mark handler
SAWHORSE
Why Claims Under Americans with Disabilities Act Are Rising
http://integrated.processmyquote.com/why-claims-under-americans-with-disabilities-act-are-rising/
Posted on October 7, 2016 by
Americans with Disabilities Act (ADA) Title III lawsuits are up 63 percent over 2015, according to law firm Seyfarth Shaw.
ADA Title III prohibits businesses open to the public from discriminating on the basis of disability. The act applies to a variety of businesses and restaurants, including warehouses, movie theaters, schools, office buildings, day care facilities, doctors’ offices and any new construction of same must comply with the ADA construction standards.
According to Minh Vu, partner and ADA Title III leader at Seyfarth Shaw, the rise in ADA lawsuits has happened as more attorneys are getting into this line of litigation. “More lawyers are finding out that this is a very…lucrative practice,” said Vu.
The number of suits filed in federal court may top more than 7,000; more lawsuits were filed in the first half of this year than in all of 2013, according to the law firm’s research.
The ADA only applies to persons who fall under the definition of having a disability, such as:
Has a physical or mental impairment that substantially limits one or more major life activities such as walking, seeing and hearing;
Has a record of such an impairment;
Is regarded as having such an impairment.
In 2013, the most complaints were filed in California, Florida and New York but other states may be catching up. An April Forbes article by Stephanie Grimoldby focused on Chicago, Ill., businesses increasingly being targeted by ADA lawsuits. She explained the increase may be due to new ADA Accessibility Guidelines that went into effect in 2012. Phoenix, Ariz., businesses were also noted to be increasingly targeted according to a July article by Maria Polletta of The Republic/azcentral.com.
handicap sign in parking area for designUnder Title III of the ADA, a plaintiff doesn’t get damages, but is entitled to attorneys’ fees and costs and injunctive relief.
According to Vu, the vast majority of cases settle for $15,000 or less. It’s a business decision, said Vu, indicating it would cost three times as much to file a motion to dismiss.
Doug Dennington, partner with Rutan Tucker, LLP in California, echoed Vu in noting that most ADA suits settle.
“If a client gets sued because, for example, they have a parking deficiency, they don’t have enough disabled parking spaces for their facility or the parking spaces are accessibly sloped, what will happen is the client will go out and fix it and try to negotiate a settlement because the cost of the litigation is typically much greater than what they can do in terms of settling the case,” Dennington said.
California Laws
Dennington explained the two applicable statutes: the California Disabled Persons Act and Unruh Act, and both allow for statutory damages and compensatory damages. The Unruh Act provides for statutory damages of $4,000 per offense and the California Disabled Persons Act is $1,000 per offense.
“A lot of plaintiffs sue under the Unruh Act,” said Dennington. “Construction-related defect claims, there’s some ability if you get your property inspected by a certified access specialist and make the corrections…They’re very complicated rules, but there’s some way to lessen the maximum damage, or the $4,000 damage, to a $1,000 offense if you get it corrected within I believe it’s 120 days.
There has been litigation on what “per offense” actually means, said Dennington.
“If you have, for example, a parking space that isn’t compliant, what if the plaintiff comes back every day for the next year? Is that 365 offenses, or at some point are you limited by due process considerations in terms of how much you can actually recover for penalties? What is clear under the statutes is that it’s per occasion, per visit to the facility. There may be multiple violations at a particular facility. You don’t get to tack on $4,000 for each different violation for the same facility, if that makes sense,” Dennington said. “The counters may be too low or too high. There may be a parking issue. There may be no insulation on the pipes under the bathroom counters. You don’t get $4,000 for each one of those. It’s just $4,000 per time you patronize the facility.”
Most people file under the Unruh Act because of the $4,000 damage opportunity, Dennington explained. Plaintiffs can’t sue under both statutes; it’s one or the other.
“Sometimes they just do the Unruh Act. I’ve had some plaintiffs that just filed under the California Disabled Persons Act. For facilities issues, that’s a term of art, “construction-related access claims,” then there is the ability to get the $4,000 lessened to the $1,000 per offense, if you get those things corrected and get it signed off by a certified access specialist,” Dennington said.
Continued below
http://integrated.processmyquote.com/why-claims-under-americans-with-disabilities-act-are-rising/
Posted on October 7, 2016 by
Americans with Disabilities Act (ADA) Title III lawsuits are up 63 percent over 2015, according to law firm Seyfarth Shaw.
ADA Title III prohibits businesses open to the public from discriminating on the basis of disability. The act applies to a variety of businesses and restaurants, including warehouses, movie theaters, schools, office buildings, day care facilities, doctors’ offices and any new construction of same must comply with the ADA construction standards.
According to Minh Vu, partner and ADA Title III leader at Seyfarth Shaw, the rise in ADA lawsuits has happened as more attorneys are getting into this line of litigation. “More lawyers are finding out that this is a very…lucrative practice,” said Vu.
The number of suits filed in federal court may top more than 7,000; more lawsuits were filed in the first half of this year than in all of 2013, according to the law firm’s research.
The ADA only applies to persons who fall under the definition of having a disability, such as:
Has a physical or mental impairment that substantially limits one or more major life activities such as walking, seeing and hearing;
Has a record of such an impairment;
Is regarded as having such an impairment.
In 2013, the most complaints were filed in California, Florida and New York but other states may be catching up. An April Forbes article by Stephanie Grimoldby focused on Chicago, Ill., businesses increasingly being targeted by ADA lawsuits. She explained the increase may be due to new ADA Accessibility Guidelines that went into effect in 2012. Phoenix, Ariz., businesses were also noted to be increasingly targeted according to a July article by Maria Polletta of The Republic/azcentral.com.
handicap sign in parking area for designUnder Title III of the ADA, a plaintiff doesn’t get damages, but is entitled to attorneys’ fees and costs and injunctive relief.
According to Vu, the vast majority of cases settle for $15,000 or less. It’s a business decision, said Vu, indicating it would cost three times as much to file a motion to dismiss.
Doug Dennington, partner with Rutan Tucker, LLP in California, echoed Vu in noting that most ADA suits settle.
“If a client gets sued because, for example, they have a parking deficiency, they don’t have enough disabled parking spaces for their facility or the parking spaces are accessibly sloped, what will happen is the client will go out and fix it and try to negotiate a settlement because the cost of the litigation is typically much greater than what they can do in terms of settling the case,” Dennington said.
California Laws
Dennington explained the two applicable statutes: the California Disabled Persons Act and Unruh Act, and both allow for statutory damages and compensatory damages. The Unruh Act provides for statutory damages of $4,000 per offense and the California Disabled Persons Act is $1,000 per offense.
“A lot of plaintiffs sue under the Unruh Act,” said Dennington. “Construction-related defect claims, there’s some ability if you get your property inspected by a certified access specialist and make the corrections…They’re very complicated rules, but there’s some way to lessen the maximum damage, or the $4,000 damage, to a $1,000 offense if you get it corrected within I believe it’s 120 days.
There has been litigation on what “per offense” actually means, said Dennington.
“If you have, for example, a parking space that isn’t compliant, what if the plaintiff comes back every day for the next year? Is that 365 offenses, or at some point are you limited by due process considerations in terms of how much you can actually recover for penalties? What is clear under the statutes is that it’s per occasion, per visit to the facility. There may be multiple violations at a particular facility. You don’t get to tack on $4,000 for each different violation for the same facility, if that makes sense,” Dennington said. “The counters may be too low or too high. There may be a parking issue. There may be no insulation on the pipes under the bathroom counters. You don’t get $4,000 for each one of those. It’s just $4,000 per time you patronize the facility.”
Most people file under the Unruh Act because of the $4,000 damage opportunity, Dennington explained. Plaintiffs can’t sue under both statutes; it’s one or the other.
“Sometimes they just do the Unruh Act. I’ve had some plaintiffs that just filed under the California Disabled Persons Act. For facilities issues, that’s a term of art, “construction-related access claims,” then there is the ability to get the $4,000 lessened to the $1,000 per offense, if you get those things corrected and get it signed off by a certified access specialist,” Dennington said.
Continued below