Articles Posted in ADA Compliance and Defense

Published on: January 20, 2022

ADA Defense Lawyer: A victory against serial plaintiff: The “Reservation Rule” Lawsuit Against California Hotel Dismissed

19 January 2022

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Serial ADA litigants are continuing to face challenges in the courts as dozens of cases alleging a failure to include accessibility information on hotel websites are being dismissed. Martin Orlick, Chair of JMBM’s ADA Compliance & Defense Group, describes one such case faced by a JMBM client below. This successful outcome is good news for hotels worried about Reservation Rules lawsuits.

Serial Plaintiff’s “Reservation Rule” Lawsuit Against California Hotel Dismissed

by
Martin Orlick, Chair, JMBM’s ADA Compliance & Defense Group

In another blow to serial ADA litigation against hotels, a judge in the Northern District of California has issued an opinion dismissing the case against JMBM client OCI, which owns and operates a Comfort Inn & Suites near the San Francisco International Airport.

Brian Whitaker, who has filed nearly 2,000 ADA lawsuits in the last two years, claimed that OCI failed to include enough detail in its online description of accessible features, violating the ADA’s “Reservation Rule.” JMBM filed a motion to dismiss on behalf of OCI, which was granted on January 6, 2022. This is the second Reservation Rule cases dismissed by this judge. The opinion is available here.

The Reservation Rule refers to ADA guidelines requiring that hotels include information about accessible rooms and features on their website, so that guests know before booking if they are able to safely and comfortably stay at the property. A hotel may be ADA compliant if it includes either a bathtub or roll-in shower, for example, but some guests may need to know which option is provided in order to determine if the room meets their needs. CONTINUE READING →

Published on: March 23, 2021

ADA Defense Lawyer: California’s Central District tries to curb ADA lawsuits

By JMM Global Hospitality Group®

23 March 2021

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California has seen an explosion of ADA cases in the past few years, leading the state to impose strict pleading standards and high filing fees for serial litigants. Litigants have previously found their way around this by filing in federal court, but the courts have made it clear that they will decline supplemental jurisdiction in these instances. Martin Orlick, Chair of JMBM’s ADA Compliance & Defense Group, explains below.

California’s Central District tries to curb ADA lawsuits
by declining supplemental jurisdiction
over state law claims

by
Martin Orlick, Chair, JMBM’s ADA Compliance & Defense Group

Declining to exercise supplemental jurisdiction, the United States District Court Central District of California (Central District) is addressing high frequency litigants who file lawsuits in federal court alleging violations of the Americans with Disabilities Act (ADA).

The Central District has been inundated with ADA lawsuits by California plaintiffs. According to its Minutes of March 8, 2021 noted in James Shayler v. JPMorgan Chase Bank there were 419 ADA cases filed in the Central District in 2013, constituting 3 percent of the civil actions filed. Fast forward to 2019, when in the first six months alone, ADA lawsuits comprised 24 percent of its civil cases (1,868 matters). ADA cases filed in 2021 are on pace for even more.

Similar numbers of ADA cases are being filed in California’s Northern District which has seen a significant increase in ADA cases alleging 28 C.F.R. Section 36. 302 (e) hotel reservation lawsuits. In an effort to curb or streamline the plethora of ADA litigation, the Northern District recently revised its General Order 56. CONTINUE READING →

Published on: February 16, 2021

ADA Defense Lawyer: Whitaker v. Tesla Motors – the end of cookie-cutter ADA complaints?

By JMM Global Hospitality Group®

16 February 2021

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For many years, businesses classed as public accommodations under the ADA have been the subject of “cookie-cutter” complaints that allege discriminatory conditions without providing any specific examples. Thousands of nearly identical complaints have been filed in federal courts nationwide, and their lack of detail makes it difficult for courts to provide a remedy that will prevent future harm. Martin Orlick, Chair of JMBM’s ADA Compliance & Defense Group, summarizes the recent decision in Whitaker v. Tesla Motors which may put an end to these fill-in-the-blank cases.

Whitaker v. Tesla Motors – the end of
cookie-cutter ADA complaints?

by
Martin Orlick, Chair, JMBM’s ADA Compliance & Defense Group

In a unanimous published opinion, the United States Court of Appeals for the Ninth Circuit (Ninth Circuit) affirmed the District Court’s dismissal of Whitaker v. Tesla Motors, for failure to state a claim of an action under Title III of the Americans with Disabilities Act (ADA). This case may have broad application for ADA defense lawyers because very similar “form” complaints are used widely in Southern California. According to the Ninth Circuit, these complaints are defective. There are literally hundreds, if not thousands, of virtually identical Complaints on Federal Court dockets in California and across the country.

About Whitaker v. Tesla Motors

Brian Whitaker, whose complaint states he uses a wheelchair for mobility, is a “tester” who visits businesses to ascertain whether their facilities comply with the ADA. Whitaker files lawsuits against those he determines are non-compliant, using complaints that are little more than a “fill-in-the-blanks” form.

In this case, Whitaker visited a Tesla dealership and alleged its service counters denied him full and equal access and “created difficulty and discomfort”. He further alleged that Tesla’s failure to provide accessible service counters prevented him from returning to the dealership. CONTINUE READING →

Published on: February 2, 2021

ADA Defense Lawyer: Hotels must list accessible features on the web or risk lawsuits

By JMM Global Hospitality Group®

02 February 2021

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As we’ve discussed in previous blogs, there has been an uptick in lawsuits filed against hotels alleging a failure to list accessible features on their website as required by the ADA. While many of these cases have been successfully defended in federal courts, new filings continue to surge and many plaintiffs are turning to state courts which have different requirements for dismissal. Martin Orlick, Chair of JMBM’s ADA Compliance & Defense Group, explains why we should expect these cases to continue in 2021 and what hotels should be looking out for.

Hotels must list accessible features on the web or risk being sued

by
Martin Orlick, Chair, JMBM’s ADA Compliance & Defense Group

We previously warned the hotel industry of the inevitable explosion of ADA website lawsuit filed against hotels. Well, that time is here.

In 2020, we saw a surge of lawsuits filed against those in the hotel industry, alleging the failure to comply with 28 C.F.R. Section 36.302 (e) of the Americans with Disabilities Act (ADA), which requires hotels to list their accessible features on their websites as well as on the websites of online travel agencies (OTAs) such as Travelocity, Orbitz, hotels.com, etc. We expect this surge of lawsuits to continue well into 2021.

Whether you are a national “flag” or the owner of a small portfolio of hotels, the 2010 ADA’s, C.F.R. Section 36.302 (e) applies to your hotel properties and websites. This section of the ADA has been effective since March 15, 2012 and requires hotels to describe accessible features in hotels and guest rooms offered through its reservations services in enough detail to reasonably permit individuals with disabilities to assess independently whether a hotel or guest room meets their accessibility needs. CONTINUE READING →

Robert Braun

Robert Braun is a partner in JMM's Corporate Department and a senior member of JMM's Global Hospitality Group® -- a team of seasoned professionals who have helped clients around the world with more than 4,700 hospitality properties worth more than $125 billion. Bob represents owners in both transactional and operational issues. He advises clients with respect to business formation, financing, mergers and acquisitions, venture capital financing, joint ventures and strategic partnerships. He has represented hotel owners in the negotiation of several hundred management agreements, as well as spa management and franchise agreements. Bob also advises hotel owners regarding telecommunications, software, internet, e-commerce, data processing and outsourcing agreements. To read Bob's articles, go to www.HotelLawBlog.com and select "Management Agreements." For more information, please contact Bob Braun at 310.785.5331 or rbraun@jeffer.com.

Marta Fernandez

Marta Fernandez is a partner in JMM's Employment and Labor Department and a senior member of JMM’s Global Hospitality Group® -- a team of seasoned professionals who have helped clients around the world with more than 4,700 hospitality properties worth more than $125 billion. As a management labor lawyer with more than 20 years of experience, Marta specializes in representing hospitality industry clients in all aspects of labor and employment including labor-management relations such as union prevention, collective bargaining for single as well as multi-employer bargaining units, neutrality agreements and defense of unfair labor practice charges before the NLRB. She defends employers in administrative and litigation claims, such as employee claims of sexual harassment and discrimination and counsels clients in preventative strategies such as executive training, arbitration enforcement, and policies and procedures. To read Marta's articles, go to www.HotelLawBlog.com and select "Labor & Employment." For more information, please contact Marta Fernandez at 310.201.3534 or at mfernandez@jeffer.com.

Guy Maisnik

Guy Maisnik is a partner in JMM's Real Estate Department and a senior member of JMM's Global Hospitality Group® -- a team of seasoned professionals who have helped clients around the world with more than 4,700 hospitality properties worth more than $125 billion. Guy's deep and broad transactional practice includes complex real estate finance and venture capital transactions, including project finance, commercial finance, leveraged leasing and real estate acquisitions. He assists clients with development, leasing and disposition, loan portfolio acquisitions, loan and debt restructure, workouts and real estate exchanges. Go to www.HotelLawBlog.com for current information in these areas. For more information, please contact Guy Maisnik at 310.201.3588 or mgm@jeffer.com.

Robert Kaplan

Robert Kaplan is a partner in JMM's Bankruptcy, Insolvency and Restructurings Group and a senior member of the Global Hospitality Group® -- a team of seasoned professionals who have helped clients around the world with more than 4,700 hospitality properties worth more than $125 billion. Bob represents lenders, special servicers, hard money lenders, community banks, national banking associations, distressed debt investors, and equity investors, positioning them for the best possible outcome by acting expeditiously to preserve value and increase cash flow. His industry experience and his knowledge of the current capital markets -- where distressed assets often include complex deal structures and securitized loans -- allows him to bring creative and effective strategies to the table. When aggressive litigation is the best strategy, he is a vigorous and effective advocate for his clients. Bob represented the securitized lender in the Chapter 11 bankruptcy case filed by the Clift Hotel in San Francisco, and in the subsequent negotiations and successful sale of the loan to a third party. The lender -- acting by and through GMAC Commercial Mortgage Corporation as special servicer -- was the holder of a $60 million loan secured by a Deed of Trust on the Clift Hotel. He has also served as counsel to CapMark, J.E. Robert Company, Inc., AMRESCO Management Inc. and Midland Loan Servicer in their capacity as special servicers on troubled hotel loans in CMBS pools. For more information, contact Robert Kaplan at 415.984.9673 or rkaplan@jeffer.com.

Martin Orlick

Martin Orlick is a partner in JMM's Real Estate Department and a senior member of JMM's Global Hospitality Group® -- a team of seasoned professionals who have helped clients around the world with more than 4,700 hospitality properties worth more than $125 billion. Marty specializes in representing hospitality industry clients in Americans With Disabilities Act (ADA) compliance and defense. He has represented more than 500 businesses in ADA issues, many of them hotels and restaurants, as well as hotel mixed-use properties. Marty is a member of the American College of Real Estate Lawyers (ACREL) and a frequent speaker on the ADA and other topics. To read Marty's articles, go to www.HotelLawBlog.comand select "ADA." For more information, please contact Marty Orlick at 415.984.9667 or morlick@jeffer.com.

Scott Brink

Scott Brink is a senior member of JMM's Global Hospitality Group® and a partner in JMM's Labor & Employment Law Department. Scott is a management labor lawyer with more than two decades of experience representing employers in all aspects of labor relations and employment law including union prevention, collective bargaining negotiations, defense of unfair labor practice charges before the NLRB, wrongful discharge litigation, individual and class action employment discrimination and wage-and-hour claims, sexual-harassment litigation, arbitrations, personnel policies, California wage and hour law, and employee discipline and discharge. An experienced trial attorney, Scott has litigated a number of high-profile and complex cases involving a wide range of labor and employment law matters. For more information, contact Scott Brink at RSB@jeffer.com or 310.785.5365.

Travis Gemoets

Travis Gemoets is an experienced trial attorney and represents management in all facets of labor and employment law, including wage/hour class actions, claims of discrimination, harassment, wrongful termination, trade secrets and unfair competition, union/management relations and workplace violence. He is a member of JMM's Global Hospitality Group(r), in which capacity he negotiates union contracts and resolves labor disputes throughout the country, defends class action claims, develops strategies for the mass onboarding and separation of employees, and recommends proactive changes to employers' policies and practices in order to minimize potential liability risks. Reach him at 310.785.5387 or tgemoets@jeffer.com.

Bennett Young

Bennett Young is a partner in JMM's Bankruptcy, Insolvency and Restructurings Group and a senior member of the Global Hospitality Group® -- a team of seasoned professionals who have helped clients around the world with more than 4,700 hospitality properties worth more than $125 billion. His clients include lenders, financial institutions, secured and unsecured creditors, distressed investment funds, businesses, receivers, special servicers and creditors' committees. Ben represented the owner of a partially completed multi-billion dollar resort property in the restructuring of its finances and has represented lenders to hotels and casinos. For more information, contact Ben Young at 415.984.9626 or byoung@jeffer.com

Sheri Bonstelle

Sheri Bonstelle is a partner in JMM's Government, Land Use, Environment and Energy Department, and a member of JMM's Global Hospitality Group®. She represents owners and developers in land use, zoning, environmental, litigation and construction matters. She manages all aspects of the entitlement process, including representing clients before local and state agencies, commissions and councils. Sheri also represents clients in a variety of land use and real estate litigation matters in state and federal courts, including cases arising under CEQA and other environmental laws. Her hotel experience includes handling the adaptive reuse of an historic office building as a luxury boutique hotel. For more information, please contact Sheri Bonstelle at 310.712.6847 or SBonstelle@jeffer.com.

Kevin McDonnell

Kevin McDonnell is a partner in JMM's Government, Land Use, Environment and Energy Department, and a member of JMM's Global Hospitality Group®. Kevin represents developers and owners of hotels in a broad range of land use and zoning issues including entitlements, code enforcement, easements and parking requirements, as well as related Parcel Map and Tract Map subdivision issues. His hospitality experience includes hotels, condo-hotels and mixed-use projects. A registered Civil Engineer and Structural Engineer in California, and a former building official for the City of Los Angeles, Kevin brings unique experience and insight in Zoning and Building Code applications and Code Enforcement issues. For more information, please contact Kevin McDonnell at 310.201.3590 or kkm@jeffer.com.

Jamie Ogden

Jamie Ogden is a tax lawyer at Jeffer Mangels Butler & Mitchell LLP. He advises individuals and businesses on a range of tax planning, tax controversy and estate planning matters. Jamie’s experience includes all tax aspects with respect to the hospitality industry, including acquisitions and dispositions (including Section 1031 exchanges), financing and management agreements. He also serves as lead tax counsel on M&A transactions, financing, internal corporate restructurings and deferred compensation matters. Jamie also works frequently with litigators on the tax aspects of litigation, judgments and settlements. Jamie has extensive experience with foreign compliance matters, including each variation of the IRS amnesty programs. In addition to his experience in private practice, Jamie also brings several years of service from both state and federal government. For more information, contact Jamie at JOgden@jeffer.com or 310.201.3510.

Jay Thompson

Jay Thompson has extensive experience representing private companies, business owners, family offices and investors in mergers and acquisitions, private equity and venture capital transactions and private securities offerings. Jay serves as general counsel to many of his clients, their management, and board of directors, helping to shape and execute their business strategies, facilitate growth and liquidity, as well as to advise them on day-to-day legal and other strategic issues. He is known for his practical approach to business issues. Contact Jay at JThompson@jeffer.com or 949.623.7258

Marianne Martin

Marianne Martin has nearly fifteen years of experience advising clients on a variety of commercial, financing, bankruptcy, restructuring and M&A matters, with a particular niche dealing with distressed and/or turnaround situations. Her clients frequently include private equity and hedge funds, independent sponsors, family offices, public and private corporations, financial institutions and banks, healthcare-related companies, municipalities and venture capital funds. She has represented clients in various capacities, including as borrowers/debtors, lenders, acquirers, and agents/trustees in negotiating and documenting complex commercial transactions, out-of-court restructuring transactions and advising on purchasing considerations in secondary market debt transactions. Contact Marianne at MMartin@jeffer.com or 310.201.3531

Trevor Countryman

Trevor Countryman is an associate in the firm's Real Estate Department. He advises clients in all aspects of real estate transactions including property acquisitions and dispositions, financing, leasing, development and construction. Trevor's clients range from large funds to individual developers and opportunistic investors, engaged in deals involving office, retail, multi-family, single-family, mixed-use and hotel properties. Contact Trevor Countryman at 310.201.3546 or TCountryman@jeffer.com.

Vanessa Han

Vanessa Han is an associate in JMM's Corporate group. Vanessa can be reached at VHan@jeffer.com or 310.785.5383

Vince Farhat

Vince Farhat is Chair of JMM's White Collar Defense and Investigations practice. Vince has extensive jury trial experience and focuses his practice on representing companies and individuals in criminal and civil investigations and prosecutions by government enforcement agencies, as well as complex federal litigation. He also advises companies in connection with complex and sensitive internal investigations. Prior to joining JMM, Vince served as an assistant United States attorney in the Major Frauds Section of the U.S. Attorney's Office for the Central District of California. Contact Vince Farhat at 310.785.5382 or VFarhat@jeffer.com.

Michael H. Strub, Jr.

Michael H. Strub, Jr. is a partner in JMM's Litigation Group and a member of JMM's Global Hospitality Group® -- a team of seasoned professionals who have helped clients around the world with more than 4,700 hospitality properties worth more than $125 billion. He is a highly skilled trial and appellate attorney who has handled high-stakes, complex commercial and business cases for 30 years including disputes arising out of hotel construction, lending, and bankruptcy. In addition, he has represented plaintiffs and defendants in business and commercial disputes in a variety of areas. Contact Michael H. Strub, Jr. at 949.623.7233 or MStrub@jeffer.com.