California AB 1521 now law: Strongest measure yet to curb ADA abuse

Assembly Bill 1521 was signed into law on Oct. 10, 2015.  It attempts to curb disabled access lawsuit abuse, in particular by “frequent filers.”    Like its predecessors, Senate Bill 1608 in 2008 and Senate Bill 1186 in 2012, AB 1521 does not prevent lawsuits by plaintiff’s suing for theoretical “barriers” to obtain the easy money provided under California’s Unruh Act.  Rather, the new law amendment – actually an amendment of existing law – like its predecessors provides  incremental relief.  There still is no requirement to provide notice and an opportunity to remove an access barrier before suing.  For decades, a notice and cure provision has been the amendment most sought by the business community.  On the other hand, the new law provides some of the most extensive relief yet to defendants and potential defendants (all public accommodations, especially those in buildings built before 1992).  Continue reading

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How to minimize your liability right after a disabled person sues you

As is oft repeated in this blog and elsewhere, the ADA in combination with California discrimination statutes creates a perfect storm for those wanting to use legal process more than merit to force businesses into disproportionate monetary settlements.  Relief has been slow in coming because both the legislature and disability advocates tend to see the issue in broad generalized terms of less or more access rather than the devil in the details of how the law operates to benefit those who game the system for profit.  Nevertheless, Continue reading

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To CASp or not to CASp?

“CASp” refers to Certified Access Specialist.  The designation was created by California Senate Bill 1608 which became law 2008, and can be found in Civil Code sections 55.3 et seq. When the bill was working its way through the legislature, and when it became law, I was a skeptic.  I remain somewhat underwhelmed.  Abusive access lawsuits remain as numerous as ever.  Among other things, I viewed the portion of the law that created the CASp designation, and giving them an official role in the litigation process, as creating another cottage industry invested in an extortionate process, and adding to the overall expense of defendants.

On the other hand, Continue reading

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The Six Best Things to “Fix” to Prevent a Lawsuit by an Access Lawsuit Troll

Encroachment in to access aisle - not a good idea.

Encroachment in to access aisle – not a good idea.

While disabled access laws prescribe literally hundreds of specifications, there is a shortlist of items that trigger the majority of lawsuits.  A property owner or business can substantially reduce the chance of being sued by upgrading these items, often at minimum expense.   Continue reading

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A Proposal for Access Lawsuit Reform that Helps Everybody but the Lawyers

wpid-img_20150402_215927.jpgEven staunch supporters of the American’s with Disabilities Act and it’s California corollaries now widely acknowledge that these laws are being abused. A few lawyers and plaintiffs bring the bulk of the state’s disabled access lawsuits, typically relying on the expense of litigation rather than the merits of their claims to extract disproportionate settlements from mostly small businesses. Continue reading

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Disabled Access Lawsuit Myths: Second Myth – Small Claims Need Big Lawsuits to force Compliance (i.e. Injunctive Relief)

Disabled access (ADA) lawsuit myth #2This article is the second installment of the disabled access “myth” series. The first installment discussed the myth that alleged violators have been violating the law for for nearly 25 years. The article pointed out the fact that businesses in buildings built before 1992 (the year of implementation of the ADA), are exempted from the ADA construction standards with the exception of a duty to remove barriers when it is readily achievable to do so, which has acted a “reverse loophole” for opportunistic lawsuits and no clear defense. This reverse loophole facilitates excessive settlements by “threat of expense” of litigation rather the than threat of victory on the merits. The second myth is one that plaintiff’s attorneys use to maximize the litigation expense, as well as shock value, of their lawsuits, in turn maximizing their monetary settlement leverage. Continue reading

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Disabled Access Lawsuit Myths: First Myth – 20 Years of Violating the Law.

Small retail buildings constructed before ADA adopted.

Small retail buildings constructed before ADA adopted.

The Americans with Disabilities Act (ADA) and has done much to reshape our country to make it more accessible to people with all varieties of disabilities. There is no doubt that it was one of the most important and beneficial laws enacted in the twentieth century.

However in California, there is a seamy side to the ADA and its state access law correlaries.

Continue reading

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