ADA Compliance and Defense

Effective compliance programs and litigation strategies

JMBM's Americans with Disabilities Act (ADA) Compliance and Defense team has helped hundreds of business owners and operators nationwide to achieve enterprise-wide compliance with the ADA as well as state and local disability codes, and defends them in ADA lawsuits and Department of Justice (DOJ) proceedings.

We provide practical advice and current ADA information to the business community on our ADA Compliance and Defense Blog.

With one of the most active ADA defense practices in the country, we have defended more than 1,000 ADA and related accessibility claims for clients whose businesses are classified under Title III of the ADA as "public accommodations," including the following:

Banks and other financial institutions
Hotels and restaurants
Shopping centers, malls and retail stores
Apartment communities
Sports facilities
Stadiums and theaters
Educational institutions
Health care providers
Wineries

Our clients include single-property family-owned businesses as well as Fortune 100 companies with extensive real estate portfolios that include properties across the nation.

ADA Compliance Programs

Making your services accessible to persons with disabilities is good for business. It is also the law. Because disabled persons, advocacy groups and the DOJ can bring lawsuits against business owners to enforce compliance with the ADA, a significant part of our practice is devoted to helping clients achieve enterprise-wide compliance and avoid exposure to expensive litigation. We perform accessibility-compliance audits -- including system-wide audits -- that cover the 2010 ADA Standards for commercial facilities, including the following broad areas:

Architectural barriers and accessibility elements in areas such as parking, paths of travel, restroom facilities, guest rooms and pool access
Electronic and digital barriers to accessing websites, mobile applications, reservation systems, ATMs, electronic kiosks, event ticketing, and the evolving technology in these areas
Communication and service barriers including the lack of auxiliary aids and services like Telecommunications Relay Services (TRS), speech outputs, banking products, closed captioning and Braille signage, or accommodating service animals
Programmatic barriers that prevent disabled customers from full and equal access, services and accommodations, including inadequate policies, procedures and training programs for staff
Barriers at the planning stage involving prototype compliance assessments that identify potential barriers including barriers to the "bank of the future"

We have working relationships with the nation's best accessibility consultants, including California's top Certified Access Specialists, and we can quickly analyze your property and every aspect of your business for accessibility issues, make cost-effective recommendations, and develop the best compliance or litigation strategy for your situation.

When an attorney directs your ADA audit and compliance program, you get the added benefit of attorney-client privilege. All information gathered about your properties, policies and procedures remains confidential.

ADA Litigation Defense

JMBM's ADA team has significant experience in defending hundreds of ADA actions filed against businesses, including cases that have resulted in published decisions. We have successfully defended clients when Federal or California law does not support the allegations against them. Where violations exist and the plaintiff has standing, we advise our clients to address the access barriers and help them to settle cases expeditiously through negotiation or Alternative Dispute Resolution process.

Because we often find ourselves across the table from the same advocacy groups and lawyers, we are familiar with their tactics and have developed effective litigation strategies. We do not re-invent the wheel nor conduct needless litigation. Our experience has given us a very clear understanding of the legal issues under the ADA and related state laws.

ADA class action lawsuits are on the rise, including those that have been filed against banks, hotels, restaurants, retailers and other businesses. Our team has significant experience defending class action lawsuits and we know how to assess the merits of the case quickly and aggressively attack its weaknesses. We are always prepared to negotiate a settlement if it is in the best interests of our clients. Our willingness to take cases to trial, and our knowledge of the procedural issues that are specific to class actions, help us achieve the best results for our clients.

If appropriate, we can advise on matters of insurance coverage and possible indemnity claims against landlords, owners, tenants, design professionals, contractors and other potentially responsible parties.

Department of Justice Investigations

The DOJ is actively enforcing the ADA, and JMBM's ADA Compliance and Defense team has represented national banks and hospitality clients in investigations and dispute resolution across the United States, including negotiating Voluntary Compliance Agreements and Consent Decrees on their behalf. DOJ investigations should be taken very seriously and should only be handled by experienced lawyers.

Individual property investigations. A DOJ investigation of an individual property often begins with a customer complaint that is ignored or poorly handled by the owner or operator of the establishment. Matters commonly escalate if the customer files a formal complaint with the DOJ's Civil Rights Division. Complaints are actively investigated.
Geographic and industry-specific "sweeps." The DOJ has been known to institute both geographic and industry "sweeps," such as the New York City Times Square Hotel Sweep Panel and the Manhattan Restaurants ADA Compliance Initiative, which targeted the 50 most popular Zagat-rated restaurants in Manhattan. Owners of targeted establishments received a lengthy survey form from the Civil Rights Unit of the U.S. Attorney's Office, Southern District of New York (SDNY) to determine whether their establishments complied with the ADA. The majority of businesses completed the surveys and entered into Voluntary Compliance Agreements to bring their properties into compliance. Those that did not comply were sued by the government.
System-wide investigations. The DOJ has also initiated system-wide investigations of all the properties within a specific brand or company. The DOJ has litigated or otherwise negotiated Consent Orders or Decrees with leading hotels, retailers and financial institutions to bring all of their properties into compliance.

Reputation and Crisis Management

ADA lawsuits and government investigations typically involve allegations that your company discriminates against persons with disabilities. Businesses need to protect their reputations during these investigations and lawsuits, and our ADA lawyers frequently work with corporate communications departments to help manage reputation risk or to contain a potential communications crisis.

Buying or Selling a Business? Don't Forget ADA Due Diligence

The requirements of the ADA have created necessary areas of due diligence in the purchase or sale of a business, if it is classified as a "public accommodation". Along with the business, it is very possible for purchasers or investors to inadvertently buy an ADA lawsuit -- one that is underway, or one that is waiting to happen. On the seller's side, being non-compliant with the ADA can negatively affect the value of the property or business. We are experienced in taking buyers and sellers through the ADA due diligence process in these kinds of transactions.

Additional Resources

Read The ADA Compliance and Defense Guide - Understanding, preventing and defending claims and enforcement actions under the ADA (2015), published by JMBM.