Access Lawsuits: Private Enforcement of Accessibility Leads to Profitable Settlements Rather than Practical Access Solutions.

It’s probably fair to say that the U.S.A. is the World’s leading proponent for capitalism and private enterprise. As President Reagan famously asserted in his 1981 inaugural address, “government is not the solution to the problem; government is the problem.” And of course there was Grover Norquist in 2001 asserting “I don’t want to abolish government. I simply want to reduce it to the size where I can drag it into the bathroom and drown it in the bathtub.” By 2012, 95% of all Republican members of Congress had signed Norquist’s pledge to oppose any increase in personal or business taxes. The fall of the Soviet Union and the embrace of capitalism in China both reinforced the U.S.A.’s belief in private enterprise.

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April 2020 – Observations from the Trenches.

There’s been no slow down in the number of accessibility lawsuits filed during the Corona Virus Stay-at-Home mandate.  Process servers have been out serving lawsuits but hopefully not spreading the virus.  At least thus far.  A lot of the traditional accessibility lawsuits are being filed.  Most of the lawsuits I’m seeing are focusing on parking lot and common area issues.  So that means property owners need to be extra vigilant.  It’s not like the old days when the question was simply whether you had a disabled space (although there are still a few of those, particularly in more industrial businesses).  Now the lawsuits focus on technical compliance, i.e., the right number of disabled spaces (at least 1 van accessible space no matter how few customer spaces you have), the right size, the right striping, the right color and symbols, the right signage, and the right slope – sloping issues are probably the most common lawsuit issue I’m seeing now.  It’s important that you not only make sure the disabled – accessible parking is correct when it is installed, but get it re-checked every couple of years.  Faded paint and asphalt sagging (leading to sloping issues) can get you sued.  Hiring a Certified Access Specialist (CASp) to inspect your property is still a good idea.  Checking your lease/s for how disabled access responsibility is allocated is also a good idea.  If you have a commercial property and you haven’t been sued you will be unless you keep your property fully in compliance with accessibility requirements.

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Can an ADA website lawsuit violate the 1st Amendment?

Can a website accessibility lawsuit violate a person’s first amendment rights of free speech?  This is a question that has been intriguing me as the Courts have been increasingly generous in allowing these lawsuits to go forward.  The lawsuits have been extremely unfair, even devastating for some defendants because there are no laws or regulations that create objective standards of accessibility compliance for websites. Continue reading

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Court rules that ADA lawsuits are immune from Civil action by the state, even if alleged to be fraudulent.

It has not been a good summer for stemming the tide of shake-down lawsuits filed under the banner of the ADA.  Courts.

On April 24, 2019, the District Attorney of Riverside County filed a civil lawsuit, People of the State of California v. James Rutherford, et al., Case No. RIC 1902577. Continue reading

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Riverside District Attorney sues ADA litigants

The Riverside District Attorney’s Office has taken a momentous step in curbing abusive ADA litigation.  On April 24, 2019, The DA’s office  filed a lawsuit against Craig Gerald Cote, 67, of Huntington Beach, Babak Hashemi, 40, Joseph Richard Manning, 50, Michael John Manning, 43, and James Rutherford, 66. All of the forgoing but Rutherford are attorneys.  Continue reading

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Can you get justice for a fraudulent ADA lawsuit?

I often get the question: “Can I sue them back”?  People who are sued by ADA plaintiffs know  in their hearts that many, if not most, of the ADA lawsuits are essentially extortive, and did not involve a real disabled customer having difficulty with access.  They know they are being sued by a “professional” or “serial” plaintiff (as many have called them) or “high-frequency litigant” as state law now officially deems plaintiffs with 10 or more lawsuits in a year.  Several ADA plaintiffs easily surpass that threshold with several dozen lawsuits per year, and hundreds over several years.

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Surge in website accessibility lawsuits continues

A recent article noted that 75 New York City art galleries got sued for allegedly violating the Americans with Disabilities Act.  Additionally, the Ninth Circuit Court of Appeals held, despite the  absence of government regulations or standards for private websites,  a website owner could be sued for violating the Americans with Disabilities Act (ADA). Continue reading

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Is Your Website Vulnerable to an ADA Lawsuit?

Logo for Level A conformance, W3C WAI Web Content Accessibility Guidelines 2.0

Published originally at as: Are Your Websites at Risk for an ADA Lawsuit?

Enacted in 1990, and amended multiple times since, the The Americans with Disabilities Act (ADA) was created to ensure equal access for people with a wide range of disabilities.   Title III of the ADA applies to “public accommodations,” which essentially means businesses that are open to the public must provide equal access to persons with disabilities. Continue reading

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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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