Since it was signed into law in 1990 by President George H.W. Bush, The Americans with Disabilities Act (ADA) has provided a framework to ensure access to areas of public accommodation. Since then, a cottage industry has developed in the plaintiff bar which focuses squarely on bringing claims against businesses alleging violations of the ADA. While such claims have developed nationwide, businesses operating in the Ninth Circuit—particularly in California—have felt the sharpest increase in the number of ADA claims. What constitutes a public accommodation has been the subject of focus by courts throughout the nation.
Wood, Smith, Henning & Berman has been assisting businesses -- ranging from small mom-and-pop shops to Fortune 500 companies -- navigate compliance and defense issues growing from alleged violations of the ADA. We understand the applicable local and state disability codes and are able to provide sage guidance and risk management to our clients. We represent homebuilders, real estate investment trusts, hospitality companies, financial institutions, health care providers, schools, public entities, and others charged with violation of the ADA.
Risk Management: Making Sure Your Business is ADA Compliant
Avoiding claims and litigation is paramount for any company. For a small business, claims can significantly impact the bottom line. With increased focus by the plaintiff bar on ADA compliance, there is a corresponding spike in ADA lawsuits. This means it is more important than ever to make sure all aspects of the business operation are complaint with the ADA. This potentially includes websites and mobile applications given the recent United States Supreme Court decision to deny a petition from a pizza franchise to hear whether its website and mobile application is required to be accessible to the visually impaired or blind, leaving in place a lower court decision against the company. While the Supreme Court refused to hear the case, it left open the door for a potential flood of ADA claims regarding the accessibility of business websites and mobile applications.
Litigation comes from all angles and we know the triggers to avoid the claim in the first instance. Rather than spend dollars defending against lawsuits brought by individual plaintiffs, the Department of Justice and/or and advocacy groups, the best practices are to ensure compliance with the complex requirements of the ADA and state regulations. WSHB is a leader in helping to avoid expensive and protracted litigation. Paramount to this analysis is a holistic evaluation from top to bottom. We regularly perform forward-seeking accessibility audits in view of developments emerging in the field from the plaintiff bar which ensures compliance with ADA standards for commercial and government facilities.
Wood, Smith, Henning & Berman has assembled some of the nation’s leading consultants to assist in the evaluation of risks posed to public and private entities in a cost-effective and expeditious manner. This includes a fully-rounded review of all aspects of our clients' operations to ensure compliance including:
- Potential barriers in public spaces which include restrooms, conference and dining areas, hotel accommodations, recreational elements and more
- Communications issues which are barriers to access. This includes auxiliary aids such as Telecommunications Relay Services (TRS), speech outputs, closed captioning, adequate accommodation of service animals, and Braille signage
- Cyber-related barriers, which are not subjected to standards articulated within the ADA but include access to digital content, websites, mobile applications, online reservations, ATMs and ticketing mechanisms. With emerging technology, this is an area that is continuing to emerge and vigilance is key
WSHB: Your Firm for ADA Litigation Defense
Since its inception, WSHB has successfully resolved over 1,000 claims involving clients who were alleged to have violated the ADA. We enjoy tremendous success in avoiding litigation and resolving claims early. When litigation ensues, we are strategic, creative, aggressive and take great pride in working closely with our clients to resolve the claims early. Where claims are incapable of resolution, we have a team of tested trial lawyers that stand ready to take the claim to the finish line. We understand litigation is not a profit center for the business, and is a drain on resources. Against that backdrop, our focus is to help chart the path to the most expedient and efficient resolution. In doing so, we bring a simultaneous focus on risk management and providing advice on how we can avoid future claims. Our lawyers are known nationally for their litigation skills and proficiency in all forms of alternative dispute resolution. Our experience base runs the gamut of defending businesses of all sizes, both locally and nationwide.
Part and parcel of the defense is risk transfer, where possible. WSHB lawyers shine in this area, as we understand contractual risk transfer and insurance. Our team can effectively evaluate and transfer the risk wherever possible contemporaneous with the defense of the claim. We are prepared to take the risk transfer issues to the end, seeking indemnity, subrogation wherever appropriate. This not only gives our clients confidence in the result, but also in making them whole when possible.
WSHB: Your Firm for Department of Justice Investigations
WSHB’s experience base includes successful representation in responding to investigations initiated by the Department of Justice. At first blush, these can seem daunting and overwhelming to the recipient, but WSHB lawyers are skilled at analysis and evaluation of DOJ issues. We take pride in our results resolving disputes, including negotiating consent decrees and voluntary compliance agreements. Typically, the investigation will allege active discrimination against the disabled which is serious to both the reputation of the company and its bottom line. We fully understand the import of responding quickly and thoughtfully to these claims in order to avoid larger issues.
DOJ investigations can be particularly overwhelming to the small business which is on the receiving end. In our experience, the DOJ is extremely proactive in its enforcement of the ADA regardless of the size of the business. Consequently, this underscores why compliance is essential. Steps should be taken to make sure compliance is met before the claim. If the claim is being investigated, WSHB can help navigate the issues. Our legal experience also includes assisting our clients navigate media issues and reputation management, often a vital piece of working hand in hand with the lawyers and company in the investigation and resolution of these claims.
- Early resolution of ADA cases for residential property owners and management companies which were alleged to have violated the ADA through barriers to public access in parking lots and spaces, routes to entrances, entrances, dining areas, visitor common areas and public restrooms
- National counsel for publicly traded international REIT handling compliance and defense for all commercial properties and senior housing facilities in the United States
- Provided legal guidance to senior living management company in responding to ADA investigation
- Defense verdict at trial for an employer alleged to have violated the ADA by terminating and replacing an employee, where the employee, without calling in or otherwise advising the employer he was sick, failed to show up at work for two months
- Early resolution of employment discrimination and retaliation claim pending in state civil rights agency based upon alleged violations of ADA in not accommodating a bartender’s Attention Deficit Disorder when testing employees on menu knowledge
- Successfully counseled client through ADA-required interactive process to accommodate claimed disability during the pendency of sexual harassment dispute, quashing the claimant’s transparent effort to multiply our client’s exposure in the pending sexual harassment dispute. WSHB successfully resolved the dispute entirely, forever foreclosing any allegations of ADA violations before any such claims became ripe
- Early resolution of federal lawsuit for claims of discrimination, retaliation, and failure to accommodate against large corporation after our client fired an employee on the basis of his disability in alleged violation of ADA
- Obtained defense verdict against engineering firm in case wherein it was alleged our client violated the ADA by falling to provide physical access. Successfully underscores to jury that alternative methods of accessing the restaurant were available
- Defended ADA cases brought by “serial plaintiffs” against national franchises and property owners. Case resolution also included contemporaneous risk management on modifications recommended to avoid exposure in the future
- Represented property owner in ADA claim, successfully transferring the entirety of the risk to the commercial tenant for all fees and costs associated with the defense of the matter through contractual risk transfer
- Defended over 50 financial institutions alleged to have violated the ADA by failing to comply with access of its internet and mobile application based tools. Resolution included contractual risk transfer, and complete dismissal for several of the institutions sued
- Successfully resolved ADA claims without payment for national convenience store franchise through agreement of compliance with the ADA and the ADAAG, Americans with Disabilities Act Accessibility Guidelines. Engagement included contemporaries risk transfer for fees incurred
- Successfully resolved ADA case involving claims of discrimination and inaccessibility as to online ticket sales
- Early resolution of ADA complaint alleging violation against online business which was alleged to have website accessibility issues
- Defended national homebuilder against complaints of physical inaccessibility which violated both California and federal law regarding ramp and parking for model homes
- Resolved claims against national real estate investment trust on claims of discrimination and failure to ensure effective communication to hearing impaired consumers
- Represented high profile restaurant in downtown Manhattan on the ground floor of a building constructed in the 1960s with narrow stairways, a basement bathroom, small seating space, and an entrance with small stone steps leading from a busy NYC sidewalk. We were able to resolve the matter, venued in federal court in the Southern District of New York, by partnering with the restaurant owner to craft an innovative, cost-effective solution to remedy the ADA violations. In doing so, we resolved the civil complaint and removed all potential exposure for our client
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