What Businesses Need to Know When Defending Against ADA Lawsuits

By James O’Brien, Pryor Cashman LLP

So, your business has been served with a summons and complaint by a disabled plaintiff whom you have never met and from whom you have never heard.  They allege that your business violated Title III of the Americans With Disabilities Act (ADA), state civil rights laws (many states have their own civil rights laws that prohibit “discrimination” against the disabled by barriers to access), and seek declaratory, injunctive and equitable relief, along with money damages, attorneys’ fees, costs and expenses to redress your business’ unlawful discrimination against them.  The complaint cites dozens of purported violations of the ADA.

The Purpose – and Shortcomings – of the ADA

There can be no doubt that the ADA was established to address a critical need – to make public accommodations accessible to disabled people.  The act’s drafters, however, were shortsighted in omitting a notice provision requiring a would-be plaintiff to first make a demand to cure violations, and providing a reasonable cure period before allowing a plaintiff to commence an action.

Instead, the first notice of any ADA issue comes in the form of service of a lawsuit. 

This has, troublingly, spawned a cottage industry of attorneys and plaintiffs who make a living suing establishments on ADA grounds.  The impetus for these suits is not always the desire to gain accessibility for the disabled, but rather the pursuit of what may be perceived as “easy money.”

While the ADA does not provide for damages (some states’ civil rights laws do provide for money damages, although those damages tend to be nominal), it does allow plaintiffs to recover their costs and attorneys’ fees if they prevail.  And to prevail in an ADA action, the plaintiff need only prove one instance of noncompliance; that a counter, for example, is 34” when it is supposed to be 36”.

The Advent of Drive-By Litigation

Because of this provision, it is commonplace to see serial plaintiffs and law firms.  As one example from a June 2011 New York Post article demonstrates (and there are many such examples around the country), Zoltan Hirsch, a double amputee in a wheelchair, filed 87 federal claims over the course of a single year seeking damages and legal fees.  The Post article states that “Hirsch, who lost his legs after a car accident seven years ago, files lawsuits at the rate of about one a day, hitting businesses ranging from a Brooklyn Dunkin’ Donuts to Louis Vuitton in SoHo to Midtown’s Lace strip club …. The suits claim Hirsch suffered ‘an injury’ from being denied access.  But it is unlikely the 31-year-old Hasidic Jew would patronize some of the establishments he cites – including the non-kosher City Crab restaurant.  He targeted a pedicure station at the Red & White Spa in SoHo – even though he has no feet.”  Zoltan has since filed hundreds more suits, all through the same law firm.

For even the smallest ADA action, a plaintiff’s legal fees will be $5,000, though we routinely see cases where legal fees exceed $50,000, or even $100,000, for plaintiff’s fees alone.  On top of that, defendants will also need to pay their own lawyers.

ADA Cases Are Different From Other Civil Litigation

Since the ADA provides for legal fees, the objective in any ADA case is to minimize plaintiffs’ fees; a task oftentimes easier said than done.  ADA actions are typically brought in federal court.  Federal rules of procedure require certain mandatory disclosures, and most judges require a joint Case Management Order that sets forth, among other things, the scope and timing of discovery, followed by a preliminary conference.  While this alone will generate fees, discovery is the real engine that drives fees.

In a standard litigation, there will be at least some document discovery followed by depositions.  Although depositions provide the basis for settlement or summary judgment in most civil cases, they should be avoided as much as possible in an ADA case.  Although plaintiffs’ lawyers will serve a lengthy document demand if given the chance, discovery is generally pointless because whether an item complies with the ADA’s specifications is a matter of measureable, objective fact.  Also to be avoided is motion practice which, obviously, is ordinarily a useful tool in most litigation.

There are some affirmative defenses that may protect the business, such as when modifications occurred.  All “new construction” (including modifications) after the effective date of the ADA (July 1992) must be fully ADA compliant.  But unless the business is certain that nothing has been modified since 1992 (which is unlikely), that affirmative defense will lead to discovery into every change undertaken, including cosmetic changes, followed by depositions.  Also, the ADA does not require modifications that are not “economically feasible,” which is not defined in the Act.  Although that defense, if successful, will insulate the business, asserting it gives the plaintiff an opportunity to demand intrusive discovery into the business’s finances.

An ADA complaint typically recites a list of “barriers to access” that are not sufficiently detailed.  To determine what ADA violations exist, it usually is necessary to conduct an expert inspection – an expense the defendant will have to pay in the settlement, but which has the advantage of defining the precise conditions that exist, so that additional issues are not raised later.  Depending on the breadth of ADA violations and the technical aspects of the claims, defendants will often hire their own experts to conduct independent measurements.  Examples include parking lots that have different slopes in different places and sidewalk slope issues.  How the measurements are taken will determine the existence and extent of the barrier to access.

Once the inspection report has been provided, the business’ attorneys should attempt to engage the court in a settlement conference.  Judges are becoming increasingly aware of the unnecessary costs imposed upon businesses by ADA litigation, and recognize that the ADA’s objective of the removal of barriers to access can be met without extensive litigation.  Judges sometimes understand that the perfect is the enemy of the good, meaning that settlement should not be prevented by an item that is out of tolerance by a miniscule amount.  While there is no case law setting forth how close a measurement must be to be “good enough,” judges often times have a practical view towards things and will take an active role in settlement negotiations, including the calculation of attorneys’ fees.  A representation that all issues will be remedied often will convince a judge to stay discovery for a long enough time to effect the repairs.  Do not, however, expect plaintiff’s counsel to cooperate in that request.

Typical “Barriers to Access” Cited in ADA Lawsuits

Some so-called barriers to access are straightforward and relatively simple to deal with, such as bathroom and seating issues.  But even complex issues do not always require expensive renovations to correct.  Take, for example, access from a parking lot: in one case, a shopping center had a “back” parking lot with access to a medical clinic through a door that was locked because it was unattended (the main entrance was on the other, “front” side of the center, which had a noncompliant sidewalk).  Rather than incur the cost of keeping that entrance attended to remain open, the business negotiated the installation of a closed circuit camera with a buzzer.

Similarly, stores with counters that are too high can address this issue by displaying a sign notifying disabled customers that their orders can be delivered to them upon request.

Again, the objective in these cases is to reach an agreement regarding what items can be fixed as quickly as possible.  This may at times require work that is expensive and disruptive, but businesses should not get drawn into disputing whether the work must get done.  The ADA has a mandate that it is to be construed as broadly as possible, meaning that it is highly unlikely that the business will prevail (and it will be paying plaintiff’s counsel’s fees).

Website Design and ADA Compliance: The Next Frontier

A relatively new area of ADA litigation involves barriers to digital content on websites for deaf, blind and visually-impaired individuals.  The international website standards organization World Wide Web Consortium has published version 2.0 of the Web Content Accessibility Guidelines (“WCAG 2.0”).  Those guidelines include standards for accessibility by blind and deaf persons using special software.

While the ADA does not have specifications for website design, per se, the Department of Justice has long considered websites to be covered by Title III.  The DOJ has intervened in a number of cases against national retailers and public universities involving “inaccessible” websites, and has issued an Advanced Notice of Proposed Rulemaking regarding revising the regulations implementing Title III of the ADA in order to establish specific standards for making goods, services, facilities, accommodations or advantages offered by public accommodations via the Internet.  Unfortunately, the DOJ’s position on this issue has emboldened some plaintiff’s lawyers to send out letters in which they threaten to sue companies unless they update their websites in compliance with WCAG 2.0 and pay “attorney’s fees and expenses.”

However, given President Trump’s Executive Order “Reducing Regulations and Controlling Regulatory Costs” (which requires two existing regulations to be eliminated for every new one adopted), it now seems highly unlikely that the DOJ will implement any such rules concerning websites.

And, in a startling new case decided on March 20, 2017, Robles v. Domino’s Pizza LLC, U.S. District Court Judge S. James Otero for the Central District of California granted Domino’s motion to dismiss without prejudice the class action complaint alleging that the pizza maker’s website was not accessible to the blind and visually-impaired and therefore in violation of the ADA and California’s Civil Rights Act (“UCRA”). The Court noted that the DOJ had not yet promulgated rules regarding the accessibility standards that e-commerce webpages must meet under the ADA, which violated Dominos’ due process rights.

This opinion highlights the lack of precision concerning exactly what standards e-commerce websites must meet. What effect President Trump’s Executive Order will have on such lawsuits remains unclear. But if you are the recipient of such a strike letter, you now have at least some basis for a motion to dismiss based on Domino’s Pizza. No doubt there will be additional litigation which, hopefully, will clarify which standards, if any, e-commerce websites must meet.

Conclusion

ADA litigation is inconvenient and can result in costly remediation.  But it is far better to “bite the bullet” and effect repairs (and what repairs actually will be made is to be negotiated) than it is to get drawn into fighting a plaintiff’s claims

A seasoned litigator, Pryor Cashman Partner James O’Brien, Jr. tries cases in federal and state courts throughout the U.S. for Fortune 500 corporations and their CEOs, directors and other executives. In addition, he co-leads Pryor Cashman’s Americans with Disabilities Act (ADA) Defense + Consulting practice.