CHLA Lodging News July/August 2021

6 CALIFORNIA LODGING NEWS www.calodging.com The Evolution of High-Frequency Litigants How CHLA’s ADA Protection Program Can Help Your Hotel By CHLA Staff CALIFORNIA IS A PIONEER IN the field of disability rights. Some of the policies developed during recent decades, however, are outdated and now being abused by serial litigants to the detriment of the disability rights movement, the legal system, and the business community. Designed originally to protect the rights of disabled persons, the California Disabled Persons Act (DPA), California Unruh Civil Rights Act (Unruh Act), and the federal Americans with Disabilities Act (ADA) have fallen prey to a small group of individuals and lawyers seeking to extract cash payouts from businesses, regardless of whether the business actually violated the acts. The underlying issue—abuses of disability rights legislation at the expense of the business community—is illustrated by this recent example: On Aug. 21, 2020, one high-frequency litigant alleged in court filings that he intended to stay in 16 different hotels stretching from Eureka, CA to Napa, CA (a distance of 258 miles, which is greater than the width of Switzerland), but was stopped because the websites failed to provide sufficient disability information. 1 Interestingly, this litigant alleged he was denied full and equal access to a hotel because of a website-accessibility issue, despite the fact that it was closed in response to the COVID-19 pandemic when he wished to book. California’s legislature headed off the issue in 2015 for construction-related lawsuits by allowing courts to classify frequent filers as “high-frequency litigants,” but failed to extend the language to website accessibility. Similarly, courts remain divided on the applicability of the Unruh Act and the ADA to website-related accessibility claims. While California courts generally defer to federal court interpretations of the ADA, various courts of appeals interpret the measure to hold significantly different meanings. The Ninth Circuit Court of Appeals held 2 in 2019 that the ADA (and thereby the Unruh Civil Rights Act) applied to websites and apps, while the 11th Circuit Court of Appeals 3 held last month that the ADA generally does not apply to websites. Now, plaintiffs in California who normally would be classified as high- frequency litigants and subject to the relevant restrictions are evading the statute by focusing on website-related disability access claims and bringing claims in federal court. While high-frequency litigants continue to prey on businesses and the applicability of accessibility statutes to websites remains in limbo, the disability rights movement and legal community remain at risk of being recognized by the general public as supportive of the excessive litigation and businesses remain exposed to litigation without clear standards. Due to the uncertain nature of these statutory interpretations, this issue will continue to pinwheel through the court system until additional interpretive clarity is provided by the executive branch, the legislative branch, or the U.S. Supreme Court. Though many will acknowledge that disability rights legislation is being abused, some do not take the abuses seriously. Charges leveled against hotels in the example above demonstrate disingenuous abuses of the ADA by the litigant, yet the litigant stands to win some of the cases because the hoteliers failed to respond to the legal actions. While CHLA and its national partners work to educate hoteliers and communicate with elected officials to implement changes to prevent the continued abuse of disability rights statutes, CHLA’s ADA Protection Program is the forefront of the business community’s ADA defense. This program specializes in defending hoteliers against serial litigants—and it works! To date, the program has won more than 70 ADA cases against serial litigators. In some cases, this program has gone above and beyond by winning court costs, monetary sanctions against the plaintiffs, and even obtained vexatious litigant orders (high- frequency litigant Peter Strojnik now is prevented from filing litigation without prior court approval in several federal districts, effectively stopping him from filing).  Though the ultimate goal is to prevent high-frequency litigants from abusing disability rights litigation in the future, CHLA’s ADA Protection Program is a resource hoteliers can access today. To learn more, visit www.calodging.com . 1. ADA Protection Program, California Hotel and Lodging Assn., https://calodging.com/resources/member- resources/ada-resources, (last visited April 23, 2021) 2. Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 902 (9th Cir. 2019), cert. denied, 140 S. Ct. 122 (2019) 3. Gil v. Winn-Dixie Stores, Inc., 17-13467, 2021 WL 1289906, at *2 (11th Cir. Apr. 7, 2021)