By Samuel G. Dobre, Esq. and Mallory A. Campbell, Esq.
Title III of the Americans with Disabilities Act (ADA) prohibits disability discrimination and ensures that disabled individuals have equal access to public accommodations. Some plaintiffs’ attorneys are abusing Title III’s admirable intent by “sticking up” businesses and lining their pockets rather than seeking to help the disabled. The ADA permits the award of attorneys’ fees to successful plaintiffs, which has created an incentive for some attorneys to file nuisance Title III lawsuits even when the plaintiff has suffered little, if any, monetary damages. These lawsuits are on the rise as the plaintiffs’ bar recognizes that it may navigate through new avenues of the law.
The trend of abusing ADA regulations and allowances began by focusing on physical barriers. The ADA Accessibility Guidelines are complex and must be rigidly followed, which makes it difficult for many establishments to comply with them. Complaints under the ADA have alleged miniscule violations such as a toilet paper dispenser being a few inches too high or too low.
The next wave of ADA lawsuits focused on websites. Thousands of lawsuits have been filed by blind persons alleging violations of the ADA because websites were not accessible to them. The latest trend of ADA lawsuits involves the failure to print braille information on gift cards. During the past few months, hundreds of class action lawsuits have been filed against restaurants, retail merchants, and other businesses claiming discrimination against the visually impaired or blind due to the unavailability of braille gift cards. At this time, it is unclear how the courts will respond to braille gift card lawsuits.
ADA lawsuits are mostly filed by a handful of the same lawyers. Typically, a few attorneys select one person with a disability to file hundreds of the same boilerplate complaint against different entities. Even worse, however, is an attorney who posed as a representative of disabled plaintiffs who weren’t his clients in order to profit from the ADA. In November of 2019, a New York lawyer living in Florida was arrested on charges of mail fraud, aggravated identity theft, obstruction of justice, and making false declarations to a court. From October, 2013 through May of 2018, this attorney stole the identities of two individuals and filed more than 300 fraudulent lawsuits under the ADA, falsely alleging that the individuals were unable to access certain public establishments. The two individuals were unaware of the ADA lawsuits filed in their names and had never visited the entities that were sued.
Businesses should ensure compliance with the law and get ahead of potential ADA lawsuits. Every business that operates a place of public accommodation or a website, or distributes gift cards is at risk of future litigation and should seek experienced legal guidance to best avoid and protect against ADA Title III lawsuits.
If you have any questions, please contact Bond, Schoeneck and King’s Labor and Employment practice: Samuel G. Dobre, Esq. at sdobre@bsk.com or (646) 253-2320 and Mallory Campbell, Esq. at mcampbell@bsk.com or (646) 253- 2339.
