On May 21, a California state court in Los Angeles held on summary judgment that the Whisper Lounge restaurant violated California’s Unruh Act by having a website that could not be used by a blind person with a screen reader, and ordered the restaurant to make its website comply with the Web Content Accessibility Guidelines (WCAG) Level 2.0 AA.  The court also ordered the restaurant to pay $4,000 statutory damages.  This is the second decision by a California state court on the merits of a website accessibility case.  The first decision concerned the Bags n’ Baggage website.  In 2017, a Florida federal judge conducted the first trial in a website accessibility case against Winn Dixie and held that the grocer’s website violated the ADA because it was not accessible to the blind plaintiff, and ordered Winn Dixie to make its website conform to WCAG 2.0 AA.

The court in the Whisper Lounge case rejected – as most courts on similar facts have – the restaurant’s argument that the website is not a place of public accommodation under the Americans with Disabilities Act (ADA).  The court found that the restaurant’s website “falls within the category of ‘services….privileges, advantages, or accommodations of’ a restaurant, which is a place of public accommodation under the ADA.”

Next, the court noted that the restaurant presented no evidence in opposition to the plaintiff’s showing that the website was inaccessible on February 20, 2017 – the date the plaintiff said she attempted to use the website.  The restaurant only submitted a declaration stating that the declarant was generally able to use the screen reader NVDA on the website from 2014 through 2017, without addressing the specific barriers the plaintiff said prevented her from using the website.

The restaurant also argued that it provided access to the information on its website by having a telephone number and email.  The Court rejected this argument as well, finding that the provision of a phone number and email does not provide “equal enjoyment of the website”, as the ADA requires, but instead imposes a burden on the visually impaired to wait for a response via email or call during business hours rather than have immediate access like sighted customers.  Thus, the court reasoned, the email and telephone number do not provide effective communication “in a timely manner” nor protect the independence of the visually impaired.  The court did not say whether a toll-free number that is staffed 24-hour a day would have yielded a different outcome.

Finally, the Court rejected the restaurant’s argument that the WCAG 2.0 AA is not yet a legal requirement, finding that the Complaint did not seek to hold the restaurant liable for violating the WCAG 2.0 AA.  Rather, the Complaint alleged that the website discriminated against the plaintiff by being inaccessible and sought an injunction to require the restaurant to make its website accessible to the blind.  The Court also rejected the restaurant’s arguments that requiring it to have an accessible website violated due process and the court should wait until the Department of Justice issues regulations addressing website accessibility.  The Court noted that the fact that the restaurant was redesigning its website did not render the case moot because the restaurant did not establish that “subsequent events make it absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”

The decision does have a silver lining for the defense bar.  The Court noted that the plaintiff was entitled to only $4,000 in damages under the Unruh Act, which provides for a minimum of $4,000 in statutory damages for each incident of discrimination.  The court held that plaintiff’s repeated visits to the same inaccessible website did not establish separate offenses for purposes of calculating damages.

Seyfarth Synopsis: Plaintiffs who pursued numerous web accessibility actions under Title III of the ADA are now using website accessibility to test the limits of a different area of law – employment law – California’s Fair Employment and Housing Act.

Over the past few years, we have frequently written about the proliferation of demand letters and lawsuits alleging that a business denied a usually blind or vision-impaired individual access to its goods and services because the business’ website was not accessible, in violation of Title III of the Americans with Disabilities Act (ADA) and state laws. One firm that pursued many web accessibility actions under Title III and California’s Unruh Act (including a success in the Bags N’ Baggage case decided in plaintiff’s favor by a California state court) is now going after employers.  In recent demand letters and lawsuits, they are alleging that employment websites are not accessible to blind job seekers, in violation of California’s Fair Employment and Housing Act (FEHA), California’s corollary to Title I of the ADA.

While this blog, and Seyfarth’s Disability Access Team, are focused on disability access issues affecting places of public accommodation that provide goods and services to the general public (not employees, though many of our team members are employment specialists as well), this emerging litigation trend is worthy of our discussion here because it is an extension of the tsunami of website accessibility demand letters and lawsuits pursued under Title III, involving the same technological and other issues, as well as the same plaintiffs and plaintiffs’ attorneys.  But there is one big difference – the legal standard that applies to employment disability discrimination claims is different from the standard applied to disability discrimination claims brought against public accommodations. Title III is unique from other anti-discrimination statutes in that it requires (with exceptions) businesses take affirmative, proactive measures to ensure individuals with disabilities are afforded equal access to their goods and services. FEHA prohibits discrimination against individuals in employment.  It requires employers, upon notice that an employee or applicant for employment requires a reasonable accommodation to perform the essential functions of his or her job, or to apply for employment, to engage in the interactive process to devise such a reasonable accommodation.  The employer does not need to provide the employee or applicant’s requested accommodation as long as the accommodation provided is effective.

In the cases filed thus far, such as those by Dominic Martin, Roy Rios, and Abelardo Martinez in Orange County and San Diego Superior Courts in California last week, the plaintiffs argue that they are blind residents of California who want to enter the workforce, attempted to apply using the defendant’s online application, but could not because it was inaccessible to individuals with disabilities. They claim the WAVE tool confirmed the website’s inaccessibility (an automated tool like WAVE, while useful, cannot be relied upon to determine whether a website is accessible or not, let alone useable by an individual with a disability).  In these lawsuits, the plaintiffs claim that they twice asked the defendant to remove the barriers and were ignored.  Plaintiffs also claim that removing the barriers would take only a few hours (which anyone who has worked in the website accessibility space knows is rarely if ever possible).  Plaintiffs allege these requests that defendant remove the barriers were requests for reasonable accommodation, though they were sent by the plaintiff’s attorney and not the actual individual seeking employment; thus possibly perceived as litigation demand letters rather than legitimate requests for reasonable accommodation.  The plaintiffs allege that the companies did not respond and that they have a policy to deny disabled individuals equal employment by refusing to remove the barriers on the website.  Each plaintiff alleges only a single legal claim for violation of FEHA, even expressly noting he is not asserting claims for violation of any federal law or regulation.

Will these claims find any success in the courts under the applicable law?  We will be watching.  In the meantime, businesses that have been focusing efforts on consumer-facing websites to mitigate risk under Title III should be aware of this new trend (if you have not already received such a letter).

Edited by: Minh N. Vu.

By Minh N. Vu and Kristina M. Launey

Although “drive-by” ADA Title III lawsuits alleging physically inaccessible public accommodations facilities will continue to be a mainstay for the plaintiff’s bar, a new type of lawsuit has recently emerged:  The “surf-by” lawsuit.  In the past month, we have seen an onslaught of case filings and demand letters threatening lawsuits from private plaintiffs alleging that retailers, colleges, and other businesses denied blind individuals access to the businesses’ goods and services by having inaccessible websites or mobile applications.  These plaintiffs generally claim this denial of access violates Title III of the Americans with Disabilities Act (ADA) and California’s Unruh Act.  They are threatening to take action and filing their suits in California because, while the ADA authorizes only injunctive relief and attorneys’ fees, California law imposes up to $4,000 statutory damages per violation of the law.

We had predicted this flurry of lawsuits would come.  Plaintiffs are taking advantage of the uncertainty surrounding this issue created by the Department of Justice’s (DOJ) four-year delay in issuing regulations on this subject, and encouraged by the DOJ’s aggressive enforcement posture on this issue despite its failure to issue regulations adopting a clear standard for accessible websites and mobile applications.  Below is some background on this quickly evolving area of the law and a look at why some businesses are choosing to make their websites and mobile applications accessible now.

What is an “accessible” website?  At this time, there is no law or regulation that sets the technical requirements for an “accessible” website  or mobile application for public accommodations.  Conceptually, an accessible website is one that can be used by people with various sight, hearing, and mobility disabilities.  For example, blind people use screen readers and other assistive technologies to convey to them what is on a webpage.  People with low vision need to be able to resize text and need a certain level of contrast.  People who are deaf need captioning to access the audio in videos shown on websites.  People with limited dexterity need to be able to navigate through a webpage using a keyboard instead of a mouse.

For many years, the so-called Section 508 website accessibility standards applicable to federal government websites was used to define accessibility.  In recent years, however, a new and more robust set of guidelines developed by a private industry group has emerged called the Web Content Accessibility Guidelines (WCAG) (see http://www.w3.org) 2.0.    Last year, the Department of Transportation adopted WCAG 2.0 Level AA as the legal standard that governs the websites of airline carriers under the Air Carrier Access Act.  The DOJ signaled in 2010 that it would likely adopt these guidelines as the standard for public accommodations’ websites, but has still not issued a proposed rule.  As discussed below, the WCAG 2.0 AA is the accessibility standard cited in virtually all settlements involving website accessibility and most recently in DOJ’s consent decree with H&R Block.

Is My Business Required To Have An Accessible Website?  If you want to avoid litigation, yes.  But as a matter of established law, the answer is less clear and may also depend on whether the goods and services available on the website are available in some equivalent alternative manner.  Title III of the ADA requires businesses provide equal access to their goods and services to individuals with disabilities.  This obligation includes providing auxiliary aids and services necessary to effective communicate with individuals with hearing, vision, or cognitive disabilities.  Accessible electronic information technology is considered an auxiliary aid or service.  Based on these regulations, plaintiffs and DOJ are taking the position that making websites accessible is required under Title III of the ADA.

Because litigating these cases is expensive and complicated, most businesses confronted with a demand or lawsuit are likely make a commitment to make their websites comply with the WCAG 2.0 Level AA in some reasonable timeframe.  In 2013 and 2014, a large grocery chain, a weight loss company, an healthcare insurance provider, and a national drug store agreed to make their websites accessible after being approached by advocates for the blind.  Just this year, H&R Block also agreed to make its online tax preparation tool, website, and mobile application comply with the WCAG 2.0 Level AA after being sued by advocates and the DOJ.  In short, despite the lack of website accessibility regulations, more businesses are realizing the importance of making their websites and mobile applications accessible now given the very active enforcement environment.

By Kristina M. Launey

The Ninth Circuit Court of Appeals recently held that a plaintiff must show intentional, willful, affirmative discriminatory action by a public accommodation to prevail on a claim for violation of California’s Unruh Act (one of the state’s ADA Title III-corollary statutes). There are actually two avenues through which a plaintiff can establish an Unruh Act violation: (1) showing that the ADA has been violated (for which intentional discrimination is not required), or (2) showing intentional discrimination (which requires a heightened burden and factual showings).  In this case, Greater Los Angeles Agency on Deafness et al. v. Cable News Network, Inc., the plaintiffs did not plead that there was a violation of the ADA. Thus, the court considered the Unruh Act claim only on the intentional discrimination ground.

As such, this decision, while informative, has limited applicability, and businesses should proceed with caution. For California businesses that are not public accommodations covered under the ADA, this decision is good news: as long as the business has not engaged in an intentional act, it is not liable under the Unruh Act. What would be such a business?  The only one that comes to mind is an online business that has no nexus to a physical location.  Contrary to some other circuits, the Ninth Circuit has held that a business’ website must have a nexus to a physical place of business in order to be a public accommodation under the ADA.  (See our previous report on Cullen v. Netflix, which held, relying on earlier Ninth Circuit precedent, that a video streaming website is not covered by the ADA because it is not an actual physical place; and on subsequent cases from within the Ninth Circuit holding websites not connected to “physical spaces” are not covered by the ADA.)  This may well be why the plaintiffs in this case did not assert an ADA claim and proceeded instead under the intentional discrimination prong of the Unruh Act.

This decision arose from CNN’s motion to strike a lawsuit in which the Greater Los Angeles Agency on Deafness, Inc. (“GLAAD”) alleged that CNN violated the Unruh Act and the Disabled Persons Act (“DPA”) by intentionally excluding deaf and hard of hearing visitors from accessing videos on CNN.com through its failure to provide captioning for the videos. GLAAD requested damages, declaratory relief, fees and costs, and a preliminary and permanent injunction “requiring [CNN] to take steps necessary to ensure that the benefits and advantages offered by CNN.com are fully and equally enjoyable to persons who are deaf or have hearing loss in California.”  Prior to filing suit, GLAAD had asked Time Warner to caption all of the videos on its news web sites, including CNN.com.  CNN responded that it would comply with whatever requirements the Federal Communications Commission (“FCC”) would impose under the new 21st Century Communications and Video Programming Accessibility Act (“CVAA”) rules.

The district court denied CNN’s motion to strike the complaint in its entirety.  CNN appealed to the Ninth Circuit.

The Ninth Circuit found that GLAAD had failed to establish a probability of success on its Unruh Act claims, which require a showing of intent.  The Unruh Act entitles disabled persons “to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” But, as the court noted, the Unruh Act “does not extend to practices and policies that apply equally to all persons” and requires a showing of intentional, willful, affirmative discriminatory action by a public accommodation. A plaintiff must show more than disparate impact of a facially neutral policy.

The court found “[n]otably absent from the record is any evidence supporting an inference that CNN intentionally discriminated against hearing-impaired individuals on account of their disability.  That hearing impaired individuals bore the brunt of CNN’s neutral policy is insufficient to support an Unruh Act claim.”  In other words, a neutral policy that has an adverse impact on people with disabilities is not enough to show the intentional discrimination required by the Unruh Act.  There must be a difference in treatment.  The court found no such difference in treatment and noted that CNN’s active participation in the FCC’s rulemaking process and its stated intention to comply with the FCC’s 2012 captioning rules was evidence of lack of  discriminatory intent.

The Ninth Circuit did not rule on the DPA claim.  Noting that the question of whether the DPA applies to websites is an important question of California law and of significant public concern, the court deferred decision on GLAAD’s DPA claim pending further guidance from the California Supreme Court, and certified the issue to the California Supreme Court.  CNN argued that a “place of public accommodation” under the DPA does not include websites. GLAAD contended that, considering the importance of the Internet in contemporary life, CNN.com is a “place” within the meaning of the act.  As the court noted, “[n]umerous recent cases have discussed the DPA’s applicability to virtual spaces like websites, but there is no conclusive California authority on point… Since the Internet is increasingly ubiquitous in daily life, and this question is likely to recur, we respectfully request that the California Supreme Court resolve the issue.”  This too is an important issue, which we will follow.

Edited by Minh N. Vu

By Jon D. Meer, Myra B. Villamor, and Andrew C. Crane

Many businesses choose to settle frivolous “accessibility discrimination” lawsuits that serial plaintiffs bring under the Americans with Disabilities Act (“ADA”) and similar state laws, such as the California Disabled Persons Act (“CDPA”) and Unruh Act.  The temptation to settle is great because plaintiffs typically make settlement demands that are far lower than the cost of litigating a case.  However, some retailers have had enough of these suits and are fighting back.

Eddie Bauer LLC, a national retailer, likes to fight back.  The company has won summary judgment in several cases–many by the same plaintiffs and same attorneys at different store locations.  More recently, Eddie Bauer won a case at trial, and is helping to change the case law to be more favorable for businesses.  On March 25, 2013, in Chris Kohler v. Presidio International, Inc. and Eddie Bauer, et al., in the U.S. District Court for the Central District of California, Eddie Bauer, represented by Seyfarth Shaw’s very own Jon D. Meer and Myra B. Villamor, secured a favorable verdict on all claims against a serial litigant, Chris Kohler, and his counsel, Lynn Hubbard.

The plaintiff had alleged that he encountered a number of physical or architectural barriers that prevented him from enjoying full and equal access to an Eddie Bauer outlet store, in violation of the ADA, the CDPA, and the Unruh Act.  These alleged barriers included: (1) a checkout counter that was too high to accommodate a patron in a wheelchair, (2) a dressing room bench that was too long, (3) the absence of an International Symbol of Accessibility (“ISA”) sign at the store’s entrance, and (4) aisles that were cluttered with merchandise, impeding the plaintiff’s ability to navigate through the store.

District Court Judge Philip S. Gutierrez found in favor of Eddie Bauer on all claims and, in the process, made some significant rulings.  While they are not binding on any other district court judge, they do provide useful support for other defendants who want to fight these frivolous lawsuits.

Some highlights:

No ADA Violation Where an “Equivalent Facilitation” Is Provided.  The Court held that there is no violation of the ADA if places of public accommodation provide an “equivalent facilitation” that allows access.  Thus, for example, the Court rejected plaintiff’s claim that Eddie Bauer’s 60-inch dressing room bench violated the applicable ADA accessibility standards because  it was not exactly 48 inches long as specified in those standards.  The Court held that  the longer and wider bench provided at least “substantially equivalent” access to a 48-inch bench.

Similarly, the Court found that even if a check-out counter does not meet the 36-inch maximum height requirement under the ADA, there is no violation of the ADA or California accessibility statutes if a clipboard is made available as an equivalent facilitation.

No ADA Liability If Alleged Barriers Are Fixed Before Trial.  The Court found that there is no liability under the ADA if alleged barriers to access are remedied prior to trial, because the ADA provides for only injunctive relief.  Thus, the plaintiff’s claim that the store’s entrance did not have an ISA sign was rendered moot when Eddie Bauer subsequently affixed a sign to the entrance.  Thus Eddie Bauer could not incur liability under the ADA.

Moveable Displays Are Not Unlawful Barriers To Accessibility.  The Court rejected the plaintiff’s claim that the aisles in the store were too narrow because there was “too much clothing on the floor.”  Finding that the store had a policy of maintaining 48-inch aisles and moving any merchandise upon request, the Court concluded the store met the applicable standard, and that there was no colorable ADA violation.  The Court also offered the common sense conclusion that “If clothing falls on the floor, it is easily moveable.”

Plaintiff Must Provide Specific Measurements to Establish a Violation of the ADA.  The plaintiff claimed that the store’s check-out counter did not meet a 36-inch maximum height requirement.  However, the Court held that, in order to establish a prima facie case of violation of the ADA, the plaintiff bears the burden of providing precise measurements of any alleged ADA violation.  Consequently, because the plaintiff could only provide estimates of the counter height, but failed to proffer any admissible evidence of the precise measurements of the counter, the plaintiff could not meet his burden of proof.

No Liability Under California’s Accessibility Statutes Unless Plaintiff Can Prove He Was Deterred/Prevented From Access or He Experienced “Difficulty, Discomfort, or Embarrassment.”  The plaintiff also sought statutory damages under state law, based on the CDPA and the Unruh Act.  The plaintiff, along with numerous claimants in other cases, argued that statutory damages must be awarded under state law if there is a violation of the accessibility rules, even if a violation has been remedied.

 In one of the first decisions to address the effect of the 2009 Construction Related Accessibility Standards Compliance Act (“CRAS”) amendments to California’s disability access laws, the Court held that there is no liability under the CDPA and Unruh Act, unless a plaintiff is either (1) deterred or prevented from accessing the place of public accommodation or (2) personally encounters a barrier and experiences “difficulty, discomfort, or embarrassment.”

The Court found that the plaintiff could not meet his burden of proof that he was deterred from access to the store because he encountered no problem entering the store and making a purchase.  Further, the plaintiff testified he did not experience any difficulty, discomfort, or embarrassment based on any of the alleged barriers.  Therefore, the Court found that CRAS precluded plaintiff from recovering damages under the California statutes.

***

The Kohler result illustrates how cases can fall apart when businesses commit the resources to litigate them on the merits.  Businesses might also be able to recover their fees for litigating such frivolous cases if they prevail, but as with all litigation, there are no guarantees and each case must be assessed based on its facts and circumstances.

By Kristina M. Launey 

 

UPDATE:  The bill passed both houses of the Legislature and was sent to the Governor’s desk on September 1, 2012.

California businesses have for years prayed for relief from drive-by disability access lawsuits.  SB 1608 of 2008 was widely-hoped to be that savior, but has proven to have relatively little effect.  All other attempts at legislative reform have been meet with fierce opposition from disability rights advocates and died.  Indicative of the crisis the California laws have created, earlier this year California Senator Dianne Feinstein publicly called for the California Legislature to enact reforms, stating (federalism principles aside because the offending provisions are state law) that she would take action if the California Legislature did not. 

With the 2011-12 California Legislative session coming to a close in a matter of days, there is some hope for relief:

Senate Bill 1186, carried by Senators Steinberg and Dutton, with amendments approved on August 24, makes revisions to existing procedures that require an attorney to provide a business with certain notices with a demand regarding construction-related disability violations.  Nothing particularly remarkable there. 

What is notable is that the bill finally attempts to change a plaintiff’s entitlement to statutory damages, which are currently $4,000 per violation.  As currently drafted, this bill would reduce a defendant’s minimum liability for statutory damages under the Unruh and Disabled Persons Acts from $4,000 to $1,000 for each offense if the defendant has corrected all construction-related violations that are the basis of the claim within 60 days of being served with the complaint and the area is new construction since 2008 that was inspected and approved by the local building department or was CASp-inspected.  Alternatively, the bill would reduce minimum liability from $4,000 to $2,000 for each offense if the defendant is a small business and has corrected all construction-related violations that are the basis of the claim within 30 days of being served with the complaint.  

Also of note is a provision that requires a court, where the plaintiff alleges multiple claims for the same alleged violation on different occasions, to consider the reasonableness of the plaintiff’s need to repeatedly visit the public accommodation in light of the plaintiff’s obligation to mitigate damages.  The bill specifically states this provision is intended to address misuse of the Unruh and Disabled Persons Acts by lawyers and plaintiffs who allege the same barrier deterred the plaintiff on repeated occasions from visiting the public accommodation, for the purpose of stacking statutory liability and intimidating defendants into settlements.

Businesses, don’t get your hopes up yet.  The bill leaves the door open for legal arguments that could render the reforms meaningless.  It specifies that the damages reduction provision “is not applicable to intentional violations, including, but not limited to, where the defendant had knowledge of the alleged violation from a prior notice or demand letter from the plaintiff or plaintiff’s attorney, but failed to act in a reasonable time and manner”.  The damages reduction provision also does not affect the awarding of actual damages or treble actual damages.  The bill only applies to litigation initiated after the bill’s effective date, but it would go into effect immediately upon the Governor’s signing of the bill rather than the usual January 1st date.

It’s also uncertain whether the bill will actually pass.  The bill makes an appropriation, charges businesses a $1 fee, and requires a 2/3 vote of the Legislature.  As of yesterday, the bill awaited approval of the Assembly Judiciary Committee, with only a few days remaining for the bill to make its way through the Assembly. 

Interestingly, while Democrat Senator Steinberg reportedly opposed Feinstein’s call for reform, he has now joined Republican Dutton in this reform effort as an author of the bill.  Perhaps there is reason for optimism.

We’ll keep you posted…

By Minh N. Vu

On June 22, we reported on the U.S. District Court for the District of Massachusetts’ ruling that Netflix’s video streaming website is a “place of public accommodation” covered under Title III of the ADA, even though the website has no nexus to a physical place.  This ruling was not surprising given First Circuit precedent that dictated the district court’s decision.  The U.S. District Court for the Northern District of California reached the opposite conclusion this month in  Cullen v. Netflix, Inc.  Following Ninth Circuit precedent, the California federal court held that a “place of public accommodation” must be an “actual physical place.”  It found that a video streaming website is not an actual physical place and therefore is not covered by the ADA.

Although Cullen had only asserted claims under California law and not the ADA, the court first analyzed whether the ADA covered the website because both California’s Unruh Act (Unruh Act) and Disabled Persons Act (DPA) state that a violation of the ADA is also a violation of the Unruh Act and DPA.  Having determined that there was no violation of the ADA, the court next analyzed whether the video streaming website’s lack of captioning nonetheless constituted violations of these California statutes. 

The court found that under the Unruh Act, a plaintiff must prove “intentional discrimination” based on allegations of “willful, affirmative misconduct.”  Allegations of Netflix’s failure to caption all its streaming videos were not enough, in the court’s view, to establish intentional discrimination, particularly in light of its ongoing and expanding effort to affirmatively add captions to its video streaming library.  The court granted Cullen leave to amend the complaint to add allegations of intentional discrimination. 

The court held that to establish a DPA claim that is independent of the ADA, a plaintiff would have to make “a showing that accessibility regulations promulgated under California law exceed those set by the ADA.”  Since Cullen had not alleged a violation of any such regulations, the court gave Cullen leave to amend his complaint to correct this deficiency.

By Kristina M. Launey

So held U.S. District Court Judge Morrison England, in the Eastern District of California, last week in a suit filed by Robert Segalman, who is blind and requires use of a wheelchair. Segalman alleged that Southwest Airlines’ improper stowage and transport of his power wheelchair caused him injury, in violation of the Air Carrier Access Act of 1986 (ACAA) and California’s Unruh and Disabled Persons Act. A year after filing his original Complaint, Segalman asked the Court for leave to file a second amended complaint that removes the ACAA claim and adds an ADA claim.

The Court rejected as premature Southwest’s arguments that the state law claims are preempted by the ACAA and that airlines are excluded from the ADA’s reach. The Court allowed the amendment, reasoning that Southwest would suffer no prejudice from the amendment and that the plaintiff’s claims are of “great import to the public.”

We will keep you posted as this case progresses.

By Jon Meer & Myra Villamor

It is a common practice among a growing group of serial plaintiffs to slap businesses with frivolous “accessibility discrimination” lawsuits under the Americans with Disabilities Act (ADA) and similar state laws such as the California Disabled Persons and Unruh Acts.  In these cases, a person with a disability claims that he was “discriminated against on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, [or] advantages” in a business that operates as “a place of public accommodation.”  Virtually every business and facility that allows public visitors is a “public accommodation.”

These lawsuits are based on alleged violations of a long list of ADA and California Title 24 regulations that covers everything from the width of store aisles to the shape of a door knob.  Rather than seeking merely to resolve purported barriers to accessibility, these plaintiffs seek to pursue civil claims that will allow an award of hefty attorney’s fees.  Indeed, a number of courts have acknowledged that many of these lawsuits are nothing more than shakedowns, where unscrupulous law firms send disabled individuals, some with hundreds of similar lawsuits on file, to as many businesses as possible in order to generate lawsuits alleging ADA violations.

Most businesses succumb to the temptation to settle these cases because plaintiffs typically make relatively low settlement demands.  These settlements, however, are often no more than a quick fix that opens the door to future litigation, since no settlement agreement can restrict a plaintiff’s lawyer from filing additional lawsuits on behalf of other plaintiffs.  Indeed, some plaintiff’s lawyers may even conclude that a company is an easy mark after it pays a quick settlement.  Thus, many companies get hit with ADA lawsuits filed by the same plaintiff’s lawyers year after year.  A company may even find itself sued by a plaintiff with whom it has just settled, alleging violations at a different location, before the ink is dry on the settlement check.

A business should therefore assess the validity of an ADA lawsuit before deciding on a quick and seemingly inexpensive settlement.  If a business has not violated the ADA, or has determined that it can remedy any technical ADA violations (e.g., a dressing room mirror that is mounted slightly higher than allowed by the regulations) and therefore moot the ADA claims, it should consider the value of fighting the lawsuit.

In the recent case of Tony Martinez v. Columbia Sportswear USA Corp., et al. in the U.S. District Court for Eastern District of California, an entrepreneurial plaintiff with over 160 other similar lawsuits, through his attorney Lynn Hubbard, with even more similar lawsuits under his belt, alleged ADA violations based on “barriers to access” against 20 retail stores as well as the owner of an outlet mall in California.  Eighteen businesses decided to settle with the plaintiff—and many of these businesses have since been sued yet again by the same plaintiff’s attorney.  Three retailers, represented by Seyfarth Shaw, decided to fight the frivolous lawsuit, arguing that the alleged barriers either never existed or had been remedied, thereby mooting the plaintiff’s ADA claims.  Just this month, Judge Garland Burrell granted all three retailers summary judgment, holding that the alleged barriers never or no longer existed.  All three retailers are in the process of seeking attorney’s fees and costs from the plaintiff.

A business that successfully defeats a frivolous ADA lawsuit may recover its reasonable attorney’s fees, including litigation expenses and costs.  An award of attorney’s fees is a significant deterrent to future lawsuits.  Courts have granted large attorney’s fee awards to businesses even when the business could have settled the case for an amount much less than the fees incurred.  And while collecting fees may be difficult—few plaintiffs are likely to have assets to pay a six-figure award—a prevailing business may place liens on settlements and judgments from the plaintiffs’ numerous other lawsuits, thereby effectively shutting down those plaintiffs as serial ADA litigants.

While fighting ADA suits and collecting fees and costs may be a lengthy process, the advantages are considerable.  By refusing to settle frivolous cases, businesses send a strong message that will ensure that the same plaintiff, plaintiff’s counsel or other law firms that engage in similar shakedown tactics will think twice about targeting those businesses again.