May 2011
Client Alert
Commercial Litigation
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
United States
+ 1 212 819 8200
White & Case LLP
633 West Fifth S treet, Suite 1900
Los Angeles, Cali fornia 90071-2007
United States
+ 1 213 620 7700
California’s Unruh Civil Rights Act outlaws discrimination based on, among other things,
disability. Unlike the analogous federal Americans with Disabilities Act, which affords only
injunctive relief, the Unruh Act also provides statutory damages to private litigants (of a
minimum of US$4,000 per violation), even without a showing of discriminatory intent.
As construed by recent precedent, the Unruh Act’s statutory damages provision may
create substantial legal risks to large California retailers, permitting more plaintiffs alleging
violations of the Act to survive motions to dismiss. A class action complaint alleging
Unruh Act violations filed this month against Office Depot in the Central District of
California follows recent settlements by Target and Burger King of Unruh Act class actions
for substantial damages and attorneys’ fees. This may indicate an unsettling trend for
California retailers, suggesting that the in terrorem effect of potentially expansive litigation
may force settlement of claims regardless of merit.
The Unruh Act provides that “all persons” in California “are entitled to the full and equal
accommodations, advantages, facilities, privileges or services in all business establishments
of every kind whatsoever.” Cal. Civil Code § 51(b). An amendment in 1992 specified that a
“violation of the right of any individual under the Americans with Disabilities Act of 1990
[which does not itself permit damages to private litigants] shall also constitute a violation”
of the Unruh Act. The California legislature has steadily increased the Unruh Act’s statutory
damages provision from its original US$50 in 1905 to its current minimum of US$4,000
per violation, as amended in 2001. Cal. Civil Code § 52(a).
Courts and commentators around the country have lamented the proliferation of plaintiffs’
attorneys who abuse the attorneys’ fees provision of the ADA by filing serial complaints
against small business owners hoping to secure quick settlements with minimal litigation
costs. The Unruh Act’s statutory damages provision has made California a prime jurisdiction for
the filing of such complaints. Such claims historically have been limited to individual actions,
making them of less concern to national retailers. Several recent court decisions, however,
appear to open the door to an increase in class actions alleging Unruh Act violations against
national retailers with a significant California footprint, exposing them to greater liability.
First, plaintiffs are not required to allege or prove intent to show an Unruh Act violation. The
ADA has long been interpreted to prohibit not only intentionally discriminatory actions, but
also “the discriminatory effects of architectural, transportation and communication barriers”
and the “failure to make modifications to existing facilities.” In Munson v. Del Taco, Inc.,
the California Supreme Court held that, by expressly incorporating ADA violations into the
Bell v. Office Depot: An Alarming California
Trend Seeking Aggregate Statutory
Damages in Disability Access Litigation?
If you have questions or comments
regarding this Client Aler t, please contact:
Dan Woods
Partner, Los Angeles
+ 1 213 620 7772
dwoods@whitecase.com
Earle Miller
Counsel, Los Angel es
+ 1 213 620 7785
emiller@whitecase.com
Jack Pace
Partner, New York
+ 1 212 819 8520
jpace@whitecase.com
John Rue
Associate, New York
+ 1 212 819 8380
jrue@whitecase.com
