News for the Hospitality Executive |
ADA Defense Lawyer:
By Jim
Butler
and the Global Hospitality Group®,
Author of www.HotelLawBlog.com February 16, 2011 The
hotel lawyers at JMBM's Global Hospitality Group® see a lot of ADA
cases and
believe the claims will increase tremendously in the next few years as
a result
of the current political climate, new regulations, higher priorities
assigned
by the Department of Justice, and passionate private litigants seeking
to make
the world ADA-compliant. We get
several calls every week from people served with new ADA complaints.
Most of
these hotel and restaurant owners just want to resolve the litigation
at the
lowest possible cost, including both the compliance cost and legal
fees. Of
course they don't want to be sued by another plaintiff on the same, or
similar claim
a week later, but that is a somewhat different problem that we also
deal with. JMBM's
ADA defense team has defended more than 400 ADA claims. We know almost
all the
plaintiffs, their strategies, their hot buttons, and their weaknesses.
We know
how to defend or settle cases with the least exposure to future claims
and at
the lowest all-in cost. Ruskin's
Common Law of Business Balance. We
think that John Ruskin had it right in his famous Common Law of
Business
Balance. I grew up looking at John Ruskin's words every day, because my
mother
had taped it on the door of our refrigerator. For those of you who
didn't have
this advantage, here is his famous quote: Common Law of Business Balance It's
unwise to pay too much, but it's worse to pay too little. When you pay
too
much, you lose a little money -- that is all. When you pay too little,
you
sometimes lose everything, because the thing you bought was incapable
of doing
the thing it was bought to do. The common law of business balance
prohibits
paying a little and getting a lot -- it can't be done. If you deal with
the
lowest bidder, it is well to add something for the risk you run, and if
you do
that you will have enough to pay for something better. John
Ruskin (1819-1900) How
Ruskin's law applies to ADA defense cases. Here is an actual case study that has
some important
lessons for us in how to handle an ADA case - or rather how not to
handle an
ADA case. When the defendant first called us about this case two years
ago,
based on our experience with this plaintiff, we know we could've
settled the
case for an all-in settlement cost (including legal fees) of less than
$50,000. Although
we substituted out of the case, we continue to receive notices of all
developments after that and followed it with considerable interest. We
were
shocked to see that the new defense lawyer and client permitted this
case to go
to trial. And we hated to hear that the client lost the case, incurred
huge
legal fees with a "cheaper lawyer" for taking the case all the way to
a judgment, and now is facing an additional $232,000 for plaintiff's
legal fees
that it will have to cover. We were also concerned about certain
precedents
that may have resulted from the trial court's ruling. A case study
in how not to
handle an ADA defense? Jim Butler
and Marty Orlick |
Hotel Lawyers When
sued by this serial plaintiff, the defendant Hotel made a good decision
in
contacting JMBM's Global Hospitality Group®, a team which has
litigated more
than 400 ADA cases for hotels, resorts, restaurants, shopping centers,
retailers, wineries and banks, We
had a pretty good idea of the litigation scenario that would unfold. We
also
had litigated with the plaintiff and her counsel before and we had a
good idea
of their strategy and tactics. Just as important, we had a relationship
and
credibility with them. They were aware that we knew our way around the
ADA
block and that they would have to come to a resolution early in the
lawsuit. Based
on our knowledge of this plaintiff attorney's typical game plan, we
warned the
defendant Hotel that if the case was not strategically managed, the
plaintiff's
attorneys' fees and costs would be astronomical. We presented the
client with a
comprehensive guideline for evaluating the case and coming to a
resolution
without litigation. Our
strategy involved an initial assessment of the architectural and
programmatic
access barriers at the Hotel and to put a resolution protocol in place.
The
first step was to contact plaintiff's counsel to meet on site and
establish
assessment and resolution protocol. Mistake #1.
This is where the defendant Hotel made its first mistake. After
considering our
strategy and resolution protocol, it decided that our hourly rates for
implementing the strategy were too high, and they decided to retain
counsel
with a much lower hourly rate, but also little ADA defense experience.
We
substituted out of the case. Mistake
#2. Then the
defendant Hotel and
its inexperienced ADA counsel decided to undertake an aggressive and
confrontational litigation posture. While resisting a "monetary
shakedown" and fighting back is an understandable emotional response to
these kinds of ADA lawsuits, a lawyer's job is to advise his or her
client as
to all available options and recommend a course of action based on
facts,
knowledge and experience. The client still makes the call. And in this
case, it
was the wrong one. Mistake
#3. Based on
our knowledge of
the plaintiff's counsel (who is very experienced in ADA claims) we knew
that an
aggressive litigation campaign was ill-advised, and that an
out-of-court
resolution was the most cost-effective for the Hotel. But the defendant
Hotel
and their bargain-rate attorney (with little ADA experience) took it to
trial.
An assessment of the architectural and programmatic access barriers at
the
Hotel, performed by a knowledgeable access consultant, would have
revealed what
the court found at trial: a number of access barriers existed at the
Hotel. The
trial judge heard the evidence and entered judgment for the plaintiff. The
result. The
court awarded the
plaintiff damages and attorneys' fees, expert fees and litigation
costs. The
Hotel now has to remedy the access barriers, pay damages and is on the
hook for
5 times more than the estimated total cost of the defense we initially
proposed. Not
surprisingly, the plaintiff's counsel filed a motion to be awarded
nearly
$250,000 in attorneys' fees, and the Hotel filed an objection asking
the court
to reduce the fees to a fraction of what the plaintiff is seeking. The
motion
is pending. Ironically, the inexperienced and lower billing rate ADA
defense
counsel for the Hotel asked us to file a declaration in opposition to
the
plaintiff's fee motion. What
is most unfortunate is that it was all avoidable. As
Ruskin said: It's unwise to pay too much, but it's worse to pay too
little. Understanding
the anatomy of ADA cases is critical in determining outcome. It can be
the
difference between early resolution and going to trial and losing. It
can be
the difference between paying the fees charged by an experienced
attorney for
an economical resolution and losing a court case and thereby becoming
liable
for hundreds of thousands of dollars in damages, remediation, and
plaintiff's
fees and costs. ________________________
Our Perspective. We represent hotel lenders, owners and investors. We have helped our clients find business and legal solutions for more than $60 billion of hotel transactions, involving more than 1,000 properties all over the world. For more information, please contact Jim Butler at [email protected] or 310.201.3526. Jim Butler is a founding partner of JMBM and Chairman of its Global Hospitality Group®. Jim is one of the top hospitality attorneys in the world. GOOGLE "hotel lawyer" and you will see why. JMBM's troubled asset team has handled more than 1,000 receiverships and many complex insolvency issues. But Jim and his team are more than "just" great hotel lawyers. They are also hospitality consultants and business advisors. For example, they have developed some unique proprietary approaches to unlock value in underwater hotels that can benefit lenders, borrowers and investors. (GOOGLE "JMBM SAVE® program".) Whether it is a troubled investment or new transaction, JMBM's Global Hospitality Group® creates legal and business solutions for hotel owners and lenders. They are deal makers. They can help find the right operator or capital provider. They know who to call and how to reach them. |
Contact:
Jim Butler
|