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How to Prepare for Losing an ADA Claim As a Business
Section III of the Americans with Disabilities Act (ADA) forbids you, as a public business, from discriminating on the basis of disability. If a disabled individual claims he or she was denied access to your facilities based on their disability, they may warn you and/or file a federal lawsuit.Common claims come about based on a lack of adequate handicap parking, improper building construction, and insufficient handicap services (e.g., handicap seating and handicap accessible bathrooms).Instead of preparing for a loss as soon as you are made aware of an ADA claim, attempt to avoid the lawsuit, try to settle, and take initial litigation actions to learn more about the claim.
Avoiding the Lawsuit
Check to see if you received a warning letter.Most claimants alleging you are in violation of the ADA will send you a warning letter before taking legal action. The warning letter will usually identify the claimant as well as their attorney. It may or may not detail the specific barriers that were encountered.
- As soon as you receive a warning letter, respond and tell the claimant and their lawyer that you are looking into the claim.
- If the demand letter did not specify what barriers were encountered, ask the lawyer to clarify. This is important so you can fix the problem and come into compliance with the ADA as soon as possible.
Avoid common misconceptions about ADA claims.When you receive a warning letter, it should trigger immediate action on your part. Do not get caught up in common misunderstandings about the law.
- For example, just because a building is old does not mean it is not subject to the ADA. In fact, all buildings that offer public accommodations are subject to the ADA.
- Furthermore, do not assume your landlord (or tenant) will be responsible for making the appropriate fixes. Under the ADA, both parties may be liable for violations.
Hire a lawyer.If you have received a warning alleging you violated Title III of the ADA, a lawyer can help you analyze the law and determine how to proceed. If you do not know any qualified lawyers, contact your state bar association's lawyer referral service. After answering some general questions, you will be put in touch with lawyers in your area. You need a lawyer who specializes in federal ADA defense lawsuits and negotiating settlements.
- A good lawyer will investigate the claimant's allegations and recommend a specific course of action.
Determine if the allegations have merit.In order for a claimant to successfully litigate an ADA claim, they will have to prove that they have a disability, that your business is a place of public accommodation, and that they were denied full and equal treatment because of their disability.
- In addition, if the allegations are based on architectural barriers, they will have to prove the barrier is prohibited under the ADA and that the barrier's removal is readily achievable. The removal of a barrier is readily achievable if it can be easily accomplished without undue burden or expense.
Contact a contractor to look over the premises.This will help you determine whether the claimant's allegations are legitimate.When the contractor visits your property, he or she will survey the premises and look for possible ADA violations. For example, the contractor might notice you are missing wheelchair ramps, doors wide enough to accommodate wheelchairs, bathroom stalls that cannot accommodate wheelchairs, or parking lots without sufficient handicap parking.
- If the contractor finds violations, make sure he or she makes a full list that you can have.
- If the contractor does not find any violations, respond to the claimant and inform them their allegations are unfounded.
Determine what modifications need to be made.Remember, if your building was built before 1992, the ADA only requires you to remove barriers that are readily achievable. You also do not need to make any modification that would create an undue burden or expense.While you should attempt to correct any violations you find, if you think removal is not readily achievable or that it would cause an undue burden, you might want to discuss these concerns with your lawyer.
- If you fail to make appropriate corrections, you may find yourself in the middle of an federal lawsuit.
Make the necessary modifications.If violations are found and you are required to correct them, voluntarily do so as soon as you can. Once modifications are made and your business is brought into ADA compliance, the claimant's allegations and potential lawsuit will be moot (i.e., there will be no more dispute). Some modifications will be cheap and can be done on your own. Other modifications may need to be undertaken by a contractor.
- For example, you might only have to fix signs in your parking lots, replace door handles, or install mat anchors.
- On the other hand, you might have to reshape curbs, expand your parking lot, or rebuild your bathrooms.
Notify the claimant of the modifications.Once the appropriate modifications have been made and you notify the claimant and their attorney, the violations claims should cease. If the claimant has filed a federal lawsuit, request that it be withdrawn, dropped, or dismissed immediately. As soon as you come into compliance with the ADA nothing else can be done to punish you.
Settling the Case Quickly
Read the complaint carefully.When a federal lawsuit is filed, you will be served with a copy of the plaintiff's complaint. The complaint lays out why you are being sued and why the plaintiff thinks you are liable. This document will provide you with most of the information you need to make an informed decision about the case.
- Have your lawyer investigate the plaintiff's allegations in the complaint and determine whether they have merit. If they do, he or she will most likely recommend you attempt to settle the lawsuit.
Prepare for typical ADA settlement issues.When a settlement is in your best interest, you and your lawyer should discuss what an acceptable settlement would look like. In federal ADA compliance cases, the most contentious issues include:
- What an appropriate settlement range is (e.g., the most you will be willing to pay to settle)
- Whether the settlement will be confidential
- Whether you will bring the property into compliance with the ADA as a condition of the settlement
Reach out to the other party.When you are ready, have your lawyer reach out to the plaintiff or their lawyer. Ask if they would be willing to discuss a settlement. If they are, find a time to sit down. During discussions, make sure your lawyer brings up each of the following, if applicable:
- You will comply with the ADA insofar as it is readily achievable and does not cause you an undue hardship
- Any settlement requires confidentiality, meaning the plaintiff will not be able to discuss the terms of the agreement
- You will not pay the plaintiff any money in order to settle
- Plaintiff's attorneys' fees will not be paid
Suggest mediation.If informal negotiations are unsuccessful, but you know your case is weak, take part in mediation. During mediation, a neutral third party will sit down with both parties to try and find common ground. The mediator will not take sides and will not voice his or her own opinions. During this process, make sure your lawyer knows what you are (and are not) willing to give in on.
- For example, maybe you will loosen what you consider to be readily achievable and therefore make more modifications. Maybe you will not require confidentiality, which means the plaintiff would be able to discuss the settlement after it is executed. Finally, maybe you would be willing to pay the plaintiff some amount of money as a part of the settlement.
Submit to arbitration in extremely limited circumstances.When you have a really weak case, arbitration can cause more harm than good. During arbitration, a judge-like third party will listen to each party's evidence and draft an opinion regarding what he or she would consider a fair outcome to the case.
- If the arbitrator's opinion is particularly bad for you, the opinion can be used against you in future negotiations. In addition, the plaintiff will use this opinion to help them prepare for litigation.
- Therefore, if your case is weak, do everything in your power to settle the case before it gets to arbitration. In addition, if you know arbitration would do you harm, do not submit to it unless you are required to by contract or law.
Litigating the Claim
Move forward carefully.Do not litigate an ADA compliance case unless you believe, at the outset, that you have a good chance of winning. When an ADA compliance case is litigated, you open yourself up to possibly having to pay the plaintiff's attorneys' fees, possible state attorney general investigations, fines, and possibly having to close your business for a period of time while you gain ADA compliance.
Prepare your defenses.If a federal lawsuit has been filed against you and you believe you are in compliance with the ADA, it may be in your best interest to litigate the federal case. Your lawyer will tell you how strong your initial case is after he or she analyzes the plaintiff's complaint and the facts surrounding it. If you and your lawyer can make any of the following defensive claims, consider moving forward with litigation:
- You are in full compliance with the ADA, which means you do not have any barriers to access and the plaintiff was never denied full and equal treatment.
- Your business's structure was built before 1992 and therefore you only need to remove barriers that are readily achievable. If you use this defense, you will have to show that any removal action is not readily achievable.
- Any possible modifications would cause you an undue burden and/or expense.
- The plaintiff never attempted to access your property and has no intention of returning.
File a response.Your response, which will normally be an answer, will need to be filed soon after you are served with the plaintiff's complaint (usually about 20 days). Your answer must lay out all of your defenses to the ADA claim and must also admit or deny all of the allegations in the plaintiff's complaint.
- Once your lawyer has drafted your answer, it needs to be filed with the clerk of courts where the plaintiff filed the suit.
Serve the plaintiff.The plaintiff must be notified of your answer after it has been filed with the court. To notify the plaintiff, you need to hire someone over the age of 18 who is unrelated to the case. This person, called a server, will personally deliver or mail a copy of your answer to the plaintiff and/or their lawyer.
- Once the server completes service, he or she will fill out a proof of service form and give it to you. You must file this form so the court knows that the plaintiff has been properly served.
Conduct discovery.During discovery, you will have the opportunity to exchange information about the case with the plaintiff. When litigating an ADA compliance case, discovery is an incredibly important step. It will be the first real opportunity for you to figure out how strong your case is. If, after discovery is completed, you feel like your case is not very strong, you should settle. Discovery gives you the opportunity to use the following tools:
- Depositions, which are in-person interviews conducted under oath. Take the plaintiff's deposition to determine whether he or she ever visited your business or whether they ever plan on returning. You can use this information to help build your defense.
- Interrogatories, which are written questions that must be answered under oath. Like a deposition, use interrogatories to build your defense and learn about the plaintiff's case.
- Requests for documents, which require the plaintiff to turn over documents not otherwise publicly available. For example, if you own a restaurant, ask the plaintiff to turn over receipts to get an idea of how many times he or she has been to your place of business. In addition, ask for medical documents touching on the plaintiff's disability.
- Requests for admission, which are written statements the plaintiff must either admit or deny.
File a motion for summary judgment.If you decide to move forward with the case after discovery, your next move will be to try and end the litigation before trial. To be successful in your motion, you will need to prove that there are no genuine issues of fact and that you are entitled to judgment as a matter of law. In other words, the court must be persuaded that, even if every factual assumption was made in plaintiff's favor, you would still win the case.
- If your motion for summary judgment is denied, it is another key indication that you might lose at trial. Therefore, use the time between having your motion denied and going to trial to try and settle the case.
Go to trial.If the case moves all the way to trial, you will have an opportunity to present evidence to the court to try and prove the applicability of your legal defenses. During the presentation of your evidence, you should get a pretty good idea of how the judge and/or jury is responding to your case. If you get the feeling you are going to lose the trial, you should consider coming into compliance with the ADA as quickly as possible. Under the ADA, if you lose at trial, the plaintiff can be awarded:
- Injunctive relief, which is a court order to do something.In this case, you will be required to come into compliance with the ADA. Money damages are not allowed in ADA compliance cases.
- Attorneys' fees, which you will have to pay to the plaintiff to reimburse them for the cost of litigating the case. This remedy is one of the biggest deterrents to litigating a case you do not think you can win.
Dealing with a Loss
Access funds you set aside for litigation.If you know you are going to lose an ADA claim, you need to prepare for and deal with that loss. One of the first things you need to do is round up available funds to pay for fines, attorney fees, and construction costs. Depending on the size of your business and the severity of your non-compliance, you may need to access hundreds of thousands of dollars. If you run a large business, funds will usually be set aside for these types of situations. However, if you own a small business, you may have to sell assets or take out loans in order to pay for your losses.
Minimize attorneys' fees.In ADA claims, the prevailing party is usually awarded attorneys' fees.The court will determine the amount you have to pay by using the "lodestar" method of calculation, which involves multiplying the number of hours reasonably expended on the job by the market rate for an attorney in your area. For example, if the plaintiff's attorney worked 120 hours on the litigation and the market rate for an attorney is 0 per hour, you would owe about ,000 in attorneys' fees.
- To help reduce the amount of fees you owe, make sure you review the plaintiff's fee application they give to the court. These applications will detail what an appropriate rate is and how many hours the attorney worked. Go through these documents and make sure the attorney is not charging too much or for too many hours.
- Ask the court to streamline hearings and other unnecessary litigation in order to cut down on the amount of hours the plaintiff's attorney will work. You may also be able to ask the court to require mediation or arbitration, which will greatly reduce the amount of work the plaintiff's attorney will have to do.
Fix problems quickly.If you are found to have violated the ADA, come into compliance as soon as possible. Courts can assess civil penalties against you for each violation the plaintiff proved. A single violation can cost you up to ,000 and multiple violations can cost you up to 0,000 per violation. However, these penalties can be reduced if you make a good faith effort and attempt to remedy the violations quickly and appropriately.
- Therefore, check the validity of someone's claim as soon as you are served with a letter or lawsuit. If the claim is valid, fix the problem immediately. This will help you avoid litigation and reduce the penalties you may have to pay.
Comply with attorney general investigations.When you are sued for violating the ADA, the attorney general of your state, or the federal government, may learn about your case. If this happens, the attorney general may choose to investigate the plaintiff's claims. If the attorney general believes a violation may have occurred, they will start a compliance review.
- During this review the attorney general will visit your business, interview people, assess your real estate, and determine whether a violation has occurred.
- Be honest with the attorney general and help them with your investigation. If a violation is found, fix it quickly. Let the attorney general know the violation was not intentional.
- In a lot of cases, working with the attorney general will allow you to get out of litigation and avoid large fines.
Apologize to every party involved.In most circumstances, your violation will not be because of some intentional act. When a violation is found, apologize to the complainant and promise to fix the problem as soon as possible. In most cases, admitting the loss will help deter the complainant from taking further action.
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