By: Minh Vu, Kristina Launey and Susan Ryan
Employers need to be mindful that places of public accommodation (i.e., a business open to the public) are subject to Title III of the ADA, which brings a whole host of new issues and concerns to keep our readers awake at night. Our colleagues who blog about Title III developments are recognized subject matters experts on these topics and can assist should you have questions about Title III issues that might pertain to you. Please review their attached blog from earlier this month and watch that blog for ongoing developments in this increasingly visible area of the law.
If you had a suspicion that the Title III plaintiffs have been far more active in recent years, you were right. Our review of the federal docket shows that there was a 9% increase in the number of lawsuits filed from 2012 to 2013. What’s more, the number of lawsuits filed in 2014 may increase by nearly 40% over 2013 if the current trend continues.
Nationwide, plaintiffs filed 2,719 ADA Title III lawsuits last year, as compared to 2,495 in 2012. That’s an increase of slightly more than 9% year-over-year.
Where were the most complaints filed in 2013? California (995 claims), Florida (816 claims) and New York (125 claims). The high percentage of cases filed in California is no surprise because California has a non-discrimination law that provides for statutory minimum damages of $4,000. Plaintiffs filing in California almost always include claims under California law because their remedies under the Title III of the ADA are limited to injunctive relief and attorneys’ fees. (If you’re in Pennsylvania, beware: June 2014 saw a slew of physical accessibility class complaints filed by the same plaintiff, Christopher Mielo, and law firm, Carlson Lynch, against numerous businesses.)
Want to avoid ADA Title III lawsuits? Open your business in Alaska, Idaho, Montana, Nebraska, North Dakota and Vermont where no ADA Title III cases were filed in 2013.
Our research also shows that ADA Title III case filings may reach more than 3800 cases in 2014 — a whopping increase of 40%. Already, we saw approximately 1939 ADA Title III cases filed in the first six months of the year. We say “approximately” because the federal docket system, PACER, lumps Title II and Title III cases together under the category of “Americans with Disabilities — Other.” We obtained the 1939 number by assuming that 86% of the ADA Title II and Title III cases reported were actually ADA Title III cases. The 86% is based on our research department’s manual review of the 2012 and 2013 case filings to separate out the Title II and Title III cases. That review showed that 85-87% of the total cases reported by PACER in 2012 and 2013 were Title III cases.
If you want to drill down on our methodology, here goes: We ran a PACER search in federal district courts for nature of suit code 446, which covers non-employment ADA cases. We then went through the resulting list of case names, eliminating those that were clearly filed against public entities that would fall under Title II. What we had left were the Title III complaints for 2012 and 2013. We did not undertake a manual review of the 2014 numbers but, as explained above, applied the findings from the 2012-2013 review to the 2014 numbers.
We do want to give a few of caveats about these numbers. First of all, not all plaintiffs code their claims correctly. For example, some of the cases we checked to determine if they were Title II or Title III claims turned out to be Title I claims that were given the wrong nature of suit code. Secondly, there are some plaintiffs whose complaints are, to put it mildly, opaque in their intent. We decided not to count these as Title III claims, but someone else might have reached a different conclusion.
While our approach may not be bullet proof, we can safely say that the number of ADA Title III lawsuits are on the rise, propelled by cases concerning the accessibility of new technologies and the internet.