December 26, 2001
The Honorable Wally Herger
Member, U.S. House of Representatives
410 Hemsted Drive, Suite 116
Redding, California 96002
Dear Congressman Herger:
This is in response to your inquiry on behalf of your constituent, xxx xxx xxxxxxxx. He asks whether it is legal for potential plaintiffs to seek an out of court settlement of alleged violations of title III of the Americans with Disabilities Act (ADA) when he questions whether the potential plaintiffs are truly seeking any modifications to make the property more accessible. Please excuse our delay in responding.
Xxx xxxxxxxx received a letter from attorneys at the Frankovich Group in San Francisco, identifying alleged title III violations at his Days Inn Hotel in Yreka, California. In the letter, the attorneys explained their claim that there are an inadequate number of accessible parking stalls, no van accessible parking, improper signage, and that the hotel must develop a policy to hold rooms with accessibility features until all other rooms in the hotel are rented. The letter proposes a settlement rather than litigation over the identified problems, and recommends that xxx xxxxxxxx cooperate with the Frankovich Group rather than litigate.
Although we cannot be certain of all of the facts on the basis of your constituent's letter, this situation follows a pattern that has become familiar to us in which some law firms sent out warnings about threatened litigation in hopes of getting the respondent to fix the problems and pay attorney's fees to avoid litigation. It is impossible to know from the face of the letters whether your constituent has actual ADA violations at his property, but if the allegations of inaccessible parking and a discriminatory hotel reservations policy alleged in the Frankovich letter to your constituent are accurate, he should first correct the violations in order to protect himself from liability, and perhaps seek legal counsel to deal with the Frankovich Group. If xxx xxxxxxxx needs assistance in determining how to come into compliance with the ADA title III standards for accessible parking or suggestions about hotel reservations policies, he may call the Justice Department Information Line at (800) 514-0383 (TTY) for advice and technical assistance. In addition, he may consult our website at www.usdoj.gov/crt/adm/adahom1.htm for information and examples of prior settlement agreements in ADA title III cases.
Because it seems that your constituent is also concerned about the possibility that he might be sued or charged attorney's fees to settle, we recommend that he contact the State Bar of California at www.calbar.org if he wishes to complain about the attorneys in question or if he seeks a referral to an attorney to represent him with experience in this area of the law. If xxx xxxxxxxx has no ADA violations on his property or if he corrects and violations before litigation is concluded, it is unlikely that he would be liable for any attorney's fees pursuant to the ADA, although we do not address liability under California law.
The ADA does not authorize payment of attorney's fees prior to an adjudication and the order of a court. The ADA provides only, in section 505, that a court may award a reasonable attorney's fee, including litigation expenses, and costs to the prevailing party in a suit commenced under the ADA. In Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 531 U.S. 1004 (May 29, 2001), the Supreme Court addressed the question of when a party is the prevailing party for purposes of section 505 of the ADA, holding that a party must secure either a judgment on the merits or a court-ordered consent decree to qualify as a "prevailing party."
Xxx xxxxxxxx is under no obligation under the ADA to pay attorney's fees to settle with the Frankovich Group, but his hotel is required, under title III of the ADA, to comply with certain ADA accessibility standards. Xxx xxxxxxxx should provide appropriate parking spaces, including van accessible parking where required, as well as proper signage in order to avoid the possibility of future liability for attorney's fees.
We hope this information will be helpful to you in responding to your constituent. Please do not hesitate to contact the Department if we can be of assistance in other matters.
Ralph F. Boyd, Jr.
Assistant Attorney General
Civil Rights Division