Seyfarth Synopsis: In an apparent effort to stop one plaintiff’s lawsuit spree, the Nevada Attorney General moves to intervene in a federal ADA Title III lawsuit arguing that the plaintiff failed to provide notice to the state agency responsible for enforcing Nevada’s antidiscrimination law before filing suit.

On Wednesday, August 9, the Nevada Attorney General filed a motion to intervene in an ADA Title III lawsuit filed by serial plaintiff Kevin Zimmerman who (according the motion) had sued more than 275 Nevada businesses in federal courts in the past seven months.

The motion to intervene argues that Title III of the ADA requires private plaintiffs to – before filing in federal court – provide 30 days’ notice to the state agency responsible for enforcing state laws that prohibit the same type of discriminatory conduct at issue in the federal suit.  The Nevada Attorney General explained that the notice gives the state enforcement agencies an opportunity to conduct their own investigation and take action.  The brief notes that there is an exception to this notice requirement where a plaintiff has actual notice that the defendant does not intend to comply with the law, but Mr. Zimmerman did not plead that he had actual notice of any such intent.  This is an interesting argument that could be a useful defense strategy in some ADA Title III cases, though it has been rejected as the basis for a dispositive ruling by the Ninth Circuit in Botosan v. Paul McNally Realty.

The Nevada Attorney General’s motion to intervene is not the first time that a state attorney general has stepped in to thwart the actions of serial plaintiffs filing accessibility lawsuits.  Last year, the Arizona Attorney General intervened in and secured the dismissal of 1700 cases filed against Arizona businesses under the Arizonians with Disabilities Act (not the ADA), as we reported here.

Stay tuned for more developments in Nevada – a state that only had 6 ADA Title III lawsuits in all of 2016.

Seyfarth Synopsis:  The number of federal ADA Title III lawsuits continue to surge, fueled by new plaintiffs, new plaintiffs’ lawyers, and website accessibility claims.

Our 2016 lawsuit count is complete, and the results no less remarkable than prior years.  In 2016, 6,601 ADA Title III lawsuits were filed in federal court — 1,812 more than in 2015. This 37 percent increase continues the upward trend in the number of filings, which we’ve been tracking since 2013.  In 2015, there were 8 percent more Title III lawsuits filed than in 2014.

ADA Title III Lawsuits in Federal Court: 2013-2016: 2013 (2722); 2014 (4436, 63% Increase over 2013); 2015 (4789, 8% Increase over 2014); 2016 (6601, 37% Increase over 2015)
ADA Title III Lawsuits in Federal Court: 2013-2016: 2013 (2722); 2014 (4436, 63% Increase over 2013); 2015 (4789, 8% Increase over 2014); 2016 (6601, 37% Increase over 2015)

California and Florida continue to be hotbeds of litigation, with 2,468 and 1,663 lawsuits, respectively. New York, Arizona, and Texas hold distant third, fourth, and fifth positions.  Here are the numbers for the top ten states:

  1. CA: 2468
  2. FL: 1663
  3. NY: 543
  4. AZ: 335
  5. TX: 267
  6. GA: 193
  7. UT: 124
  8. PA: 102
  9. MN: 96
  10. CO: 92
Top 10 States for ADA Title III Federal Lawsuits in 2016: CA (2468); FL (1663); NY (543); AZ (335); TX (267); GA (193); UT (124); PA (102); MN (96); CO (93)
Top 10 States for ADA Title III Federal Lawsuits in 2016: CA (2468); FL (1663); NY (543); AZ (335); TX (267); GA (193); UT (124); PA (102); MN (96); CO (93)

The number of cases in Utah jumped from only one in 2015 to 124 in 2016 — due almost entirely to plaintiff Carolyn Ford who filed 105 of those suits.  Other states that experienced significant increases include Arizona, California, Colorado, and Georgia.  Alaska, North Dakota, South Dakota, and Wyoming are the only states that had no ADA Title III lawsuits at all filed in 2016.

What is driving these numbers?  While historically there had been a few predictable plaintiffs and attorneys filing Title III lawsuits, over the past year we’ve seen quite a few newcomers filing (the most common) physical accessibility lawsuits, as well as a recent proliferation of plaintiffs and attorneys filing website accessibility lawsuits.  There were more than 250 lawsuits filed in 2016 about allegedly inaccessible websites and/or mobile apps.   This number does not include the hundreds, if not thousands, of demand letters plaintiffs sent to businesses asserting website accessibility claims.

Plaintiffs who filed more than a hundred lawsuits in 2016 were Theresa Brooke (274), Scott Johnson (258), Howard Cohan (251), Lional Dalton (184), Jon Deutsch (175), Advocates for Individuals with Disabilities LLC/Advocates for Individuals with Disabilities Foundation Incorporated, Advocates for American Disabled Individuals LLC (165), Chris Langer (163), Santiago Abreu (152), Damien Moseley (141), Patricia Kennedy (138), Doug Longhini (114), Andres Gomez (113), and Carolyn Ford (105).  We expect to see fewer suits from Howard Cohan who was the subject of a news expose in late 2016 which showed videos here and here of him not appearing to be limited in his mobility.  Mr. Cohan has filed many hundreds of suits over the years concerning alleged barriers that would affect people who are limited in their mobility.

In 2016, lawmakers in both the Senate and House proposed legislation called the ADA Education and Reform Act designed to, among other things, reduce the number of lawsuits filed by serial plaintiffs by requiring them to give businesses notice of the alleged violations and an opportunity to address them before filing suit.  Those efforts stalled but may gain new momentum with a new administration that is sympathetic to the plight of small businesses and hostile to federal regulation.  There were also state legislative efforts, which will no doubt continue in 2017.

We will, as always, continue to keep tracking lawsuit filings, legislative efforts, and other breaking developments and keep you up to date — as the Title III trend shows no signs of cooling down in 2017.

Photograph of a stopwatch, isolated on white.

By: Seyfarth ADA Title III News & Insights Editors

Seyfarth Synopsis: Here’s our take on Sunday’s 60 Minutes episode on “drive-by” abusive ADA Title III lawsuits and the legislative efforts to address them.

60 Minutes aired a segment about ADA Title III “drive-by” lawsuits on Sunday, December 4, which focused on a few of the ways in which the law has been misused by some plaintiffs and their attorneys to make money.  Some disability rights advocates have called the piece a “hit job” on the ADA and “propaganda” for the future Trump Administration’s  perceived anti-civil rights agenda.  Others say that by highlighting only the “bad apples,” the story “mischaracterized the ADA as an instrument of opportunism” instead of the force that has opened doors for millions of Americans.  These are all fair points, but the 60 Minutes piece does highlight the need for targeted changes which would mitigate the abusive litigation and restore confidence in a very important law.

When Anderson Cooper interviewed our ADA Title III Team Leader, Minh Vu, for the story, it seemed that the piece would seek to uncover the reasons behind the huge year-over-year increase in ADA Title III lawsuits (which we have reported on this blog); whether the cases are legitimate; and whether reform to the law might stop its abuse by a small cadre of plaintiffs’ lawyers and their serial plaintiffs.  The final story was much narrower and focused on a small hotel owner who was sued for not having a pool lift by a plaintiff who had never been to his hotel; a California attorney who made millions filing over 2000 lawsuits under the ADA and state law; and two disabled plaintiffs who claim they were recruited by and then deceived by their attorneys who filed and settled lawsuits on their behalf without their knowledge.  The segment also highlighted the fact that the ADA regulations contain “thousands” of detailed requirements for public accommodations facilities that small businesses are not likely to know.

Interestingly, the story did not highlight the most notable “serial plaintiff” stories of the year –  there was no mention of the Arizona lawyer who filed thousands of lawsuits this year alone, prompting that state’s Attorney General to intervene and file a motion to dismiss over 1,000 of those cases; nor the Florida serial plaintiff who was exposed as not being disabled; nor the hundreds of demand letters and lawsuits that have been sent and filed by various law firms this year alleging violations of the ADA due to inaccessible websites.

The subject of these so-called “drive-by” lawsuits elicits strong reactions from businesses, especially small ones, because they are brought by people whose stated interest in patronizing the defendant businesses are highly suspect.  Businesses that are sued could try to get the case dismissed on the theory that the plaintiff has no genuine interest in returning to the business in the future, but filing a motion to dismiss can cost tens of thousands of dollars.  For this reason, most businesses choose to settle the lawsuits for a lesser amount.  Small business owners that do not have the resources to fight the suits are the most vulnerable targets.

Federal and state lawmakers have often pursued reform legislation.  For example, in May and September 2016, California’s Governor signed into law two such bills.  On the federal level, in 2015, companion bills called the ADA Education and Reform Act were introduced in the House and Senate. The bills require plaintiffs who want to bring lawsuits about architectural barriers to first provide 60-days’ notice to the business owner about the specific barriers that they allege violate the ADA.  No lawsuit can be brought if the business takes action to address the barriers.  The bill also directs the Judicial Conference of the United States to develop a model program to promote alternative dispute resolution mechanisms to resolve such claims.  While opponents of the bill may say that these businesses have had notice of their obligations for over 25 years and should not be getting more notice, the reality is that most business owners are not aware of the very detailed requirements of the ADA Standards for Accessible Design.  A 60-day notice provision would address easily fixed issues such as sink pipes that are not protected, incorrect door hardware, and bathroom dispensers and mirrors that are off by a few inches.  The notice requirement would not prevent lawsuits about more serious barriers which could not be addressed in that period of time.

The ADA Reform Act may well get a boost of momentum from the 60 Minutes story, particularly in a Trump administration.

Seyfarth Synopsis:  The number of federal lawsuits alleging inaccessible websites continues to increase, along with the number of law firms filing them.  Businesses should seek advice now on how to manage risk in this chaotic environment.

As we predicted, website accessibility lawsuits and threatened claims have become big business for the plaintiffs’ bar.  More law firms are filing lawsuits or sending demand letters alleging individuals with disabilities are denied access to a business’s goods and services due to inaccessible websites than ever.  The number of lawsuits filed in federal court since the beginning of 2015 has surged to at least 244 as of October 20, 2016.  Retailers have been the most popular targets, followed by restaurant and hospitality companies.

Number
Number of federal website lawsuits by industry from January 2015 to October 20, 2016: Academic (3), Dating Services (1), Entertainment (9), Financial (2), Gaming (1), Hospitality (12), Insurance (1), Medical (8), Personal Services (4), Restaurant (45), Retail (148), Sports (2), Utility (1), Vehicle Manufacturer (7)

We analyzed the data to find that five firms dominate the space, but we have seen more and more attempting to get in on the action.

Plaintiff's firms filing the most federal website lawsuits since January 2015: Block Leviton (3%), Carlson Lynch (45%), Law Office of Joseph R. Manning Jr. APC (7%), Lee Litigation Group (33%), Nelson Boyd (5%), Newport Trial Group (19%), Scott R. Dinin, PA (106%), Stewart, Murray & Associates Law Group (6%), Other Firms (8%)
Plaintiff’s firms filing the most federal website lawsuits since January 2015: Block Leviton (1%), Carlson Lynch (18%), Law Office of Joseph R. Manning Jr. APC (3%), Lee Litigation Group (14%), Nelson Boyd (2%), Newport Trial Group (8%), Scott R. Dinin, PA (43%), Stewart, Murray & Associates Law Group (3%), Other Firms (8%)

Florida, Pennsylvania, New York, and California federal courts have 95% of the lawsuits at this point, but, with two months left in the year, that could change.

States with the most federal website lawsuits being filed since January 2015: California (29), Massachusetts (5), Pennsylvania (43), Washington (5), Florida (124)
States with the most federal website lawsuits since January 2015: Arizona (1), California (29), Florida (124), Indiana (1), Massachusetts (5), New York (35), Pennsylvania (43), Texas (1), Washington (5)

We have previously reported that several law firms representing unnamed clients with disabilities had sent out hundreds of demand letters to various types of businesses concerning their allegedly inaccessible websites.  From what we can tell, very few of those demand letters went to financial services institutions.  We have learned that the most recent batch of demand letters is focused on the websites of community banks around the country.

Meanwhile, we still have no proposed regulations for public accommodations websites from the DOJ and a change in administration could derail or delay the rulemaking process further.  Thus, the need is no less urgent for businesses to come up with a plan to mitigate their litigation exposure in this tumultuous environment.

Edited by Kristina M. Launey.

*We updated this post to correct the data, as we found the number of lawsuits filed to be even higher than we previously reported. There is no easy way to track these website cases as they are filed so the numbers could be even higher.

Seyfarth Synopsis: In yet another effort to reduce ADA lawsuits, California Governor Jerry Brown recently signed into law – effective immediately – legislation to encourage tenants and landlords to acknowledge and address any accessibility issues during lease negotiations.

On September 16, 2016, California Governor Jerry Brown signed into law Assembly Bill 2093 – the second new disability access reform law of the year – in the state’s continuing effort to address the huge number of accessibility lawsuits. This bill, which became effective immediately, seeks to ensure that prospective commercial real estate tenants are notified of known construction-related accessibility violations during the course of lease negotiations so that owners and tenants have the opportunity to decide how any violations will be addressed and avoid future ADA lawsuits.  AB 2093 is similar to a piece of California’s last large-scale attempt at disability access reform, SB 1186 of 2012, which required a commercial property owner to state on a lease form or rental agreement executed on or after July 1, 2013, whether the property being leased or rented has undergone inspection by a certified access specialist.

AB 2093 takes the 2012 legislation one step further and requires commercial property owners to state on every lease or rental agreement executed after January 1, 2017, whether the property being leased or rented has been inspected by a California Certified Access Specialist (CASp) for compliance with construction-related accessibility standards.  If it has, and there have been no alterations affecting accessibility since, the owner must provide the prospective tenant a copy of the CASp report at least 48 hours prior to the execution of the lease or rental agreement.  Any necessary repairs are deemed the responsibility of the owner unless the landlord and tenant contractually agree otherwise.  If the CASp report indicates the property meets applicable accessibility standards, the owner must provide the report and CASp certificate to the tenant within seven days of the execution of the lease or rental agreement.

If the property has not been CASp-inspected, the owner must include specific language in the lease or rental agreement notifying the prospective tenant that: (a) a CASp can inspect the property and determine whether the property complies with construction-related accessibility standards; (b) a CASp inspection is not required by law; (c) the owner may not prohibit the tenant from obtaining a CASp inspection of the property; and (d) the owner and tenant shall mutually agree on the terms of the CASp inspection, including time, payment of fees, and allocation of responsibility for making any required corrections to accessibility violations identified in the CASp report.

Earlier this year, the Governor signed into law SB 269, which largely sought provide small business owners with some relief and protect businesses against liability for certain “technical” violations.  Both bills come on the heels of 2015’s AB 1521, which imposed procedural and substantive prerequisites to a “high-frequency litigant” filing a lawsuit in California state courts.

AB 2093 is intended to raise the issue of the existence of possible violations of the ADA and California accessibility laws during the course of commercial property lease negotiations to encourage business owners to make any necessary repairs in a proactive manner, rather than making repairs as a reaction to a future ADA lawsuit from a plaintiff seeking the $4,000 per violation bounty offered by California’s disability access laws.   Only time will tell if this latest effort at reform will make any difference in mitigating the huge, and growing number of disability access lawsuits in California (and across the country).  For those of you closely following state government attempts to intervene and quell the proliferation of disability access lawsuits, read about the Arizona Attorney General’s recent action here.

Edited by Kristina Launey and Minh Vu.


In honor of the 26th anniversary of the ADA, we are sharing our mid-year count of ADA Title III lawsuits for 2016 and it’s newsworthy:  The number of lawsuits filed in federal court is already at 3,435, up 63% from last year’s mid-year number of 2,114.  If the pace continues, the 2016 total may top 7,000.  To put the numbers into perspective, more lawsuits were filed in the past six months than were filed in all of 2013 when there were a mere 2,722 lawsuits.  The three states with most lawsuits continue to be California, Florida, and New York, but there is a shake-up in the fourth position.  Arizona, with 230 lawsuits, has beaten out Texas.  Based on our own practice, most lawsuits continue to be about physical access barriers but there has been a steady increase in lawsuits about websites that are allegedly not accessible to individuals with disabilities.  We will be provide more analysis at the end of 2016, which promises to be another record-breaking year.

Florida is one of the top states for ADA Title III filings.  As we previously reported, in 2015, California, Florida, New York, Texas, and Arizona had 3,847 ADA Title III lawsuits.  This accounts for 80% of the lawsuits filed nationwide.  Businesses are complaining, and the news media is paying attention.  Miami Local 10 News, an ABC affiliate, reported on the surge of ADA Title III lawsuits nationwide and three local small businesses that were sued by a serial plaintiff who filed more than a hundred and thirty lawsuits in 2015.  Seyfarth’s ADA Title III Team Leader, Minh Vu, provided legal commentary for the story in an interview with reporter Christina Vazquez.

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.

chart1

  • 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).

chart2

  • 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.

Slide2

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.