|April 8, 2011|
Previously published on April 2011
Since the enactment of the Americans With Disabilities Act (“ADA”) more than 20 years ago, businesses have seen an increase in lawsuits as a result of their failure to comply with the accessibility requirements set forth under Title III of the ADA. These lawsuits rarely go to trial and often end with businesses spending substantial money in the form of renovations to their establishments and also attorneys’ fees—both their own attorneys’ fees and the plaintiffs’ attorneys’ fees. The increase in these lawsuits is the result of plaintiffs’ attorneys who have taken advantage of the many misconceptions businesses have when it comes to the ADA, along with the fact that the ADA permits plaintiffs to recover their attorneys’ fees.
Many plaintiffs’ attorneys have made their practice out of this litigation, filing hundreds of lawsuits nationwide—what many have referred to as “drive-by litigation” and “a lawyer mill,” whereby a plaintiff will identify a number of businesses in a local area (often on the same street) who are not compliant with Title III of the ADA and then file a lawsuit against each business, seeking compliance with the ADA and demanding that the business pay the plaintiff’s attorney’s fees, costs and expenses associated with bringing the claim. Rather than notifying the businesses of the ADA noncompliance, many plaintiffs’ attorneys apply the “shoot first, ask questions later” approach to litigation; instead of allowing a business owner to remedy any ADA issues, the plaintiff’s attorney files a lawsuit and demands money before providing a specific list of repairs. The complaints filed are often filled with vague, boilerplate language that provides no specific guidance to a business owner regarding the alleged ADA violations.
While the ADA has been around since 1990, there is no government agency designated to enforce the law or to educate the public regarding ADA accessibility requirements. This creates a vacuum that allows inventive lawyers to sue businesses that are not in full compliance. Plaintiffs’ attorneys take advantage of businesses’ misconceptions about the ADA—those top 5 misconceptions are discussed in greater detail below—in order to sue businesses and recover their attorneys’ fees under the guise that their conduct is for the good of the public—what this author refers to as “ADA litigation abuse.”
II. Title III of the Americans With Disabilities Act
By way of background, in July 1990, Congress enacted the Americans With Disabilities Act (“ADA”) which was later signed into law on July 26, 1990 by President George H. W. Bush. Title III of the ADA applies to places of public accommodation, commercial facilities, and private entities offering certain types of examinations and courses. Places of public accommodation are classified in 12 categories, which include restaurants, hotels, movie theaters, stadiums, lecture halls and other places of public gathering, grocery stores, gas stations, parks, zoos, schools, doctor’s offices, and private schools. Title III of the ADA also applies to commercial facilities such as factories and office buildings.
The Department of Justice published regulations for Title III entitled the Americans With Disabilities Act Accessibility Guidelines (“ADAAG”), which are found in the Code of Federal Regulations at 28 C.F.R., Part 36, Appendix “A.” The ADAAG contain the specific requirements businesses must follow to be compliant with Title III. Businesses subject to Title III were provided 1½ years from the enactment of the statute to implement its requirements. Businesses who fail to comply with Title III of the ADA and its regulations are subject to liability. Any disabled person who is denied access to a place of public accommodation because of their disability may bring a claim against the business for injunctive relief, demanding that the business become compliant. Importantly, the ADA provides that a plaintiff may recover his or her reasonable attorney’s fees, costs and expenses in bringing the claim.
Plaintiffs’ attorneys have taken advantage of the attorney’s fee provision and teamed up with disabled persons to bring claims against businesses that are not compliant with Title III of the ADA. This litigation is most prevalent in California, with tens of thousands of lawsuits being filed in a given year. One attorney nearly bankrupted the small historic town of Julian located in San Diego, California. After he visited the town one weekend and encountered difficulty getting into some of the shops, the attorney, who was disabled, filed a flood of lawsuits against 67 small businesses demanding $200,000.
Many plaintiffs’ attorneys have been accused of providing their disabled clients kickbacks in the form of the attorneys’ fees recovered in litigation. After filing the lawsuit, the plaintiff’s attorney usually looks to settle the case by having the business provide an expert report demonstrating that the business is compliant with the ADA and by having the plaintiff’s attorney’s fees and other costs paid by the business. Businesses can protect themselves from this headache by better understanding the law, and more specifically, by educating themselves about the top 5 misconceptions under Title III which often subject businesses to ADA litigation abuse.
III. Top 5 Misconceptions About Title III of the ADA
Plaintiffs’ attorneys have capitalized on private businesses’ misconceptions about Title III of the ADA in order to recover their attorneys’ fees. In this author’s experience, those top 5 misconceptions are as follows:
1. Because my place of business is old, it is “grandfathered” and exempt from the ADA Title III requirements.
The largest misconception by business owners under Title III is the standard for existing facilities. There is no “grandfather clause” exempting older facilities. Instead, older facilities are obligated to make changes that are “readily achievable”—or which can be made without great expense or effort.
Under Title III of the ADA, all “new construction” (construction, modification or alterations) after the effective date of the ADA (approximately July 1992) must be fully compliant with the ADAAG.
Title III is also applicable to existing facilities. One of the definitions of “discrimination” under Title III of the ADA is a “failure to remove” architectural barriers in existing facilities. This means that even facilities that have not been modified or altered in any way after the ADA was passed still have obligations to bring their facilities into compliance with the ADAAG. The standard is whether “removing barriers” (typically defined as bringing a condition into compliance with the ADAAG) is “readily achievable,” defined as “easily accomplished without much difficulty or expense.”
The statutory definition of “readily achievable” calls for a balancing test between the cost of the proposed “fix” and the wherewithal of the business and/or owners of the business. Thus, what might be “readily achievable” for a sophisticated and financially capable corporation might not be readily achievable for a small or local business.
There are exceptions to Title III; many private clubs and religious organizations may not be bound by Title III. With regard to historic properties (those properties that are listed or that are eligible for listing in the National Register of Historic Places, or properties designated as historic under State or local law), those facilities must still comply with the provisions of Title III of the ADA to the “maximum extent feasible” but if following the usual standards would “threaten to destroy the historic significance of a feature of the building” then alternative standards may be used.
2. I will be provided notice before a lawsuit is filed against me, which will give me time to become compliant.
The second largest misconception by business owners is that a plaintiff is required to provide a business with notice of ADA deficiencies prior to initiating a lawsuit. In actuality, there is no notice requirement provided for under Title III of the ADA. In fact, many plaintiffs’ attorneys use this to their advantage by applying a “shoot first, ask questions later” approach to litigation. In ADA litigation abuse cases, the plaintiff’s attorney’s main concern is getting compensated for legal fees from the business. The lack of notice requirement under the ADA facilitates these ADA litigation abuse cases and often results in businesses being “blind sided” with a lawsuit they never saw coming.
3. If a lawsuit is filed against me and I make renovations, the plaintiff’s attorney cannot make me pay the plaintiff’s attorney’s fees, costs and expenses.
The ADA specifically provides that the “prevailing party,” is entitled to recover his or her attorney’s fees, costs and expenses. Although the majority of the Title III ADA cases settle out of court, plaintiffs’ attorneys will most likely still require payment of their attorneys’ fees as part of the settlement. With ADA litigation abuse, recovery of attorney’s fees is the main reason the suits are filed. Therefore, it is unlikely that a plaintiff’s attorney will forgo attorney’s fees as part of any settlement.
4. Because I have obtained building permits from my Township and am compliant with local codes and ordinances, I am therefore compliant with the ADA.
Building permits issued by your Township are mutually exclusive from Title III of the ADA. Just because you were issued a building permit, and your building is in compliance with your local codes and ordinances, does not necessarily mean your business is compliant with Title III of the ADA.
5. I do not need legal counsel to assist me with defending a Title III ADA claim.
In cases of ADA litigation abuse, plaintiffs’ attorneys use Title III of the ADA as leverage for the payment of their attorneys’ fees, costs and expenses. In the majority of these cases, the buildings are targeted by plaintiffs and their attorneys because they know there are in fact ADA compliance issues making for a meritorious complaint. The plaintiffs and their attorneys use the clear liability as a basis for payment of their attorneys’ fees. This places businesses in a difficult position to defend the case.
Legal counsel can provide you with various strategies which are available in defending ADA litigation abuse cases. There are numerous legal arguments which can be raised in order to have the case dismissed in its entirety immediately, or even during litigation up to the point of trial, which saves the business the cost of litigating the matter and potentially paying the plaintiff’s attorney’s fees. There are other strategies available which assist businesses in limiting the amount of money they would have to pay in litigation.
The best way for businesses to avoid ADA litigation abuse is to have a good understanding of the ADA, along with the many misconceptions about the ADA which result in ADA litigation abuse. Businesses are encouraged to address any ADA issues head on now, before a lawsuit is filed. Once a lawsuit is filed, the plaintiff has already begun to incur legal fees, which he or she will ultimately attempt to recover from the business.