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How to Deal with Shake-Down ADA Lawsuits

Americans with Disabilities Act ("ADA") was meant to protect persons with disabilities and their access to public places.  In California, the Unruh Civil Rights Act provides similar protection, and the California Building Code provides disability accessibility standards such as ramps, doors, counter height, handles, mirrors and the like,.  However, there are many vexatious plaintiffs and law firms who misuse ADA to target vulnerable small businesses with boilerplate complaints. These lawsuits coerce cash settlements putting many small businesses in tough financial situations. It may cost more than $50,000 to defend against an ADA lawsuit. Small family-owned businesses usually cannot afford the defense and opt into settling even frivolous claims. 

Recently, San Francisco and Los Angeles district attorneys filed a complaint against one of the most active ADA lawsuit filers Potter Handy LLP. The district attorneys' complaint attacks the abusive practices of ADA serial filers who have no genuine intention to return to the business after the access barriers are removed. 

While the district attorneys are fighting against the misuse of ADA lawsuits, small businesses should be mindful of ADA compliance. There are several methods to deal with ADA lawsuits.

PREVENT
  1. Before opening your business to the public, check the premises for ADA compliance. You can order a CASp (Certified Access Specialist property) inspection to check the premises.  
  2. If your business also uses a website or other virtual venues, check them for ADA compliance as well.

DEFEND
  1. If the business was sued, check all the facts alleged in the ADA complaint. If the filer is a serial filer, there is a chance that they are using a boilerplate complaint and some alleged ADA violations do not actually exist. Such allegations may be sanctionable. 
  2. If the ADA lawsuit was filed in a state court in California, check whether the plaintiff is a vexatious litigant without an attorney. The list of vexatious litigants can be found here. If the plaintiff is on the list and has no attorney, he should first obtain a pre-filing order before filing the ADA complaint. Otherwise, the ADA lawsuit can be dismissed. 
  3. Check for any other possible defenses, including lack of standing, frivolous claims, and procedural defenses. 

RESOLVE
  1. If the alleged ADA violations are true, try to negotiate the settlement amount down and as quickly as possible. The reason to hurry is that the violating party is usually responsible for the plaintiff's attorney fees, and the longer the case goes, the more is exposure.  When negotiating the settlement, keep in mind that though the ADA complaint may allege multiple violations and penalties under the Unruh Act, the plaintiff must mitigate his or her damages and not pile up the visits to the business in order to artificially increase the penalties.
  2. If you reach a settlement agreement with the ADA plaintiff, make sure the plaintiff quickly dismisses the lawsuit. Consider including the plaintiff's attorney's fees in the settlement amount to avoid additional motion practice on the attorney's fees motion.

Disclaimer:  This article contains only general information.  Please consult with an attorney if you have faced an ADA lawsuit. 

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