Author: Arthur Gaus, Partner, Kaufman Dolowich Voluck
We can all agree that the Americans with Disabilities Act (ADA) is an important law to help those with disabilities fully participate in society. Unfortunately, plaintiffs’ lawyers and serial filers have discovered loopholes in the law to capitalize on at the expense of many small businesses—hurting our economy and damaging the integrity of the ADA.
California, along with several other states, has seen a deluge of questionable and frivolous ADA lawsuits filed against small business owners. Serial plaintiffs, along with their attorneys, regard themselves as ADA compliance “testers” authorized by statute to do nothing more but sue small businesses up and down the state over alleged non-compliance with the ADA. The economic impact is staggering. One of these plaintiffs alone has generated millions of dollars in damages and attorneys’ fees. Unfortunately, attempts to mitigate the effects of these abusive practices have done little to slow the tide. However, understanding the legal mechanics and the available protective measures can help avoid and/or blunt the impact of these lawsuits.
The Basic Premise of ADA Litigation in California
The problem with abusive ADA litigation is essentially a question of the interaction between federal and state law. In brief, the legal premise is as follows: Title III of the ADA mandates that businesses which are open to the public provide and maintain facilities that are accessible to persons with disabilities.[1] “Accessible” in this context, nearly universally, is a question of compliance with the applicable standard in the 2010 ADA Standards for Accessible Designs (hereinafter “ADAS”) In short, if the physical space of the public facility complies with the ADAS, the business has met its burden to provide an accessible facility under the ADA. However, if some feature of the physical space is not compliant with the applicable ADAS, the business is not compliant and at risk for a lawsuit. A plaintiff under the ADA is entitled to injunctive relief (fixing the non-compliant feature) and attorneys’ fees.
But California’s state-level civil rights law (California Civil Code § 51 et seq. the “Unruh Act”) ups the ante. The Unruh Act makes any violation of a Federal civil rights statute a separate violation of California law and provides statutory damages of $4,000 “per violation.”[2] “Violation” in this context, means both a plaintiff’s personal initial encounter with a non-compliant access barrier and his or her feeling deterred from visiting again until the barrier has been fixed. This is to say that a putative Title III ADA plaintiff need only plead that he went to a facility and encountered a barrier to claim $8,000 in statutory damages. If the plaintiff returned to the non-compliant facility, the statutory damages increase by $4,000 per visit.
Consequently, the ADA and Unruh Act in California have created a gold rush of purportedly disabled individuals “encountering barriers” at businesses up and down the state and rushing to file lawsuits in California District Courts, knowing that the cost of litigation will likely exceed a quick settlement demand. This creates an incentive for plaintiffs to identify phantom barriers, miniscule technical violations (i.e., dining chairs being pushed into accessible paths of travel in restaurants by other diners), and barriers that they have not actually personally encountered. Plaintiffs regularly settle these cases for $16,000 per case.
So how does a business in California protect itself from these suits?
- Expect the Worst
Unfortunately, this type of litigation has been defined by abusive tactics from both plaintiffs and their attorneys. Small business owners at risk for ADA access litigation are well-advised to prepare for the worst as far as questionable conduct.
For starters, there is the volume of cases: notorious ADA plaintiffs and their unscrupulous attorneys regularly file more than 1,000+ cases per plaintiff in a calendar year. The publicly recorded anecdotes of bad behavior are legion. Judges in the Northern District have reprimanded ADA plaintiff’s counsel for submitting bogus declarations[3] and targeting minority-owned businesses for lawsuits[4]. Northern District Courts have also heard evidence that high-volume ADA plaintiffs have employed teams of “legal assistants” to complete cash transactions in order to generate misleading receipts for future lawsuits.[5] Plaintiffs regularly engage in “drive by” litigation wherein the plaintiff drives up to a location, does not leave his vehicle, takes photographs and then leaves without attempting to patronize the business only to claim in litigation that he was “deterred” from visiting due to the presence of “access barriers.”[6] ADA plaintiffs and their attorneys regularly take the position that a disabled person merely seeing a photo of a putative access barrier is sufficient to create an ADA violation. One notorious plaintiff has attempted to classify his recovery as “personal injury settlements” resulting in a criminal indictment.[7] In short, ADA litigation has become a target for dishonest and abusive tactics and small business owners should be prepared.
- Take Advantage of Available Preventative Measures
California, like some other states, has passed statutory reforms aimed at curbing some of these abusive practices and limiting the exposure of small businesses to these claims. Knowing the contours of these reforms and putting them to use can prevent and limit the impact of a complaint from an unscrupulous plaintiff. For example: California Civil Code § 55.56 was enacted specifically to limit numerous ADA filings by allowing defendants to reduce or eliminate their statutory damages in some circumstances by fixing the violation. Similarly, § 55.56(g)(3) permits certain small businesses to avoid statutory damages entirely for 120 days by having their facilities inspected by a Certified Access Specialist (“CASp”) and fixing any and all barriers identified through the inspection.
Furthermore, certain District Court Local Rules and Standing Orders provide opportunities for defendants to tamp down the exposure of Title III ADA access cases. For example, Northern District of California General Order 56 applies only to Title III access cases and governs with specific detail the procedure for those cases. In particular, General Order 56 requires the parties conduct a joint site inspection and come to an agreement on mediation. Once the parties reach an agreement on mediation and any time thereafter, defendants can request a statement of plaintiff’s attorneys fees. Such requests are typically effective at reducing plaintiffs’ attempts to give up unnecessary attorney’s fees.
All in all, state statutes and local orders can provide defendants and potential defendants with mitigation measures. Knowing what they are and how to use those measures can effectively diminish the risk provided by ADA access claims.
- Remediate quickly!
Lastly, whether or not a defendant is entitled to additional or specialized statutory protection, prompt remediation of alleged access barriers can be beneficial to a defense of an ADA claim. Moreover, given that plaintiffs tend to focus on small, technical violations to reap quick settlements, the remediations typically are small and inexpensive. Furthermore, quick remediation can effectively cut off attorney’s fees if skillfully incorporated into a defense position.
The information provided on this blog does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available here are for general informational purposes only. Readers of this blog should contact their attorney to obtain advice with respect to any legal matter.
[1] 28 CFR § 36.201
[2] California Civil Code, § 52(a)
[3] Judge finds witness tampering in ADA lawsuit | News | Almanac Online | (almanacnews.com)
[4] Law Firm Sued For Violating California’s Unfair Competition Law (natlawreview.com)
[5] Scott Johnson v. Blackhawk Centercal, LLC et al 3:17-CV-02454
[6] Langer v. Kiser, 57 F.4th 1085, 1115 (9th Cir. 2023)
[7] Attorney behind California ADA lawsuits pleads guilty to tax fraud (recordnet.com)