ADA Defense Abuse: A Case Study

ADA Defense Lawyers Prolong Litigation and Postpone Access:  A Case Study of Litigation Abuse  Title III of the Americans with Disabilities Act (ADA) prohibits disability discrimination by private businesses.  Lawyers who defend noncompliant businesses argue that their opposing counsel — lawyers who represent people with disabilities seeking to enforce their rights — engage in litigation abuse.  They are lobbying for passage of H.R. 620, a bill that would add the requirement of a specifically-worded demand letter and four-month waiting period before a disabled person could enforce their rights. This case study of ADA defense litigation abuse suggests that ADA defense counsel are already guilty of prolonging litigation, postponing access, and ultimately enriching themselves at the expense of both the businesses they represent and the people with disabilities who continue to be denied access 28 years after the ADA was passed. H.R. 620’s requirement of a demand letter will remove any incentive for voluntary compliance and will add a new round of motions for ADA defense attorneys to file — challenging the wording, content, and specificity of the demand letter — on top of the already unconscionable litigation delay that is their standard practice. To demonstrate the opportunities for delay in which ADA defense counsel typically engage, we looked at a case that a group of retail trade associations held up as a typical Title III case.  In a recent amicus brief to the Third Circuit, lawyers for the National Association of Convenience Stores, the National Grocers Association, and the Food Marketing Institute singled out the case of Heinzl v. Cracker Barrel Old Country Store, Inc., No. 14-cv-1455 (W.D. Pa....

H.R. 620 = Amnesty for Access

Congress is considering a bill  — H.R. 620 — that would absolve all businesses currently in violation of the access requirements of Title III of the ADA — in place since 1990 — and permit them to wait to receive notice from a disabled person who encounters its discrimination, and then wait another six months to perhaps get some sort of solution underway.  DREDF has some excellent resources and talking points.  I thought this infographic might help explain how this bill rewards scofflaws and stops the progress of accessibility of the built environment.  [There’s a separate image description of the infographic...

CREEC, Disabled Professional Women File Amicus Brief Supporting Title III Class Actions

When an accessibility barrier at a chain of businesses affects people with similar disabilities in the same way — narrow queue lines at a restaurant; steps at the entrance to a store; parking lots with excessive slope — the most efficient way to address these violations is through a class action under Title III of the Americans with Disabilities Act (ADA) against the common owner or operator.  This was the conclusion reached by a federal district court in Pennsylvania in an order certifying a class of people with mobility disabilities challenging noncompliant parking lots at Steak ‘N Shake restaurants around the country. Steak ‘N Shake challenged this decision in the Third Circuit, supported by two amicus briefs on behalf of various business associations including the National Retail Federation and the Chamber of Commerce. CREEC — for itself and disability rights legends Corbett O’Toole, Julie Farrar, Carrie Ann Lucas, and Julie Reiskin — filed an amicus brief to the Third Circuit in support of the plaintiffs and the righteousness of Title III class actions.  Eve Hill, of Brown, Goldstein & Levy, and Michelle Uzeta drafted an amicus brief on behalf of Disability Rights Pennsylvania and the National Disability Rights Network, also supporting the plaintiffs, and explaining the importance of not just achieving, but maintaining access for people with disabilities. CREEC’s brief explained the many ways in which Title III cases — based on objective measurements and the DOJ’s design standards — are ideally suited for class treatment.  CREEC also took the opportunity to respond to Steak ‘N Shake’s amici — the business associations — who filed briefs full of insults and random context-free...

Court Grants Final Approval of Hotel Transportation Class Settlement

On May 3, 2016, Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California granted final approval of a class action settlement and certified a settlement class in CREEC et al. v. RLJ Lodging Trust. RLJ owns approximately 127 hotels throughout the country. The lawsuit, brought by CREEC and three individuals with mobility disabilities who use wheelchairs, alleges that many hotels owned by RLJ provide transportation services to guests, but fail to provide equivalent wheelchair-accessible transportation services as required by the ADA and California state law. As a result of the settlement, the hotels owned by RLJ that provide transportation services to their guests will provide equivalent accessible services to guests who use wheelchairs or scooters. The accessible services will be equivalent in timing, notice, routes or geographic scope, fares, hours, reservations, and restrictions. The settlement provides for three years of monitoring of the hotels to ensure compliance. As the Court noted in the final approval order, the settlement’s “extensive injunctive relief, combined with robust monitoring, is an excellent result for the class.” In an earlier order, the Court also held that the three individual plaintiffs had standing as testers to pursue injunctive relief under the ADA. CREEC, along with fabulous co-counsel CCDC and Campins Benham-Baker LLP, represents the plaintiffs and the settlement...

Court Grants Final Approval of Hotel Transportation Settlement — CREEC v. Ashford Hospitality Trust

On March 22, 2016, Magistrate Judge Donna M. Ryu of the U.S. District Court for the Northern District of California granted final approval to a class action settlement in CREEC et al. v. Ashford Hospitality Trust, Inc. Ashford owns approximately 125 hotels located in 20 states. The lawsuit, brought by CREEC and two individuals with mobility disabilities who use wheelchairs, alleges that many hotels owned by Ashford provide transportation services to guests, but fail to provide equivalent wheelchair-accessible transportation services as required by the ADA and California state law. As the Court noted in the final approval order, the settlement “provides a comprehensive scheme for injunctive relief, requiring all Ashford-owned and/or operated hotels to come into compliance with ADA regulations that require hotels that offer transportation services to provide transportation services to people who use wheelchairs or scooters.” The Court further noted that the agreement “sets forth what ‘compliance’ means, with specific attention to ensuring that any third party transportation providers utilized by Ashford hotels provide equivalent accessible transportation,” and that the agreement “explicitly requires that Ashford hotels provide accurate information to potential hotel guests so that no guests are erroneously deterred.” As a result of the settlement, all of the hotels owned by Ashford that provide transportation services to their guests will provide equivalent accessible services to guests who use wheelchairs or scooters. The accessible services will be equivalent in timing, notice, routes or geographic scope, fares, hours, reservations, and restrictions. The settlement provides for three years of monitoring of the hotels to ensure compliance. Plaintiffs and the Settlement Class are represented by CREEC, CCDC, and Campins Benham-Baker...

Courts Grant Preliminary Approval of Class Action Settlements in Cases Challenging Inaccessible Transportation at Hotels

In December 2015 and January 2016, two district courts in the Northern District of California granted preliminary approval of class action settlements in cases involving accessible transportation at hotels. The cases, brought by CREEC, Colorado Cross-Disability Coalition, and Campins Benham-Baker LLP on behalf of CREEC and several individuals with mobility disabilities who use wheelchairs, allege that many hotels owned by the defendant real estate investment trusts provide transportation services to guests, but fail to provide equivalent wheelchair accessible transportation as required by the ADA and California state law. The lawsuits seek only declaratory and injunctive relief. The proposed settlements will provide nationwide, comprehensive injunctive relief that will ensure the provision of equivalent accessible transportation, including three years of monitoring. In the order granting preliminary approval and certifying the settlement class in the RLJ case, the Court held that the three individual plaintiffs had standing as testers to pursue injunctive relief under title III of the ADA. For more information, see CREEC et al. v. RLJ Lodging Trust and CREEC et al. v. Ashford Hospitality Trust,...