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The Blog of William D. Goren, J.D. LL.M.

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Rolf Jensen and Associates Inc. v. eighth judicial District Court of the state of Nevada

Title III Standing and ADA Liability for Real Estate Investment Trusts

September 19, 2017 by William Goren 1 Comment

I have been blogging since December 2011. In all that time, with the exception of a winter break, I have never taken two weeks off. I do have a reason for doing so here. First, we had Labor Day weekend and then working with co-counsel, David Llewellyn, we had to move things to file a complaint in the case of Stian v. Atlanta Medical Center Inc. and Anthony E. Barnes M.D. in Fulton County Superior Court involving culturally deaf plaintiffs where we allege both the failure to obtain consent (medical malpractice), and the failure to provide effective communications per this case due to the failure to provide an ASL interpreter. Second, we had hurricane Irma hit Atlanta at the beginning of this week. We are all okay here. Several big trees fell down around us, and we lost power for 34 hours, but nothing beyond that. Cars are okay. Then, at the end of the week, Robin Shea and I presented to the Federal Bar Association at their national convention here in Atlanta on ADA hot issues: the labor and employment law version. At that presentation, we covered: pregnancy and the ADA; mandatory reassignment; can you get compensatory and punitive damages in ADA retaliation cases; marijuana in the workplace; and the decision throwing out the EEOC wellness plans. So, the week was insane. It was fabulous to finally meet Robin, whom I had never met before except in cyberspace.

So now I am back to blogging. In deciding what to blog on week to week, one of the factors that I consider is whether a fellow blogger has blogged on it. If they have, can I put a different spin on it? If not, I let it go and blog on something else. For example, Robin Shea on her blog, blogged on the case throwing out the EEOC wellness plans. Her blog was so comprehensive and so well done, that I didn’t think I could add anything to it. That blog entry can be found here. There are other times where a blog entry appears, and I believe I can add a different perspective to it. The blog entry of this week is one of those situations. My colleague, Richard Hunt, recently blogged here on the case of Civil Rights Education and Enforcement Center v. Hospitality Properties Trust. After reading his very provocative blog entry, I thought I could add a different perspective to it. As usual, the blog entry is divided into categories and they are: facts; issues presented; holdings; court’s reasoning standing; court’s reasoning REIT class action; concurring and dissenting opinion’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

Hospitality Properties Trust (HPT) is a real estate investment trust (REIT in the vernacular), owning hotels across the United States. Real estate investment trusts are where investors own a fraction of a group of real estate holdings. They are exempt from taxation on corporate profits. That is, shareholders are taxed only when they receive dividends. To avoid taxation at the corporate level, real estate investment trusts, among other things, must remain passive investors and delegate the management of particular facilities. The plaintiffs are all persons with disabilities using wheelchairs. Each phoned an HPT owned hotel located in her state of residence that provided free local shuttle services and each one was informed that the hotel at issue did not provide equivalent shuttle service for people with mobility impairments. Each person alleged that they would have stayed at the hotel they called but for its failure to provide equivalent shuttle service. Each person also alleged that they intended to stay at the hotel, but the hotel’s failure to provide equivalent shuttle service deterred them from doing so at present. The plaintiff filed a class action against HPT alleging that HPT failed to offer equivalent accessible transportation services at its hotel in violation of title III of the ADA. Plaintiffs alleged that while most HPT hotels provide some form of free local transportation service, very few of those hotels provide equivalent service accessible to people using wheelchairs or scooters for mobility.

II

Issues Presented

  1. Can a plaintiff rely on the deterrent effect doctrine in order to establish constitutional standing under the ADA where the plaintiff lacks first-hand knowledge that an establishment is not in ADA compliance?
  2. Does a plaintiff have constitutional standing where her only motivation for visiting the facility is to test for ADA compliance?
  3. Do real estate investment trusts by their very nature get a pass on ADA compliance, particularly with respect to class action litigation?

III

Holdings

  1. Yes
  2. Yes
  3. Yes

 

IV

Court’s Reasoning Standing

  1. A plaintiff experiences continuing adverse effects where a defendant’s failure to comply with the ADA deters her from making use of the defendant’s facility.
  2. The harm a plaintiff faces is concrete and particularized with respect to their intent to visit the hotels once they are notified that there is not equivalent shuttle service for persons with disabilities.
  3. Actually visiting a hotel, as opposed to phoning, does not make a plaintiff’s injury anymore concrete. In either event, a plaintiff is deterred from using the accommodation. It is the plaintiff’s actual knowledge of a barrier, rather than the source of that knowledge, that is determinative.
  4. While past actions may constitute evidence bearing on whether there is a real and immediate threat of repeated injury, that is not necessarily dispositive evidence. For instance, evidence of concrete travel plans would be sufficient to show that a plaintiff with a disability intends to visit the facility even if she has not traveled there in the past.
  5. Requiring a plaintiff to personally encounter barriers also causes line drawing problems. Would it be enough to travel to the hotel and ask the concierge whether the hotel’s shuttle service accommodates a person with a disability or must a plaintiff actually attempt to use the purportedly deficient accommodation? If the concierge says there is no accommodation, must the plaintiff perform a visual inspection or review schedules to verify this?
  6. Making case-by-case determinations about whether a particular plaintiff’s injury is imminent is well within the competency of the District Courts.
  7. Under the ADA, once a plaintiff has actually become aware of discriminatory conditions existing at a public accommodation thereby deterring him or her from visiting or patronizing that accommodation, the plaintiff has suffered an injury. That injury continues so long as equivalent access is denied.
  8. Interpreting the ADA to exclude testers from enforcing the right to be free from discrimination would undermine the specific intent of the ADA.
  9. Relying on a case from the 11th Circuit, Houston v. Murad Supermarkets, Inc., 733 F.3d 1323 (11th 2013), the court said: 1) nothing in the text of title II of the ADA constrains the statutorily created right to be free from disability discrimination in the enjoyment of a facility based upon a plaintiff’s motive for assessing the facility; 2) 42 U.S.C. §12182(a) specifically states that no individual shall be discriminated against on the basis of disability, which is similar to the Fair Housing Act language; 3) 42 U.S.C. §12188 provide that any person subject to discrimination on the basis of disability may bring suit; and 4) Congress knows how to limit standing to sue under discrimination statutes to certain groups of people and has done so in various other statutes, but chose not to do so in 42 U.S.C. §12182(a). Accordingly, a tester does have the right to sue for injunctive relief under 42 U.S.C. §12182(a).
  10. The 10th Circuit has also held tester standing is viable under title III of the ADA in this case. The 10th Circuit said that title III provides remedies for any person subject to illegal disability discrimination. Therefore, it concluded that anyone suffering an invasion of legal interest protected by title III may have standing regardless of his or her motivation in encountering that invasion.
  11. The proper focus in determining jurisdiction are the facts existing at the time the complaint under consideration is filed.

V

Court’s Reasoning REIT Class Action

  1. To get class certification, a party has to show the requirements of federal Rules of Civil Procedure 23(a) are satisfied, which are: 1) joinder of all members is impracticable; 2) questions of law or fact are common to the class; 3) the named plaintiffs claims or defenses are typical of those of the class; and 4) representative parties will fairly and adequately protect the interests of the class. Once that is done, then a party has to satisfy one of three requirements of rule 23(b). With respect to rule 23(b), plaintiff relied on claiming that the party opposing the class had acted or refused to act on grounds that apply generally to the class so that final injunctive relief would be appropriate respecting the class as a whole.
  2. HPT does not itself operate the hotels. Rather, HPT utilizes various professional management companies as eligible independent contractors to operate the hotel it owns. Eligible independent contractors are a person or corporation actively engaged in the trade or business of operating qualified lodging facilities and that does not control more than 35% of the real estate investment trust’s shares or voting powers.
  3. While HPT’s agreement with management companies required eligible independent contractors to comply with all laws in their fulfillment of their management agreement obligations, those agreements also stipulated that the management companies have sole, exclusive, and uninterrupted control over the operation of the hotels.
  4. HPT does not set or provide the management companies with any uniform policy or plan regarding the operation of shuttle or transportation services at its hotels. Accordingly, it is the management companies and not HPT that decide whether to offer local transportation services and the terms for which those services operate.
  5. According to HPT’s website, it’s 500 hotels are operated by six eligible independent contracting firms, such as but not limited to Wyndham and Hyatt.
  6. Presumably, the managers maintaining control over the properties they have contracted to manage, could themselves be named as defendants in separate class actions, and could ultimately be held responsible for any discriminatory practices.
  7. The District Court correctly found that HPT did not have a policy regarding how its eligible independent contractors had to comply with the ADA. In fact, individual hotel practices were all over the place.
  8. HPT has done nothing to discourage its contractors from complying with the ADA since HPT’s contracts require hotel to operate in compliance with applicable federal and state laws. Such a contractual term is a policy of delegation and not of noncompliance.
  9. There is no evidence of a single general policy of discrimination that could serve as a common issue.
  10. The concept of a nondelegable duty does not mean that an actor cannot delegate an activity to an independent contractor.
  11. Even if HPT would be vicariously liable for ADA violations by contractors, that by itself but not bear on commonality for purposes of class action certification since that only creates a common issue as to where the financial burden of liability falls and not a common issue regarding liability. There is also no common policy or practice.
  12. While intentional noncompliance would amount to an unofficial policy of discrimination weighing in favor of class certification, a policy against having uniform practices is not a common issue for class certification purposes.
  13. It simply doesn’t make sense to say that firms will violate the ADA rather than comply with it so long as they can avoid class-action suits.
  14. Whatever incentive to sue under the ADA, the class action rules do not require HPT to manage its properties in a manner facilitating class actions if and when ADA violations occur.

V

Reasoning of Concurring and Dissenting Opinion

Judge Morris agreed that the deterrent effect doctrine applied and that testers have standing, but he dissented from the conclusion that HPT could escape ADA liability and he reasoned as follows:

  1. Title III of the ADA prohibits discrimination on the basis of disability in the full and equal enjoyment of accommodations by any person owning, leasing (or leases to), or operating a place of public accommodation.
  2. Congress made no distinction whether the owner was a natural person, a partnership, a corporation, a real estate investment trust, or any other type of structure allowed under the law. Rather, Congress just outlawed discrimination on the basis of disability.
  3. The majority’s conclusion permits HPT to avoid for all practical purposes the consequences of the ADA. By this decision, plaintiffs and other advocates of people with disabilities will now be required to seek equal treatment one hotel at a time. HPT’s decision to establish a real estate investment trust as its preferred ownership structure should not shield HPT from its alleged systematic effort to abate the equivalent transportation requirements of the ADA.
  4. In civil rights litigation, plaintiff’s satisfy the commonality requirement where the lawsuit challenges a systemwide practice or policy affecting all of the putative class members.
  5. Plaintiffs all suffer from similar harm based upon HPT’s failure to accommodate their disability as required by the ADA. Whether one hotel provides no van service for people with mobility impairments while another hotel charges extra for van service, is irrelevant to the issue of class certification. Instead, what should drive the analysis is whether all of the putative class members suffer from the failure of HPT’s hotels to accommodate their disability as required by the ADA.
  6. Precedent does support class certification where you have shared legal issues with diverse factual predicates.
  7. The shared legal issue of the denial of equivalent transportation in violation of the ADA satisfies the commonality requirement.

VII

Takeaways

  1. Phoning and being told that a place of public accommodation is not accessible for a person with a disability is very real. In fact, this almost happened to me yesterday. I am going to a bar convention in a different part of the country. As everyone knows, I am deaf but function entirely in the hearing world thanks to lip reading and very advanced powerful hearing aids. However, when I travel alone (my wife is hearing), at night I am a deaf person. That means I need a room that is accessible to the deaf. Being accessible means a kit they can then install into a room. I am perfectly mobile. Also, I am a bit clumsy and not all that great in space. That means a hotel room with grab bars and all these other things that are needed for a mobility impaired person actually gets in my way. There is also the taking away of the room from someone with a mobility impairment when it is simply not necessary. Finally, it also smacks of unnecessary segregation. So, whenever I go on one of these trips, I always reserve a room with the hotel directly. Yesterday, I spent quite a time back and forth trying to explain to the hotel reservation person that I needed a deaf accessible room and had no interest in a room for people with mobility impairments. The person on the other end said that I had no choice but to use a mobility impaired accessible room, which would also be accessible to a deaf person. I tried to explain that all they needed was a kit and there was no need for me to be in a room reserved for people with mobility impairments. The person resisted, and I finally asked to speak to a manager. She then got on the phone with their engineering staff and found out, as I already knew, that all they needed was a kit and that they could put me in any room. I have to tell you I came very very close to saying forget about it and not staying there. It amazes me how these high-end hotels simply do not get deaf accessibility 25 years after the ADA went into effect. If I had to choose another hotel if the person did not back down, I most certainly would have been injured even though I never actually visited the hotel. So, I certainly get the court’s point that an injury can be had when a person on the other end of the line assures that individual that they would not be accessible to a person with a disability.
  2. The majority opinion works as such where I agree with the dissent that real estate investment trusts by their very definition no longer have to worry about complying with the ADA under this decision. I also do not entirely buy that this is a delegation. Seems to me, the facts of this situation are that they are transferring the obligation to comply with the ADA onto someone else. Finally, this decision gives real estate investment trusts absolutely no incentive to train their independent contractors on their ADA compliance obligations.
  3. I also agree that requiring a plaintiff to personally encounter a barrier does indeed cause line drawing problems.
  4. As the court mentioned, this is not the first case to say that testers have standing under the ADA. For instance, we discussed tester standing in this blog entry.
  5. While real estate investment trusts are off the hook for ADA liability, the independent contractors themselves are certainly not.
  6. I don’t think the Nevada Supreme Court, for example, would agree with the majority decision regarding the obligations of the real estate investment trust with respect to the ADA (See this blog entry). So, be sure to check your jurisdiction.
  7. One could argue that this decision goes beyond the case discussed in this blog entry. In that case, also from the Ninth Circuit, ADA compliance was allowed to be delegated. However, here an argument exists that ADA compliance is not just being delegated but transferred.
  8. I understand how Richard could say that telephoning means trolling for dollars. However, as I mentioned above, the harm from being rejected over the phone on the basis of disability is quite real. Perhaps, a compromise could be reached in the intent to return part of the analysis. For example, is there anything else besides the telephone call indicating an intent to return or show up at that place? For example, in my case, I had already registered for the conference and booked airfare. In other words, assessing whether the allegations of intent to return go beyond boilerplate claims.
  9. How much do you want to bet that when I get to the hotel it will still be an adventure in getting the kit set up in the room? If I were you, I wouldn’t take that bet:-)
  10. This case does not rule out class actions against individual properties or against the eligible independent contractors.

Filed Under: ADA, Federal Cases, State Cases, Title III Tagged With: ADA, civil rights education and enforcement center v. hospitality properties trust, class action, class action certification, delegable duty, deterrent effect doctrine, eligible independent contractor, federal Rules of Civil Procedure rule 23, hotels, Houston v. Murad supermarkets inc, HPT, incentive to comply with ADA, Judge Morris, nondelegable duty, REIT, Rolf Jensen and Associates Inc. v. eighth judicial District Court of the state of Nevada, rule 23, Silva v. Baptist health South Florida inc, standing, stian v. Atlanta medical Center Inc., telephone, tester standing, title III, Vicarious liability

ADA Compliance as a Delegable Duty: Did I really Say That?

April 28, 2017 by William Goren 3 Comments

It isn’t one of my most popular blog entries, but in my opinion, it is one of my most important. I am referring to the blog entry talking about the ADA as a nondelegable duty, which can be found here. On April 24, 2017, the U.S. Court of Appeals for the Ninth Circuit came down with a decision that calls into question whether the Nevada Supreme Court in Rolf Jensen got it right.

The case of the day is City of Los Angeles v. AECOM Services, Inc. decided by the United States Court of Appeals for the Ninth Circuit on April 24, 2017. As is usual, the blog entry is divided into categories: facts; court’s reasoning; and takeaways. Of course, the reader is free to concentrate on any or all of the categories.

I

Facts:

Two individuals with disabilities filed suit against the City of Los Angeles alleging that the City’s flyaway facility and service, a bus system providing transportation between Los Angeles International Airport and various locations, failed to meet accessibility standards set forth in title II of the ADA. The City subsequently filed a third-party complaint against AECOM Services and Tutor Perini Corporation. The complaint alleged that pursuant to the provisions of the contract entered into by the City and the company hired to design and construct the facility, that AECOM was obligated to defend, indemnify, and hold harmless the City against all suits, claims, losses, demand, and expenses to the extent that any such claims resulted from the negligent and/or intentional wrongful acts or omissions of AECOM, its subcontractors, officers, agents, servants, or employees. The City further alleged that Tutor, the successor in interest to another company retained by the City to construct the facility, was contractually obligated per the provisions of that contract to defend, indemnify, and hold harmless the City against all costs, liability, damage or expense sustained as a proximate result of the acts or omissions of Tutor or relating to acts or events pertaining to, or arising out of, the contract. The contract between the City and Tutor’s predecessor in interest also required that the contractor when performing its contractual obligations comply with all applicable present and/or future local, state and federal laws, statutes, ordinances, rules, regulation, restrictions and/or orders, including the ADA. It also stated that contractor shall be solely responsible for any and all damage caused, and/or penalties levied, as the result of the contractor’s noncompliance with such statutes, ordinances, rules, etc. The District Court threw out the case on the grounds the ADA preempted the indemnification claims (i.e. nondelegable duty essentially), and the City appealed.

II

Court’s Reasoning

In reversing and remanding the case for further proceedings, the Ninth Circuit reasoned as follows:

  1. In determining whether federal law preempts state law, the first thing to look at is the purpose of Congress.
  2. In all preemption cases, especially where Congress has legislated in a field where the States have traditionally occupied, the assumption is that the historic police powers of the States are not superseded by the federal act unless Congress clearly and manifestly says so.
  3. There are several ways federal law may preempt state legislation, including: 1) Congress stating so in express terms; 2) inferring preemption when federal regulation in a particular field is so pervasive as to make the reasonable inference that Congress left no room for States to supplement it, what is called field preemption. That is, the volume and complexity of federal regulation demonstrates an implicit congressional intent to displace all state laws. For a discussion of field preemption, check out this blog entry; 3) implying preemption when state law actually conflicts with federal law, or what is called conflict preemption; and 4) obstacle preemption.
  4. The presumption against preemption exists because respect for the States as independent sovereigns in our federal system leads to the assumption that Congress does not cavalierly preempt state law causes of action.
  5. Neither title II of the ADA nor §504 of the Rehabilitation Act contains a statement of express preemption.
  6. Field preemption doesn’t work because title II of the ADA specifically states that nothing in that chapter is to be construed to invalidate or limit the remedies, rights, and procedures of any State or political subdivision of any States or jurisdictions providing greater or equal protection for the rights of individuals with disabilities than afforded by title II of the ADA. Accordingly, the ADA expressly disavows field preemption of the disability rights field.
  7. Obstacle preemption, which is a subset of conflict preemption, does not apply here either for a host of reasons: the City is not seeking to allocate the full risk of loss to someone else; the City only assigned liability to the defendants to the extent that the defendants own actions gave rise to liability; and the greater concern is for potential contractors to shield themselves from any liability they cause under both States contract law and federal disability regulations if preemption is found to exist.
  8. Though the City is seeking indemnification for a contractor’s wrongdoing, that compensation only constitutes a portion of the City’s total liability under federal disability statutes. In other words, the relief sought may be complete indemnification from the perspective of the contractor’s liability, but it constitutes only partial contribution from the perspective of the City’s liability exposure.
  9. Cities implement policies and procedures as part of their standard operation. Were a court to permit a city to contract away liability to implement policies and procedures complying with federal disability laws and regulations, it would impermissibly be permitting delegation of an entity’s duties under the ADA.
  10. In this case, the City is seeking the redress for specific construction and design failure related to the facility. Cities often have no choice but to contract out designing and construction of public facilities because they do not have the expertise, personnel, or equipment necessary for such projects. Such a delegation is by necessity. Accordingly, an important component in a city doing all that it can to fulfill its duties under title II of the ADA and §504 the Rehabilitation Act is to require as part of its contracts with necessary third parties that the requirements of those statutes be met.
  11. Permitting enforcement of contract claims seeking to hold the contractor liable for duties necessarily delegated to it, does not raise the problem of entirely insulating public entities from ongoing title II of the ADA or §504 of the Rehabilitation Act liability posed by offloading all of the City’s responsibilities under those laws.
  12. If title II of the ADA is viewed as encompassing a public entity’s outputs, that supports the notion that Congress would not have intended to preempt claims for liability arising from tasks that a city does not do, but, in many cases, must instead contract with others to provide the service.
  13. Permitting claims for contribution commensurate with a third party’s wrongdoing does not pose the same obstacle as offloading all of the responsibilities of the ADA onto someone else.
  14. The presumption against preemption applies where a given area is one where the States have historically had the power to regulate, and in this situation, States have historically regulated in the area of civil rights, including the field of discrimination against persons with disabilities.
  15. Obstacle preemption, which applies when a given state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, doesn’t work here either because nothing in title II of the ADA or §504 the Rehabilitation Act addresses a claim for state law indemnification or contribution claims filed by a public entity against a contractor.
  16. Case law from other Circuits suggesting that congressional omission of a federal cause of action for indemnification is a reason to preempt state law claims, turns the presumption against preemption on its head. The basic premise of the presumption is that absent an affirmative indication to the contrary, a federal regulation does not preempt state law. The failure to provide a federal parallel to a state law cause of action doesn’t rise to that standard.
  17. Certainly, it is a valid concern that a public entity could contract out of title II or §504 compliance with respect to the public entity’s failure to maintain appropriate policies and practices (failure to take action solely within its control). Permitting a shift of liability to a party lacking the power to remedy the violation would frustrate the federal statutes regulatory purposes. For example, the legislative history of the ADA confirms that a landlord has an independent obligation to comply with the ADA that may not be eliminated by contract.
  18. The claims asserted by the City against the defendants in this case do not seek to shift liability for what the public entity can control onto somebody else.
  19. The City’s third-party claims seek only to collect for violations arising out of defendants own negligence or wrongdoing. In other words, the City despite how it styled its claim, is in actuality seeking contribution from the defendants. Allowing such claims does not plausibly pose an obstacle to the intended purpose and effect of either the ADA or the Rehabilitation Act. In fact, a finding of preemption would hamper the statutes regulatory purposes. If there is no preemption, then the most a public entity can be able to do is to expressly contract for compliance and from there, the entity best situated to ensure full compliance may well be the contractor tasked with designing or constructing the public resource. If you preclude contract clauses for contributions, you then reduce a contractor’s incentives to ensure that the applicable statutes, laws, and regulations are complied with.

III

Takeaways:

  1. Is this case really an overrule so to speak of our Mandalay Bay case? I’m not sure it entirely is for reasons that follow below.
  2. The court was very careful to style this as a contribution case rather than an indemnification case. The difference is important because contribution implies shared responsibility while indemnification implies sole responsibility.
  3. This case was a title II case and not a title III case. The difference is important because the range of responsibility for ADA compliance are far greater with respect to title II than they are with respect to title III.
  4. The court did note that responsibilities of landlords cannot be delegated.
  5. As mentioned above, if you are looking for where field preemption does work, check out this blog entry.
  6. This case does allow for indemnification where that indemnity is the result of the contractor’s own negligence/screw up.
  7. This case implies that failure of a contractor to understand the applicable ADA obligations necessary for a contractor to carry out their work may also be negligence. See also this blog entry.
  8. The critical question is whether the liability exposure from the perspective of the entity contracting out services is indemnification or just partial contribution.
  9. The court says that to permit a city to contract away liability to implement policies and procedures complying with federal disability regulations would impermissibly permit delegation of an entity’s duties under the ADA? Does that mean a public entity cannot contract out HR services or employee benefit services? Maybe. Certainly, means joint and several liability at a minimum.
  10. To my mind, it is a strong argument to say that contractors are often the best situated to ensure full compliance with the designing or constructing of public resources and that if contribution was precluded, a disincentive for complying with the applicable statute, laws, and regulations is created.
  11. The case seems to be strong in terms of its reasoning. With the current makeup of the Supreme Court and the nature of this case, I would think that the Ninth Circuit decision would be affirmed by the Supreme Court by at least a 6-3 majority. Unclear to me whether the Supreme Court would take the case in any event because there may not even be a conflict among the Circuits. For example, the Ninth Circuit went into elaborate detail as to why this case was different from the Fourth Circuit case.

Filed Under: ADA, Constitutional law, Federal Cases, Final Federal Regulations, Rehabilitation Act, Title II Tagged With: §504, ADA, air carrier Access act, city of Los Angeles v. AECOM services Inc., conflict preemption, contribution, delegable duty, field preemption, Fourth Circuit, indemnification, independent obligation, Joint and several liability, landlord, Mandalay Bay, negligence, Ninth Circuit, nondelegable duty, obstacle preemption, outputs, partial contribution, preemption, presumption against preemption, rehabilitation act, Rolf Jensen and Associates Inc. v. eighth judicial District Court of the state of Nevada, shifting liability, title II, Tutor Perini

Fending off the Serial Plaintiff: A Preventive Law Approach in Two Steps

November 20, 2016 by William Goren 5 Comments

Over the last couple of months, I have received this phone call close to once a week. So, I thought I should write a preventive law approach to dealing with this. The situation goes like this: potential client owns a small business/restaurant/shopping mall and is worried about fending off a serial plaintiff either presently or in the future. Often times, small business/restaurant/shopping mall was built before the ADA and no alterations were performed since then. How do they go about doing it? Keep in mind, that there is no way to prevent these kind of lawsuits, but there is a way to set it up so that these lawsuits become difficult for plaintiffs to win. With apologies to Texas, the way to approach this is to do the two-step. The two steps are: 1) Get the property surveyed for compliance with the applicable ADAAG guidelines/standards; and 2) Use a knowledgeable attorney to analyze the results of that survey in order to assess just what are your legal obligations.

There are some other things to keep in mind.

  1. Even assuming that the structure was built pre-ADA and no alterations occurred since then, you do not get a free pass. You still will have to do whatever is readily achievable per 28 C.F.R. §36.304. What is readily achievable is a legal call, but a call that can’t be made without knowing what is out of compliance with the applicable guidelines/standards.
  2. If alterations did occur, then those alterations as well as the path of travel to those alterations must have been done in accordance with the applicable ADAAG guidelines/standards. As far as what is an alteration, check out this blog entry.
  3. Remember, that both the landlord and the tenant are liable for ADA accessibility issues. So, you want to be sure that the lease between the landlord and the tenant covers ADA accessibility. Such a lease apportioning ADA responsibility, per 28 C.F.R. §36.201, does not affect liability (after all, compliance with the ADA is a nondelegable duty), but does affect reimbursement for the repairs. Also, with respect to any such lease, you are much better off phrasing such a clause in terms of reimbursement rather than indemnification in order to get around the nondelegable duty issue.
  4. Another thing to consider is that readily achievable ultimately comes down to a question of the financial resources of the entity. So, you may want to consider incorporation if that is not in place already.
  5. Where do you find a qualified surveyor to assess what needs to be done to make the facility compliant with the applicable ADAAG guidelines/standards? In Texas and in California, they have certified access/accessibility specialists who do nothing else than survey facilities for ADA compliance with the applicable guidelines/standards. Other states do not have such a system, and so you are left with having to find qualified people to do this (using such people may also give you additional legal protections under state law). ADA compliance surveyors aren’t necessarily easy to find, and over time, you might develop a network of people that do this, such as I have for Texas and here for the Chicago area in Illinois. Also, this website of a national firm, which firm I have contacted in the past, may also be helpful. Make sure that the survey report includes an estimate of what it would cost for each repair they find needed in order to become compliant with the applicable ADAAG guidelines/standards.
  6. What about the cost for doing this two-step process? Getting the property surveyed for ADA compliance might costs 5-10,000 dollars or so. Perhaps more or perhaps less depending upon the facility involved and the expenses of the person doing the surveying. Then, it might be another five hours of lawyer time or so to figure out just what the compliance obligations are. Sounds like a lot, but consider this article from San Francisco where it says that the average costs in San Francisco of an ADA settlement is $30,000, including attorney fees. That settlement figure might be higher for California as California has a law that can make damages quite large for title III violations, while other states do not have such a law. Also, I don’t know if that figure includes attorney’s fees of the defendant as well at the plaintiff or just attorney’s fees for the plaintiff. In those other states that do not have laws running up damages for violations of title III, it certainly isn’t unusual to see a 4-5,000 dollar demand letter. Keep in mind, that settling with a serial plaintiff will not protect you from other serial plaintiffs.
  7. So, doing the two-step means an initial outlay of five to $10,000 possibly more or less to get the compliance survey done. Then, a matter of some hours of attorney time. But, think about what you save. First, you have a process in place to deal with plaintiffs who may come by and look for easy targets. Once a lawyer has evaluated the compliance survey, it can then be determined whether the things that are out of compliance are in need of an immediate fix or whether the things out of compliance can be prioritized to be solved later, as discussed in this blog entry for example. Once you have that information, and a plaintiff persists in demanding immediate accessibility for items that need not be immediately accessible, you can defend on the grounds you are doing everything that the law mandates you do. Also, you can argue to the plaintiff that since you are doing everything that the law mandates you need to do, further litigation on their part may set themselves up for a claim for attorney’s fees from the defendant per this blog entry.

So, do the two step!

Happy Thanksgiving!!!!!!!

Filed Under: ADA, Final Federal Regulations, Guidances, Title III Tagged With: 28 C.F.R. §36.201, 28 C.F.R. §36.304, ADA, ADAAG, CRST Van Expedited, evan terry, Inc. v. EEOC, Johnson v. San, prioritize, readily achievable, recreation accessibility consultants, Rolf Jensen and Associates Inc. v. eighth judicial District Court of the state of Nevada, Stephen Meyer, title III

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Understanding the ADA 4th Edition

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Recent Posts

  • Intent to Return December 3, 2019
  • Hostile Work Environment Issues and Demotion as a Reasonable Accommodation November 18, 2019
  • Interactive Process Framework November 11, 2019
  • Shell Reversed on Appeal November 4, 2019

ADA Legal Resources

  • Department of Justice ADA Web Site
  • Disability Discrimination, EEOC Info
  • DuPage County bar Journal, The Brief
  • Job Accommodation Network
  • Midwest Center for the Law and Deaf
  • National Association of Attorneys with Disabilities (NAAD)
  • Understanding the Americans with Disabilities Act

Articles

  • ABA legal technology resource center roundtable discussion of fixed fees
  • ADA and Mediation/Arbitration: Things to Think About
  • Affirmative-action and persons with disabilities
  • Americans with Disabilities Act Claims: Is a Mixed Motive Jury Instruction Dead?
  • An ADA Checklist as You Go About Your Practice
  • Disability compliance for higher education interview on why colleges and universities should perform ADA compliance audits
  • Expect huge impact from DOJ regulations implementing Titles II and III of ADAAA
  • Help your institution avoid some common mistakes when dismissing students with disabilities
  • Internet addiction, ADA, and employment
  • Internet and Title III of the ADA
  • Is Your University or College's Homepage Accessible to Prospective Students with Visual Impairments?
  • Legal Liability of Buying or Developing Inaccessible Technology
  • Reassignment and the ADA: Is It a Matter of Right and How Do You Prove It up?
  • Service dogs and the ADA
  • Should Your Law Firm's Internet Site Be Accessible to the Persons with Disabilities
  • The Americans with Disabilities Act and Employment
  • The Ins and Outs of Nevada’s Service Animal Laws
  • The Legal Universe of Internet Accessibility and What You Can Do about It
  • What is the statute of limitations for ADA claims

Blogroll

  • architectural accessibility
  • disability law blogspot
  • FMLA Insights Blog
  • labor and employment law blog (management)
  • Lawffice Space Blog
  • management employment law blog (California based firm)
  • Ohio Employment lawyer blog (Jonathan Hyman-management)
  • PLAINTIFF California labor and employment law blog
  • plaintiff employment law blog
  • Robin Shea's employment and labor law insider blog (management-Constangy, Brooks & Prophete)
  • Second Circuit civil rights cases
  • state sovereign immunity in Scotus blog
  • The blog for Supreme Court goings on
  • The employer handbook blog
  • Title III and Fair Housing Act Blog (defense)
  • Title III and II ADA blog
  • Title III blog business side (Seyfarth Shaw)
  • Workplace safety and health law blog

Greatest Hits

  • ADA and ADA Related Cases at the Supreme Court: Where They Have Been and What Is Next
  • ADA and the Applicable Statute of Limitations
  • ADA compliance auditing for higher education
  • ADA Compliance Is a Nondelegable Duty
  • Are public colleges and public universities immune from suit as a result of sovereign immunity in ADA matters
  • Can You Get Compensatory and Punitive Damages When Alleging Retaliation
  • Just When Does the Statute of Limitations BEGIN to Run in ADA Cases
  • Service dog v. Emotional support animal
  • Suing state court system for title II violations
  • Temporary disabilities and the ADA
  • What do you have to show to get compensatory damages under title II of the ADA
  • What does it mean to exhaust administrative remedies under title I of the ADA?
  • Why a recent US Supreme Court opinion is a huge victory for title I plaintiffs (mixed motive)

In the Media

  • ABA Blawg 100 2014
  • ADA and ADR
  • ADA Game Changer: CRST Van Expedited v. EEOC
  • ADA Litigation Game Changer
  • Auer Deference blog entry in SCOTUS blog
  • Blog entry discussing oral argument in Bostock, Zarda, and Stephens referenced in SCOTUS blog
  • Blog entry on Impact of University of Texas Southwestern Medical Center v. Nassar on the ADA
  • Blog entry on Judge Gorsuch on Disability Rights Linked to by SCOTUS Blog
  • Blog entry on Sheehan v. City and County of San Francisco
  • CBS money watch article discussing website accessibility litigation.
  • CRST Van Epedited blog entry referenced in over lawyered
  • Death Penalty and Intellectual Disabilities Supreme Court Opinion
  • Disability compliance for higher education interview on why colleges and universities should perform ADA compliance audits
  • Does title IIof the ADA/§ 504 of the Rehabilitation Act applied to employment
  • E-bay's Inaccessibility to the Deaf
  • EEOC affirmative action per § 501 blog entry referenced in March 2016 employment Law blog carnival
  • Employment Law Blog Carnival November 2015
  • Expert Interview Series: ADA Consultant William Goren on What You Need to Know About ADA Compliance
  • February 2016 employment Law blog carnival
  • Finding creative solutions within the law
  • Fisher II blog entry referenced in Scotus Blog
  • Fry oral argument blog entry referenced in Scotus Blog
  • Guest Post on Illinois Business Litigator Blog regarding My Burden of Proof When Dealing with Remediation Blog Entry
  • How Fry playing out blog entry referenced by Scotus blog
  • How the legal industry lets down lawyers with disabilities
  • Illinois business litigator blog featuring my blog entry discussing whether a corporation has a retaliation cause of action under the ADA
  • Impact of Abercrombie and Fitch Decision on the ADA
  • Interstate sovereign immunity in SCOTUS blog
  • Is the Texas House violating the ADA by refusing CART
  • June 2015 ABA Journal article on attorneys with disabilities and the preconceptions they face
  • Law practice today members spotlight
  • legal issues of buying inaccessible technologies article posted to the ABA green room
  • Legal pad radio show interview first run Wednesday, February 12 at 7:30am.; Re-airs at Saturday, February 15 at 3:30pm and Monday, February 17 at 9am
  • Legal pad radio show interview first run Wednesday, January 29 at 7:30am.; Re-airs at Saturday, February 1 at 3:30pm and Monday, February 3 at 9am
  • Legal pad radio show interview first run Wednesday, October 23rd at 7:30am.; Re-airs at Saturday, October 26th at 3:30pm and Monday, October 28th at 9am
  • Let's Talk About Arbitration blog entry and other entries featured on the Illinois business litigator blog
  • MH issues and the State Bar
  • Oral Argument in Sheehan v. City and County of San Francisco
  • PBS News Hour piece discussing accessibility of amusement parks for persons with disabilities
  • Reflections on the development of disability as a diversity concern in the legal profession
  • SCOTUS blog references Blog entry discussing the impact of South Dakota v. Wayfair on Internet accessibility litigation
  • SCOTUS blog references Endrew oral argument blog entry
  • SCOTUS Blog references Fry decided blog entry
  • SCOTUS Blog referencing blog entry that Reviews Supreme Court cases and the upcoming Supreme Court cases vis a vis the ADA/disability rights
  • Sevorson decision analyzed
  • Sheehan decision
  • Supreme Court on Auer Deference blog entry in SCOTUS blog
  • The Physics (and Economics, and Politics) of Wheelchairs on Planes
  • Trimble v. Kroger
  • Voyage Atlanta Profile
  • What's wrong with this job description blog entry featured in December 2015 employment Law blog carnival
  • When to grant more leave after FMLA is exhausted
  • Why ADA is a Good Law

Presentations of interest

  • ADA “Accessible” Websites: What Attorneys Need to Know
  • ADA Hot Issues: Essential Function, Attendance, and Reassignment
  • ADA Hot Issues: Pregnancy, Reassignment, and Legal Issues of Buying Inaccessible Technology
  • Don’t Let The ADA Bite Your Law Firm – Complying With the ADA Instead of Becoming a Target
  • Hot issues in title I and in title II of the ADA
  • Let's Count the Ways the ADA Impacts Your Law Practice
  • Understanding the Americans with Disabilities Act, Fourth Edition – Hot Off the Press – A Brown Bag Series

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