act (FEHA) (state equivalent of Title I of the ADA) and California’s Unruh Act (state equivalent of Title III of the ADA) because the businesses’ online applications were inaccessible and the companies refused to allow him any other method (i.e., paper) to apply.

These developments serve to remind businesses to review policies, procedures, training materials, and assistive technologies they use to interface with customers or employees to ensure those with disabilities are afforded equal access to the goods and services the business provides and to the benefits of employment, with or without reasonable accommodation.

Edited by Minh N. Vu.

By Andrew C. Crane

On January 28, 2014, in Martinez v. Columbia Sportswear USA Corp., the United States Court of Appeals for the Ninth Circuit affirmed summary judgment for our three retail defendants, holding for the first time that a 60-inch long dressing room bench constitutes an “equivalent facilitation” under the 1991 ADA Standards, which specify that benches must be 48” long.

The 1991 ADA Standards permits deviations from particular scoping requirements as long as the deviations allow for “substantially equivalent or greater access to” the facility–otherwise known as an “equivalent facilitation.”  Although a number of lower courts had held that a 60-inch bench constitutes an equivalent facilitation, prior to the Martinez decision, the Ninth Circuit had not taken a position.  The issue is now settled in California – where a disproportionate number of access lawsuits are filed.

In another boon for retailers, the Ninth Circuit also held in Martinez that “the clearing of moveable merchandise racks” that blocked store aisles addressed this barrier and rendered the claim moot.  While this is a great result, prevention is the best cure.  Retailers should have policies and procedure in place to keep their keep aisles clear of merchandise and merchandise racks to avoid a claim on this basis in the first place.

The case was handled through summary judgment and subsequent appeal by Jon D. Meer, Myra B. Villamor, and Andrew C. Crane of Seyfarth Shaw LLP.

Edited by Kristina M. Launey and Minh N. Vu

By Minh. N. Vu

If you thought that Title III of the ADA was intended to protect people with disabilities who might want to do business with you – as opposed to those people who visit your business for the sole purpose of filing a lawsuit –– think again.  The U.S. Court of Appeals for the Eleventh Circuit last week issued a decision in Houston v. Marod Supermarkets holding that people with disabilities who have no interest in your goods and services can still sue you for architectural barriers in your facilities if they can demonstrate that they will encounter these barriers in the future.  Federal trial courts in Alabama, Georgia, and Florida (a very popular venue for serial plaintiffs) must follow this holding in ruling on future cases.

People who visit your businesses for the sole purpose of determining if your business complies with legal requirements — and then suing if it is not — are called testers.   Because no federal appellate court had decided the question of whether testers have standing to bring lawsuits under Title III of the ADA until now, serial ADA Title III plaintiffs have usually claimed that they that have a dual purpose in visiting a business:  Reviewing its accessibility and accessing its goods and services.  This decision allows serial plaintiffs filing ADA Title III lawsuits in Florida, Alabama, and Georgia to abandon the charade that they actually have an interest the goods and services offered by the business.

There is a small silver lining for businesses:  The Eleventh Circuit reiterated that ADA Title III plaintiffs must still allege facts showing that they are under a threat of imminent harm because they will encounter the barriers in the future.  In this case, the plaintiff submitted an affidavit that he lived 30.5 miles from the supermarket in question and that he had been there twice before filing suit.  He explained that although this supermarket is not the closest to his house, he passes the supermarket on his reoccurring trips to the offices of his lawyers who file his access lawsuits.  The plaintiff also stated that he would return to the supermarket if the barriers were removed.  The Eleventh Circuit concluded that the plaintiff had produced sufficient facts to establish his standing to sue under Title III of the ADA.

Dissenting District Judge Bowen was not persuaded, noting that this “serial litigator” had filed over 271 lawsuits in Florida and mistakenly referred to the supermarket as a “hotel” in his affidavit.  Judge Bowen said the “court should see this case as the district court saw it — a disingenuous medium for self-promotion and the multiplication of attorney’s fees.” 

Last month, the Honorable Phyllis J. Hamilton (United States District Judge, Northern District of California) issued an interesting [partial] summary judgment order in the matter of Francie Moeller, et al. v. Taco Bell Corporation, (Case No. C 02-5849) a case pending since December, 2002.  Over the years, this case has been certified as a class action and then decertified, subjected to multiple summary judgment efforts by both sides, taken up to the Ninth Circuit and even tried in the form of a limited test case.  The operative complaint concerns four plaintiffs, five barriers and six stores; plaintiffs had sought to expand the case include eight additional barriers and three additional stores.  The import of this most recent order is how the court viewed the interplay of the Ninth Circuit’s Oliver v. Ralphs Grocery Co. (654 F. 3d 903 (9th Cir. 2011)) and Skaff v. Meridian N. Am. Beverly Hills, LLC (506 F. 3d 832 (9th Cir. 2007)) decisions in applying the pleading requirements of the Federal Rules of Civil Procedure (“FRCP”), Rule 8 to a Title III (and related state law) complaint.

In presenting its motion for partial summary judgment, the defendant argued that the plaintiffs “can seek relief only for barriers and restaurants pled in the [operative complaint].”  Essentially, the defendant asserted that any barriers not specifically pled could not support a demand for either equitable relief or money damages in the case.  The plaintiffs countered by pointing to the many avenues by which the defendant was expressly and formally put on notice of these non-pled barriers through the class certification and decertification process, deposition and written discovery, and prior summary judgment motions to the point that the operative complaint was “constructively amended” by application of FRCP, Rule 18.  Ultimately, the Court decided to apply a strict pleading requirement rather than follow the plaintiffs’ suggested fair notice path ruling, “to the extent that the [operative complaint] does not identify specific barriers encountered by specific plaintiffs at specific stores, those claims are not presently in the case.”  The Court also granted partial summary judgment in the defendant’s favor as to plaintiffs’ requests for money damages for deterred visit claims “for the simple reason that there are no deterrence claims pled in the [operative complaint].”

The plaintiffs made other interesting arguments including that the Oliver decision applied only to federal ADA claims (for injunctive relief) and not to state law claims for money damages and that the operative complaint adequately pled an entitlement to money damages for post-filing visits to the defendant’s stores by describing the violations as “ongoing.”  The Court rejected both arguments but also indicated that the latter issue could possibly be resolved through a further amended complaint (for which no motion was before the Court).

By Minh N. Vu

The U.S. Justice Department (DOJ) and the owners of the Rosa Mexicano restaurants at Lincoln Center, Union Square, and First Avenue recently entered into a consent decree that resolves an enforcement suit filed in October 2012.  The DOJ alleged that the restaurants were not physically accessible to individuals with disabilities, in violation of Title III of the Americans with Disabilities Act (ADA).  The consent decree requires the restaurants to make a number of  physical changes to their public spaces, including the creation of a new accessible unisex restroom at the First Avenue location, and, if feasible, the creation of an accessible entrance at the Union Square location.  In addition, the restaurant owners will have to pay $30,000 in civil penalties to the United States Government.

The lawsuit and consent decree appear to have resulted from a review of many Manhattan restaurants for compliance with Title III of the ADA conducted by the U.S. Attorney’s Office for the Southern District of New York (USAO). The USAO is a part of the DOJ.  Under Title III of the ADA, the DOJ is authorized to undertake these compliance reviews even if no one has complained about or has been injured by any violations.  The restaurants that were a part of this compliance review received a lengthy questionnaire about the accessibility of their public spaces, and their policies and procedures for accommodating guests with disabilities.  The USAO also inspected the restaurants.

Restaurant spaces, particularly those in Manhattan, can present serious accessibility challenges because many are in small spaces in older pre-ADA buildings.  Restauranteurs should be aware that restaurants in spaces constructed prior to the ADA’s enactment are, at a minimum, required to remove barriers to access if the removal is readily achievable.  The most common issues we see in restaurants are a lack of (1) of accessible tables that have the appropriate height and space underneath to allow a wheelchair to pull under; (2) 36” wide accessible routes inside the restaurant connecting accessible features; (3) lowered accessible seating at the bar; and (4) restrooms that are wheelchair accessible.  Some restaurants have wheelchair accessible restrooms but make them inaccessible by putting furniture and other items into required maneuvering spaces.

The Manhattan restaurant compliance review is the latest of several broad ADA Title III initiatives the USAO has spearheaded.  In the past ten years, the USAO has conducted compliance reviews of a number of Manhattan theatres as well as dozens of hotels located in the Times Square area.  Each of these initiatives resulted in businesses agreeing to make accessibility changes in agreements with the USAO.