Effective litigation strategies and compliance programs
Americans with Disabilities Act (ADA) Representation
Passed in 1990, the Americans With Disabilities Act (ADA) is an important piece federal legislation requiring the removal of barriers that prevent persons with disabilities from full and equal access to public accommodations. This legitimate and important piece of civil rights law has proven difficult and costly to implement.
Because Federal law provides for injunctive relief to stop ADA violations, as well as payment of plaintiffs’ and attorneys’ fees, ADA lawsuits have proliferated. Under California, Colorado and Florida law, plaintiffs can also recover actual, punitive and statutory damages. This has given rise to a cottage industry of “professional plaintiffs” and their “sue and settle” tactics have been largely effective.
Despite many attempts, Congress has not acted to include a “period to cure” or correct violations, which many believe could work to the advantage of the disabled community as well as to the business community. Those who have looked to the courts for direction have found little legal precedent, as few ADA cases have gone to trial. Fortunately, courts have delivered opinions in a handful of ADA cases that have provided some positive direction to businesses and entities that fall under the ADA’s requirements. JMBM has participated as defense counsel in some of these cases.
Scope of the ADA
As technology advances and business methods evolve, so does the reach of the ADA. We have advised companies with respect to removing architectural barriers and addressing accessibility issues that include travel paths, parking, restroom facilities, counters and seating, pools, ATMs and other electronic kiosks, the use of Braille, hearing devices, service animals, and the Internet, including retail websites and online reservation systems for the hospitality industry.
ADA Compliance Programs
ADA compliance is an area where preventative action can save businesses and property owners from the cost of future litigation, as well as provide enhanced service to their disabled customers. When our clients are served with an ADA lawsuit, we generally provide enterprise-wide advice that allows clients to bring all of their properties and procedures into compliance with the ADA. This practical approach allows our clients to pursue their day-to-day business with confidence.
We have performed system-wide surveys to identify architectural accessibility barriers and make cost- effective barrier removal recommendations required by the ADA and California Building Code. We review each location and provide summaries of accessibility issues that do not conform to current codes. We also review work practices and provide advice on company policies, practices and procedures that may affect accessibility to customers with disabilities.
ADA Litigation Defense and Department of Justice Investigations
Jeffer Mangels Butler & Mitchell LLP has significant experience in defending ADA claims. We have defended more than 450 ADA actions filed against a wide range of commercial enterprises, including cases resulting in published decisions. We have successfully defended clients when Federal or California law does not support the allegations against them. Where violations exist and the plaintiff has standing, we advise our clients to address the access barriers and assist them in settling the case expeditiously through negotiation or alternative dispute resolution.
Because we have been across the table from “disability rights” plaintiffs’ counsel many times, we are familiar with their tactics and have consequently developed effective litigation strategies. Our experience has given us a very clear understanding of the legal issues under the ADA and related statutes, including the California Unruh Civil Rights Act and the California Disabled Persons Act.
JMBM does not need to re-invent the wheel nor conduct needless and expensive litigation. Working with the most experienced access consultants in California, we can quickly and cost-effectively analyze your ADA compliance issues, make cost-effective recommendations, and develop the best litigation strategy for your situation. If appropriate, we can advise you on matters of insurance coverage and possible indemnity claims against landlords, design professionals and contractors.
We have represented national retail and hospitality clients in Department of Justice investigations and litigation across the United States.
We have performed system-wide accessibility audits for City National Bank, Extended StayAmerica hotels (including prototype plan checking), Bank of the West, and California State Automobile Association. We have assisted Darden Restaurants (Red Lobster, The Olive Garden), Landry's Restaurants, Inc., and Affinity Group on compliance with the ADA and California disabled access laws.
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Martin H. Orlick