ADA Lawsuits on the Rise for Small Businesses

A recent Wall Street Journal article discussed the “growing number of disabled access lawsuits” that have appeared since a decision of the 11th Circuit Court of Appeals in the case of Joe Houston v. Marod Supermarkets, Inc. The Marod case gave its stamp of approval to disabled “testers” who spend their time visiting businesses and testing the businesses for compliance with the Americans with Disabilities Act.

Nolan Klein

Nolan Klein

In addition, the federal government has released detailed specifications for curb ramps, self-opening doors, and other structural amenities designed to accommodate persons with disabilities. Attorney Nolan Klein discusses the recent phenomenon and offers suggestions to small businesses.

There has reportedly been an increase of 55% in the filing of these disability lawsuits. Klein says the uptick is mostly attributable to the fact that the standards promulgated in 2010 have come into effect in 2012. Among these is the pool lift requirement, which is that any hotel or motel that maintains a swimming pool has to have a pool lift to allow a disabled person to enter and exit the pool.

The most common problem, in Klein’s opinion, is a lack of disabled parking spaces. The law requires a certain number of disabled slots based on the total number of spaces a business has and requires that the spaces be configured in a certain way and have compliant signage. Improperly configured bathrooms and lack of access ramps or aisles into a business are also very common problems.

Klein notes that small businesses don’t have in-house legal departments or sophisticated compliance officers, so small businesses are less likely to be aware of these requirements than big ones. Klein also explains that there is no notice requirement to any business that a lawsuit may be filed if the business does not comply. Congress has failed to require such notice, and Klein is not certain that such a requirement would be of much help.

Klein opines that most small business owners want to comply. His advice to small businesses is to go to the ADA Guidelines and figure out what is required.

Nolan Klein is a litigation attorney with an active practice in New York and Florida. Mr. Klein has won settlements and verdicts for his clients totaling tens of millions of dollars. Mr. Klein is regularly called upon by national news media, including CNN and Fox News, to provide legal commentary and analysis, and has been named a "Super Lawyer" by Law & Politics Magazine (an honor awarded to less than 5% of U.S. attorneys).  The Legal Broadcast Network is a featured network of the Sequence Media Group.

Oscar Pistorius Sentenced to 5 Years in Prison


Oscar Pistorius was sentenced to prison for five years on October 21 for killing his girlfriend..The sentence was for culpable homicide. Pistorius had previously been found not guilty of murder by Judge Thokozile Masipa, who sought to "strike a balance" with the sentence. Pistorius was also sentenced to three years on an unrelated gun charge. It is expected that Pistorius will serve ten months in prison and then serve the balance of his sentence under house arrest. The defense had been concerned for the safety of the double amputee in a South African prison, but the prison authorities say that he will be safe with them. See this LBN report for more on the Pistorius sentencing proceedings.

The Legal Broadcast Network is a featured network of the Sequence Media Group.


Trinity Industries Loses Guardrail Whistleblower Lawsuit; Attorney Walter D. Kelley Discusses $175 Million Verdict

A Texas jury in federal court decided Monday that highway guardrail maker Trinity Industries had defrauded the U.S. government by selling guardrail systems that could malfunction during crashes and slice through cars. The award of $175 million in damages will be trebled to $525 million, and the final award could go higher. Retired U.S. District Judge Walter D. Kelley, Jr., now a partner in Hausfeld LLP, discusses the case in this exclusive report.

Walter Kelley

Walter Kelley

Trinity Industries makes many of the safety guardrails across the country. Guardrail failures have already caused dozens of gruesome injuries and deaths nationwide. The lawsuit brought by Joshua Harman claimed that Trinity deceived the government by failing to disclose small but critical changes made to the original design.

Kelley explains that the litigation began when Trinity sued Harman for patent infringement. In the course of that case, Harman discovered the secret modification by Trinity of a critical part of the guardrail system that made the guardrail unsafe and non-conforming to federal standards. The jury decided that this was fraud.

Kelley points out that, per a memo revealed at trial, the design change produced a cost saving of $2 per unit, a total saving of $250,000 after five years. [Note: the modest cost saving brings to mind the Ford Pinto and the cost-benefit analysis that led to the production of that car in a form that was prone to cause burn deaths.] Judge Kelley notes that, in addition to the $175 million damages, trebled, the trial court will award an additional sum of $5,500-$11,000 per fault certification to the government, and the number of such certifications was estimated to be 16,000.

Kelley says that Trinity had plenty of notice that its guardrails were defective. There was evidence that there was testing by Trinity, and “these tests failed five different times.” Trinity knew that there were no problems until they made the changes, and then they began to get lawsuits for injuries and deaths.

What will happen next, Judge Kelley explains, will be several months of “legal wrangling” as Trinity moves to set aside the verdict and the plaintiffs will move for the court to impose the penalties and award attorneys’ fees. That will be followed by an appeal to the Fifth U.S. Court of Appeals.

Walter D. Kelley Jr. is a former United States District Judge for the Eastern District of Virginia and a partner in Hausfeld LLP. He has extensive experience representing both plaintiffs and defendants in disputes between businesses, particularly in the areas of antitrust, intellectual property and securities. As a lawyer, he has tried more than 25 jury cases to verdict. As a judge, he presided over thousands of cases encompassing all areas of the law and authored 50 published opinions. In addition to maintaining an active trial docket, he serves as a mediator and arbitrator for business related disputes. Among other organizations, he serves on the International Trade Commission’s panel of mediators for Section 337 (patent infringement) cases. The Legal Broadcast Network is a featured network of the Sequence Media Group.