News for the Hospitality Executive
ADA Defense Lawyer:
By Jim Butler and the Global Hospitality Group®,
Author of www.HotelLawBlog.com
February 16, 2011
For the most
recent update on this topic, click here
hotel lawyers at JMBM's Global Hospitality Group® see a lot of ADA
believe the claims will increase tremendously in the next few years as
of the current political climate, new regulations, higher priorities
by the Department of Justice, and passionate private litigants seeking
the world ADA-compliant.
several calls every week from people served with new ADA complaints.
these hotel and restaurant owners just want to resolve the litigation
lowest possible cost, including both the compliance cost and legal
course they don't want to be sued by another plaintiff on the same, or
a week later, but that is a somewhat different problem that we also
ADA defense team has defended more than 400 ADA claims. We know almost
plaintiffs, their strategies, their hot buttons, and their weaknesses.
how to defend or settle cases with the least exposure to future claims
the lowest all-in cost.
Common Law of Business Balance. We
think that John Ruskin had it right in his famous Common Law of
Balance. I grew up looking at John Ruskin's words every day, because my
had taped it on the door of our refrigerator. For those of you who
this advantage, here is his famous quote:
Common Law of Business Balance
unwise to pay too much, but it's worse to pay too little. When you pay
much, you lose a little money -- that is all. When you pay too little,
sometimes lose everything, because the thing you bought was incapable
the thing it was bought to do. The common law of business balance
paying a little and getting a lot -- it can't be done. If you deal with
lowest bidder, it is well to add something for the risk you run, and if
that you will have enough to pay for something better.
Ruskin's law applies to ADA defense cases. Here is an actual case study that has
lessons for us in how to handle an ADA case - or rather how not to
ADA case. When the defendant first called us about this case two years
based on our experience with this plaintiff, we know we could've
case for an all-in settlement cost (including legal fees) of less than
we substituted out of the case, we continue to receive notices of all
developments after that and followed it with considerable interest. We
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
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
that it will have to cover. We were also concerned about certain
that may have resulted from the trial court's ruling.
A case study
in how not to
handle an ADA defense?
and Marty Orlick |
sued by this serial plaintiff, the defendant Hotel made a good decision
contacting JMBM's Global Hospitality Group®, a team which has
than 400 ADA cases for hotels, resorts, restaurants, shopping centers,
retailers, wineries and banks,
had a pretty good idea of the litigation scenario that would unfold. We
had litigated with the plaintiff and her counsel before and we had a
of their strategy and tactics. Just as important, we had a relationship
credibility with them. They were aware that we knew our way around the
block and that they would have to come to a resolution early in the
on our knowledge of this plaintiff attorney's typical game plan, we
defendant Hotel that if the case was not strategically managed, the
attorneys' fees and costs would be astronomical. We presented the
client with a
comprehensive guideline for evaluating the case and coming to a
strategy involved an initial assessment of the architectural and
access barriers at the Hotel and to put a resolution protocol in place.
first step was to contact plaintiff's counsel to meet on site and
assessment and resolution protocol.
This is where the defendant Hotel made its first mistake. After
strategy and resolution protocol, it decided that our hourly rates for
implementing the strategy were too high, and they decided to retain
with a much lower hourly rate, but also little ADA defense experience.
substituted out of the case.
#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
to all available options and recommend a course of action based on
knowledge and experience. The client still makes the call. And in this
was the wrong one.
#3. Based on
our knowledge of
the plaintiff's counsel (who is very experienced in ADA claims) we knew
aggressive litigation campaign was ill-advised, and that an
resolution was the most cost-effective for the Hotel. But the defendant
and their bargain-rate attorney (with little ADA experience) took it to
An assessment of the architectural and programmatic access barriers at
Hotel, performed by a knowledgeable access consultant, would have
the court found at trial: a number of access barriers existed at the
trial judge heard the evidence and entered judgment for the plaintiff.
court awarded the
plaintiff damages and attorneys' fees, expert fees and litigation
Hotel now has to remedy the access barriers, pay damages and is on the
5 times more than the estimated total cost of the defense we initially
surprisingly, the plaintiff's counsel filed a motion to be awarded
$250,000 in attorneys' fees, and the Hotel filed an objection asking
to reduce the fees to a fraction of what the plaintiff is seeking. The
is pending. Ironically, the inexperienced and lower billing rate ADA
counsel for the Hotel asked us to file a declaration in opposition to
plaintiff's fee motion.
is most unfortunate is that it was all avoidable.
Ruskin said: It's unwise to pay too much, but it's worse to pay too
the anatomy of ADA cases is critical in determining outcome. It can be
difference between early resolution and going to trial and losing. It
the difference between paying the fees charged by an experienced
an economical resolution and losing a court case and thereby becoming
for hundreds of thousands of dollars in damages, remediation, and
fees and costs.
is Jim Butler, author of www.HotelLawBlog.com
and hotel lawyer, signing off. We've done more than $60 billion of
transactions and have developed innovative solutions to unlock value
troubled hotel transactions. Who's your hotel lawyer?
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.
Lawyer: 5 Key Elements for Good Hotel Management Agreement Budget
Provisions / Jim Butler / February 2011
improving fundamentals make 2011 the year of "Great Expectations" for
the Hotel Industry / Jim Butler / February 2011
the Hotel Lawyer: 2011 is starting as the year of "Great Expectations"
for the hotel industry! / Jim Butler / January 2011
ADA Defense Lawyer: How a recent ADA case affects all hotels but
particularly conference centers and meeting hotels / Jim Butler /
Lawyer: So, You Think You Want to Buy a Hotel? For savvy investors, the
time could be right / Jim Butler / January 2011
Universal Hotel Sale Facilitated by JMBM's Global Hospitality Group®
/ Jim Butler / January 2011
York Times: Hotel Sector May Lead Economic Recovery / Jim Butler /
Defense Lawyer: California's Certified Access Specialist program --
Does it provide all of the intended ADA protections? / Jim Butler /
"Standards" Can Protect Your Hotel Mixed-use Assets . . . / Jim
Butler / November 2010
Lawyer: Checklist for Negotiating Hotel Management Agreements/Hotel
Operating Agreements - The HMA PRO™ Checklist / Jim Butler /
Continues for Hotels and Commercial Real Estate: New Data Suggests 8
year Downturn, Dismal Prospects and Increased Foreclosures / Jim
Butler / October 2010
|Atlas 2009 Year End Hotel Survey . . . and What it Means / Jim Butler / February 2010