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29 June 2020

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Click here for the latest articles on ADA Compliance and Defense.

ADA website cases continue to be filed against hotels nationwide, but some courts are pushing back against serial plaintiffs. My partner, Marty Orlick, shares the news below from a website case filed in the Northern District of New York.

ADA Website Litigation Update — Serial Plaintiff Gets No “Lucky Charm”
from New York Federal Judge
by
Martin Orlick, Chair, JMBM’s ADA Compliance & Defense Group

In a case indicating that courts may be weary of serial plaintiffs filing multiple cookie-cutter lawsuits, a United States District Judge in the Northern District of New York has ordered a plaintiff to show that she has standing to bring ADA hotel website accessibility lawsuits to federal court.

The disabled plaintiff, who resides in Florida, has filed 29 nearly identical ADA website cases in the Northern District of New York seeking injunctive relief, damages, and attorneys’ fees. In this specific case, Deborah Laufer v. 1110 Western Albany LLC and Ryan LLC, the plaintiff sought an unopposed default judgement when the defendant failed to respond to the complaint.

The Court, however, determined the plaintiff failed to establish Article III standing to bring the lawsuit and refused to enter the default judgment.

Achieving Article III standing in federal court

To have standing to seek injunctive relief in federal court, plaintiffs must establish they have sustained (or are in immediate danger of sustaining) a direct injury as the result of the alleged wrongdoing, and that the injury is concrete and particularized, not hypothetical or speculative.

In this case, the plaintiff claimed injury due to the alleged lack of information on a hotel’s website about accommodations for disabled guests, as is required under the ADA’s 28 C.F.R. Section 36.302(e).

But Hon. Brenda K. Sannes, of the United States District Court of the Northern District of New York states in an Order dated May 8, 2020:

“There appears to be a serious question as to whether Plaintiff has established standing, in this, or any of her other cases, and thus whether the Court has subject matter jurisdiction over these actions. See, e.g. Laufer v. Laxmi & Sons LLC, 1:19-cv-01501 (BKS/L) (Dkt. No. 15, at 7. May 6, 2020). (“There are no facts in the Complaint or Plaintiff’s affidavit indicating that she has ever traveled to Rensselaer, New York, or anywhere in New York, or that she has any reason to travel anywhere in New York or any reason to seek lodging anywhere in New York.”)

The Judge has ordered the Plaintiff to file briefs in 29 actions, addressing whether she has standing, and to specifically reference the legal issues and case law discussed in the Memorandum-Decision and Order the Court entered in Laufer v. Laxmi & Sons, LLC.

What does this mean for hotels?

The 29 lawsuits filed by the plaintiff in the Northern District of New York, are among the more than 235 nearly identical lawsuits she has filed nationally.
CONTINUE READING →

29 May 2019

JMBM’s ADA Compliance and Defense Group has defended more than 750 ADA lawsuits and DOJ investigations or actions brought against owners and operators of hotels and other businesses classified as “public accommodations” under the Americans with Disabilities Act (ADA). A federal Grand Jury has indicted a prolific ADA plaintiff for income tax evasion. More than just an interesting story, Marty Orlick explains how this might affect current and future ADA litigation.

 
Serial Plaintiff Who Filed Nearly 3,000 Americans with Disabilities Act (‘ADA’) Lawsuits is Indicted by a Federal Grand Jury and Faces Possible Imprisonment and Fines for Income Tax Evasion
by
Martin H. Orlick, Hotel Lawyer  & Chair,
JMBM’s ADA Compliance & Defense Group
In an ironic twist of fate, Scott N. Johnson, Esq., a disabled Sacramento attorney, who has filed nearly 3,000 ADA lawsuits as plaintiff, starting in the United States District Court for the Eastern District of California, now faces possible jail time for felony income tax fraud according to a Federal Grand Jury Indictment.

On May 23, 2019, United States Attorneys filed a Grand Jury Indictment, United States of America v. Scott Norris Johnson, accusing Johnson of three counts of “Making and Subscribing a False Tax Return” by failing to declare substantial income derived from ADA settlements on his U.S. Individual Income Tax Returns and his U.S. Corporation Income Tax Returns for the tax years 2012-2014.

According to the Indictment, from no later than “on or about January 28, 2008, SCOTT NORRIS JOHNSON owned and operated Disabled Access Prevents Injury, Inc. (“DAPI”), a corporation registered in the State of California. DAPI was treated as a C corporation for tax purposes.” The Indictment alleges that Johnson was DAPI’s sole shareholder and that DAPI “provided legal services associated with lawsuits that it filed on behalf of SCOTT NORRIS JOHNSON as the plaintiff.”
CONTINUE READING →

UPDATE: On December 23, 2020, the Fourth Appellate District Court dismissed the Riverside County District Attorney’s case against James Rutherford and his attorneys, on appeal. As reported in our May 21, 2019 blog below, the DA’s case alleged ADA serial plaintiff James Rutherford and the lawyers who regularly represent him were involved in abusive litigation. The Appellate Court dismissed this claim (see unpublished Opinion here) as the ADA lawsuits were protected by California’s litigation privilege. The Court wrote: “As we explain, the litigation privilege applies to the People’s complaint, and the People have not shown that an exception to the privilege applies.” It was our view then, and even more so after the Appellate Court’s decision, that the Riverside D.A.’s theory of the case led to the inevitable outcome. Perhaps the D.A.’s office will take a fresh look at the facts of the case and apply a new theory if it intends to pursue a case against serial ADA litigants.

21 May 2019

JMBM’s ADA Compliance and Defense team, led by my partner Marty Orlick, continues to help hotels and other businesses achieve compliance under the Americans With Disabilities Act (ADA), and has defended more than 750 ADA lawsuits and DOJ investigations or actions brought against owners and operators of “public accommodations.” Such properties include hotels, resorts, restaurants, timeshares, bed and breakfasts, spas, sports facilities, wineries, theaters and other commercial real estate, such as apartment communities, shopping centers, retail stores and banks.

Today, Marty shares some good news from Riverside, California, where the Riverside County District Attorney’s Office is seeking to stop abusive ADA lawsuits filed by serial litigants.

Riverside County DA drops the hammer on ADA litigant and counsel
to stop abusive litigation
by
Martin H. Orlick, Hotel Lawyer  & Chair,
JMBM’s ADA Compliance & Defense Group
In an extraordinary case charging ADA litigation abuse, the Riverside County District Attorney’s Office filed an action on behalf of the People of California seeking to permanently prevent serial ADA plaintiff James Rutherford and two law firms that regularly represent him (Manning Law and the Law Offices of Babak Hashemi, and individual members of the firms) from filing abusive lawsuits. The Complaint alleges that the defendants violated various Business & Professions Code sections designed to protect the public against “unlawful, unfair or fraudulent acts or practices” and seeks civil penalties not to exceed $2,500 for each violation and other equitable relief. Civil penalties in this case could exceed $800,000 if the allegations prove true.

The Complaint alleges that “Defendants filed 323 lawsuits based on alleged violations of the Americans with Disabilities Act” in federal and state courts. Many of these lawsuits were filed against hotels and retailers. According to court papers, the pleadings filed by the defendants follow a pattern of near-identical “allegations, except for the identity of the named defendants and the date of the alleged harm.”

This lawsuit is eerily similar to a lawsuit filed by the Arizona Attorney General against Peter Strojnik, Sr., who filed nearly 2,000 identical ADA lawsuits against Phoenix/Scottsdale businesses. Suspended from practicing law, Mr. Strojnik surrendered his license to avoid disbarment. Another lawyer in New Mexico also surrendered her license in lieu of disbarment over ADA litigation abuse. CONTINUE READING →

20 November 2017

JMBM’s ADA Compliance and Defense team, led by my partner Marty Orlick, continues to help hotels and other businesses achieve compliance under the Americans With Disabilities Act (ADA), and is actively defending numerous ADA lawsuits brought against our clients.

Today, he shares one of the stranger tales of serial ADA litigation and describes how the judicial system in New Mexico stopped the plaintiff and her lawyer from filing frivolous and malicious ADA lawsuits.
New Mexico Judge Dismisses 99 ADA Lawsuits as Fraudulent and Malicious
Entertains Sanction Motions
by
Martin H. Orlick, Chair, JMBM’s ADA Compliance & Defense Group
On October 26, 2017, a judge dismissed 99 ADA lawsuits, ordered an in forma pauperis plaintiff  (a person without funds to pursue the cost of a lawsuit) to pay filing fees of $38,300 and authorized the defendants to file fee and sanction motions.

Surely, this plaintiff’s lawyer rues the day she answered an ad on Craigslist looking for a civil rights lawyer to file ADA litigation in her jurisdiction.

What’s going on?

A Strange Set of Circumstances

The Arizona-based organization, Litigation Management and Financial Services, Inc. (LMFS), a descendant of the notorious ADA plaintiffs’ group Advocates for Individuals with Disabilities, used Craigslist, indeed.com and other online media to find and engage disabled plaintiffs to file ADA lawsuits, and lawyers to represent them. The online advertisements resulted in hundreds of ADA lawsuits filed against businesses in New Mexico, Nevada, Colorado and Utah.

It is also how a disabled plaintiff and her lawyer came to file 99 ADA lawsuits in New Mexico, alleging each defendant’s business violated the ADA and related anti-discrimination laws.  According to court documents, the deal LMFS made with this plaintiff and her counsel, worked like this:

• The plaintiff was paid $50.00 per lawsuit filed.
• The plaintiff’s counsel received $100 per filing for serving as counsel of record for each lawsuit filed.
• LMFS drafted all pleadings and defended any motion practice in exchange for the lion’s share of any settlements that resulted from the lawsuits.
• LMFS also arranged for a driver to take the plaintiff to some — but apparently not all — of the businesses that were sued, for a photo-op.

CONTINUE READING →

1 April 2017

JMBM’s ADA Compliance and Defense team, led by my partner Marty Orlick, continues to help hotels and other businesses achieve compliance under the Americans With Disabilities Act (ADA), and is actively defending numerous ADA lawsuits brought against our clients.

As we predicted, more and more of these lawsuits allege that a company’s website and reservation system is not accessible to visually impaired customers. In his article below, Marty Orlick reports why a recent U.S. District Court decision may affect the future of ADA website litigation, and urges hoteliers to ensure their websites are accessible.

Judge Dismisses ADA Website Lawsuit
by
Martin H. Orlick, Chair, JMBM’s ADA Compliance & Defense Group
In September 2016, we published an alert that a group of plaintiff’s ADA lawyers had threatened a number of businesses – including hotels – with litigation claiming their websites failed to comply with “ADA Guidelines.”  (Read ADA Compliance & Defense Lawyer: ADA Website Accessibility Lawsuits Escalate.) These lawsuits have since been filed with greater frequency.

Since then, a number of threats have turned into lawsuits seeking injunctive relief (website accessibility), a multiple of $4,000 minimum statutory damages under California’s Unruh Civil Rights Act (per visit to the website or from being deterred from visiting the website), attorneys’ fees and litigation costs.

Years ago, the Department of Justice (“DOJ”) adopted rules requiring all federal agency websites to conform to the WCAG 2.0 A and AA Success Criteria as a means of providing accessible websites to persons who are blind, low vision, color blind or who suffer cognitive disabilities. In 2010, the DOJ issued a Notice Of Proposed Rulemaking (NOPR) stating that it intended to adopt formal ADA Guidelines for state and local government agencies to meet when designing websites. The DOJ intended to adopt the WCAG 2.0 A and AA Success Criteria for state and local government websites.  Justice then announced that it intended to adopt these same basic standards for private businesses’ websites.  But the DOJ withdrew its NOPR and has yet to issue final rules regarding web access standards for state and local agencies or private businesses.

ADA website lawsuit violates due process

Last week, in what is a ground breaking decision of particular importance to the hospitality industry, the U.S. District Court for the Central District of California threw out a serial plaintiff’s lawsuit which alleged that Domino’s Pizza’s website violated the Americans with Disabilities Act (ADA) and related California anti-discrimination laws by not conforming to the WCAG 2.0 A and AA Success Criteria. CONTINUE READING →

19 October 2016

ADA Defense Lawyer with a new case on Uber and Lyft

Uber and Lyft are back in the headlines again, but not for the usual ride share issues. This time it is for alleged violations of the ADA. Here is what my partner Marty Orlick, Chair of our ADA Compliance & Defense Group, has to say on this development.
The City of Brotherly Love is Showing Love to Persons with Disabilities
Under the ADA, but not to Lyft or Uber
by
Martin H. Orlick, Chair, JMBM’s ADA Compliance & Defense Group
From coast to coast, Uber and Lyft have come under increasing fire from disability rights organizations and have faced litigation because their ride share practices allegedly discriminate against persons with disabilities.  Federal lawsuits were also filed in San Francisco against Uber and Lyft .

In what appears to be the most draconian decision to date, a Philadelphia Court of Common Pleas judge ruled on October 6, 2016 that Uber and Lyft repeatedly violated the Americans with Disabilities Act of 1990 and issued an order suspending their rideshare services in the City of Brotherly Love.  The ramifications of this Order could be felt throughout the United States and Canada, which has similar civil rights laws to protect persons with disabilities.

Common Pleas Judge Linda Carpenter’s Order in Blount v. Philadelphia Parking Authority granted plaintiff’s request for an injunction prohibiting the parking authority from authorizing Uber and Lyft to operate in the City of Brotherly Love.

The Complaint alleged that Uber and Lyft systematically failed to provide vehicles which accommodate persons in wheelchairs, routinely refuse to accommodate persons who travel with service animals and charge excessive pricing for such accommodations. CONTINUE READING →

16 October 2016

Click here for the latest articles on ADA Compliance & Defense.

JMBM’s ADA Defense & Compliance team takes the ADA seriously, and we recommend that our clients take a proactive approach in identifying and solving potential problems before they become lawsuits. For many years now, we have called attention to the importance of making website ADA-compliant, but hotels, resorts, restaurants, banks, retailers and other owners and operators of commercial real estate continue to be vulnerable to one of the more recent and serious waves of ADA complaints. See Charles Schwab settles web site accessibility claim and New ADA standards for website accessibility.

Today, my partner Marty Orlick talks about a recent wave of website accessibility claims plaguing owners of commercial real estate. Be smart. Understand the problem and fix it now. This issue is not going to go away.

Hotel Websites and Reservation Systems
Is your website accessible to the blind and vision impaired?
by
Martin H. Orlick, Chair, JMBM’s ADA Compliance & Defense Group
A version of this article was published by the California Bankers Association.

How would you react if you received a letter from a law firm alleging that your hotel’s website is in violation of the Americans with Disabilities Act (ADA) because it discriminates against persons who are visually disabled?

If your reaction is to take it seriously, you would be correct.

How would you react if you discovered a near-identical letter was sent to hundreds of other hotels, restaurants and other businesses – by the same law firm?

If your reaction is that you received a cookie-cutter letter by a plaintiff firm that is using a dragnet to identify possible defendants for lawsuits, you would also be correct.

How would you respond to the demand that you bring your website into compliance with international standards for web accessibility?

If you respond by picking up the phone to call experienced ADA legal counsel, you will be saving time and money.

What it’s all about

In January 2016, the law firm Carlson Lynch Sweet & Kilpela (CLSK) sent hundreds of near-identical form letters to national hotels, restaurants, financial institutions and other businesses, contending that the Department of Justice (DOJ) – the federal agency responsible for adopting ADA Standards – requires businesses to make their websites compliant with the ADA. (Note here that the DOJ has not formally adopted any specific website accessibility guidelines.) CONTINUE READING →

13 October 2016

Click here for the latest articles on ADA Compliance & Defense.

JMBM’s ADA Defense & Compliance team takes the ADA seriously, and we recommend that our clients take a proactive approach in identifying and solving potential problems before they become lawsuits. But sometimes serial plaintiffs just go too far with claims that cannot be justified and which violate the purpose and spirit of the ADA. Today, my partner Marty Orlick talks about a recent case that offers property owners and operators some relief against this type of harassment.
Case Dismissed: Judge Rules that Plaintiff’s Pool Lift ADA Cases
Have No Place in Federal Court
by
Martin H. Orlick, Chair, JMBM’s ADA Compliance & Defense Group
In the latest decision against an Arizona “high frequency ADA litigant”, the United States District Court for the Central District of California ruled this week that cases like Brooke vs. Perry Family Trust, et al. have no place in Federal Court.

The plaintiff, Theresa Brooke, has filed hundreds of identical ADA lawsuits against Arizona and California hotels, including a half-dozen suits last week.  The plaintiff, a disabled resident of Arizona, contends that she was discriminated against by hundreds of hotel owners based on her disability.  She claims that these hotels violated the 2010 ADA Standards because they fail to provide permanent pool lifts at either or both the pool and spa.

In each case, Brooke alleges she called the hotels to “inquire whether the pool or Jacuzzi had a lift or other means of access for disabled persons” and the representative informed her that it did not.  Plaintiff then alleges she sent her “agent” – “an expert in ADA accessibility guidelines” – to visit the hotel, take pictures of the barriers and report back to her.  Plaintiff claims she frequently visits or intends to visit the area “in the coming months and for the indefinite future” for leisure and business. CONTINUE READING →

1 May 2016
Federal Judge Takes Decisive Action to Protect Hotels from ADA Abuse by a High Frequency Litigant
by
Martin H. Orlick, Chair, JMBM’s ADA Compliance and Defense Group
In a rare and decisive action, a Central District Court Judge dismissed an Americans with Disabilities Act (ADA) lawsuit filed by an Arizona disabled plaintiff who has recently filed a wave of over 70 ADA lawsuits against Southern California hotels.

The plaintiff, who claims she is confined to a wheelchair, called an Orange County hotel to book a room.  She asked the hotel representative whether the hotel pool and Jacuzzi had a pool lift or other means of access for disabled persons.  The hotel employee allegedly reported that the hotel had no pool lifts.  Thereafter, allegedly, plaintiff’s “agent,” and ADA investigator, visited the hotel, verified that there were no pool lifts, and notified the plaintiff of other ADA violations.  The plaintiff claimed that she regularly frequents the area where the hotel is located and plans to do so in the future.  If there was a pool lift, plaintiff claims, she would stay at the hotel in the future.

The plaintiff, Theresa Brooke, has filed over 70 ADA lawsuits against Southern California hotels in the past 6 weeks, “every single one of which” in boilerplate fashion alleges ADA violations based on inaccessible hotel pools and spas.  In dismissing the lawsuit, the Judge noted that the “deluge [of ADA lawsuits] is ongoing, noting plaintiff, it appears, would like to stay at every Orange County hotel that presently has an inaccessible Jacuzzi.”

Citing a recent opinion (Brooke v. Kalthia Group Hotels), the trial judge on his own motion dismissed the lawsuit finding that plaintiff had not stated a claim under the ADA because a plaintiff who had not visited the hotel cannot litigate a case against the hotel based solely on calling the hotel, seeing pictures and taking a call from her private investigator. CONTINUE READING →