Articles Posted in ADA Compliance and Defense

Published on:

18 February 2024

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A recent spate of lawsuits from plaintiffs represented by Pacific Trial Attorneys has highlighted the need for businesses to ensure ADA compliance. In the below article, JMBM partner Stuart Tubis discusses the importance of website compliance, and how best to defend your business if there is liability.

Has Your Business Been Sued by Pacific Trial Attorneys or These Plaintiffs?
How to Defend These Unruh Civil Rights Act Lawsuits

by

Stuart Tubis, JMBM’s ADA Compliance & Defense Group

Pacific Trial Attorneys, as legal counsel, have filed hundreds of lawsuits for alleged violations of the California Unruh Civil Rights Act, California Civil Code § 51 et seq. and/or the Americans with Disabilities Act (ADA).

Based in Newport Beach, CA, Pacific Trial Attorneys is a law firm representing plaintiffs in a large number of accessibility lawsuits against businesses, often focused on website issues.

Generally, these lawsuits are filed by serial plaintiffs through their attorneys. Serial plaintiffs file numerous (sometimes hundreds) of lawsuits, often similar in nature. Pacific Trial Attorneys has historically filed such litigation on behalf of one of these plaintiffs:

  • Cheryl Thurston
  • Brittany Mejico
  • Dominick Martin
  • Rusty Rendon
  • Luis Licea
  • Isabel Rendon
  • Drew Hunthausen
  • Walter Mitchell
  • Anita Ogletree

These lawsuit show no signs of stopping. Each lawsuit includes a summons as a cover page informing you that you have been sued and requiring a response. Next is the complaint itself, which generally looks something like this: CONTINUE READING →

Published on:

30 October 2023

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Many hotel owners already know they need to pay attention to Americans with Disabilities Act (ADA) compliance, both to provide a positive experience for guests and to avoid costly litigation. A proposed new California law, however, should bring their focus to website accessibility; if adopted, business owners, as well as their web developers, would be vulnerable to substantial statutory damages and attorney’s fee if sued by a plaintiff who succeeds in court.

JMBM’s ADA Compliance and Defense Team outlines the potential impact of this law, below.

 

 

New California Website Accessibility Bill
Would Expose Your Business to ADA and Unruh Act Liability

by Martin Orlick, Stuart Tubis, and Christopher Whang
JMBM’s ADA Compliance & Defense Group

 

Recently, the California Assembly quietly instituted a bill that would dramatically change the landscape of ADA website litigation. If you think the recent wave of ADA website lawsuits has been alarming, buckle up – because you haven’t seen anything yet.

The Assembly re-drafted an existing bill, AB1757, which if passed would include the adoption of the Web Content Accessibility Guidelines (“WCAG”) 2.1 into California’s disabled access law. AB1757 specifically would give plaintiffs the right to sue businesses if their website fails to meet those guidelines, which are not yet part of Federal accessibility law. Additionally and perhaps more alarming, if passed into law, the legislation would give ADA plaintiffs a direct claim to sue you and your web developers.

A plaintiff who prevails under AB1757 will be entitled to collect all damages, including but not limited to, statutory damages of $4,000 every time a person who is blind, low visioned or cognitively disabled visited your website or was deterred from visiting the website, as well as attorney’s fees resulting from the lawsuit.

To whom would AB1757 apply?

If passed, AB1757 would apply to all public businesses that own or operate a website for the sale of goods and services. AB1757 also would apply to “resource service providers,” or website developers, who operate, maintain, and/or build websites for public accommodations. CONTINUE READING →

Published on:

15 May 2023

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The Americans with Disability Act (ADA) is an important piece of legislation guaranteeing equal access to public facilities to the nearly 60 million people with disabilities in the US today. Stuart Tubis, a partner in JMBM’s ADA Compliance and Defense practice, recently presented on why accessibility legislation is something all business owners should be aware of, and how many lawsuits have shifted focus to online spaces instead of brick-and-mortar locations.

Hotels in particular must be familiar with the requirements of the ADA in order to accommodate the needs of disabled guests on their properties. Unlike building codes or other laws governing public spaces, the ADA is enforced by lawsuits brought by individuals who feel their access to a public business or building is not adequate or equal.

Accessibility lawsuits have risen significantly over the last 10 years:

A graph showing the rise in number of ADA Title III Fenderal Lawsuits filed each year since 2013

Remedies for noncompliance can be significant, including court orders to remove barriers, attorneys’ fees to prevailing plaintiffs, and, in California, statutory damages of $4,000 per visit.

Website accessibility lawsuits have risen steadily in the last few years; these are suits alleging that a business’ website does not comply with ADA guidelines for disabled users. Courts have interpreted the ADA as requiring accessibility online, but as of yet there are no official standards.

A chart showing the rise in website accessibility litigation from 2017 to 2022

Hotels depend on their online presence to drive reservations, and should be sure their websites are compliant – both to accommodate disabled guests and to avoid becoming a target of litigation. Stuart’s full presentation is available for download here.


Stuart K. TubisStuart K. Tubis is a partner attorney at Jeffer Mangels Butler & Mitchell LLP and a member of JMBM’s ADA Compliance & Defense Group. Stu counsels businesses and landlords on the full spectrum of ADA compliance issues and represents their interests in litigation and Department of Justice investigations. He has a background in technology, which helps in resolving the growing area of website accessibility issues. Contact Stuart K. Tubis at 415.984.9622 or SKT@jmbm.com.

 


Picture of Jim ButlerThis is Jim Butler, author of www.HotelLawBlog.com and founding partner of JMBM and JMBM’s Global Hospitality Group®. We provide business and legal advice to hotel owners, developers, independent operators and investors. This advice covers critical hotel issues such as hotel purchase, sale, development, financing, franchise, management, ADA, and IP matters. We also have compelling experience in hotel litigation, union avoidance and union negotiations, and cybersecurity & data privacy.


JMBM’s Global Hospitality Group® has been involved in more than $125 billion of hotel transactions and more than 4,700 hotel properties located around the globe. Contact me at +1-310-201-3526 or jbutler@jmbm.com to discuss how we can help.


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Published on:

2 May 2022

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The Department of Justice recently released a set of guidelines reconfirming that the Americans with Disabilities Act applies to website accessibility. In order to avoid legal action, it is crucial for hotel owners to understand what they can do to ensure compliance with ADA regulations.

Stuart Tubis of JMBM’s ADA Compliance & Defense Group outlines the new guidance below.

DOJ Issues Guidance On Website Accessibility

by
Stuart Tubis, JMBM’s ADA Compliance & Defense Group

Recently on March 18, 2022, the U.S. Department of Justice (DOJ) issued a “Web Accessibility Guidance” statement for state and local governments and public accommodations (including businesses) under Titles II and III of the Americans with Disabilities Act (ADA).

A copy of the Guidance document can be found here.

In the Guidance, the DOJ clarifies once again that the ADA applies to websites: “the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.”

The Guidance also provides some examples of website accessibility barriers, including poor color contrast, lack of text alternatives for images, lack of labels for forms, and mouse-only navigation design. CONTINUE READING →

Published on:

29 March 2022

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Many hotels have opted to include Electric Vehicle Charging Stations as an amenity for guests as the cars become more and more common. And while hotels may be very aware how the Americans with Disabilities Act applies to their property, are they considering the requirements for disabled guests at these charging stations?

My partner Martin Orlick, Chair of JMBM’s ADA Compliance & Defense Group, describes some of the issues that hotels and operators of electric vehicle charging stations should be aware of to maintain compliance with the ADA.

How Will ADA Guidelines Impact Public
Electric Vehicle Charging Stations?

by
Martin Orlick, Chair, JMBM’s ADA Compliance & Defense Group

You’re about to see a lot more Electric Vehicle Charging Stations (EVCS) on your daily drive. Within months of taking office, the Biden Administration announced an initiative to build half a million new charging stations across the country. The Infrastructure Investment and Jobs act, which passed in November 2021, includes $7.5 billion towards this goal; the Administration’s signature domestic policy bill, the Build Back Better act, also includes funding to promote electric vehicles and expand the public charging network. California’s governor is promoting an ambitious plan of 500,000 electric vehicles on the state’s road in five years.

This is exciting news for the owners, operators and designers of EVCSs, and a welcome boost for a rapidly growing industry. What many companies are not considering, however, are the needs of the disabled drivers who will need to be able to access their electric vehicle charging stations.

CONTINUE READING →

Published on:

19 January 2022

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Serial ADA litigants are continuing to face challenges in the courts as dozens of cases alleging a failure to include accessibility information on hotel websites are being dismissed. Martin Orlick, Chair of JMBM’s ADA Compliance & Defense Group, describes one such case faced by a JMBM client below. This successful outcome is good news for hotels worried about Reservation Rules lawsuits.

Serial Plaintiff’s “Reservation Rule” Lawsuit Against California Hotel Dismissed

by
Martin Orlick, Chair, JMBM’s ADA Compliance & Defense Group

In another blow to serial ADA litigation against hotels, a judge in the Northern District of California has issued an opinion dismissing the case against JMBM client OCI, which owns and operates a Comfort Inn & Suites near the San Francisco International Airport.

Brian Whitaker, who has filed nearly 2,000 ADA lawsuits in the last two years, claimed that OCI failed to include enough detail in its online description of accessible features, violating the ADA’s “Reservation Rule.” JMBM filed a motion to dismiss on behalf of OCI, which was granted on January 6, 2022. This is the second Reservation Rule cases dismissed by this judge. The opinion is available here.

The Reservation Rule refers to ADA guidelines requiring that hotels include information about accessible rooms and features on their website, so that guests know before booking if they are able to safely and comfortably stay at the property. A hotel may be ADA compliant if it includes either a bathtub or roll-in shower, for example, but some guests may need to know which option is provided in order to determine if the room meets their needs. CONTINUE READING →

Published on:

23 March 2021

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California has seen an explosion of ADA cases in the past few years, leading the state to impose strict pleading standards and high filing fees for serial litigants. Litigants have previously found their way around this by filing in federal court, but the courts have made it clear that they will decline supplemental jurisdiction in these instances. Martin Orlick, Chair of JMBM’s ADA Compliance & Defense Group, explains below.

California’s Central District tries to curb ADA lawsuits
by declining supplemental jurisdiction
over state law claims

by
Martin Orlick, Chair, JMBM’s ADA Compliance & Defense Group

Declining to exercise supplemental jurisdiction, the United States District Court Central District of California (Central District) is addressing high frequency litigants who file lawsuits in federal court alleging violations of the Americans with Disabilities Act (ADA).

The Central District has been inundated with ADA lawsuits by California plaintiffs. According to its Minutes of March 8, 2021 noted in James Shayler v. JPMorgan Chase Bank there were 419 ADA cases filed in the Central District in 2013, constituting 3 percent of the civil actions filed. Fast forward to 2019, when in the first six months alone, ADA lawsuits comprised 24 percent of its civil cases (1,868 matters). ADA cases filed in 2021 are on pace for even more.

Similar numbers of ADA cases are being filed in California’s Northern District which has seen a significant increase in ADA cases alleging 28 C.F.R. Section 36. 302 (e) hotel reservation lawsuits. In an effort to curb or streamline the plethora of ADA litigation, the Northern District recently revised its General Order 56. CONTINUE READING →

Published on:

16 February 2021

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For many years, businesses classed as public accommodations under the ADA have been the subject of “cookie-cutter” complaints that allege discriminatory conditions without providing any specific examples. Thousands of nearly identical complaints have been filed in federal courts nationwide, and their lack of detail makes it difficult for courts to provide a remedy that will prevent future harm. Martin Orlick, Chair of JMBM’s ADA Compliance & Defense Group, summarizes the recent decision in Whitaker v. Tesla Motors which may put an end to these fill-in-the-blank cases.

Whitaker v. Tesla Motors – the end of
cookie-cutter ADA complaints?

by
Martin Orlick, Chair, JMBM’s ADA Compliance & Defense Group

In a unanimous published opinion, the United States Court of Appeals for the Ninth Circuit (Ninth Circuit) affirmed the District Court’s dismissal of Whitaker v. Tesla Motors, for failure to state a claim of an action under Title III of the Americans with Disabilities Act (ADA). This case may have broad application for ADA defense lawyers because very similar “form” complaints are used widely in Southern California. According to the Ninth Circuit, these complaints are defective. There are literally hundreds, if not thousands, of virtually identical Complaints on Federal Court dockets in California and across the country.

About Whitaker v. Tesla Motors

Brian Whitaker, whose complaint states he uses a wheelchair for mobility, is a “tester” who visits businesses to ascertain whether their facilities comply with the ADA. Whitaker files lawsuits against those he determines are non-compliant, using complaints that are little more than a “fill-in-the-blanks” form.

In this case, Whitaker visited a Tesla dealership and alleged its service counters denied him full and equal access and “created difficulty and discomfort”. He further alleged that Tesla’s failure to provide accessible service counters prevented him from returning to the dealership. CONTINUE READING →

Published on:

02 February 2021

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As we’ve discussed in previous blogs, there has been an uptick in lawsuits filed against hotels alleging a failure to list accessible features on their website as required by the ADA. While many of these cases have been successfully defended in federal courts, new filings continue to surge and many plaintiffs are turning to state courts which have different requirements for dismissal. Martin Orlick, Chair of JMBM’s ADA Compliance & Defense Group, explains why we should expect these cases to continue in 2021 and what hotels should be looking out for.

Hotels must list accessible features on the web or risk being sued

by
Martin Orlick, Chair, JMBM’s ADA Compliance & Defense Group

We previously warned the hotel industry of the inevitable explosion of ADA website lawsuit filed against hotels. Well, that time is here.

In 2020, we saw a surge of lawsuits filed against those in the hotel industry, alleging the failure to comply with 28 C.F.R. Section 36.302 (e) of the Americans with Disabilities Act (ADA), which requires hotels to list their accessible features on their websites as well as on the websites of online travel agencies (OTAs) such as Travelocity, Orbitz, hotels.com, etc. We expect this surge of lawsuits to continue well into 2021.

Whether you are a national “flag” or the owner of a small portfolio of hotels, the 2010 ADA’s, C.F.R. Section 36.302 (e) applies to your hotel properties and websites. This section of the ADA has been effective since March 15, 2012 and requires hotels to describe accessible features in hotels and guest rooms offered through its reservations services in enough detail to reasonably permit individuals with disabilities to assess independently whether a hotel or guest room meets their accessibility needs. CONTINUE READING →

Published on:

31 December 2020

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A number of recent cases have been dismissed by federal courts citing a lack of standing under Article III of the Constitution, proving that ADA lawsuits can be successfully defended. Martin Orlick, Chair of JMBM’s ADA Compliance & Defense Group, summarizes one such case below.

The Court Dismisses ADA Lawsuit for Lack of Standing Proving Once Again These Cases Can Be Won

Anthony Bouyer v. LAXMI Hospitality, LLC

by
Martin Orlick, Chair, JMBM’s ADA Compliance & Defense Group

It’s important to remember federal courts are courts of limited jurisdiction.  That limited jurisdiction derives from Article III of the U.S. Constitution. To establish standing under Article III, an ADA plaintiff must show actual or imminent injury. Injunctive Relief to remove access barriers is the only relief available to an individual ADA plaintiff in Federal Court.

In August, 2020, the plaintiff in Anthony Bouyer v. LAXMI Hospitality, LLC filed an action alleging the defendant’s hotel in Woodland Hills, California violated the Americans with Disabilities Act (ADA).  According to the Complaint, the plaintiff is substantially limited in performing regular life activities and uses a wheelchair when traveling in public.  The Complaint alleges that the plaintiff visited the hotel where he encountered ADA violations.  The hotel had no record of the plaintiff’s alleged visit.  The plaintiff’s Complaint sought injunctive relief requiring the defendant to make the hotel accessible.

The plaintiff served the Complaint on a hotel clerk.  Due to a variety of COVID-19 related factors, the defendant failed to respond to the Complaint.  The Court Clerk entered the defendant’s default and the plaintiff filed a Motion for Default Judgment.  Despite being served with notice of the Motion for Default Judgment, the defendant sought our  representation just before its opposition to the Motion was due. CONTINUE READING →

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